lawyer at sensing was even given a chance to respond to that statement immediately after the news no statement by anyone that says well actually he did that there is a chance for that actually what you are throwing to is seventy one point three on the record in the court that stated that the court understood that the sentences could run consecutively organ crowing and the guidelines were advisory under booker is is the error that the government keeps referring to the fact that the district court here the district judge here used repeatedly the word recommending not withstanding the u s sees i think in rome yes steve what's your response to that that in the police hearing but during the sentencing hearing there is not enough information by the court indicating that they knew that this it is can run consecutively or concurrent work and in in the bernhardt case was referenced in our brief the it's a court order make it all concurrent and then furthermore in the johnson case there is information where the court indicated why they were making a concert but in this case as opposed to burkhardt there's that also on that date court sentenced a defendant to an additional sixty months on his violation of supervised release per starts to or rules of the violation of supervised release the sixty months are consecutive to the initials since so even there they say so in other words there is an amount there's an amount of confusion and there's nothing on the record that indicates that the parties knew that he should be ran if used to be reckoned secondly or concurrently that the guidelines were not even it's not completely clear if the statement so during sentencing there's a portion where where the prosecutor says the violation of supervisor always should run concurrently run should run consecutive honor does but when but when we talk about but when we talk about it that that's a situation where it should be look where where there's nothing on the record to indicate that the court understood matthew hagan's i represent the united states here today i represented the government at the time of the plea this case asks whether an experienced sentencing judge who had imposed multiple criminal sentences upon this to find  over the course of the last two decades committed plain and reversible error under the mistaken belief that she was required to impose a consecutive sentence as to the v o s r the district court committed no such error based on the record in this case and the judgment should be affirmed the district court telegraphed at the time of the plea that she understood she had the possibility and the authority to impose a consecutive sentence on the v our believe the quote is back to the defendant's counsel at the time you understand that doesn't mean that it will be concurrent counsel indicated that he understood and the district court followed up and your client understands that it doesn't mean that will be concurrent  and that it was up to the court and the record is clear as of the time of the plea the district court also articulated plainly on the record at the time of the imposition of sentence that in imposing a consecutive sixteen month sentence she was following the recommendation of probation that recommendation is contained in the v o s r report which states quite clearly that the sixteen month consecutive sentence is a recommendation and that it's consecutive nature while recommended in the appropriate guidelines is not binding upon the court rd and specifically in response to the contention that no one corrected the record following the assist the united states attorney's erroneous statement that the law required a consecutive sentence the transcript of sentencing reflects the district judge immediately responded by saying that is what probation recommendation that is what probation is recommending that takes us back again to the of us are that i just mentioned that recommendation on its face stated this is a recommendation by definition it's not binding it's not obligatory upon the district court for those reasons and for all the reasons that in our papers the judgment should be affirmed if the  briefly judges there's not there was not enough information on the record in this case in order to indicate that the court understood whether or not this could be consecutive or concurrent the last thing that was said with regards to this during the sentencing hearing was the prosecutor indicating that the cases had to run consecutively no one no one corrected that particular  when you look at the johnson case that we referenced in our brief where the court indicated the court spelled out the circumstances and facts that during the sensing hearing that led to the court again a consecutive sentence