on our calendar this morning is case number eighteen one o three nine united states versus i don't know how to pronounce the name so i'm not even going to try my name is howard pincus from the federal public defender and i represent is male mr does your was sentenced by state texas state court to get a two year sentence to begin two and a half years earlier because mr does your serve no time in prison on that sentence it was not a sentence of imprisonment under application no two to section four a one point two of the guidelines the district court therefore erred in increasing mr does your guideline range based on that sentence and this court should reverse for plain error application no two says that the qualifies as a sense of imprisonment the defendant must have actually served time on such sen but mr does your serve no time on his able to twenty second two thousand and five state court sentence he was not even arrested on that charge until april eighteenth of two thousand and five and the state court made that two year sentence begin to run on september sixteenth of two thousand and two more than two and a half years earlier so the sentence expired by its terms in september of two thousand and four if what happened was that mr does it was given credit for his earlier federal zero year custody on a federal charge in which he was held from september seventeenth two thousand and two until april eighteenth of two thousand and five and that's not what the state court directed the result is the same mr does it was not in custody on the state charge when he was held being held by the federal authorities as he was not even arrested on that charge until the federal term expired in april of two thousand and five under application no to the state's sentence was not a term a sense of imprisonment the district court there for erred in assessing it three points as a sentence of imprisonment of more than thirteen months although it was a prior sentence it should have received no points because it was outside the ten year time limit for prior sentences as it was imposed more than ten years before mr does your offense conduct in this case began guideline or statute is clear as an overhaul and lots of other cases and that's the case here the fifth circuit six circuit and the eleventh circuit have all followed the plain language of the guidelines and of the application and held that credit for it previously served sentence is not the set the service of sentence a certain service of the time in custody on the sentence  contrary decision in united states versus staples ignores the plain language of the application no the court the application note says in its first sentence again that the defendant must have actually served time on such sentence and that's inconsistent with the seven circuits reasoning that doesn't matter how or when the sentence is served the application know specifically directs that there must be service time in custody on the sentence at issue but the media isn't here immediately after we have the maybe problematic c for a one point two a three and b to its core suspended sentences and which is simply saying that to the extent that sentence involves suspended time that doesn't count as actually serve doesn't not hover over that first son and can we read the first sentence simply to say just that that suspended time doesn't  think you have to read the sentence by what the the actual words used by the commission the commission could easily have said that i was talking about suspended sentences it didn't say so it the usual function the citation is not to limit the sentence we have to take the commission at its word as to what it was saying and what it said was that there has to be actual time spent in custody on such sentence yes suspended sentences may be a time when least a fully suspended sentence where there isn't time spent in custody on the sentence what if i thought others what if i thought the same and i think possibly the sentencing commission never thought of this situation where a second core long after the fact would apply a sentence to want to already expire therefore none of this even pox about that the guidelines don't say one way or the other about that where would that leave your client well what that what this i think we still wind there because what the sentence you commissioned said was it not a general rule you must have served time in prison it drew a line the line was if you served time in custody on the sentence that issue it's a sentence of imprisonment there may be reasons times when you have been served less time in custody on that sentence and in those situations one of which is suspended sentences may be the most obvious one you it doesn't count as a sense of imprisonment but the sentencing commission chose to adopt a bright line general rule and that rule requires that there be a service of a sentence of imprisonment or  service of time in custody on the sentence that issue and that didn't occur here well we but those are the easy ones the ones that the sentencing commission would have contemplated the language just fits like a glove but then we get this outli r kind of bizarre world thing where we're applying sentences after the fact and i understand your argument says actually served so come on actually serve but is a really talking about that what i guess what i'm asking is if i thought at the end of the day after we study this over that the commission's language just doesn't apply to this situation nobody thought about it is there some rule that you can rely on to say well when it's in doubt under the guidelines the commission has not addressed something my client went well this one would be that we have conflicting we had two circuits before mr does your sentence that went our way and only one went the other way so if the commission had thought that the majority rule was wrong presumably it would have done something about it but it didn't but i think really the the the cleanest argument and the the right way to look at this is the commission chose to adopt a general rule it's not usually the function of a citation to limit that rule to say oh they only meant suspended sentences if they had wanted to do that they could have address suspended sentences there they could have it and in fact the guideline itself says talks about suspended sentence  only consider the unsuspended portion so it wouldn't have been necessary if that's all that it was doing and the commission spoke again in general terms and we have to take the commission at its word what about cruise the  to say it doesn't matter if you've served time before the sentence was imposed you don't have to then go to prison but it was linked directly to the sentence and that's a distinction that the other circuits have made the fifty six in the eleventh circuit where the the time spent in custody is directly linked to the sentence at issue or where there are concurrent sentences so you can be said to be serving both sentences at the same time then you are serving time on such sentence but you're not we're the time in custody expired was served long before the sentence was in the sense that issue was even imposed and here where there wasn't even a rest on the state charge until after the federal sense had expire and after the two year time from september two thousand and two to september of two thousand and four had expired so this court did not face that issue includes all cala all it was saying was if you served time in custody before we before the sentence was imposed on you getting credit for that that counts we have no dispute with that that's absolutely correct and you said it in your brief that the purpose of a citation it is not to delimit that the text itself your adversary says the opposite it didn't take very long to find a whole slew of cases in our circuit i think elsewhere where courts have said what you've said and courts have said what you're opposing counsel of said it's somewhat of a philosophical issue perhaps about what is the the utility what is the function of a citation as a chick a loss as your adversary argues on the meaning of the text itself or is it as you put it really it's support but it cannot limit or otherwise qualify actual meaning of the text preceding the site and if there's not clearer guidance in our present in our president on the on whether a site can shed a light on the meaning of the text itself isn't that a reason in itself to say that this may be an error but it's not an obvious error because of the cite to the guideline provision with no i think you'd go back to the general rules of statutory construction which is we look to the plain language and the plain language of that sentence is that there must be service of time in custody on the sensitive issue this is if the if that were somewhat ambiguous then might shed light on what was met but but the commission chose its words carefully and it said it has to be service of time in custody on such sentence there's no ambiguity where there is no reason to mr does your being in category four rather than category three and the usual situation is that if the wrong starting guideline range is used that it will be in effect on substantial rights there's even more reason to think that here than in the usual case because the district court tied its variant sentence to an offense level of ten and then used what it thought was the right range right category four which produced a range of fifteen to twenty one months and  sentence within that range to twenty months if it instead realized that mr does your was in category three at offense level ten he would be in the range of ten to sixteen months and there's every reason to think the court would have sentenced him within that range excises discretion when there is a plain error there feck substantial rights so this court should vacate mr does your sentence and remand for recent sing using the correct category from history category of three thank error in the court's assessment of criminal history points or the defendant's texas felony theft conviction there is a sentence of two years pronounced that's very clear there is nothing in the record to suggest it was suspended  it seems to be accepted even though the state judge was not quite explicit on the subject it's seems accepted was accepted below that essentially he was sentenced to time served there are a couple of points that mr pinkus has made that i want to respond to one of them is that this really doesn't make sense to say he served time on this texas conviction because he hadn't even been convicted of it at the time that he was serving the federal sens with all due respect almost all time serve sentences are that way and any court system you're in pretrial typically the ordinary case you're in pretrial incarceration answer the question and that's true i mean specifically they don't address time serve sentences even though they're routine in the criminal justice system but the rules set out in the guidelines do speak very clearly to the situation the new probe that ok go a server subject to the qualification you have to serve some time and the reasoning when we look at the application out which says it's not the time serve but themselves you have to serve something because otherwise it's not really a sense of incarceration i would which is true right well what he's can say is that if you if you quote what you just said and i can't do it but that you have to have actually served some time some time right on such senates on this on this saying he didn't actually serve ten seconds on this sentence and so if i had i had to struggle with the staples rationale that well hour on the of imprisonment on such senates he didn't well he didn't actually serve the second on this on this sentence well but he did judge and the situation is analogous to caen current sentences which what you can't see of me once again are a routine and if you have two sentences doesn't matter are different offenses doesn't matter if their state and federal are both the same system  routinely prisoners will serve them together in your so you're actually serving that time i hear it of time i one sentence the other one sits aside at a satisfied by that service they don't because the as judge bacharach son is actually served is plain english yes but i think the referral when they say actually served they mean you have to spend time on a sentence i mean because you could the we almost don't need to get there almost i think we do that this censor wasn't suspended there's no argument that it was and he did serve thirty one months and better all custody and the judge consider that to be time served on the state sentence but even if we go to the to the citations that you're talking about judge phillips concerning suspended sentences that portion of the application immediately follows or follow some distance as i recall the primary observation that it's the sentence pronounced not time actually served but then i say well i'm going to serve something they say see these guidelines  pertain to suspend it sentences and that's the only reference and the only qualifications on the over our king guideline principle that it's a sentence pronounced the maximum sentence not the time actually served and i understood mr pinkus to say well they could have spelled all of this out ok they could have but they didn't and the only qualification the only limitation the sentencing commission in fact listed was suspended sentences and that didn't happen here actually actually served and that's and granted i don't know of any case of says the time the words actually serve you know preclude concurrent sentences and i don't contend that they do but i don't think this is a concurrent sentence the sentence had expired well it was  of time that's a serious matter that's a big deal shouldn't we require something better and see this for a one point two one question we just focus on actually served and say it wasn't what's the harm because it's not clear well i've got to have a number of responses to that before i forget what your concern with the equity of the situation is a little i'm concerned with the language and what the commission meant by its plain language and then saying by that plain language it would make sense to me that there would be an equitable result or just let me address that what would make sense here what would be most consistent and implementing what the sentencing commission seems to want to accomplish here what we have is a fortuity we had this whole question arises because the defendant committed a number of serious or crimes around the same time in two thousand and two in texas because of that and the difficulty reading into the record of shuttle shuttling people back and forth the state just said time taken and they did this happens all the time and  service federal sentence and then they go back and say well we're not letting you off it's two years imprisonment or not it's and if you serve more time here ok and so we have this issue what if the defendant had committed his crimes on much different occasions very separate crimes also areas felony crimes we wouldn't have this problem we have a fortuity occasioned by the defendants now that he was trying to cause this i'm sure he wasn't thinking about it occasioned by the defendant's own criminal ass committed very close to law and he should not benefit from that but he had limited them further apart we have no problem and it would be no issue of circ two completely separate sound i know you have several other responses you were to get to and i don't want to interfere with that but how does that pertain how does that part of your answer pertain to just philip's concern with the word actually i mean it might be unfair but you know you don't have judges comprised of king solomon word actually well i wasn't specifically addressing the actually work here i was trying to adjust the judge address judge phillips concern with the equity of the situation and trying to swear what we're dealing with was suspended but my other position to try and get back with what obviously just backtrack and i know you judge phillips have an issue with what is actually i mean well he did if you mean sitting in a prison the judge went back later and said well ok we'll call a time served a time served sense and i think it's consistent with the cruise decision is is actually time served  an unrelated senates well it's slightly different but they do make clear that a time served sentence counts and here it was accepted below and i think the record supports that this was a time served and with all due respect that i don't think the wor actually reflects on a deep meaning by the by the sentencing commission and i don't think that they're saying he has to sit one place rather than another place which would be inconsistent with the current sentence practices  perhaps very briefly in my time left i should address the last two elements of the plane air review and i don't think it's necessary to get there because i'm there is not clear or there's a circuit split and by the way on the merits on the on the issues it basically is three three hundred fans side one the seventh circuit on the government side however on if we look a little more closely on the specific question of are the guidelines clear an obvious the split goes the other way i believe it was the fifth circuit in carlisle yes that said ok we're going to say this is error but it's not playing error because the guidelines simply aren't clear and there was no law on this circuit the eleventh circuit apparently in boots or apparently wasn't reviewing four for playing air but they said the language of the guidelines and i'm quoting here occasions a cause for pause and quote over what they mean so the other circuits even though they finally decided to go the other way on the merits said this is not at in this sentence is closely linked to the guideline range i would agree that it would need to go back not going to dispute that here but i think if we read the transcript it's very clear that the sentencing judge looked at the guy law and said well i don't like that i don't agree with this the guidelines increased greatly in during a one year period she said long going to use the old ones just you know to be lenient she then threw out also threw out on a point of and so the court really wasn't imposing a guideline sentence what she said in the record and i think it's page eighty nine of the record is to me the appropriate ranges fifteen to twenty months so actually fifteen to twenty one difference doesn't matter that's just the range she wanted and this is not the ordinary case where a variance is directly linked to a guideline she just said well i like th guideline range she's required to use the guidelines and i think there is record evidence this is not an ordinary case and that the defendant has not shown substantial probability that the guidelines weren't clear was it is what it said was we don't have precedent on this point and therefore it can't be plain under its law but this court doesn't adhere to such a strict requirement on pla if the guidelines are clear then there can be plain as and that's the case here in buter the eleventh circuit did say you know the guidelines occasion some pause but then went on it very clearly found that under the guidelines you had to actually serve time on the sentence at issue and that's what this is the six circuit said it hall that's the meaning it gives to actually emphasize the actually serve language and actually means that it's not deemed or theoretical nobody would have said that mr does your was serving satins on the state charges when he was in federal custody when no state charges had been brought up at that at best he was deemed to have served the sentence but that's not service on the sentence that the state court imposed long after the two year period has expired at best we have a deeming of the service of sentence and that's not actual service of the sentence which is the plain language of the guidelines so there is plain error here and this court should find that affected substantial rights and exercise its discretion and notice the air and  he was not serving the state court seconds when he was in federal custody from september seventeenth of two thousand and two until two years later when he was an even charged in the september of two thousand and four obviously when he wasn't even charged with the state of feds until april of two thousand and five at best we have the giving of credit which is the deeming of service a sense and that's not actual service of sounds which is what the application note plainly