it's number two thousand and eleven sixty four fourteen versus the united states of america are not to exceed fifteen minutes or s you thank your honour's and may it please the court i am fred lou and i am court appointed counsel for the appellant lands foster in this case the government has already confessed error it agrees that counts four and five violate the double jeopardy clause as prohibition on multiple punishments for the same offense so there is no dispute that this court should vacate those counts the dispute lies in what this court should do next and under section twenty one zero six of title twenty eight it's this court's obligation to decide whether it's appropriate to vacate the rest of the judgment and that decision turns on what in the words of the statute would be quote just under the circumstances circumstances and quote and here under the unusual circumstances of this case of a could sure of the rest of the of the judgment of the judgment would be not just for two reasons first the only possible basis for vacating the rest of the judgment would be to let the district court take into account the vacant chair of counts four and five for that basis is invalid because it would simply repeat the double jeopardy violation that got us here in the first place any increase of the existing sentences on re manned to make up for the big picture of counts form five would be just as cumulative as the counts themselves you have an argument that's not constitutionally based do seem stronger to me absolutely even if even if this court believes there is no constitutional problem there's still shouldn't be a vacant chair of the rest of the judgment because the sentences here are not enter dependent that the sentences have to be interdependent for they could sure of the rest of the of the judgment to be appropriate you know mister i'm not sure whether my colleagues agree with me but i find that argument strong but i i wonder  whether it isn't so strong that it's against your client's interest to be arguing and this is what i mean it's if the is the only changes that there is so there's less basis for the concurrent sentence wouldn't the logical thing for the court to do if it had the power would be to reduce the sentence and similarly for in addition isn't i don't know whether your client has been a good person well confined but if so you could you could make those kinds of arguments and try to get a reduction so the i can't get into the mind of the district judge too much but you would think that if anything the judge would be lowering it rather than raising it well are maybe your your concern that he might raise it is causing you to to to steer away from the possibility that he might he or she might lower it who suggest before  judge greer might lower it you see what i'm saying i do your why is it that you're so concerned about what's less likely well my current going what might be more likely when my my client's concern is about any possibility of the sentence going on i mean these are months and years of his life that are at issue and just like any other client he is concerned about the adverse effects of even a small risk on remand so that it might be a small risk  more concerned about small risk of an additional sentence than he is about the possibility of a reduced sentence and you've discussed that with him absolutely and it says concerned that when cancer vacated  there is an inclination for better or worse to reimpose those sentences on remand of course if this court were to open the door to resentencing without any further limited instructions on remand the defense sentencing would be dunno but the question this court is facing right now is whether to open that door at all and the standard we don't want you to and the standard your client doesn't want us to that's correct would you agree that the issue before us is truly back down was whether based on this sentencing transcript it appears that the district court subjectively in a sense  did or didn't rely upon or take into account the fact of the vacated census in determining the length of the other census that's right it is a question and my best proof of that is and page sixty eight of the sentencing transcript where exactly in the district court it was actually my client's admission that the court that the district court view of the sentences as a single sentencing package it was our argument that the court should impose a banana touring minimum on the drug offenses to take into account the fact that mr foster was going to receive a mandatory consecutive thirty year sentence on the gun charges so we were actually party in the discourse arguing for an interdependent interlocking single package sort of view of the sentences and the court rejected that out right it said it wouldn't be appropriate for the court to take into account  he therefore i read judge greer's comments in that regard differently it just seems to me that what your degree was saying was is that the criminality which is represented by the conviction and count one needs to be punished under the thirty five fifty three factors recognizing that the guidelines of the starting point i don't read anything more into that than that and you obviously feel differently well i think it would have been easy i do feel differently i think it would have been easy for the district judge to have said well look i'm not going to give you the mandatory minimum there is still some seriousness to these drug charges but what i'm going to do is i'm going to take off a little bit from those drug charges to take into account with your argument be stronger in this regard to give you a variance on downward absolutely because that would that would reflect the argument that we submitted in the district court will do so why is it so judge greer's conclusion to give low end of the guidelines in other words using that as a starting point apparently found no reason to vary or deport and in the context of having to give your client three hundred sixty months on the gun counts gave the low end of the guidelines why shouldn't judge greer be given the opportunity this way given the fact that i don't have to give him three hundred sixty months on the gun counts i'm going to give a middle guideline range sentence on count on e because that's sufficient punishment under the under the circumstances well it's it's because it's the government's burden to prove that that is what judge greer was thinking it's certainly possible for a district judge to take that view of the sentences but the issue before this court is whether the record reflects that and whether the government has met its burden of proving that that's a consequence of the supreme court's decision in u s bancorp which makes clear sentences in the way you just described as maloney there's nothing in this sentencing transcript that indicates that and i think that i mean i don't know about the word nothing and this is parsing transcript pretty closely but i mean judge greer on page sixty eight says it would it also would not be appropriate for me to simply look at the thirty years that he's got to do on these counts and he goes on to say i frankly don't feel like it's appropriate for me to consider that in that way and i mean why couldn't one argue that judge greer what he's actually saying is not that he's going to put the thirty years out of mind altering yet but that the third what he's rather saying is that thirty years judge greer if that's what he was thinking to set it in that very paragraph and said look i'm not going to simply look at it but i will take it into account a little bit i do accept the merits of your argument mr foster to some extent but in a seventy page transcript judge greer made no mention of that fact the best indication we have in the transcript is his rejecting and interdependency argument and i don't think that basis this court can conclude that the government has i guess i was a little puzzled in this excerpt that we've been parsing he says this doesn't cause me to impose the minimum on the drug count but then he turned around and posed the minimum on the drug count anyway imposed a sentence that is still quite substantial i'm confused because the judge alone he said that it was a minimum so what the guideline meant guideline minimum is what i was referring to oh and this is the utah and do you think here he's talking to the judge talk about the statutory minimum that's correct and that's i clear that was your argument was to go down to the statutory minimum that's correct and that's clear in context if you look on page that would have been a variance to impose that minimum exactly  so he's basically saying and so on to grant of a area it's on the drug count but i'm not going to he's not going to and he did that in the face of an argument that asked any two of you  morning they please the court i'm luke mclaurin here and we have the united states government agrees with the defendant that counts for and five should be vacated and double jeopardy grounds however because the district court in this case crafted a total sentencing package which was designed to take into account all of the defendant's relevant criminal conduct the proper remedy in this case is a remain for re sentencing as to the non bigoted counts so that the district court in its discretion can determine whether of the sentencing package is needed in order to effectuate the district court's original sentencing intent mr mcqueary not i want to ask you the opposite of the same question i asked your opposing counsel i'm kind of surprised you are hearing this because it's hard for me to see why logically the judge would do anything other than do what he's requesting or give a lower sentence i mean there were concurrent sentences of one of which is thrown out wouldn't that if anything suggest that that concurrent sentence would be less rather than more i mean if you have two what is it one hundred twenty trying to see consecutive terms of sixt one hundred twenty months on counts four and six and one of those was thrown out so now it's under twenty months on one of those but not the other right if that were all you have the only logical thing to do would be to give less rather than to give more you have one less it would make sense to increase the logically i'm not saying whether it's legally allowed in the constitution but logically it would make sense to give a greater sentence when there's fewer counts that are concurrent with it what will it might it might your honor but the point here is our position is not based on any sort of prediction that the district court is going to go higher going to go lower in fact we acknowledge i'm asking i'm trying to ask in a kind of indirect way how it's possible logically to give a greater sen and see how it's possible logically when you have two aspects that are thrown out one is a concurrent sentence and throwing that out only lessens the basis for whatever that concurrent sentence was and the other is a three hundred six three hundred month edition which when taken away reduces the guidelines by the exact same amount yes but and which the judge has that is your court might do something different i think it gets at the whole idea of what's going on in sensing in this is a sentencing package is the district court is looking at all of the sentences that are available to it and trying to just take the concurrent part you'd have to agree that there's no sense to giving something higher if you had a hypothetical sentence where where you were given one hundred twenty months for three crimes and one of them gets reversed or one of them is double jeopardy whatever it is and now it goes back for recent saying on the two crimes it's illogical even if permitted then to give a higher sentence when there's just less when you say it with regard to that in that i pathetically perhaps judging that how could it perhaps not have concurrent sentences and we don't know what  the answer sure instead of perhaps i don't understand it depends open ended up towards original sentencing intent what is and i would think it's very likely that in that case what you're going to have is simply a of the same sentence imposed i think in this case though you have to look at the fact that there is a second one twenty four c and what and i think there's been a lot of mischaracterization of what actually happened in the sentencing transcript i think if you look very carefully what was i haven't done so well and i want to i want to parse this very carefully because i think it's important to the resolution of this question the argument the defendant had made was look i'm facing a mandatory minimum of thirty years on the tonight twenty four cs and i have a mandatory minimum of five years on the drug counts and just just give me just give me the mandatory minimum and what judge said is i'm not going to do that because i don't think that satisfies what i have to do under thirty five fifty eight which is give a impose a sentence that sufficient but not no greater than necessary and if you look at what he says the reason he says he doesn't think that the five year mandatory minimum is enough he says it doesn't clear that i'm reading from the top of page fifty six sixty eight page i d number twelve seventy one of the sentencing transcript it doesn't clearly take into account the seriousness of the offense nor does it take into account the violent nature of the circumstances the fence the kidnapping the robbery the beating the use of a firearm although that is taken into account but the other mandatory minimum i would suggest that that comment right there in the case that what the judge is trying to do is figure out a total sentencing package he's he's accounting for the fact that yes there are mandatory minimums at place here and i think that suggests that because there was a mandatory minimum he's ruling here what he's saying is thirty five years isn't sufficient for this defendant well why does in this passage hurt you i mean he's saying look these mandatory minimums don't take into account the seriousness of thirty three as these other counts and so he presumably already has done that this sentence so why would we send it back to him to sort of do that again i mean the dischord if we take him at his word he's already done that thirty five fifty three as to the remaining counts why should we just leave it there he's saying that he's trying to craft a know the words total sentence or package anywhere i mean is that is packaged in this transcript somewhere totals oh well there's a total sentence for part is in is in the transcript at the end where he explains you know for an effective sentence of six hundred twenty two months you see that he's trying to construct a sentence in a certain way to arrive at a total sentence the issue of what does it use this language and i want to clarify one legal point that if anyone suggests that it's somehow our burden to show i mean let's let's talk about my question ok why doesn't this transcript suggest that he's already done the thirty five fifty three as to the remaining counts and that you therefore maybe you're right maybe not but that the government has in combination with a five year mandatory minimum simply it requires me to ignore the seriousness of the drug charge so i think what what's best being read here is not that issue court saying i'm considering these sentences independently he's just rejecting an argument that thirty five years is enough he's saying it's not sufficient for our point is he ultimately determines the six hundred twenty two months is no greater than necessary under thirty five if there is now part of that calculus i mean he knows when he's reaching that determination that he's got me into torry thirty years so our point is that if the judge knew that he didn't have a mandatory thirty years he might have structured the sentences differently and i think that sentencing transcript indicates the what then president well i mean it is then in admittedly because it's an unpublished opinion but the court does say you know and should remain and and i think if you look at the two thousand and twelve opinion i'm talking about the two thousand and twelve opinion yes i  one where we found in the internet and a presumption would be news to me and i wrote that well i'm i'm referring to the second decision the one that you didn't write one but the first one was the government here that's the one where we made the should remain the case for reset and sing on the remaining counts and that's what we're relying on and that that ordinarily should that makes it a presumption that's not the that's our argument is that generally that there is we can look at the record find that it's  ordinary and that case is no longer compelling us to to do this i can see that we have the power to do it i'm just wondering whether in our good judgment suggests that we should record let me clarify our the government's position the government's position is that when you have a situation with interdependent sentences with interrelated sentences with senses of form part of a same sentence in package there's various language uses cry but when you have that situation the best and most appropriate course for a court of appeals  might be larger so the real issue here is the three hundred mines and i agree with you judge wright right so in the three hundred months is powerful though because he's giving us a big sentence that includes three hundred months but now that three hundred months was wrongly imposed and it not only was a concrete amount of time that was added to an amount that he calculated and ascertained and it reduced the guideline by exactly that amount correct but it did reduce the guideline but he strikes actually that amount but he has guideline ranges still i'd line range without the three hundred months would have been three hundred months less some other amount so it's sort of a concrete concrete discreet amount that he at least gave some indication was not going to affect the rest of his analysis if if we have some judgment discretion room that would seem to be enough on the other hand if if we're bound by some rule of law that requires to deem that to be interdependent then you have a stronger argument that's why i'm asking whether there is such a thing and basically saying no i get what i'm saying the problem is that the court has in this quarter any of the court hasn't very clearly specified when sentences are to think the best way if you look at is in the second falconry opinion where it says that when you have multiple offenses stemming from the same course of conduct generally that's going to result in a situation where the sentencing the sentences are going to be interrelated and that stems from what's going on at sentencing under thirty five thirty three that the court is tasked with constructing a sentence that is sufficient but no greater than necessary and we have accept your argument dependency yes i think our position is that for something to not be interdependent you would need some crystal clear evidence in the sentencing transcript that the judge in fact was not doing that total sentencing package was fact treating the counts as completely separate obviously this is the parties as to whether the transcript in this case reflects that but another example might be where you have a defendant who is charged in two separate indictments but then is ultimately sentenced at the same time i think they would be based on separate courses of conduct i think that would be a reasonable argument that in that situation those sentences are not independent our position is that they are separate courses the kind that in all of this case law doesn't apply a factual pattern which where we've got separate courses of conduct and i write about that's correct because all these cases are involving interdependent sentences i'm trying to give you an example of when senses might not be interdependent in a dollars it is our position that it's going to be determination as to all of the convictions issue including the ones that go away yes and so but i mean that doesn't necessarily mean that they're interdependent in my b s of all those convictions and you know thirty five fifty three i mean i don't see how the parsimony necessarily leads to interdependence as opposed to a simple simple you know some of the person money combined with the advisory got and what the guidelines tell you to do is it tells you to group counts together and it tells you to come up with this sort of sentencing range and then stack sentences in a way to achieve the sentencing range as long as it's permitted by the relevant section minimums or maximums and i think the whole thrust of what the district court is supposed to is grouped with the other drug counts campfire five is sort of grouped but these guidelines obviously recognized the statute requires a mandatory consecutive sentence in our position is that what the district court was doing here and i think this is clear from the sentencing trans is it was looking at this all of the criminal conduct in saying how do i get a sentence that is sufficient be no greater than necessary part of its analysis was a recognition that it had to impose two consecutive twenty five consecutive five year in a consecutive twenty five year in our position is that affected the district court's assessment of what would be an appropriate sentence for the other counts to ensure that all together you're having a sentence that sufficient but no greater than necessary i see when we say that in an be contrary to the interests of prosecutors where where when the other side comes in and says you know there's this additional sentence here and the sixth circuit has now told to that you have to take that into account when you're evaluating the rest of the sentence and so they're for well at your poor undermining the effect of those statutory increment emily i would think you i can just imagine all kinds of cases where you all were going to be up here are you in the opposite and trying to distinguish this very case of rule in your favor and that is the judge this rule i would submit does generally benefit defendants more than it benefits the government but are the reason we're advocating for it is because we think it's the right rule i mean we're the department of justice we're not simply department of prosecution that's a great answer and i just wanted to point the court in terms of understanding this whole analysis about interdependence in one twenty four c there's actually a couple great cases from other circuits that are in fact unfortunate not cited in the briefs that i think are very helpful for understanding this you know i mean citing stuff person arguing stuff that's not in the briefs just creates a lot of headaches i mean i don't know i'm not cutting you off but you saw this morning it's like ok we're now getting a letter certainly maybe cutting off the presiding judge is in charge i am i think your time ok thank you thank you thank your honour's just a few points in rebuttal first to the question of whose discretion is at stake here it's not the district course discretion that's it that's at stake it's this course discretion it's section twenty one no six that commits to this course discretion the judgment of what to do with the rest of the judgment and normally though we would send it back and let the judge get the new lay of the land and come up with what's a just answer that that's exactly what this court would do in a normal case it said that it would do that it's what it ordinarily should do but this is not the ordinary case and it's not the ordinary case because we have the sentencing transcript for us and we have the statements on page sixty eight that couldn't address this issue more clearly in terms of at least the interdependence are humans made in the district court i understand that the second point has to do with this discussion of grouping in the colloquy between  government and judge carefully as it is true that count four was grouped with counts one and two with the other drug counts under the guidelines of course come for as is also the count on which the district court imposed a one hundred twenty month sentence concurrent to a two hundred sixty two month sentence on the other counts and the government doesn't have an explanation for how they could sure of a lesser concurrent count could cause the rest of the sentences to change so while there was grouping that doesn't establish any dependence that's relevant in this case this leaves my third point and we're left with the twenty five year consecutive sentence on count five  there's nothing in the sentencing transcript that suggests the court viewed count five any differently than what it is which is a twenty five years sentence for someone who committed a second section nine twenty four c offense well of course is is the basis for this course decision that's not to say the court didn't take into account the fact that mr foster had a firearm in furtherance of those drug offenses our position is that those facts are simply taken into account by his existing conviction on count three so not saying the firearm was simply and completely irrelevant to the remainder of the judgment on the contrary it forms a very important part of it what i'm saying is that the additional punishment for committing a second nine twenty four c offense played no role at least on the record before us in position of the other sentences and i would like to add to that the fact that this court has not vacated in similar circumstances in the past if you look at the united states v taylor which we said on page twenty one are you know twenty one of a brief in that case this court vacated a second section nine twenty four c conviction at the time of that case it carried a concert mandatory not that's not the analysis of the court in that case i don't i don't believe the second possession would have affected the other guidelines cases there are cases where a first first offense would affect the other guidelines cases judgement you mention that it was a pretty booker case but we don't think that makes a difference even pre book or there was at least a sentencing range to mandatory one within which the judge had to sentence so there would have been a point to a remain and if the sentences had been interdependent the court could have considered honoree mand where to go within that range so i don't think judges have a lot more running room if you will to use a sports analogy or running room now than they did before and we don't and we don't take issue with that it's still it still comes down to whether and how the district court exercise that discretion in this case but i take it your position is that the panel should not try to  proscribe a broad based rule but rather just take a look at the individual record and make a case by case decision as to whether these as opposed to giving guidance that is broader that's exactly right maloney it's a case by case analysis that's necessitated by the fact that number one is the government's burden in each case to satisfy that section twenty one zero six burden and that