we'll call the second case sixteen four three six seven u s versus iraq when may please the court the district court committed reversible plein air by imposing two criminal history points for each of mr rios americans two thousand and seven north carolina cocaine offenses because he received only a single sentence for those offenses under four a one point one b two criminal history points or sest for each prior sentence of imprisonment of the least sixty days whew the district court plainly erred because the two cocaine offenses received only one sentence a north carolina structured sentencing act united states versus davis the fourth circuit held that a consolidated sentence for two offenses under the north carolina it would not it would not be as clear it would be clear on the face of the north carolina statute and this case of the few would argue on the face of the guidelines to write we it sentencing it sentences that count not offenses in north sentence yes yes i think cases i guess you can see romped a little bit of uncertainty when we are assessing whether error is clear put aside the other prongs could we say an error is clear based on a different circuits law however persuasive or does the error have to be clear on the face of the in the record and the text that were interpreted you see my point yes your honor i think it's both but for example there's a presumption of deference given to the value to circuits interpret in their own state's law it's i've always thought that is true as a matter of lore but you say the supreme court has told us it has thing between binding and persuasive the supreme court said of itself we  deference and other circuits do give deference whether the court has to give deference and that may be an oxymoron because have to give an deference are sort of in conflict but even without that i think the north carolina statute would be plain on its face the air would be plain on its face and cases like being kruse a recent case where the court held that the federal statutes made it clear that it was error to find that a certain offense was an aggravated felony because the federal statutes did not include magazines under the definition of ammunition or it or if they're my argument it would be one we've got rid regus and it m world water by implying that north carolina procedures don't really inform assess to how guideline counting is work and know if this circuit authority everyone misses it is this sort of a technical  is this a clear and plain error i think it's a clear plain or i mean you have molina martina's which we missed and it was an enders kickback and went all the way up to the supreme court and the supreme court said you know this is pleasing affect all rights so i think under the north carolina i mean the north how do you read rodriguez that and it's a two paragraph opinion that second paragraph one it says is judge higginson just pointed out the north carolina procedure does not affect the guideline but then more problematic to me it says at the end so it was no problem to add the one point because it was a crime of violence i understand that's not implicated here but then it goes on to say or three more for the second crime of violence it seems to me that very last clause is saying they could have just counted as an entirely separate sentence so how do you deal with that well i think rodriguez prieta presumes that there are two sentences as i read the opinion it starts out with there are two sentences and those sentences were karen is moon under forty one point two that's the presumption that we are challenging so it starts out with the presumption that there are two senses when there are not under north carolina law the only other time our courts looked at this as far as i can tell they presumed as you said that these were two sentences how how does that get you past an obvious product how does that not prevent it from being an obvious error but i think if it didn't address the issue number one number two it didn't talk about north carolina statute and number three it's unpublished so i mean i think it's clear and i don't think that rodriguez  with the case i mean it starts out by saying i don't know who and what the district court did in that case is actually what you say should have been done here in the district court in that case treat it as one sentence it just records why they added the one point for a crime of violence not count is a provision that combines two sentences so the opinion in my reading presumes the point at issue if it started out and said the district court was correct this is only one sentence but we can impose another point for a crime of violence i think it would i've been wrong but at least it would have addressed the issue so i think it's clear under north carolina law i think david's nixons makes it clear i think there's deference given t fourth the fourth circuit and i also think it would be and i know this may be cuts against rodriguez prieta but it just seems i'm a and this is just off the cuff that as a matter of comedy he states that when north carolina makes the judgment that we are only going to punish the most severe offense which is what it does it just drops out the lisa very offensive and we're only going to impose a moon sentence for the most severe offense that a federal court should accept the state's judgment candidly how does that how does that really work the degenerates to drug offenses were a year apart how is it that the system knows to wait i guess it's my curiosity that the statute says if if the two if if an offender is convicted of more than one offense at the same time you know that these were a year apart twenty fifteen twenty sixty correct and then he ends up pleading at one time to both yes so that first one had a long delay before rearranging i just i don't quite understand how it works it's peculiar i can see why everyone missed it right there but it well but it's clear on the sentence given for the combined a consolidated sentence might be more than if he'd it might be put what he put two separate sentences with no that's not how it works your honor the lesser sentence drops out there is no sentence on the lesser sentence could but the state judge doesn't realize or consolidate is that he can't reflect that in the sentence given on the more serious offense as i understand north carolina guidelines which gets us into another problem with them and with the simmons issue where that's the statutory cap you know as i understand the guidelines there is a there are ranges calculated and in this case the range i think was six to eight months and was based on the more s of judgment are seriously call into question the competence of the district judge how can this hypertechnical north carolina pre so much for two year apart separate crime possibly shock the conscience of the common man well your honor to begin with that's not the standard in the fifth circuit that's adopted from a dissent in x as going to a re is by a majority opinion with no citation and then carried the proper citation that that's from a dissent and in addition the supreme court just granted certain on that last week in a case from this circuit so that is not standard but with regard to the the just let me say on what is the fourth element in the standard of seriously affects the fairness integrity or reputation of the judicial proceeding and i i don't see how this hypertechnical reference for god lines back to a previous state conviction of clearly two separate convictions so shocked the conscience well you know and i disagree that's not the fourth prong i think this courtship exercise discretion on the fourth front because when you read the record the district court starts out with being disturbed with an defend its prior record and then there's a long discussion of this defendant's  horrible childhood where so as parents and relatives tortured he was kidnapped at five and raped over the course of two weeks he has psychological issues and even though the court starts out saying you know  troubled by this record in the end after the discussion of that and the defendant's cooperation with north carolina already has which made him a target in his home country the court does not impose the maximum sentence the court impose less than the maximum sentence and because there's a new unique combination of a guidelines air and a court that listen to a very unique allocution i think it's not a case where the court should just go ahead and say well you know we're going to decide this guy has a bad record so let's affirm i think it is a case where the fairness of the because of the guys who are near the fairness and integrity of the proceedings are affected and the court should leave it to the district court to make the judgment in the end i have one i know you want to get your point is just three minutes i was wondering let's say you win on a reman this is a question i've always wondered a reaming and is it one sentence in package should the court could could correct this issue but it dressed the argued credit mistake could the court go up on thirty five fifty three is it all new again or does it depend on how we asked we structure the remit i've asked if the cour vacate but sentences because i think as the court might agree a sentence on one may affect the sentence on the other and are fresh all issues can be looked at i don't know if all these can be looked at because if normally the government's trying to suggest a new dispute it strongly that there may have been an error that work to his benefit and therefore if you prevail on this issue plain error the court could clearly get the north carolina documents look at it all but presumably also look at any other alleged error i'm wondering if that's a correct statement of law when you and i think the court and then i think the government's wrong because fernandes you know there was a condition of probation here that was thirty days and under the guidelines it's got to be more than sixty days to get two points and fernandez didn't have a condition of probation and didn't have probation so the government's wrong i think the court to decide against the government the government has raised any other particular error and so i think the law the case applies it goes back and the district court exercises its discretion with the correction made to decide what the combined sentence should be and if your honour's asking well could the court exercise discretion and give the same sentence by varying upward or or or go down or go down i think islam is no new issues were raised by the government which away by not cross appealing i think i would concede that yes your honor i've talked about fernandez and you know this is clearly distinguished well because there was a condition of probation that was just thirty days in the guidelines say it's a condition if there law but it clearly does and the north carolina structured sentencing act really doesn't care about the number of the defendants party or senate says there are two factors his office level for his current office and then they i record level which is determined by tidying up points or each of the defendants prior convictions they don't really care how many senate says you have and i think the consolidated sentencing pr is i mean mr barak even has admitted that it's merely procedural i think it's merely administrative because their system doesn't care you're got to serve your time on the most serious off heads but the system gives him one sentence well it is a consolidated judgment your honor the statute doesn't say anything about a consolidated senate but everything is consolidated into this one piece of paper through but then the guideline counting rules keil that don't look to offenses the look of judgments that they do but it's a little counterintuitive to me to think that this guy has got these two very different offices that are committed to years apart and to say he doesn't have t says for that that's that's counterintuitive in our system you don't have convictions about senate says so davis is a little problematic for that i mean i think it's generally true that other court circuit courts do criminal procedure system works moving on to the lines in your county criminal history it all depends on what state you do i mean that's what we knew was north carolina has this peculiar sentence structure defense counsel alluded to you  know it's not a definitive sentence it's liked and sixteen and we've had cases that have had to confront with that i mean you look at what the state does how do i mean you seem to be asking us to just get around that i think we can look at this what the state does but i think in this instance i guess what i'm trying to say it doesn't really help us because they don't care about separate sentences i think that's merely administrative on their part so that's just a copy of i think you're back to the guidelines again but on right at the guidelines it looks like it asks how many prior sentences it does and then the record here indisputable he says he just has one consolidated sentence davis to me looks pretty logical i'll be a peculiar miss by everybody if you if that ends up being a fair statement of the law then you have to move to your other prongs that's true ok but i will point out that they had the north carolina saturday and talks about a consolidated judgment consolidated census so i will move on to the second prong this is about as unclear and not obvious as anything i've ever argued it's it's byzantine to say the least  the federal public defender who i have the greatest respect for they mr twice they missed this at sentencing and they missed out on peeling this court has that to to brief this issue and it's you know we've looked and there is no definitive answer so i would say it's not clear and obvious and you know you have to look to the case law of another circuit and that you require as extension of president in the circuit something new and different it really hasn't been fully examined so that's not clear and obvious on the third prong i think fernandes is pretty clear there that heat when you look at fernandez he should have gotten those two points  mr mccain has made the argument that that well it doesn't cover this because in fernandez he has his own so that's what's the only suspended in here it was only suspended for thirty days but again that's a little counterintuitive that you get your the entire sentence suspended for that is and yet the the two hundred ninety six days is counted against him but here you have only a partially suspended sentence but you don't get that co even if that analysis is right you have a case that says we can find no substantial precedent prejudice because another error happened that the government hasn't cross appealed i don't know what you're on but i would only suggest to me the integrity of these proceedings were even worse if your argument is there's another error in here than it looks like the fourth prong really is met here we have a real integrity problem because the government saying it's got a problem the fencing it's got a problem so your argument sort of makes it much more difficult for us to excuse it well if we get past the third problem i mean yes i would agree that if we get past the third problem but you wait let me just understand you would than just did someone make a mistake or maybe did someone make two mistakes you look at this guy judge jack expressed extreme concern about him she said he's committed all these crimes in north carolina including he served a total of thirty one months for something like seven offices so he's got a slap on the wrist he's a recidivist he came back to the united states less than four months after he was deported all the way to water mala as she expressed a lot of concern about that and this guy he does have a very unfortunate childhood that is true and that was going into it senate saying but the fact remains when he got here to the united he didn't become gainfully employed he became a drug dealer a result of this drug deal this is fourth amendment fourth prong or yes yes your honor just so we get the standard down put aside the supreme court search why why did you reefing this case urge the shock the conscience is it is it your view that any other circuits adopted it and is it the government's view having studied this that it has a pedigree that gets back to a correct majority  which that line which comes from the supreme court in a lot now i think it's just another way of saying he had i think whether you want to characterize this as shocks the conscious or miscarriage of justice i don't think but ok i'm a sound hypertechnical but it matters a lot when a court comes up with new standards in the brief that maybe was written by somebody else does it correctly cite the pages for the proposition that makes the pages your honor when in your citation to secure an do you properly cite the pages of our court's precedent i don't know your honor i'm happy to supplement with any answer again i didn't i'm sorry i did not write the brief i didn't check the page numbers when i was getting ready for argument but i agree that there i mean this is obviously a controversy about this shocks the conscious language and i think the supreme court's going to straighten out for us but for this case this morning i don't think it matters which language you use the fourth pro sentencing well i know that when they come back from recess at sea we look very very carefully at the language that you put in your opinion and they're different in different opinions so we have to look to ascertain this court's intent sentence so they want to deal with multiple sentences or single sentences and then with regard to waiting for the supreme court's decision just in practical terms and you can go on the b o p s inmate locator website and find this the difference in this case is i believe whether mr rios american gets out in march or if he prevails here and we get the mandate issue ford with whether he would get out in december so the court not to weigh four months in prison is just as course of course which is that you know no reasonable person would want to sleep spend an extra day in prison and then i just want to point out on fernandez that mr fernandez a completely suspended sentence with two hundred fifty four days crdit towards it and he tried to argue that look this is just like a probationary sentence with a condition of probation and so it's got be at least sixty days and this court rejected fernandez's claim because he did it said he did not get the sense of probation he does not have a condition of probation oh yes for there are fines and costs so the court by implication i we will call the final case for today