jones mr jones was on bond for having committed an armed robbery on bond in state court the police had him under surveillance suspecting he may commit another robbery and they were correct obstructed justice by fleeing the police and it raised a bigger issue of whether he discharged a firearm and his rearrangement he was told by judge hidden or you know by the prosecutor that it was sufficient for the dish charge if the gun was discharged by the police officer this of course was incorrect as a matter of law and the defendant at the re arraignment was the only one in the court that seem to be protesting this and he subsequently filed a two thousand two hundred and fifty five dollars asserting that he did not commit the office of discharging a firearm because that was done by the police officer and at that point in time i was appointed to represent him on the two thousand two hundred and fifty five and of course the conviction for the discharge was set aside and he pled guilty again was exact same facts before it is at hand before and i made a contemporaneous objection that it was violating the rule of north carolina the pierce judge her said in so many words it's based on his criminal history the same criminal history that was before him the st time and now we are one more thing any day and that is important in addition investigation report that he did not commit that he didn't obstruct justice by flaming from the store and of course it was pretty apparent that he didn't because he was shot literally within one second of exiting the store the district court also pointed you to which is where the twenty to fifty five is you know to get a court appointed counsel and when he appointed you i think because i think your client had argued ineffectiveness and the district court said well you're better argument might be due process so look into that and i mean seems to me that just reports doing all this stuff to aid your client in obtaining some relief how do you how do you reconcile that with your argument that the district judges and i will tell you  elements are regarding appointing me what actually happened is the government a different prosecutor than the trial prosecutor realized there was an issue here and he did need appointed counsel that this wasn't just one of your time and i have cited a case in my reply brief that even though in judge may grant a motion for a new trial that doesn't mean that he can't be found to have been potential sentence and then it went down to seven to life right what if you just said i'm going to stick with my ten i know the minimum change but i think tens of proprium which would be a bigger sentence than your client has now would that be vindictive i would call a vindict absolutely i mean he you know complained that he didn't discharge when it was a brandished a seven year most definitely if he had been given a ten year old had after successfully challenging it i claim that it would be  think the government are out on agreement on something going to which is this rule the aggregate sentence rule and i understand that but there's a little bit of a twist here on the aggregate sense rule and i guess the question is how far is the court going to press that blindly because i gave an example and my reply brief but let's just assume any case that the judge sustains numerous sentencing guideline objections not going all the way down to  zero to six but under the aggregate sentence rule he could sentence to anything that he wants to sentence as long as the aggregate sentence is less than the previous sentence i think an act case it would be clearly vindictive so and this case we we sort of have that we have the judge sustaining an objection reducing the guideline sentence and increasing the sentence for that count so i guess it reaches the point that the god if that's going to be the law the guidelines just get thrown out the window because really whether the enhancements are sustained or not sustain it really becomes irrelevant because as long as i'm harry i will following your argument about the judge reaffirm the aggregate sentence rule i agree the aggregate sentence rule is the rule in the circuit so i'm not going to be able to get around the aggregate sentence rule but what their rule does is it says there is no and i don't think it was fair to the defendant to receive a higher sense that if he had been sentenced correctly in the very beginning i think we all know the sentence  expressed in our twenty eight dollars chain letter the double came from a star in it cannot read recognize this rule so here the aggregate re sense of one hundred and eighty months total is twenty seven month recognizes that the aggregate approach is the correct approach by and in fact by imposing this same sentence on one count of bribery related counts as the court of previously imposed forth we agree that the aggregate rule is the rule in the circuit and we're not saying otherwise the question is what the air rule does so as there is no presumption of benedict it doesn't mean that there can't be but i still stick to the position that when you're lowering the guidelines it's some evidence of bendixen abyss that your dinner raising the senate's what if several more d enhanced most were knocked