case number fifteen there are three seven one nine united states of america versus darryl oral argument not to exceed fifteen minutes per side melissa minus the supervising attorney good morning your honors may please the court i'm melissa salinas with the university of michigan law school federal appellate litigation clinic and i have just you know why i'm here who i'm supervising in this appeal thank you you please the court with my limited time today i'd like to focus primarily on that erroneous calculation of mr tanner's criminal history points which resulted in him being sentenced pursuant to higher guidelines range than he should have been with the time i'd like to address mr tanner's ineffective assistance of counsel claim the district court raised the criminal history point below yes while defense counsel did not object specifically to the criminal history point calculation he did of the forty one point one calculation he did object generally to it so he said mr tanner had enough to bring it to the attention of  not really yes it is and for that reason we believe it should be reviewed to no four however even if the what did he say what was the objective generally what do you mean by that he said that this criminal history point calculation was over representative of mr tanner's criminal history point calculation so when the judge gave him time to speak about the calculation he said that at the end the conclusion of his time and while this is objection it still preserves the air for this court to review and if this court finds that the objection was not that the objection it was not neutral objection this court can still review under the will do so because marina martinez which was recently decided a pro two thousand and sixteen that held that a defendant who was sentenced pursuant to a guidelines range higher guidelines range than he should have been an incorrect i'd lines range that even if this defendant was sentenced within the cracked guidelines range he is still entitled to a new sentencing hearing if the court finds error because his substantial rights were affected so in  this case this era rises out of confusion about the threshold question of whether there are multiple prior sentences if there are not multiple per cent and says there is no need to look at the section of the guidelines that is governed by a for a one point two which governs whether multiple prior sentences should be counted as a single sentence instead we merely apply the tax for a one point one and forty one point when he reads add one point for each prior sentence resulting from a conviction of crime of of a crime of violence that did not receive any points under the above because such sentence was counted as a single sentence or two a total of three points in mr tanner's case there is only one prior sentence at issue the prior sentence in seven nine three this one prior sentence already received a criminal history point under section four a one point one c e so mr tanner should not be assessed an additional point under however martinez makes clear that if a defendant is sentenced pursuant to incorrect guidelines range and his sentence still falls within the correct range he still is entitle to a new sentencing hearing based on the  yes that's correct it would still be within the correct guidelines range however again mightiness does make clear that he's the defendant still is entitle to a new sentencing hearing and he'd be able are you intervening  good good behavior and things like that too i suppose at that point yes exactly and i have trouble with the underlying issue drawing a distinction between a single sentence so if that this previous district court had said i sentence you to sixteen months for a crime a and concurrent sentence sixty months for crime b then you would say the district court to the proper thing here but if the gist of the me not you mean even if he had had two separate sentences he he would not apply this court has not decided on the issue of concurrent sentences there i thought that was the whole distinction you were making was between concurrent sentences and one sound so small in this case mr tanner did receive one sentence one sentence for two crimes yes one sentence for two crimes and i thought that if if if it had been two sentences for two crimes then you see what i'm asking yes i do see what you're asking i thought the whole point maybe that's why i'm trying to find out what your point is i thought your whole point was that there was just one sentence not two sentences yes but that if you have two concurrent sentences you have two sentences right well  had one case that issue in which she was obsessed an additional criminal history point under section b so this is case where three he was assessed one additional criminal history point under for a one point one easy and he didn't receive any additional criminal history points under a b or c however the court in started said at least one of starting his case for three convictions qualifies as a crime of violence aggravated burglary that's the district court properly assessed one additional point start his criminal history calculation for the sentence so despite the fact that starr ends with convicted of two crimes of violence he only received one criminal history point under for a one point one he only received one point under with my time remaining i'd like to you agree that the it was it three underlying crimes do you agree all three are crimes of violence only two of them are only the phoniest assault and the domestic violence the other was that held in german is a misdemeanor crime and therefore not issue and that the trial that's clear from shepherd documents or were you get that from the so i understand why you're saying that it's clear from the p s r which categorizes  you would get two points under this guidelines provision you say it's an open question right yes let's assume that the the open question is resolved that you get two points in that situation all right just assume that that's the way we would decide it ok then why is this case different from it's just very formally different to say two concurrent sentences as opposed to one sentence for two crimes each of which is just the literal language that we're just bound by for no good reason this case is different because if you look at mr tanner's underlying judgment for those convictions of crimes of violence he only received one sentence pursuant those multiple charges the judgment which was included in a twenty eight letter that we filed does not is not clear about whether those sentences were concurrent it says nowhere in the judgment the sentences are concurrent and it lists as the term three years probation a single term three years probation that i'm just asking what sense it would make to draw that distinction you're saying what the distinction is which i understand there's a distinction which would be necessary if you agree with my initial assumption between concurrent sentences plural and one could decide to issue just one sentence rather than concurrent sentences for different charges if the judge decided to do so and the guidelines make sense in that scheme because the because a defendant would receive fewer criminal history points under a judge who issued one sentence rather than i c concurrent a judge should know would know what he or she was doing and how it will affect sentencing in a future crime yes exactly  but what about in fact in two thousand and seven before two thousand and seven there was language which supported what you're saying and they commission got rid of that language does not hurt you or what's the explanation for what they did i don't think that language hurts because the plain text for it one point when he makes clear that if there is a prior sentence that did not receive points under a b or c a additional point under each should be issued  the clarification point here in the main point is that mr tanner had one sentence and the amendments don't go to that question the threshold question of whether mr tanner received one sentence for a one point two eight two applies when there are just multiple sentences at issue here mr tanner only received one sentence and all these for which he was previously convicted occurred simultaneously or were they on different occasions or do you know heard on the same occasion so that the state judge could have given him consecutive sentences supposing they could have got a quarter point right yes the state judge did have the discretion to sentence him to consecutive or concurrent sentences in which case mr tanner would have received the additional point under the correctly however in this case it's different again because mr tanner just received one sentence and therefore already received a point under c and should not be assessed an additional point under thank you thank you  morning your honour's may please the court says united states attorney mark bennett on behalf of the aptly the united states of america your honors its the position of the government that mr turner's conviction and sentence should be affirmed  and there is for all four reasons the first being that the record is not sufficiently developed below with regard to the ineffective assistance claims made by the appellant second even if it had been sufficiently developed the counsel for the opponent was not in effect it ineffective third the wrong hands meant it was argued in in the brief was properly calculated by the district court and then the last argument that most of the  oral argument has been focused on is whether or not mr tanner's criminal history was properly calculated which the district court did in fact do under for a one point one he did i think you're posing counsel should be commended for focusing on the the most difficult issue i wonder if you could address that for yes your honor i plan to first and foremost address the argument by the appellant with regard to m if if this is a case where i think there's there i'm going to push very hard on you and why are you saying let's wait for the ineffective assistance claim to resolve it that just seems silly if there's an error and there was ineffective assistance they're going to win later so or pay me later so help us figure out whether there was an air yes your honor and there was not an air by the district court as your honor noted when first and foremost when the amendments were brought forth with regard to for a one point one and specifically addressing subsection easy there was previous language that was removed that would would not allow the additional points in the commission through the amendments made it clear that in a situation like this where there were two crimes of violence that were set in at the same time and the appellant has acknowledged and agree that there were two crimes of violence here with the felonious assault that mr tanner was convicted of as well as the domestic violence so if we look at both of those as crimes of violence there anderson case suggestive filoni assault is a crime of violence on the element as the as well as this and because he was only given a sentence on one of in essence the crime of violence because they were grouped the second crime of violence under forty one point one easy gets the additional point t probation there was only the initial one point but since the other crime of violence was not calculated in that sentence then under forty one point one or for a one point one easy there is an additional point to give a total of two points which brings mr tanner's criminal history total up to seven points or criminal history of that step that i'm curious about it's that one step i'm curious about because it is i understand your p argument and it makes some literal sense i mean it tracks the language of the guideline there's a difference between multiple sentences which get counted  together and treated as a single sentence multiple sentences that are treated as a single sentence you get the extra point if that's what happened but if you just have one sentence in the first place then you didn't have any treatment of multiple sentences as a single sentence it was a single sentence in the first place and in that situation you would not have the and that the difficulty i have with that is that it seems to draw an artificial distinction between concurren sentences and a single sentence but the answer that you're posing council gives as well you know maybe maybe it's maybe that's puzzling but that's what it says and it sure seems to say that we have you have any support for it's not saying well your honor that i did it and address the issue in the united states versus scott in two thousand and eleven and then they noted also the fact that the amendment at that they addressed the fact that the amendment had changed to allow the courts to do just this when there are two crimes of violence that are grouped together so irrespective of whether or not as of the languages not to crimes group crimes of violence with an intervening instance or intervening time in there and to suggest that that somehow suggest there has to be two separate sentences nothing in the language of four a one point one east violence it's it's assumed that there is a sentence for each crime even as there i mean because we're assuming that there was a sentence for each crime even if there was just simply because the state court below didn't say for this crime i'm issuing a sentence of acts and for this crime i'm issuing a sentence of y and i'm sentencing together concurrently period of three years probation on these two separate crimes of level is to whether or not the sentence of three months probation was for each count or and then done concurrently with or not edge but shows that all right i mean they put something in the record here there was something that i saw in my hotel room last night that was filed i have not had an opportunity to review the actual or or get a copy of the the actual state court sentencing that there but it's how do  what you saw that there are two crimes of violence and there's a sentence that groups those two crimes of violence doesn't use the word concur i did not see specifically and i can't say i had it was on a i phone it was not isn't there a legal difference between one sentence for two crimes and concurrent sentences that being if i thought the whole reason for the main driving reason for concurrent sentences is if one of them becomes thrown out later the other one still staying it's your that's why you sentence concurrently you know we have these sentences where people are sentenced to death and then they concurrently sentenced to twenty years you know i mean what sense does that make well it makes sense because one of them might get thrown out and the other one will still operate but if you give you get them together then one of them's thrown out but you've got to get retried right i don't want to answer his question but i want to hear your thought about it i guess had my first intuition is that there is no such thing is anything but concurrent sentences in other words you can have a plea bargain where you try to count drops out you don't sentence on that but if you have convictions  having separate consecutive cents for everyone and if it's silent it's concurrent but the silence means it's concurrent but your honor doesn't mean it's one sentence i mean this so you know i'm coming from this room i think this helps your position that you can disagree with me no your honor your honor i and that's where the license to judge rogers i was going to suggest we still have two crimes of violence yeah and so there the sentencing guideline talks about crimes of violence irrespective of whether the court below it a state court level said the word consecutive or concurrent there are still two convictions for two separate crimes of violence which the sentencing guidelines were attempting to appropriately in accurately account for calculating criminal history and obvious i promise wrong my premise is that there's no such thing as one sentence or two crimes your honor we agree you're right you are correct well wait a second  me losing your i don't know it's a logical conclusion that the common law i'm shocked you don't think i'm a now i'm disappointed no no where does that come from it's just an intuition your honor as i said it's assumed i crimes that would be fine that would make sense it just isn't worth it the guy might say well your honor it takes that into consideration by suggesting if you have a crime i mean just logically if you have a crime of violence two separate crimes of violence logic has to assume if if there's a three months if you have two separate crimes of violence and you have a three month sentence it's for each one is sentenced separately and then they're run concurrently to do otherwise would would in essence suggest that any state court that doesn't use the word concurrent to make that specific enumeration that the guidelines are just kind of thrown out it would make or i guess what you're the only support i  have is the fifth circuit addressing the issue in versus scott now i can't say that they specifically said irrespective of whether the quote below at the state court level uses the word consecutive consecutively or not what it does do is it has t crimes of violence that are sentenced together and then it is made clear under the guidelines that if one of those crimes of violence is not given a fent an offense or a criminal history point because they are grouped together you should add one additional point and up to a total of four which is what happened here which is why it was not clear clear airplane or any type of error by the court below and that's why the  appeal that the appellate court is in a difficult situation try to understand what the district court may have enumerated in explain had the issue been raised by counsel at the discourse level and that's why a twenty to fifty five is the more appropriate animal to raise this issue to allow the district court number one allow the defense counsel to explain why they believe that if it's a pure legal issue as to what these words mean and you have to have concurrent sentences then you lose what is what good does it it's good to say and if if the scott case holds and we follow it that it doesn't matter if it's a different sentences long it says this is one argument the one thing i can think of is we don't have enough evidence as to what the state court exactly did say is that true or not i mean if but if that's all there is get it to us let's just get this taken care of we're honored that is true that we don't we would you be amenable to or why would you object to just making sure we have the right state court documents in front of us i mean if those documents lead to fact disputes about what happened that poster's your position that we should wait for twenty to fifty five but if it doesn't if it clarifies one way or the other it may help may hurt but it may at least it makes it easier for us to resolve the legal issue because why resolve a legal issue if there's something about the state court record that makes this debate irrelevant which is possible it's on an obvious we don't object to getting that in front of the court in allowing the court to have that information although i would suggest that it kind of takes us back to our discussion about whether or not there are still two separate crimes of violence and whether you can have a one sentence for two separate crimes as your honor noted it says concurrent this is an easy case yes your honor i don't know what it says we don't know what it says your honor so we can we can provide that to the court  hudson i would like to address the point that you made that you said that the sentences might be implicitly concurrent and it's not clear that each conviction requires a separate sentence in the tolbert case which is the district judge suggested that indeed there could be one sentence given out for multiple convictions however in the tolbert case she held that because the judgment made clear that the defendant was sentenced concurrently to concurrent sentences she couldn't find that there was one sentence and she suggested that the underlying convictions might have only received one sentence if the judgment said a term of years or a sentence in this case in mr tanner's case the judgment just says term and then it says three years probation and all the charges are listed pursuant to that term so there are no you don't what you want like this position but why wouldn't  unfair to defendants defendants who receive concurrent sentences are going to be punished more harshly under the guidelines because for the very fact that they receive concurrent sentences are going to come back and say i want to consecutive sentence and concurrent sentences are pretty good all right there i do agree they're better than consecutive sentences but again one sentence is better than concurrent sentences especially for the purposes of the guidelines the judge could choose to punish her punish separately so hand out separate sentences for separate convictions the only happens in a case where it's not concur it's one sentence and you are able to defeat one of the underlying convictions you still wish what happens then the sentence is vacated and the case would have to be recent hence because the the defendant the underlying sentence was conveyed connected to all of those convictions so i because it was multiple sentences whereas yours yes really concurrent sentences exactly yes they were can get clear from scott that they were concurrent sentences yes i the language in scott says c scott had four previous deadly conduct convictions all stemming from a single shooting spree in one thousand nine hundred six each conviction earned a five year sentence to run concurrent to the others thank you thank you