and our final arguments for the day united states versus gri good morning may it please the court i'm peter henderson i'm here on behalf of terrence craig's terence graves was sentenced to three concurrent one hundred forty months terms when the statute only provides for a maximum term of one hundred twenty months e when nobody catches it for some reason and the design should anybody care well the total sentence of two hundred months is well within the statutory maximum right so why does your client care this sounds like a book keeping question right it's perfectly clear these are illegal sentences right but your client's going to spend two hundred months in prison so why does he care how the bookkeeping is done well do the reason i find it problematic  is there has to be some reason for why the district court no no no that's not my question my question is why does your client care about the bookkeeping because we take it as has given that this is wrong right because he believes there is a very strong possibility that the district court selected that total sentence based on incorrect understanding of what the statutory sentencing framework so you think in the absence of of this his sentence he believes his sentence would have been one hundred eighty months if very well may have been in may have been one hundred forty months because what the district court said at sentencing seems to indicate that it came into the sentencing hearing believing that count four was actually under nine twenty four c and under the law of this circuit what the district judge has to do is first calculate the thirty five fifty three a sentence for the other counts and then add on sixty months and so there was confusion about how exactly the statutory sentencing scheme was working in this case so our concern is that a district court may have thought well ok we're going to get to two hundred but that's only because i have to ask this sixt month sentence now the record is ambiguous and so again we get back to who bears the expense of that ambiguity and what this court has said before and i think is wise is that it should not speculate at the expense of the person who's serving the sentence mr griggs so again because of that speculation about whether this was actually intended to be a two hundred month sentence or was one forty plus this mandatory sixteen months we think that is enough to bring this back to the district court to clarify that so we don't have to speculate when the district court impose sentence it's started by saying i'm going to give you one hundred forty months plus the sixty for a total of two hundred may be different if the court says you know the total sentence here i think is that is appropriate under thirty five fifty three days two hundred months and then were more and in the bookkeeping territory there are other reasons to remand this back to the district court there are a couple supervised release issues i don't want to be pedantic but it's important because the district court did impose a term of supervised release rather than four concurrent terms of supervised release hopefully that never becomes an issue because it would only become an issue of mr griggs a supervisor a lease is revoked because it increases the potential penalties but it's something that was incorrectly reflected on the judgment but was not overly imposed and there are other concerns certainly the you know the whole thompson line of cases supervised release i think the importance of those was this is not a rote endeavor don't just impose these without sort of thinking about them and it became very wrote in the sentencing hearing  but those are those are ancillary issues the main issue is we feel that the sentence may have been imposed for very improper reasons how kind of a concurrent three year term a supervised release be a standalone single i mean it can't be concurrent to itself right only a term was imposed the judgment says the fourth term for him right what was clearly meant is for concurrent terms of supervised release right and that's again because he can really meant is for three years i think i think you have a current there it still says a term but i understand what you say in the other portion of this too that i think is valuable to get back to the district court is mr griggs really was denied an opportunity to live litigate his case post trial in the manner that he wanted and that was based on again a misunderstanding of the law under rule thirty three that rther proceedings but the main really the main concern we have is when district judges sentence with nine twenty four c counts that's not discretionary and what the district judge did here was evidence a belief that that may have been involved the belief was corrected but it's ambiguous as to whether the district judge actually put it together and i think that's the most plausible explanation for why this very basic error occurred  why does the defendant care about the bookkeeping issue and i think that with respect to first issue is is very important although there was an error at sentencing there was no clean air  acquires re sentencing in this case and it was not clean air because the defendant was not substantially prejudiced by the air and the air did not affect the fairness the integrity or the public reputation  proceedings and this court has held on a number of instances that no reversals warranted under the plain error standard when the sentence imposed does not exceed the combined a statutory yes the record indicates that her drug dealer and that he sells heroin but the trial established that he's also a gun trafficker that he trafficked in a number of firearms on a number of several occasions i mean  that he had done that their defense was based soley on entrapment in the jury rejected that defen with respect to the issue of what counsel raised as far as confusion as far as the sentence we don't believe the record indicates that there was any confusion if you look at  transcript in the appendix page eight twenty five where the district judge asks about the one thousand and forty nine when he forced the and whether or not it was something that needed to imposed consecutively the record reflect she asked is the one count isn't that required to be consecutive or no and then the government's answer was it's not required her honor in the court said not on this one ok so there there was no confusion on that point but then what follows is this something from the defense attorney about the probation officers appearance recommendation for fifteen year sentence the first three counts concurrent and the fourth count consecutive that is stated by the defense counsel but that is not in fact what i believe what i recall a recommendation stating that sends a recommendation indicated that he should receive one hundred eight months total i'm not sure not structured in this particular way no to my knowledge i don't recall that being in that in that sense of recommendation and the guidelines range was much higher yes your honor that is absolutely correct i think that goes an important point here which is that they're not complaining of any procedural or substantial issues concerning the sentence he was potentially subject to four hundred and eighty months one hundred twenty one twenty months per each count of conviction however the district court considered the total record in the recommendation of the of the defendant and she considered it again the government's recommendation to determine that two hundred months was appropriate and that they are in fact issue the defendant ties that to his first issue our reading of the brief is that he is asking for remained on the second issue only if your hono just wasn't just asked answer your question he's actually about thirty six years old right now he's thirty seven yes and and that was you know part of the well the reason we haven't raised you know the rule thirty three issue is a stand alone issues because he withdrew the motion it was based upon you know the sort of spurious legal reasoning but that's part of it we say we see how high the sentence gets and that's driven by the guidelines and going to trial and testifying at trial that you are entrapped is the surest way to just skyrocket the guidelines and so that's that's a big part of the ineffective assistance of counsel claim which we think mr gregg should be entitled to present as he sees fit but apart from that let me talk just briefly about plain error this is not a plain error case this is a rule fifty one case which says if mr griggs is not on notice of that the district court isn't going to impose an illegal sentence once that sense is imposed he's under no obligation to take exception to that sentence in order to preserve his rights on appeal you don't need to take exception and you will not be prejudiced on appeal if you fail to do so and again that gets back to what i started with which is who bears the burden of this because of course the assistant united states attorney was at sentencing too and very well could have taken exception to what was an obviously is i proper sentence and it doesn't seem fair to put all of the burden on the defendant in the criminal case who has to actually serve the sentence through this sort of legal maneuver of saying well this is playing there because he didn't object but this this court has recognized especially in the last ten years or so that rule fifty one means you don't have to take exception to a sentence so i encourage the court to look at those cases that we've cited about rule fifty one