yes you're on a good morning are you good thank you matt campbell on behalf of mr mackenzie and i will attempt to reserve three minutes for rebuttal at sentencing the parties jointly presented a ruhleben c one plea agreement calling for a sentencing range of sixty three to seventy eight months to run concurrently with a sixty month stay court sentence after considerable discussion the parties made it clear that they sought fully concurrent sentencing with that state court sentence there was explicit discussion on the record that if the sentence were to run concurrently mr mckenzie would in effect serve an eighteen month federal sentence this discussion clearly demonstrated the understanding of all the parties as well as the court that the  concurrent sentence would include the time that mr mckenzie had spent in federal custody counsel how many months are at issue here a little confused by the papers in one level it could be eight months another level to be ten and even throws what's indictment in this case did not arrive rise until july ninth two thousand and ten he was brought into district court on august twentieth of two thousand and ten so for purposes of this appeal i think that's the relevant date the date that he comes into federal court and then ultimately he's sentenced and i'm just like  the bottom line how much we're talking about it adds up to approx it actually adds up to approximately ten months august twentieth two thousand and ten is the day he comes into federal court he's sentenced on june twenty fourth two thousand and eleven so it's that period of time so it's a time that he's spent in custody in custody pre sentencing on this on this case correct and the way he is where he at least had detainers from both state and federal however one wants to categorize that i agree he wasn't done with his state sentence by any means but where they were watching titles ten months if you think if you if  but let's say there was this colloquy and it says arguably what you said assess but in fact if everybody was mistaken about that if as a matter of law that is not time that can be s concurrently because the federal sentence has started you can only substance concurrently once they get started and then the real question is whether or not in imposing the full sentence you give credit for time  or waiting that's really the question right well and that's and that's a question who do have questions and well i think there's two different ways one can look at it at this case the way your honor has just framed it but i think a more fundamental question again would stem from the district court's order in this case in which the district court said i had as in essence that they just are quite lacked authority to even consider our motion solution you know i think i have a solution for you because you're not going to when i want to but you want to i think i think that is a potential solution but i do think that it is important in this matter for the judgment to reflect the understanding of the parties and the understanding of the court and our argument is that as of right now it doesn't so wende what about that but that gets back to della doesn't that's the question then becomes let's say let's say you are right let's say this is everybody's understanding but as a matter of law the we are not asking for that as a remedy out of this particular appeal i think so so so what happens if let's say in fact in fact who by everything you say you you say but everybody there  i think that the first step again could be to correct the judgment to reflect what the judge understood or what the judge what what is a saudi for that i mean let's say in fact everybody there in the courtroom is wrong why i mean that that doesn't make the sentence incorrect it may at most in my what it might mean is that had and lightman come into the courts when the judge might have said well in light of that i will  might have exercised correct and i think what we're what we're asking for at this point is that for this court to conclude that the district court at least had the authority to essentially on the stand the how about going down but that's not the clerical right that's an exercise of discretion well i think our position fundamentally comes down to since that was the understanding that everyone had and since the court actually did in the judgment write the words credit for time served it could easily have written credit for time served back to august of two thousand and ten and that it would be in essence what we're asking for and i'd like to reserve the bare minimum on a time i not that a court correctly found that rule thirty six was not a vehicle for going back and changing that judgment what what would happen the last thing that  concurrently of retroactive to would that have had any effect i mean can a judge do that i don't believe so your honor for two reasons one because the judgment itself under the part where the court will say credit for time served it specifically in the form says that the court recommends credit for time served as opposed to where the court orders the actual sentence to be concurrent that's an order from the district court whereas the time served accreditation is a recommendation from the court so given that the authority is with b o p in determining when that day starts and how much credit actually is accrued that i think that the the core that he would look at it come to the exact same conclusion the only thing that the court could have done differently if it wanted to if it specifically wanted to factor in those ten months being served on something else which isn't necessarily allowed or it could have adjusted the sentence accordingly on a variance well under the visor you have them that will certainly have been a one hundred eighty eight months well ultimately the entire sentence is with outside the guidelines so if the court and the court had discretion between sixty three and seventy eight months i certainly could have looked at that and found it as the defendant here for of mass confusion that everybody was confused about this in court which is really not quite clear transcript i mean maybe you believe that's the case and that i'm counting on you off the please green minute self simply recommended the range and the and the concurrent sentence there was no reference that i found in the play green meant that there was an agreement to any particular amount of time served that said because beal credits time served the united states doesn't news leeway in on time served situations my view of the record is that defense counsel asked for credit for time served and then asked that that credit be go back to the march time period when the defend it was arrested on the state charge obviously that was not going to count defense counsel ultimately said there has been some confusion in the negotiations about how much credit for time served there would be when the when  i think that was really from my reading of the record to perspire that some of what was discussed during time served what comes into play is when the parties recommended the sentence that the court initially said it imposed the sentence to be consecutive feeling that somehow within the plea agreement that was allowed the parties indicated to the co now give him credit for time served even before he was detained them for the right it presumes that the sentences would have started exactly the same day that that conversation would presume that statement is the crux of his argument is just like us to say that this record has authority to make such an adjustment under rule thirty six and leave it in the hands of the district court in the first instance as as opposed to i can't do this now my question for you is is there any supreme court case or knight circuit case that clearly says rule thirty six can be used for such a purpose or that rule thirty six cannot use for such a purpose  the first the first answer is that i have i am aware of any case law that says it can be used for such a purpose in terms of whether it can't be used i think that while  the the best case that the district court cited that was specific to the exact same fact pattern was a just unpublished district court case that cited in the record but in terms of the general proposition  three one nine f the third five zero nine and that was a two thousand and three case by the circuit that indicates that that rule thirty six this is does not allow a district court to go back in and correct a district court's mistake a non clerical non record omission type mistake so my answer is no to anything that i know of that says that it can and yes that the ninth circuit and has a number of cation said that it cannot be used to correct stake thank you and then just to follow up on that question the point was that when the eighteen months was discussed most of that discussion came after the court attempted to impose a consecutive sentence and there was some discussion as to whether or not the court was now imposing eighteen months consecutive sentence or a seventy eight month concurrent sentence ultimately it was imposed as a concurrent seventy eight month sentence to the sixty month sentence it just didn't start at the time that quite frankly that the defendant would state appears to have been expired after about three years it looks to me by my review of the record that he went into federal custody in two thousand and thirteen so that's when the remainder of whatever the seventy eight months and tents would be started at that point the bottom line is that the defendant all how many months beyond the sixty months would be  served well it looks to me from my review of the record from the below p forms that are in the record it looks like he served probably about three and a half years which would release yes i'm not i'm not from the state can be right i don't i don't know the actual specifics of how early somebody gets released on certain crimes and state charges but they very rarely serve the entire sentence so my understanding from the record is that he went into b o p custody in two thousand and thirteen that would leave the remainder of about thirty to thirty six months give or take of the federal remainder of the federal sentence that i'm trying to make in this case against some of the citations by the government is simply that in this case unlike some of the other cases in which people have come back and tried to use rule thirty six to correct  judicial error all we're saying is that the district court could have included the words back to credit for time served back to the august of two thousand and ten date that would affect understanding that the parties had in the true intent of the court and what i can discern from the various cases is that when rule thirty six relief is not allowed it's because there is the concept that somebody is trying to change or alter what the district court did or meant to do i should say and that's not lower asking here all we're asking is to clarify the judgment to say that the court recommends credit for time served back to august of two thousand and ten what happens with that recommendation we don't know yet the opi will then do something and as your honor has pointed out then perhaps mr mckenzie could file a twenty to forty one but what we're asking for is really a rather limited issue which is does the district court have the authority to clarify the order to say how much credit for time served its recommending and i think it does did you ask the trial judge to make that recommendation your honor they're there but there is nothing in the record that indicates that that specific then i'm not sure how we can how we can entertain that at this stage well let me step back at the time of sentencing that request wasn't made that request was made in the in the rule thirty believe in the rule thirty six motion when they asked for the additional credit for time served to be granted so i should clarify that what i meant was at the time of sentencing that specific request was