our final case for this morning is united states against herman it's christians conflict or more shortage how can it be playing there or when there is a conflict move sure your honor i don't agree that there's a conflict among well i agree that there's a conflict among the circuits i've never heard this court has definitively ruled on the issue therefore making the conflict not an issue for this court or for the district court the district court is not free to disagree with this court on matters of law and the court this court held perhaps in dicta and do bay repeated as holdings in other cases by this court therefore even if there is a circuit split on this issue it doesn't matter where this court is definitively ruled in carter this cour focus of the firearm and compelled movement justified the enhancement we don't have that in this case the probation officers finding which the district court adopted is is flat out wrong therefore it can be plain err i don't know why though it's necessary for physical restraint to involve movement meet he doesn't just point a gun at some but that these two people twenty two guns at them and making verbal threats at the same time and so you know it seems to me that's that's a way of drawing a little fence around them saying stay where you are and i'm going to blow your head over whatever you know a serious verbal threat so i don't see this is just you know simply pointing a gun and as he backs off and nothing else seems to me it's a very intimidating situation just like many of the others well i agree somewhat except for i think the facts you're relying on are not solid in the record i think that there's some dispute as to what he said  was going to blow them back another one said she couldn't hear what he said and he was mumbling and thought and still thought he was joking so i don't think that it's as solid as the other cases that do apply  but the guideline definition is just the forcible restraint of the victim and then there are some examples such as being tied foundered locked up by on a plane error review especially pointing a gun directly at a person and ordering them either to move someplace you know go into this room or ordering them to stay put doesn't seem like too much of a stretch maybe someday somebody all armed robberies is the idea that the robber wants people to comply and stay put and i believe will not necessarily stay put if it's an armed robbery and you know you throw your person at the person maybe he turns and runs away and you go about your business without well for a moment but i'm saying the compliance might be the hand over your wallet hand over your purse hand over your rings or your phone or whatever the are briberies about and i don't know that it's necessarily always the case that the robber is saying and i'm going to point my gun to to make sure you don't look at it i think that that's what other courts have said that that's that or the implied armed robber part of it is the gun implies that you're not going to move it you're comply and allow the robber to get away that's certainly what it says what has been said ok i also in addressing the plane air this court has talked about how plain and harmless error are kind of two parts of the same treaty and i mean not make much of a difference between harmless air and plane air and i don't know much of a difference the supreme court about every two years reverses courts of appeals that say that they say there's a big difference now we're not in the business of contradicting you know what does it matter whether it's plain or if we agree with you about the concordance sentence issue this case goes back to recent saying and then i assume this argument can be made from scratch certainly if if the rematch is not limited as the government has asked for the government has that asked for it the court is going to i suppose that would be in this court's tool box to make it a limited remained about the concurrent versus consecutive sentences if it's not then of course and go back in the reins and perhaps for provide a better record for the issue to be considered i will talk just briefly about the sensory issue it's a difficult issue because because we it's got the unknown and that the unknown about whether this state case is going to go forward but what is not unknown is that it will effect mr additional point several points on his does it nation calculation that make it impossible for him to get certain programming and to go to a lowered as admitted prism so it does have a it does make a than the federal sentence so by adjusting the federal sentence he could make it concurrent the guidelines were changed to make this correct possible correct and you know he just perhaps overlooked that fact i believe so i think that or good morning ours may please the court of course for the firm mr herman sentence starting with the first issue there was no error in calculating mr herman's guideline range let alone plain air this court has stated repeatedly that if a defendant takes a step beyond the mere inning of a gun at a stationary robbery victim the physical restraint and hansen can be found and at minimum as my opponent has essentially conceded this is a player case as other courts have recognized courts are all over the map on this issue some are take a stronger standard in this court as well let me tell you what my problem with your argument is your your argument and that of the circuits that have held that pointing a gun has physical restraint have s essentially that pointing a gun can be as effective as a rope or as morally bad as a rope maybe it's worse right and so the form of the argument is that a is as bad as b implies that a is b but you know being as bad as something else doesn't make it physical restraint there are a lot of things as bad as physical restraint but the guideline talks about physical restraint and talks about todd boundary locked up why shouldn't we take that language seriously rather than as being a form of silly putty which is essentially what you're asking it to make it well i disagree with that  have i would have to responses ok the first response would be i'm not asking the court to do it the courts already done it ok because the court has already said each of you says the court has already ruled in my favor no i know you're looking trying to shout down a judge doesn't really help lose your another june when both when both sides say that it's often a reason for the court to believe it hasn't actually been decided at all my first point your honor is that the court has not decided whether merely pointing a gun at somebody has counsel or whether firing a gun in the direction of somebody counts the court has however decided at that point a gun at somebody and having them move from one side of it from a from a bank vault to a teller station or from a bank position to a bathroom counts and that i believe the logic of your argument was counts as kidnapping counts as physical restraint the courts have already said that this court said that in taylor the courts are that what senses of physical restrain its physical restraint because it really it is goes beyond merely aiming a gun and because it compels movement going beyond merely aiming a gun is not physical restraint when indiana jones is tied up in a chair  pour into it any with anything we want if you believe that words mean things what you should be arguing is well it may not be physical restraint but it's a form of bad behavior the district judges are perfectly free to take into account not this second circuit in angleton which even says merely pointing a gun isn't enough isn't enough states that its definition of physical restraint is holding back from proceeding or advancing and and this court has adopted that and said if you spray mace and somebody is face that prevents them from proceeding advancing and because there is a forcible effect of a chemical spray that prevents you from going forward and similarly here is the district court found mr herman fired a shot he fired a shot  somebody that creates a forcible bullet that i or ms daniels or mr ker can advance in front of and so that action is at through your honor is as bad as tying somebody up but it also physically restrains them now does it do it in the same it's still going to level enhancement in our position is it a minimum under a plane or review the lack of the lack of of objection here the fact that the courts are all over the map and the fact that discharging a firearm does cause a forcible effect is enough to say that is not plainly wrong to treat mr herman's actions here as physical restraint on the secondary issue yes we are on harmless error of your honor and i'm not sure that in nobody understood exactly i'm not even sure that the defense attorney frankly understood what he was do now that the district court is correct that it cannot control what the state will do and if if this sentence if nothing is done with this sentence and it is still a contingent in anticipated sentence throughout the entire time that that mr herman is incarcerated then there's no way to know what will happen in the secondary point your honor is when two courts exercise sets or discretion courts exercise discretion sets or discretion and the guidelines as as she chose were pointed out have been you know amended to reflect this what are you supposed to consider are these related in some way to the district court consider as relevant conduct this behavior in hoffman it was a state court child porn a child molestation case it was a federal child production case insets or itself there was an identical case drug cases in both instances this is the exact opposite these are totally unrelated cases the defendant committed a state court misdemeanor theft charge for him do you think that affects the district judges discretion i do not cases are way i do and the reason i just heard terms on whether the state and federal cases are related and what language and sets or do you rely on for that i rely on the language from sets or where the court says we want to give comedy to the state and we want to give this the state the ability to act and they have a very discretion with whether the state or federal cases are related but here you're on a book the supreme court if it wants to limit its decisions can do so but there's no language and sets or which imposes relatedness restriction on the federal courts ability to give a concurrent sun sets or maybe right or wrong right to disagree with what the solicitor general or i think you disagreed with what the law in the seventh circuit  there is no reasonable reason to believe that the court which is then required to apply the thirty five fifty three a factors and consider whether there should be a concurrent or consecutive sentence and the court and sets are said that one of the main reasons why it was acting the way it did is because it wanted the treat this as a con correct sentence i demand that that they do that then what is the state court going to do ok if the state court thinks this is the most egregious misdemeanor theft case that has ever occurred and gives the maximum one year sentence s going to say we're going to take one year off the sentence as a result of that because you committed that crime we're going to reduce your federal sentence from ten years to nine years that that does if that if the defendant mr herman's can come back up here and give an explanation as to why any reasonable district court judge would do that then mr herman has clearly met his burden we have not established this issue go back but i have yet to hear any rational reason why they would want to do that if you impose a concurrent sentence here because we have a ten year federal maximum one year state sentence then any state sentence would become completely know and quick now the district court might want to say what the district court in fact the perhaps for the wrong reason said here which is i'm just going to forbear i'm just going to let the state court p o p whatever figure this out on  own and it or it might well say no i think that if in fact the state court thinks this is bad it's completely unrelated under the under the five g guidelines that should be consecutive to the district might well say that which is of no benefit to mr herman makes things didn't understand was going on misunderstood the question or thought it was still operating under prior seven circuit law certainly but that error is still harmless and perilous or matters plainer matters standards reviewed matter this court with them and the supreme court say that all the time and so we believe i think that the government's primarily right relying on cases that have that compelled movement and that's the main difference between physical restraint and not physical restraint whether we look across the board at all circuits or at this court that's the primary difference in the first issue if the government's arguing that firing a shot is the physical restraint that's simply not where the guidelines fell in this case the physical restraint was imposed for what happened in the house the shot was fired outside the house while the victims were up and running armed true mr herman and the people who were picking him up physical restraint doesn't work there either regarding the second issue there is harm to mr herman it may not be that the charge the would say it's completely concurrent and he only gets nine years really instead of the ten years because of the state case the judge didn't seem to have a problem with it being concurrent although it wouldn't make a decision it does her mr herman in other ways  classification b o p s different if this case remains pending throughout the entirety of his federal sentence which the government seems to think it will because he says lake county is not going to go down to kentucky to get mr herman for this theft ch i agree with that you know they probably have other ways to spend their resources but that will affect mr herman's placement for the entire federal zones that he's serving so it's not just about time it's also about the effect that it has on the defendants when there is a pending