of the case are tragic and with the court's permission i won't go over those and elf concentrate instead on the two legal issues that are significant in this case first is that mr beilin was convicted under that very problem you say the two legal issues that are significant the judge simon said it just didn't make any difference to him it was all these legal issues he was going to impose the same sentence no matter what and we've encouraged district judges to say that and here are the drugs said that so the first thing you need to persuade owes is that these legal issues are indeed significant when the district judge has said they were not sure so the district judge cannot hundred ten months she is in the range of any term of years were like you know there's no question about the district judge yourself already there's a problem nevertheless judge because the p s are says that my client is subject to a ten year mandatory minimum the judge adopted the p s r that p likely impose the same sentence weir's not say likely mean and he says even if i'm incorrect in the way i have calculated the sentencing guidelines i take that to mean everything from you know the ten years it started out and how much is the add on for other things he says i think this sentence is precisely the sentence that i would have arrived at any event sure so it's so he's deluded no it's precisely the sentence that i would have arrived at in any event and then he goes on to explain that very definite statement very true i have a problem is when you divorce step on the path the judge took to get there you are taking away the problem and forms the sentence the judge arrived at so the judge ultimately thought he was giving a below guideline sentence five hundred ten months the guideline range in fact was three hundred twenty four to four hundred sixty five words so you know what i take from your position really is that we have we this court have taken a wrong turn in encouraging the district judges to make us aware that once once they've settled on a sentence for a go you know using their full discretion host booker that we can't pay attention to them because i think your view is that the anchoring effect of the guidelines calculation is so strong that even with the best of will you can't overcome it who wakes up in the morning and thinks i'm going to get a sentence of this many think it's hard for me to imagine a firmer statement than the one judge simon gave is that if we've been wrong at that whole exercise then i suppose there's something to talk about i think it is giving the judges too much leash and yes it insulate it from appeal i think judges now do this and we've got a huge problem now because the guideline range is wildly off by two hundred forty months through operation the grouping rules which we get into in our second point but yes we have now insulated anybody from the significant problem in this case which by the way is going to have repetitions because they'll be charging decisions in other cases and so there will be decisions about what to plead to and so forth all of this needs to be addressed if you're ultimately say that the harm that were alleging is too small because we don't care about your security classification everything else i don't think that would be appropriate but there is a definite part about the accuracy of fact in the guidelines that you want to bring in court none the less yes has really said that district judges have this discussion within obviously statutory limits but as you agreed with judge easterbrook there's no statutory problem here at least one member of this panel was it just record judge in the days before the sentencing applied to and sentenced people without any particular effects so that's right but nevertheless the steps the judge took included a determination that there was a mandatory ten year consecutive sentence and that was what informed the decision so it's tainted the process is not an accurate process and it's a there's a flaw in it but i think that we've demonstrated harm nevertheless and by way of the grouping rules very definitely hinges on the success of our first argument and i do want to emphasize i'm the first argument the district court's interpretation is wrong you cannot read out from the statute necessary language and the term of years richard judge easterbrook say is the language from the statute the district court gives that no effect would look at the plain language instead the district court goes past plain language looks into the design of the statute says that this would be every dick us result is not a ten year mandatory minimum he imports other canons of statutory interpretation instead of resting upon the first what is going to look with one problem or another i think you say any term of years can't be understood to mean any legal term of yours the problem on the other side is that nine twenty four j incorporates specifically by reference nine twenty four c and the issue there is justice incorporate all of nine twenty four c including the consecutive nature of this it just incorporate parts of it and unfortunately it doesn't tell us so so we have to push either that or we have to understand term of years in the context of the statute as a whole so with giving effect to all of the plain language in the statute you have to give effect to the you step up with the additional element of the murder and then the final element disposes of the actually it's a master offense because you've murdered someone i think not it is more serious one and so there's a penalty that includes the deaths and definitely for any period natural life but it takes this into the government made a mistake by dismissing the nine twenty four c count this problem goes away if the government sort of dismissing the one count les mis the other or alternatively the government made a mistake by bringing in one twenty four she charge it all to the defense move to dismiss that as duplicitous you know but nevertheless well on here all right you know we'll see we'll see me please the court good morning your honor some pain away i'm here in riyadh the united states to prove a nine twenty four j violation the government has proved nine twenty four c plus a murder when a district court sentences for nine twenty four in july are you arguing about this a given judge simon statement that johnson didn't matter it sounds like both sides are asking for an advisory opinion i haven't been asked to over war powers short of cases saying the district judges have this don't matter to honor i understand your point but the only reason the the only way you get to judge simon statement is by either assuming there is an error or concluding there is an error it's our position that there isn't because when you sentence under nine twenty four j you're necessarily sensing for a nine twenty four c violation plus a murder so a nine twenty four c says any sentence imposed under one twenty four c must be consecutive nine twenty four j falls right within that because there are doesn't really i mean nine twenty four c says in addition no term of imprisonment imposed under this subsection unless you want to say that nine twenty four j isn't a different subsection which seems a little strange since it's a j and not a c i don't know why you read this subsection to mean this subsection in any other subsection that mentions this subsection well your honor we think that's very it's worse than that in twenty four traces the penalty can be any term of years it doesn't say any term of years greater than ten it says any term of years that i may be stupid but it wouldn't be the first time congress inconsistent with incompatible statutes and if i can address those points in turn i think the third circuit in barrios got it right that a sentence imposed under this subsection doesn't mean earlier is necessarily tethering it's nine twenty four c and so it's telling the courts if you're going to sentence under nine twenty four jay you have to look at nine twenty four see in terms of your question judge easterbrook about why it says any terms of years it is differentiating the murder sentence under nine twenty four j from the murder sentence under eleven eleven if you look at the nine twenty four j sentencing structure it says for manslaughter look at the sentences under manslaughter it's directing the court to go right there but when it talks about murder it's differentiated them it says well under eleven eleven you have life or death but when you're talking out of nine twenty four j murder you have any term of years life or death that's why the any term of years in there and it is our position  light of the express incorporation of by twenty four c it doesn't mean any term of years above the mandatory minimum your honor i think as all the other courts of appeal save the eleventh circuit found any interpretation along the line that  proposing does produce an absurd result as i think chief judge would suggested where only absurd if you if you drop the nine twenty four c count i presume given the that the maximum is pretty high and at nine twenty four c you could understand your r s points now the reason that we hadn't plead to the nine twenty four j is because there is some value in the system to have to having a defendant convicted a good man to have would he have been convicted of both  we know under the bank robbery statute but you can't be convicted of said both robbing the bank and possessing the proceeds is it possible to convict of nine twenty four c and nine twenty four j in the same case we believe you could be convicted under both you could not be sentenced under both because then you run into double jeopardy concerns because congress is not clearly stated that it wants these sentences to be consecutive on one another i think that's partially where we disagree with we disagree a lot of what julian said in the eleventh circuit but that's one of our main contentions that there is a double jeopardy concern with sentencing under both you know no the supreme court has held there's never a double jeopardy problem most there's more than one trial  discuss this is clear we're well i do agree with your honor's that this is a clear harmless error question if this court chooses not to address the merits or if this court does find that there is merit there is no reason to remand for resentencing under mr dylan's theory that any problem in the p s r is for the every man and for recent think there's going to be no such thing as harmless error anymore because there could be something you know you're necessarily soon going to error if you're going to the harmless in error and error analysis do in terms of let me just briefly address mr dylan's argument that this is a way to insulate from appeal that's only true if you don't believe the district court and the district courts are not in my experience going to say this is the same sentence i would give regardless if they don't believe it there's nothing in this record to question judge simon statements in this regard i think he made pretty clear that he considers the heinousness of this crime worthy of this particular sentence and he does say he guards us of whether it's consecutive one twenty four j v guard that's how he calculates the guidelines he gives this court every indication a judge could that this is the right sentence based on the thirty five fifty three eight factors unless this court has any further questions we would ask that you a other circuits were correctly synopsize but mr whalen problem is they all got it wrong they don't affect the statutory language that is in one thousand and four j so instead of getting in with the larger group of circuits that have decided incorrectly this court should instead give effect to the language of the statute as written strike new ground whatever it needs to do and then the government can properly charge people and things of that sort out the burials have gotten it right went to your honor's point judge your answer to the question whether it is permissible to sentence for both nine twenty fourth's and twenty four j single case we have a ready answer for you are on the because it wasn't something that was litigated here so i would want to speak  that the supreme court's rationale in the bank robbery cases was that these are all necessarily coterminous and that most merge on conviction but if it turns out that you're right that nine twenty four she has a mandatory minimum and nine twenty four j does not maybe that means they don't merge on conviction it's not clear how that would help defendants in the long run for the seventh circuit to say that it probably wouldn't but nevertheless this case there's one count dismissed he's only subject to the one count of conviction it's not addition here as for believing or disbelieving the judge we want you to believe the judge want you to believe that he was informed by the guy calculations like the supreme court says he must be and then evidently from that got it wrong and therefore his conclusion is incorrect much as he believes that his conclusion is wrong because it's painted by an incorrect guide my calculation all stems back to concerning himself with the consecutive ten year sentence that