you your honors and may please the court my name is andrew brandon i represent cody thomas i've already reserved three minutes for rebuttal all right your honor i want to start today by providing a bit of factual background that in this case is actually not in the record but i think the court can take notice of it and that is the fact that cody thomas is still in state custody he has been denied parole for his nd year of his three year state sentence he should go back in i believe june for a parole hearing to determine if he'll have his rd year in state custody was federal sentencing if it should have been i believe that would have been in june of the federal sentencing it would have been before i remember there were some references in the federal sentencing of not knowing district court was shooting at him using consecutive rather than concurrent sentencing and in not going along with the guideline what is phrased as a mandate that it shall impose concurrent senate it's not really a mandate that's correct after after book that is certainly discretionary however it is a those instruction it's phrased as an instruction to the court and more importantly it's one that the court needs to acknowledge in calculating in the st place the guideline range and sort of understanding how how it applies or explaining to  really on all fours with where we find ourselves today that case addressed the use of violence enhanced mint in two d one point one this case addresses the in connection with enhancement into k two point one six b the that case involved a decision where the court said over and over again that the judge said i have plenty of discretion with regard to to use consecutive sentencing but i think it's fair to say that the court was aware that it could do one or the other well well in the aisle though it's true the court did not mention the particular meant and then used that as a means of crafting a consecutive sentence but i don't believe that the court accommodated five g one point three because that that provision doesn't really i mean it doesn't address that sort of a cop out but that i'm i'm reading the transcript as though max sentencing guidelines the court was trying take into a chaos the consecutive sentence was intended to take into account that that there were really two different sorts of conduct part and parcel of the how sequence of events but never the less two different aspects of the conduct that were being addressed in the two senate but he also tried to address the fact of the state senate bag o weighing the law begad lads that you do even more than that i think the court was trying to cut mr thomas a brick and i know it's you know the defendant kind of gets the tip or break right and so here we mean the deal we still are and we don't really know what kind of break if any and in fact there may be no break at all what we know for instance is that he's not getting federal good time credit for the three to three years however much he's going to spend in  custody and so he's not you know his sentence is not rolling in the in the b o p and so he won't get any benefits he'll have there and really that lack of knowledge is the concern that was being addressed by five g one point three and that informs that presumption of of concurrent sentencing and again it is certainly possible that we could go back and have the court say yeah i understood have to mess up to not get released on december th of this year and that was last year and i said i don't know your honor but i think that that's some evidence that the court was it eventually  him but instead of eighty four dollars flat out concurrent i'm going to give you forty eight assuming that thirty six is the worst you can do i don't know what tennessee law in terms of whether he could buy a late something so that he would stay in prison even even longer than that but as opposed to an idea where the judge ignored something or didn't know r i mean it may turn out to his detriment because the only detriment you've got is that if he serves out all three years and then goes into federal custody  he'll only be accruing forty eight months worth of good time well if he has good topic which is the quote which we don't know either whereas if he had if he had gotten it as a concurrent sentence to get good time while you're in state custody in state custody rather than federal custody and federal officials that know a thing in the world about whether you're an hydel good tab based on how you behave and perform in the state concurrently gives you fifty four dollars days for every part of your every year that you're in federal custody and if you're if you're in federal custody concurrent to the state i mean if it's the b o p s rolling that which is another concern in this case where for instance my thomas also had a probationary herb's a parole violation sentence that was going it was running concurrent with his state time for i believe is one the federal system and i would just add one final point and that is are sort of roman numeral two arguments in this case i think are interesting in this context because i think they contribute to  the problem here which is that i truly believe that the district court in good faith was trying to cut mr thomas a break and i think that that break was sort of intended to subsume some of those other issues that weren't really that the court sort of said ok i see these i'm not going to address these that the whole of the break that mr thomas was going to get was was this thirty six months that he may or may not get a break from and morning morning thank your honour's smith please the court my name is rob mcguire represent the united states you are i'll pick up in the time that i have the threads that mr brandon had is f us some of the issues that he raised in his or human i wanted to start with the idea that mr thomas may or may not get any benefit from the way the district court crafted the case respectfully that that just doesn't work out based on the math it was agreed by all parties that mr thomas even though he was given a three year sentence in state court was not going to serve a full three years in the way that he might if he was given a thirty six months and it's in federal court it was oncurrently would he get tat would he get you know whatever credit he would get for both systems at the same town if he was serving a state so we'll straight it this way or try to illustrate it this way or are according to the tennessee department of corrections his sentence begin in february of two thousand and nineteen according to the latest pronouncement by the tennessee department of corrections he is set to finish that sentence in july of two thousand and twenty one so completed term it's either every month or every six months but if they decide he's green meter good nor honorable they could decide not to give it to him that's correct your honor but that dead jew was pushing you because you started out by saying we know it's going to be less than three years and the answer is we don't know but it may be very likely i would submit your honor it's so radically to be almost an assurance i can't imagine a scenario where he's not given at least some good on a credit for some portion of that thirty had he had to not mess up every day of the year that's correct and that seems extraordinarily unlikely and to answer the court's point there's really a scenario in which based on this sentence he could serve more room thirty six months he would have to commit a new crime for which he'd be prosecuted in state court so i think that there's really no scenario in which it's not going to be less than thirty six months well that that's based on it's not that it's an impossibility that it's just based on a probability perhaps even a high probability based on the knowledge you have about half the states and it's usually operate in tennessee carette respect your honor i would submit it's actually already occurred because already been given perceptive released that it's not an actual release day it's tomorrow that's correct and he actually stay with the day he's released but in terms of what tennessee department correction is telling us today they've already factored in some level of could not her credit otherwise that released it would be later new and once you've earned it i would submit you are and it's based on your past conduct not future conduct so if he had a period of six months of good conduct this as the apartment corrections is going to go ahead and take that already they're not going to take it out way from him they might they might not give it to him in the future depending on conduct that he commits to day in custody are you sure that yes ma'am i feel very confident about that i did suggest of course back when i was the state prosecutor for thirteen years and dealt with the defense department corrections regularly so that's it's it's a bit of an ethics period it's a bit of an informed opinion yes ma'am  was less than the guidelines by a significant degree the court sort of started with a guideline range of one hundred and twelve thousand one hundred and thirty seven months and got all the way down to eighty four months and then gave the defendant an additional benefit in the sense of i'm going to take this thirty six months of state time off the eighty four months and the court did run consecutively but that essentially lowers the amount of total incarceration time that the defendant i would like to just also briefly touch on some of the what mr brennan described as his roman numeral two arguments but i think judge box noted it's really one b in the briefing i would submit your other than under  the district court appropriately noted that he had discovered or he had reviewed those pleadings in was aware defendant's arguments on those issues the really does nothing in mr brandon's pleadings that was not then described in his appeal in other words there is nothing new in the appeal that is that was not sort of raised in the pleadings which the court said multiple times the court had reviewed the court just essentially decided against the defendant on those issues and i would submit your honor that is both implicit in the sentence and then explicit to a degree that the court addressed some of these issues and under the relevant case law your hon considered the organs of counsel agreed with the majority of the appellant arguments granted it's substantial variance and adequately describe the court's reasoning for any sentence and any failure to do so on the district court support was not lot more experience in the state than i do that said i don't agree with him that the that that these you know of how state custody would play out was agreed to by all the parties during the sentencing i don't agree that we really had any sense of of how any of that would play out that this was something that everybody knew would happen and was baked into the eye or standing of the court and again i think the real error here is i n failing to acknowledge that the guidelines presume concurrent sentencing in this case and that using consecutive sentencing to sort of cut mr thomas  down to eighty four months i do know that that was through one guidelines departure regarding criminal history that was less than what we had asked  mob moderately mildly adjusted shotgun barrel link in the court the court agreed that that was adjusted as and saw the adjusted as in somehow shortened in this case but it was it was longer the barrel length was shorter than it was supposed to be but the total length was longer than it needed to be in the court found that that was not a destructive device and so i think that and it was not like other destructi noted it reviewed all my arguments and i am concerned about a system in which the court can simply sort of read off the subheadings two of the sentencing memorandum say here the argument you made is that right yes your honor i'm not going to consider old or i have i have considered all of them but i'm not i'm not going to say anything about all of them i think that that is a concerning possibility and in this case where again i would submit that the court was trying to cut a break and sort of subsuming all of those arguments into the break with consecutive sentencing we do have a problem that requires reverse thank you counsel can i say something  mr brandon i'm really not wanting to pick on you but i've been wanting to say something to the bar generally and you've given me the opportunity we had a little colloquy about roman to one b that was fine i understood it your briefing was great but when i went to your table of contents i say ok talking about one v m to look at one b the pages don't line up and the reason i'm sure they don't line up because i know you're a good lawyer is somebody puts it in the computer and then when you do the final version the computer mis pages it so threw you in a c m really not picking on you everybody here and everybody you talk to read your