clause was declared on constitutional re sentencing he no were qualified as a armed career criminal didn't have three qualifying conviction and he was not a career offender because the offense of conviction is not a crime of violence  but two issues did arise and one was whether earlier florida reconviction qualified as a crime of violence of the guidelines and that was pertinent to the establishment of a base offense level and the other issue was whether a subsequent armed robbery for which he was sentenced after the original sentencing for seeing qualified for three criminal all over again brian and then why wouldn't it have been proper for him to conceive of this or this conviction well he can consider it but the question is whether it qualifies for criminal history points now the fact sentence it's a prior sentence it does right if it's a prior sentence and they can and second prior to being p r iow are prior to the senate saying that we're here to discuss today right yes or if the earlier senates was was vacated made in l and t y to way void gone or never occurred well this is a prior sentence as well let me let me give you my argument in a nutshell for purposes of scoring criminal history points the term prior sentence as did find in the guidelines does not clearly and unambiguously include sentences imposed prior to a recent unsing proceeding now when you read the definition of prior sentence just the ordinary meaning of prior sentences  and well there is some dispute as to that among the circuit courts now if this court thinks the term sentence on him but usually includes a recent in saying clearly comes under the definition of prior sentence i don't i don't think that's correct because the de novo sentencing will tell us a couple of things it may tell us which guidelines apply  it may tell us the scope of the recent thing but it doesn't tell us anything about the interpretation of the term prior sentance the other aspect of t that i disagree with is the reliance on the pepper case the pepper case from the supreme court said a court can consider a defendant's subsequent conduct such as a rehabilitation for determining  a downward variance so reasons at rather re sentencing and i would say i would agree that the district court could consider this subsequent  purposes of upward variance and i have no doubt that the court can consider it should the court be allowed to consider that we know the supreme courts of the can but beyond that what's the policy reason for that what's the oh the purpose of is is that the judge has a wide degree of discretion and that's not the purpose that's the enabling factor but what's the purpose of allowing the judge to consider that it's so the judge can base the senate's own all the accurate information that's available at the time he recent it says and right ok i so caring that principle of this case he ought to be allowed to consider all the convictions that are on the record at the time he recently says and i think i agree that he should be able to consider the convictions and the sentence is what i have a problem is whether that figures into the calculation of the criminal history points with this is how you channel the consideration of those but it's not clear to me that the guideline instructs the judge to impose criminal his your argument is that the only way it's properly considered is part of the thirty feet five fifty three a factor yes or and i mean and that it and that it is not properly considered as part of criminal history that i share my only argument is the point that's that is it's just a sequencing argument for you right right but i get it from the guidelines i mean we know what the commission directs us to do i mean if obviously if a prior sentences imposed at the original sentencing proceeding you get a criminal history points if a sentence is a close after the commencement of the instant offense but prior to sentencing on the instant offense you also get criminal history points and the senate was imposed prior to the senate saying because the earlier referred to as the original sentence no longer exist it was wiped away it's a novelty because void well isn't that what it prior sentences and but there are other aspects of this guideline that cast doubt on what the condition what the commission actually intended because they they commission in  prior to the original sentencing but not yet sentenced it's basically one point if it's an unrelated offense so to me that's telling me that's telling us that the commission considered future sentences and where you have a future sentence what you are to take into account a senate that has not yet occurred right and so i but right and so we don't have that problem here because the senate the prior senate has occurred yeah but what i told the commission was dealing with what it was telling me that they're considering if i may borrow a term from the civil law liquidated damages that we don't know what the sentence is actually going to be for any sentence imposed after the initial sentence will give one point which is sort of my fallback position so they had so they actually did contemplate future sentences which which might be imposed after the original sentencing so that that that kick that cast doubt in my mind as to what they actually intended and whether they intended to score cr history points or a semi ask you a question that flips a person your facts to see if i can get the overriding principle of whether we're supposed to decide the most current use the most current accurate information at recent sing or were frozen on an earlier sentencing on that what if the dollar general convictions had occurred before the first sentencing and they were counted in criminal history points and then while they appeal the federal appeals i'm sorry not appeal but the gap between the federal sentencing and they that will force federal centers being set aside during that interval the dollar general convictions it been vacated in state court for reasons unrelated to the federal issues so you get at the second sentencing the recent sing and the dollar general convictions that were counted it's the first one no longer convictions now would it be your position that they are still counted on criminal history points because they were the first time you wouldn't argue that i would be i would be arguing that she's judge barnes yeah and you would if you would everybody would recognize we don't count them at the recent acing for criminal history points right there most current accurate information we have so how is it that when the current accurate information cuts the other way and establishes that there are convictions and stead of that there are no longer conviction to we don't count that judge it's a tougher if it's a tough one but my only response is that it's not clear in the guidelines that the commission intended it's a matter of seeing whether the conviction they commissions intent is clear in these guidelines and to me it's not clear and mr burke should get some benefit for that so i'll come back for rebuttal thank you ok you've got your three minutes about all mr sampson fifteen minutes if you need thank you your honors and its best argument comes down to the court can can the district court in recent history consider the new convictions but only in an ad hoc fashion not within the structure of the guidelines frankly that doesn't make any sense and that's not what the criminal sentence is vacated the senate and any consequences that flow from that sentence are totally wiped away the sentence becomes void in its entirety and the district court is free to revisit any rulings made at the initial senate saying the sentencing process we start with the present the plain and ordinary meaning of the language in the guidelines for a one point one their points for each prior sentence exceeding one year in one month for a one point two prior sentences imposed with consideration sentences imposed within fifteen years before but to within fifteen years of either before or after application no one a prior sentence means a sentence imposed prior to sentencing on the instant offense a sentence imposed after the defendant's commencement of the instant offense but prior to sentencing on the instant offense is a prior sentence the background prior sentence is not otherwise excluded are to be counted if you follow the plain language and you're in a new sentence and you count everything that happened before then all of the authorities including the statutes at eight hundred thirty five fifty three am thirty six sixty one the guidelines at one b one point four the supreme court in washington which this court was kind enough to point out to us all allow the district court to consider any relevant evidence  here in the interim the defendant was convicted of twenty four serious violent crimes three convictions for attempted armed robbery with a firearm nine conviction for armed robbery with a firearm conviction for kidnapping to facilitate a felony or terrorize with a firearm these are relevant evidence for sentencing on a firearm often that's the district court could not carry out its obligation under thirty five fifty three  rgument is to say it it i have difficulty understanding how you can make that argument because what you're saying is it is better to have an unstructured i have a great deal of respect for judge hankel but a randomized consideration when there is a structure that you can fit it into and come out with a result which gives you your starting point and it is just a starting point now in the kitchen rarely decision they were dealing with a restrictive mandate rule not a full resentencing they were dealing with what were then mandatory guidelines not the case here and they had an aspect of double counting because both the convictions involved there were federal drug convictions so i think in maine the i think it did and i think frankly the to corral a case has a restrictive attitude towards the evidence to be considered at sentencing which is not supported by the statute or the supreme court or the guidelines and if the district court had seen that there was any overreaching or abuse in the way the calculation figured out the district court could have mitigated that by by varying downward in fact the district courts and it's at the top of the guidelines range taking a good look at mr burke and his criminal history what's the point of the criminal histories effect of the criminal history score was raised to the point of it not the effect of it why do we have criminal history considered as part of the g because of the philosophy of the guidelines considers i guess two categories one is that one is the offense and the others the offender and recidivism prior history the best predictor of what people will do in the future is what people have done in the past and here we've got a defendant who would suggest that you would want the prior senates count it absolutely here we have a defend it with a lengthy juvenile record he'd served a prior seven year sentence for the armed robbery with a firearm what other conviction for what charges burglary but if you read the facts it was another they were stuck in a motel clerk's another armed robber with a farm and apparently was arrested in the middle of a third armed robbery i don't know how far that went to gotten he does seven years twenty in the next twenty seven months he picks up five misdemeanors and then is arrested for the takeover robbery of the dollar general store which fourteen people are held hostage at gunpoint for twenty minutes and when they go to arrest him for that robbery they find him with another gun which apparently was not connected that robbery and i didn't handle the case riginal have had it since the collateral review i don't know whether they're looking at the surveillance films or or how they or whether the defendant was trying to avoid that being a consideration that would have raises guidelines but at any rate it's no surprise that the take over robbery conviction scorners criminal history or that it got sentence of top of the rank that follows the guidelines follows a statute that followed was meant and that follows common sense wasserman tells us consideration of a criminal conviction obtained between an is and if he doesn't to speak you can consider it for four hundred thirty five fifty you know but but this is a really narrow issue domi issue really is whether it counts for purposes of criminal history and if it does if opinion that moreover a rigid limitation of increase sentences to those based on misconduct occurring after the first sentencing would needlessly arrays relevant information from the sentencing slate while contributing nothing to the goal goals outlined in pierce and i say that when the guidelines were written that was the state of the law that was the mindset of the judges and the legal scholars who created the sentencing guidelines and to say that somehow we've we've frankly the guidelines could not imagine every hypothetical situation that would occur that they tried and there and there are a good product to the extent they address it the way they address it is with the compassing terms each prior any prior and the eleventh circuit says we start from go at a don't over recent and we started from go and it was prior so it encompass the situation to cerulli case said prior sentence in the in the guidelines means prior to the original sentencing proceeding and the clump case which actually came out the other way in sports  the government's position nonetheless said the guidelines do not provide guidance for this question now taking into consideration judge prior your comment that the purpose of imposing criminal history points would logically suggest that they should be counted because we know the sentence now exists but to my way of thinking the answer to the question is not whether it's logical to count them but whether they can mission told us to count them and that's not clear to me and for that reason i think the criminal history points should not be included and so for that reason my request would