after and as yet at the time on impose pending sevens in another federal district court in northern georgia was lawful under eighteen u and specifically the language of that statute in the last class of subsection a is and i quote multiple terms of imprisonment imposed at different time run consecutively unless court orders that sentence by saying that it should run concurrent with the sentence from puerto rico this clause makes that judgment that instruction control because here's what i'm worried about i'm not says that you are correct why is the georgia court influenced to give a lesser sentence because it fought there allow me to file the sentencing transcript after the hearing but i just really read that transcript recently in judge baton and in that court specifically wanted his sentence to run concurrently with the puerto rico sentence right and he declined to he thought the eighty seven months was there but only in the context of it being concurrent with that percept he was asked by defense counsel in that case child i think it was it was at least it was at least three or four years in anticipation of the possibility that these two sentences might be held to be consecutive in order to avoid that as district court concurrently and i hold that it should with that first set what do you would you say about the government's argument movements and in particular would you would you tell me whether the bureau of prisons has taken a particular position as to whether because there certainly does exist the possibility that the bureau of prisons continue to count these can be sentences separately that the defendant mr i want to raise would serve considerably more run concurrently not consecutively well i'm not sure it's a concession here but i think it's somewhat unclear in that respect i will point out however that i think that because thirty five a day for a clearly makes these sentences concurrent that the risk involved here is that the bureau of prisons will not see it that way and it's really not their function on appeal would not be consecutive in effect we here will be imposing the ultimate sense i assume because i don't know for instance if the second judge had been faced with this issue of sentencing for the first time without the without the ruling of the first judge he might have sent your client to a longer period or he might have decided should be consecutive unless reading the transcript i would come to a different lesion is not an issue that we have to  second set you're right yes thank you this in this court which is he did not make this objection at the time the sentence he later came and within the fourteen days and move point normally the government would argue plain error is the standard to review for the quarter however the government has not argued that it's subject  legal issue in front of you so i think you best start with this said sir case and how it impacts this problem given your failure to argue plain error review this understand the court's position regarding failing to argue where the brief does not argue player of this court is certainly within its own discretion to determine based on the defendant failure to lodge a contemporaneous objection to determine whether or not the plain or standard of review should apply yes we've consistently refused to exercise that discretion to favor the expressly reserved the issue for us well i was i was going to say that the supreme court in such a held that a district court can impose an intercepted tory consecutive disregarded the supreme court and you know since persons being kind of stated that over to the while we should be respected should not control the issue which is presented before the court and in this case the decision impose a consecutive  in light of the fact that the court in satsuma held that it's more natural to read a section thirty five eighty four any to leave discretion to to allow room for judicial discretion in into a sentence that it would not otherwise have handed down owning to respect for the consecutive order of the first one so isn't the real problem that if you allow the kind of discretion that you sons the second court could consider whether or not to impose a consecutive sentence and determine whether or not that was relevant conduct from the first offense from the first conviction that relates to the second conviction when found a copy of the transcript from the sentencing hearing in the northern conceding well i haven't the government is conceding that the second court in effect can nullify the consecutive this order of the first court well based on the reading of the statute as the facts now today the second court was in a position to determine whether or not the already existing undischarged term of imprisonment should be imposed concurrently or consecutively and looking at the order kirk versus ryan case  my reading of did not did not follow that it was illegal of course of the review of the circumstances and the supreme court instance or did consider the fact that the late onset of facts can  second judge has discretion somehow that sentence yes and the court and sets are said that there there are several options that can be available to a defendant was not a subsequent federal court judge that's correct there are nonetheless the court said that there were several options available to a defendant including a motion by the director reverse send it back to the to the first judge and say correct the sentence yes or accept your rationale for doing it it may well be wrong you have referred to i think it was the sixth circuit case but in any case that the law of the whichever the one was to the effect that the the later sentencing order is the one that controls if there is a conflict between yes or no and i take it the government accepts that as in effect lot to be applied here yes i'm all right so so all we have to do at the most minimal level would simply be to say that the government concedes that in this case  the georgia order controls and in effect it it nullifies the the prior order stipulating that the two must be consecutive that would that be a fair statement of the government's position yes  way i think you better not there are two options that just as souter just flashed out one is the government is saying there is something about this cases it is that the person i'm seeing judge simply doesn't have the power to impose a consecutive sentence i mean consecutive sentence to be imposed on a future yet unemployment sentence in another federal court is simply no lawful under thirty five eighty four