three or four in fact that would potentially qualify work or in the district court's opinion qualified mr marks for the career offender designation under the united states sensing guidelines and its opponent's position that the district court either use the improper revoked for any of those convictions yes your honor in fact at the beginning of the sentencing hearing that was the argument of counsel that there was not any recollection of revocations recollection correct recollection but he never  underlying documents or records in the in the record to to essentially prove the p s r was that bare faced denial in mr marks case however there were the there were illinois department of corrections records for each of the three convictions the ninety four ninety five and ninety six offenses all of which are on the appendix and were made a part of the p s r and actually despite the government's contention was featured were were they were all featured prominently at the sentencing hearing where the court district court reviewed them in great  tail because in fact the p s r writer indicated that the narratives of each of those three offenses came from those documents and the ninety four ninety five offenses simply do not include any type of return during this relevant time period it was up until the start of the federal offense being nine hundred ninety eight october october first ninety eight which was fifteen years prior to the federal offense there simply was no mention of any return so those two offenses for some sort of statement about  sort of re confinement sentence or anything of the sort no it's your ticket of documents that were made a part of the record so unlike in marino could deal where it simply was the defendant at the last minute saying well that the p s are simply untrue i didn't  was not revoked without any sort of documentation the arguments of counsel here at trial counsel on behalf of mr marks were based in part upon these ideal c records and that's what differentiates mr marks case from reno  yes we know the sentencing guidelines are full of all sorts of arbitrary lines especially with respect to criminal history is there any sign in the record that either side suggested to the district judge that maybe the sentence shouldn't really depend on the answer to this question and she ought to just use her judgment on the thirty five fifty three a however the guideline question might be resolved well interestingly enough the parties actually prior to the formation of p s are rounder the agreement in its note in the p s r that the crypt under designation would not have been appropriate it was only after the p s r that the government then sided with that agreement and there was actually the sense is not within the c offender designation guidelines however it is above what would otherwise apply had the sentence been under that other guideline so so it's above even if the career offender guideline does not apply in essence these it's as sorry but it would be difficult for the sensing judge to just forget about all right so i'm wondering whether she didn't split the difference pretty reasonably here with the sentence that she gave you respectfully your honor i thought if that wasn't fact the district court's intention i don't believe that was clear on the record there was not an explicit statement to that effect and secondly i think when starting off with the guidelines and having to pre calculate the proper guidelines whether it's under pew or the supreme court's other guidance with regard to plain error by the ms the calculation of an improper guidelines range forming the starting point of the sentence i think in either situation again short of that explicit statement of regardless of the end result of this decision here that would be my sentence i think it that it remained for recent seeing is the appropriate remedy here and frankly it's a sort of back off of that so the question of the legal standard here the district court appeared to essentially agree that it was just merely custody that was required as long as mr marks was quote unquote in custody that that was sufficient to trigger the fifteen year period of time but instead it is a  revocation and resulting confinement in mr mark situation there was a two thousand and ten pts that formed an independent basis ideo see custody which did form a basis for custody so mere custody would not have been sufficient in this case there was that necessary finding a both of those inquiries that revocation as well as the resulting rican fineman which frankly just is not here again the ninety four ninety five offenses from the idea of records simply indicate no return during the relevant time period the ninety six offense does include quote a parole violator return but there's not that indication of a revocation and resulting in re confinement or calculation and obviously one question might be well what would have been necessary here some sort of adjud applying for b one point one or the factual determinations necessary to apply that guideline i believe she she understood for b one point one but frankly there is a interplay of several guidelines here that i think there was confusion about that being for a one point two one which talks about the fifteen year window during any part of an individual's incarcerated as well as hoary one point two k to a which talks about revocations and sentences of imprisonment bringing sentences within that relevant time period and i think there was confusion with regard to the factual findings there and i think that's what led to the misapplication of the legal standard here where it was simply custody instead violation i do not believe that the district court understood that distinction and i think that's in part because the court essentially said well parole is a part of a sentence custody is enough and that's all that was necessary so i believe that was a misapplication of the standard and potentially a misunderstanding of the factual be no documents in the records stablish in that revocation and given the severe impact on the sentencing range don't you think we should remand  so so that we we we can obtain that sort of confirmation of frankly your honor the probation officer may clear both of the p s r and in the hearing that there were efforts to find the relevant documents but that he rely primarily on the idea of see verification documents to show the pattern of the defendant's custody with respect to each case and i think that's an important part i don't necessarily agree that the idea of  verifications are inherently unreliable third factor verified documents from the organization that is primarily responsible for the movement of that defend it and each document is relevant each case they're not you should they're gone they don't overlap and i think it's important to note that we'll just start with one thousand nine hundred six conviction if you look at the information contained it walks through when the defendant was convicted when it when he arrived  concluded that the nine hundred ninety six conviction counted without making a finding of whether he was really in prison and for a parole revocation what she said was parole itself as part of the sentence and that statement went on corrected despite the probations the probation officers attempt to clarify the point for the judge i think that hurts correct in that moment your honor i think we turned the corner and discussing the on parole nor did it ever ask for any verification that marx's parole on any of the nine hundred ninety days you know all those convictions guidelines you're right where i disagree is that because the district court walked through all of the dates for each of these convictions by doing that she's acknowledging where they defended it is he in custody it's that the focus during the hearing was on the timeliness of the convictions not whether there was a revocation and i never saw the court make any explicit factual finding that marx's parole for any of these convictions had had been revoked and to me at any rate that's the crux of the appeal i think she was focusing on the district court rather was focusing on the relying on the p inferences and conclusions based on these verifications our eyes and cursed ration and so moved on to whether or not he was in custody within the fifteen years and was not questioning whether or not he was revoked because just the pattern of quite ambiguous term and i think that's right your honor which is why it's really important to focus on the fact that each verification of incarceration shows where he was and that case and his discharge on the ninety really shouldn't matter very much you know any rational sentencing decision i think in part because there are you know he has four potentially qualifying convictions and the two thousand conviction was not disputed the one thousand nine hundred sixty six conviction based on the record is not seriously disputable so that was the underlying argument for why it was properly designated as a curve fender but the government the courts still want well below the guidelines in large part because of the remainder of the arguments that were presented explain to me why the sensible sentence in this case should depend upon whether there is a piece of paper  extensive with the records this coordinated and in fact the defendant's only objection was that he doesn't remember the idea as you verification of arda incarceration are part of the record from the probation office not offered by the defendant he provided no additional information to refute what the probation officer concluded from his investigation through his efforts to understand the defendant's criminal history that should be enough for the district court to rely on and for the district court to rely on the those records put together with the defendant's criminal history and the probation officers reasonable inferences as to the status of the defendant's history i think kurt completely agree with your honor to require that the probation office the district  track down every piece of paper for a defendant with this type of criminal history so why don't you suggest a district judge is facing such an issue that maybe it shouldn't matter i will take that under  thank you hear that over there not parole but rather patients isn't rational under the way these records come together the fact that there was a specific piece of paper showing that he in cook county state court had been revoked  shouldn't be the crux of this question the probation officer should be able to provide the information based on his investigation his conclusion if the defendant disagrees he hasn't he has the right to provide founded supporting evidence for his position he did not do that he simply said i don't remember there being the hearing but notably as with most states where proceedings those revocations would have happened at the same time as his sentencing  conviction because every single time this defendant has been released on parole or has escaped his electronic monitoring he sold drugs again so he was going back so the reality of it is his memory wasn't it wasn't strong because he was in court so many concerned about a marina the deal governments over the government asked that while defense counsel could have brought up all sorts of records frankly no we couldn't help but there were the ideal c records that were about the extent of what we might have we were proving that a revocation would not have occurred so the argument about a defense burden proving something that simply could not be proven as this very frankly fairly difficult one other thing i think is well it was a couple clarifications one the idea of the records no it noted it just charge whether he was on supervision parole or in custody as a result of a re confinement sentence that stood it was still would have resulted in a quote unquote discharge discharge is not a unique term as it relates to the end of incarceration sentence frankly release would be the more appropriate term in my opinion and what we saw we don't know whether incarcerated pursuant to a rican fineman sentence as of that date and again based upon the documents in addition to the p s r that formed the basis of the p s r the only a definitive documents frankly that we could we could have an situation like this there is not that require revocation to bring the sentence within and lastly to judge hamilton's point i would agree that i think there could have been a broader sentencing discussion here about what would be in the appropriate sentence under thirty five fifty three but once it was determined  was a career offender the government immediately said a recommendation at the bottom of the guidelines range was appropriate in light of that does it nation so frankly i think that the guidelines range here was extremely important and requires three man three cents in the correct ran that they had well should you ever feel in contact with them again thank them for their i also thank you and thank you government always