unopposed motion that was prevented that your client was who do to one hundred and fifty two months is that accurate i believe that is accurate i'm not sure why that occurred although  have i needed to ask you is it reflected in the paper that even indicted in august of two thousand and nine and what guilty in october of two thousand and nine could you tell me when he was arrested if you know i do not know the date of arrest off the top of my head i believe it was fairly close to the indictment date all i could supply that i harbor to the seem to recall that i had to do a calculation a rough calculation of how much time it serves i think i put in that motion that day he would have been detained ok well we'll law we'll check on that maximum from for the nine hundred and twenty two dollars g offense would have slightly or somewhat over served that period but you're right the numbers came out pretty close you know in any case and go ahead and  make sure that we could be a little more time thank you in this case as your honor recognized i find myself in a rather unusual and unfamiliar circumstance where i grew with the government at least insofar as relief for twenty four c was viewed as simply a penalty or an enhancement because it provided for consecutive sat and they are her functions the same way increases the penalty that a court must impose fifteen years and the maximum sentence is elevated to life and so what you have is a situation where the conduct in this particular case is no longer illegal under the arm clear criminal act because you might think gauging the a firearm well having three qualifying felonies and mr davis doesn't them so he would no longer fall within the purview of that particular said right but but but walking around having those three prior convictions does not criminal conduct they that you know it's not but once you do respects functions like they do in the guidelines where you you know we've been watching for a range but you might be exposed to a different guideline range if you are a leader organizer if you possess a certain number of weapons if you happen to be a career offender and this is different from that because you're thrown into a not only a different range of punishment for purposes of the guidelines but you're actually exposed to a mandatory a drug offense or a crime of violence that was one thing but if you did so with a firearm then you were subject to this penalty under nine hundred and twenty four that required a step or five your or seven year or ten year  sentence apart from the underlying offense the same thing is true here the only difference is the focus instead of on the connection to the underlying conduct is the connection to the three qualifying felonies and gardner it's hard not to come away from that seeing that there is a distinction between innocence of the offense judge porter's question who makes the relative the important finding is that being under a prime d and i mean that is a little bit of a different circumstance procedurally then and then and then subjecting somebody to a much fall outside its purview and at least one of them is mentioned in the government's brief parrots which i believe judge greenaway is on the panel in that case so guideline issues i think could be distinguished from in our view from a claim calling under section one hundred and twenty four dollars really which functioned as i said that we believe that they have almost a separate offense in terms of how it's carried out in terms of punishment and statutory challenges to the duration of a sentence and functions as an equitable rennet remedy and those are the reasons we believe that this case given its peculiar facts and unusual circumstances falls within dorson bill and as  the the term of the sentence for the one hundred and fifty two months is there a way in which to  grant any relief to him if we deem that we like your diction meaning we disagree with the both you and the government justice to determine that the department current position which has evolved over the years on the savings clause and we looked at this that he would that in fact a tory maximum or close to it at that point so it was an apartment position that a logical extension issue that was proven to the jury to increase the sentence so i think that's different than what we have here well well the before we get into a greek ian and gardner just a couple more  hundred and fifty two month i believe that  i believe he had when we had looked at it and of ever december at that time he would have then at that point the only reason i have and is obviously it's possible that we would take a different view of the case if if that were so so would you along with counsel for appellate make a submission within the next was a charge of something that criminal in the person and now not criminal so i i i hear you that you want a logical extension of the words and go twenty to forty one is not need when it filed but he's been released pending the appeal and it's my understanding they're treating it as a to provide at least until october so the fact that he could go back to prison i don't believe it is i think after october likely moot because at that point it's sent in for the pending anymore and in october i think it's october th of this year when we don't feel it a good thing and hand that case i mean we're not advocating that it would be available for sentencing errors or mandatory guidelines career offender mandatory b statutory interpretation david would be serving a statutory maximum sentence of in prison and we consider that like a fundamental defect whether it's some care  particular case looking at the nonpublic decisions and then gardner and o'grady that this unusual circumstance certainly falls in between i don't think it's an extension to the sentencing subject to serving a sentence beyond the statutory maximum and his language both in newman versus kirby in public versus yost as well was from judge fisher and bruce who talked about the ability to challenge control the outcome here and getting back to your question judge greenaway i'm assuming that your question is if we can get a calculation from the bureau of prisons seven suggest that the date of but i would i would think that you could hopefully they give will provide you with that and we would you know obviously need your representation that this is exactly what they said time like i said if you need more time we inform the court and we'll be happy to get back to you we'll take the matter under advice and have a good day