this is the same issue that's presently before the u s supreme court it's a little bit different than it exactly actually they're exactly the same but it's blakely versus washington in which the only difference is that mr burton sixteenth nineteen any ok right and it has the calculation has a little chart right ok and count one which was the right count is a given in offender score of sixteen serious ss level of eleven with the standard range of twenty one to two eighty months and the enhancement for twenty four months for the gun right right so the total standard range with to thirty forty three or four months burglary in the robbery counts right that's correct and then the third sentence what the judge did was to run these sentences consecutively that's correct by classifying this particular crime as an range by twenty one years of the forty six year sentence from a range which should have been nineteen to twenty five years now what the court is referring to is judge weinberg's of reporting recommendation where he says because they were consecutive and they were within the ranges he didn't view that as an appendage violation but again i think that elevates for more for substance the law are required to judge to run these concurrent the law required intermediate range technically we have granted that motion no your honor and so we how we deal with that motion you're limited to the issues that were represented in the certificate of appeal ability and that's think of focus on he has a greater chance a good time credits all it possibly could be less but certainly it's not greater so if it senses you know possibly less but not greater how can that be vindictive than victim this usually is in terms of well you know you come back you get  sentences actually less you look at the first actually more it's not actually more but i think the important point is when you look at the course of the litigation the facts and friends the judge in terms of aggravating facts have not please the court i'm john sampson assistant attorney general presenting the respondent in addressing the apprentice splash likely issue to serve in the court does grant a certificate of appeal ability on that issue was an interesting issue it is very application of clearly established federal law at the time the court rendered the decision he is not entitled to relief even if the supreme court in blakely rules in favor of the defendant in a case that case cannot apply to mr burns case fifty four d standard a lot of questions are going to be addressed by this court's decision in summerlin different but even even if those cases could apply to this case there's still a major distinction cranky and i believe blakely aso talk about facts other than prior convictions which extend a sentence beyond the statutory maximum neither of those kate neither of those facts occur in this case the reason the court imposed a sentence that impose was based on the facts of this prior convictions the court ran three standard range sentences consecutively because of the multiple  to ask you that finding of fact anything to have anything to do with the standard range no no and that is the issue in blakely is a case where the court imposed something above the standard range so the cases are the issue in blakely is the for example is the statutory maximum for first degree rape is that life which is what is the maximum sentence that a court can impose for a crime of rape in the first grade or is it the standard brain sentence which in this case asking the sides would it make a difference if it's a statutory legislative imposed standard range versus what occurs in the federal system where it's under the judicial branch so there was there was a discussion during or the vindictiveness there is no issue of indictive miss the judge believed that mr burton should not receive a life sentence but that is not vindictiveness the only clearly establish federal law that petitioner can point to is north carolina vs purse and the texas case and alabama versus meth and all of those talk about a greater sentence there is no clearly  vindictive it may be a tough judge it may be what some consider to be a law and order judge but it's not been dick to vindictiveness is when you're trying to punish someone for successfully appealing found on multiple offense was nothing more than a fact of a prior crime that's incorrect the fact of the prior crime has simply to do or you fall in a category almost like in the guidelines in terms of criminal history points but the multiple spence policy has nothing to do with the prior offenses in fact the multiple offense policy as it was arguing has to do with being charged with multiple offenses and how that affects or interacts with the sentencing guideline and any kind ever held in state or federal courts and we are talking in terms of indictive it in vindictiveness not only in terms of the difference of sentencing but bias motives i mean that's what goes to the heart of the victim in this is the judge