whether a defendant's appeal from a written judgment is properly considered an appeal of his sentence or the imposition of his and therefore properly barred by a valid appeal or we submit that the court must st determine trial he was serving a state sentence during that period between two thousand and thirteen yes he was although he was read into federal custody from state custody it isn't up the whole controversy right what and that means well the way that  going forward while everyone agreed that it should be concurrent and then when it was brought up like what about the basically the five plus years that this federal case has been pending the judge did that he understood that the that mr tensile would get credit for that time against his federal sentence the government thought told the judge he thought it was automatic then the judge clarified that wanted to achieve that and five g in the sense in guidelines was the route i agree that five g of the sentencing guidelines is the most sure way of affecting that that so he would have had to give an entirely different sentence that is reduced to account for that time i agree i think that if you want to do everything by the letter that is the most appropriate way of affecting the sense that the judge and so he made a mistake he was mistaken about the date that he went because you're mistaken about he was i think i think everyone has the ok was going to calculate it right he said he said that the b o p will determine that but everyone agreed that the date  i believe that one when reading the sentencing trial it's clear that everyone in the room believed he would be getting that credit by the b and so if someone had understood better the way that b o p credit sentences and time already served and had brought up this problem that has now been identified on appeal with the way that the court that the b o p credit sentence credits time that has or has been credited towards a state sentence in this case then this discussion and the the idea that resort to five of the sentencing guidelines was necessary could have been explored and discussed and the mechanics of a that worked i'd lines area there would be no question that the appeal waiver applied so i guess what i'm trying to figure out here is you're saying essentially that the judge was mistaken when he said that the judge intended that he said i understand that this is the agreement of the parties that he be given credit against this federal sentence for this time and that is my intact that he be giving the bottom line is i believe that that was but the government at sentencing said absolutely he agreed that he should get credit for that time and then he told the judge i believe it's automatic that he should he'll be getting credit for that the the prosecutor was wrong so be a different case right if he had the appeal waiver in the plea agreement but the sentence was contrary to the agreement but that's not your position you're saying well the government has stated it what it was unstated in the text of the plea agreement the plea agreement simply including the court thought that he was going to be getting credit for this five years over five years i guess i did i mean i guess they disagree with you about that reading the sentence in transcript i think it's unclear but i don't think i don't think it's clear that they all thought that he was getting that back that back dated credit the judge said that if this is my intent and i will make sure that the judgment and commitment order reflects that and it was totally clear to me what his intent was right but he did want to make sure he got credit for the time in federal custody but it wasn't clear about what he thought about the starting date well given that he cited to the specific date that he intended the sentence to run and i would have to disagree save my minute for lot of benefit from the government he also agreed not to appeal the sentence or the manner in which his sentence was imposed i think judge barrett you said to defense counsel that the judge would have to give an entirely different sentence for mr tassels argument to williams is it true is the defendant correct that it was the parties understanding even if not reflected in the text of the plea agreement that he was going to get that credit from november two thousand and thirteen that's not clear to me on the transcript  to take two hundred and sixteen months on the break in judgment cross that out and write one hundred and forty one months that's the remedy that they're seeking in their reply brief and if you look at the last whole paragraph on the reply brief they say the clearest mechanism by and your honor i think without the plea agreement that might be an appropriate resolution to this case but the defendant in the government entered into a binding agreement where the defendant said he wouldn't appeal a sentence or the manner in which it was him and there's a carve out for ineffective assistance of counsel so the parties agreed if there's a problem with what the district court did there's a mechanism for resolving that and that's in the twenty dollars to fifty five dollars motion but mr roland how could an effective assistance of counsel let's let's the me let's put aside the particular facts of this case you know what if a judge gives an oral sentence of four years and there's some colossal screw up and it turns out that when the written judgment comes out it says eight sure that's not in effect of ineffective assistance of counsel  here your honor he did have a notice of appeal on file already within the fourteen days and so to me it's clear he was going to appeal something i don't know that he was going to appeal this issue so you think that he could have made a rule thirty five motion if he had a problem with it or if he thought it was in conflict with the oral well what he says in his opening brief and i have no reason to dispute this is the b o p didn't make that determination till after the fourteen day period right and so in this case the appropriate resolution would be in the twenty dollars to fifty five  motion but in your honour's hypothetical where there is an oral imposition of four years and then the written judgment says eight years that's clear on the record as to clear discrepancy between the oral statement of the written so that's something that could easily be resolved in roll thirty five motion here the problem is it's not clear on the record what the district court intended as it relates to that period between i'm just worried about this the waiver thing it seems to me i mean it seems to me this would be it an entirely different case it would be easy to send it back for the judge to make clear what he meant on the record absent the plea waiver but i'm just a little bit concerned about taking away a defendant's ability to pl between an oral sentence and the written judge your honor respectfully you aren't taking away if the defendant who's already bargain that away and he got a lot of benefit for as you know he got a cap sentence of thirty years he got a five k motion and he got the potential for below the mandatory minimum sentence he got the government's recommendation that it run concurrent to a state sentence where he attempted to kill his girlfriend's you know and he got the government on his side in this case and that's a benefit that the defendant entered into knowingly voluntarily and judge simon judge simon was very clear through a lot and colloquy where he said listen if i get anything and i'm paraphrasing here if i get anything wrong you're stuck with it yes you have an ineffective assistance of counsel claim but you're stuck with it and the defendant said i understand that and i want to go forward with the plea agreement and the plea agreement in this case is that he would not appeal a sentence or the manner in which it was imposed i don't know what this is if it is not an appeal of the sentence he's saying the actual number on the judgment is wrong two hundred and sixteen months is wrong in this court to put want to cause judge simon made a mistake about how he could account for this those kind of guidelines or in a way because he didn't use guideline five gee if that was the and so that requires the court to then do a merits analysis to figure out whether there is a conflict before it determines whether the waiver applies and this court's been reluctant to do that what i call circular reasoning in saying well let's figure out if you have a more meritorious claim if you don't force the waiver if you do will bypass the waiver will carve it out and i think that that's the correct approach i don't think you should put the cart before the horse when it comes to these waivers but even if you did bypass the waiver the problem for defense is that you have to show that the court's oral statements are clear and unambiguous and they clearly and unambiguously conflict with the written judgment this record is not clear and unambiguous that judge simon intended to impose a one hundred and forty one month sentence and what the judge said on page twenty five of the sensing transcript as i think it depends on when he was rated into federal custody from state court to that will be up to the b o p s bureau of prisons to actually calculate judge simon is a very experienced judge and he understands that these b o p calculations good time credit calculations are extremely complex and that's why typically we get up there and you say judge you can't really predict the way the b o p s going to as i read the sensing transcript judge simon is saying b o p s going to figure this out i intend you to get as much as you possibly can mr van zyl as much credit as you possibly can but ultimately the b o p s going to be the final arbiter and that is the law laws that the b o p s going to be the one who makes this calculation p can't give you credit for time you're already getting credit towards another sentence so this five and a half year period from march two thousand and thirteen until the sentencing on march two thousand and nineteen i started november two can't give you credit for that five and a half year period because you're already getting credit but be opie can't do as they can start to reduce estate sentences and doing that when you talk about credit is a different crime correct it say listen i'm giving two hundred and sixty months and i want that to start in november of two thousand and thirteen so that he can't do he cannot back data sent us an under the president and the statutes and i think  no reason to dispute that he says he's going out november of two thousand and twenty four and so five and a half years of his federal sentence is going to be concurrent with the state sentence and then after that it becomes an exclusively federal sentence this is paragraph seven roman numeral for is the united states of america recommends the court impose a sentence to run concurrent with the state of indiana sentence previously imposed in cars number and then he gets the cars number there wasn't a discussion about this period between when he was brought over into federal custody and just if i may make one last point your honor is which is there's no dispute under this court's case law that when you're rigid over under this  of and i'm not going to butcher the latin name but when you're it over you're not actually in federal custody for be zero p calculation purposes you're still in the states custody and that's why he was able to get credit towards a state  sentence you know it physically you are in the custody of the marshals because they're the ones in charge of you but in terms of prison calculation in terms of prison time calculation you are in the custody of the states so is until judge will occasionally kate say how is the b o p going to calculate this going forward because of the complexity and the issues involved are typically answer is judge we don't know we can't say it be great if we could tell you but there are factors that come into play that we can't necessarily figure out so if this were a case where the parties intend to impose this one hundred and forty one month sentence the appropriate thing which defense points out would be to say judge if you honestly believe that he should get these six year credits the only way to ensure that will happen is to get the one hundred and forty one month sentence and then on the judgment note that you're reducing it pursuant to five to one point i don't know if a district court judge has ar he did not bargain away his right taken to you know its logical conclusion the government's argument is that if mr chancel had not been brought over from custody his counsel the written judgment materially changes the amount of time he's going to have to spend in custody from what the judge explicitly ruled in the tensing hearing is effectively in fact i had to explicitly context the marshals and have them send the information to be ok to even get the p o p to calculate his sentence and that happened well after i was appointed and after th sentencing transcript is clear as to what they intended but if this court is concerned about whether or not the judge really would want to give a dick parcher under five g one dollar since it did never come up at sentencing i don't believe that that makes