wanted to have discretion to credit my client for credit but run his sentences concurrent with a similar case he had in state court and he was originally ten or more months in state prison before he received he was received in the federal bureau of prisons and that's a fact what was as transpired and judge would want to to give mr ward sense with the remaining time that he had on the state case to serve let me ask you this was was your client in state custody when he was sentenced or in federal custody he was tried been transferred to federal custody at that time other cases that life is such rd and omega said the judge should have had some well those are cases that say in general judges should have discretion in general judges have discretion about because of this not the statute here strikes me as pretty clear there's no statute say it must be can it must be consecutive to any other it doesn't say any other state and or federal offense offense but that doesn't necessarily mean as a as stated in the u imposed on the person under any other provision of law so this new i mean how can we read that is not covering your case well because i think that language is vague your honor because in other stashes that deal with consecutive error but the calculations of the sentencing guidelines right there not to you not know that you but you're saying that your appeal waiver doesn't apply because during during sentencing the judge at one point said well if you don't like what i'm doing you can appeal it assistant u s attorneys who here a judge mistakenly tell somebody he has the right to appeal and stand by and don't do anything and the existing u s attorneys in this case did what they were supposed to do i don't think that people who hear somebody else say somebody stood up and so the judge went to judge there's an appeal waiver and he said ok to the extent you can appeal to the extent it's not covered by your appeal waiver so what was wrong with that your honor i have i believe what we are peeling is not within t is in our arguments we are strictly arguing that the court had discretion in a in a why didn't you waive didn't you waive the right to appeal the term of imprisonment imposed by the district court so long it was that the judge had discretion to make a determination as to whether he should sense mr warren suit concurrent or consecutive sentences under these circumstances that wasn't part of my pets a part of your people no you are however so we're not talking about the length of time in the sense or anything like that we're we're talking about credits and the judges the emanation that h there's a significant difference there your honor so does the plea agreement if the judge would have made a completely erroneous decision with respect to the law in general and how it applied in your client's case wouldn't you have a waiver for that would be an exception yes well you're opposing that he misunderstood the law what he could or could do well he did not believe the you have the discretion to well i'm sorry saying that he did so he misunderstood the law i believe so you are starting make court the law on arts and on behalf of the united states and with me a counsel table in assisting united states attorney katherine on who was the one who stood up and district court and told the district judge but the issue was covered by the appeal wa misunderstood how the statute worked in terms of consecutive or concurrent sentences the term of imprisonment the term of imprisonment imposed in this case was a total of twenty seven months three months on count one to be served concurrent with the state sentence twenty four months on count two to be served consecutive to count one and to state sentence that was the term of imprisonment that's what the defendant is appealing that the district court should have run more than three months concurrently that's a challenge to the term of imprisonment imposed by the district court and that is squarely covered by  that the court imposed and that that term is is used in the statute it it's the the plain meaning of a term of imprisonment is all of the conditions that are part of it and and the structure of this term of imprison three months on count one concurrent twenty four months on count two consecutive that's what's been challenge here now there was some reference in the district court to custody credits and they just record said well that's that's really not up to me that's up to the b prisons but if that were the challenge here then i would say that's also covered by the appeal waiver because that would be part of the procedures in calculations used to determine and impose any portion of the sentence so that again you're if you're the waiver applies to how the you know to to to the district court said that's an issue for the bill i'm not going to calculate the credits ok i don't think that that's the claim it's being raised on appeal but i think that that would probably be goes to the bureau and says i'd like custody credits i don't think the government could then say wait a minute you waive that i'm not claiming that ok i'm claiming that to the extent that his i don't think the defendant has appealed judge who's decision that he was not going to award any credit for the time i know what you did say look i i get i make all these run concurrent if i could but i don't think i  and the language of one thousand and twenty eight a is very similar to the language that the supreme court considered and solace notwithstanding any other provision of law no term of imprisonment imposed on a person under this section shall run concurrently with any other term of imprisonment that's the language of gonzalez construed to include state sentences but one thousand and twenty eight dollars is even more explicit and it adds imposed on the person under any other provision of law so we have exactly the same language and solace plus more and i would also point out that section one thousand and twenty eight dollars a was and acted in i believe it's two thousand and four which is after the guns all this case presume when we interpret a statute that congress legislates in light of the relevant case law so this language was adopted in light of the interpretation that the supreme court in gonzales gave to identical and twenty four c and it used that same language and clarified even further by adding under any other provision of law so i just don't think there's any way to read the statute as not covering state sentences moreover of this section and again as a as a basic principle of statutory interpretation when congress creates an exception we presume that congress considered the exceptions and it decided to limit the exceptions to those that it and there is only one enumerated exception here and the defendant doesn't fall into a commission's going to take you back to the colloquy and recognizing that i've already praised your side for doing what it should have done did the judge do enough in response to it the judge didn't say oh my gosh you're right forget what i just said there's an appeal waiver he said well you can so appeal to the extent that the appeal waiver doesn't prevent it is that the right thing to say in terms of did that vitiate the way for the language here clearly did not vitiate the waiver when when we go back to buchanan which is the case in which this court held that an unambiguous statement by the district court you have the right to appeal my findings that when there is no objection by the government that that clear statement officiates the waiver in subsequent cases this court has consistently held that you need two factors to vitiate the waiver what is clear unambiguous language from the district court and the nd is no objection from the government here we had a very vigorous objection from the government clearly explaining why this exact issue extent that i authorize an appeal that would not be inconsistent with the police agreement i would say that i would say that point of can appeal i mean defendant can compel this particular portion of my sentence i mean i think i can is i mean to be candid that it would it's it was very confusing at a minimum where he was saying and that's exactly why it does not vitiate the way for it because it did not clearly tell the defendant you can appeal my findings which is what happened in buchanan on two separate occasions and you can and the district court clearly said you can appeal my findings i also want to go back to the reasoning if you can in that the rule that that this court derived came from a different principle the principle that an unambiguous oral pronouncement of sentence controls over a contrary written judge and in buchanan the court  we're going to do the same thing here and say this is an ambiguous oral pronouncement controls if you have a pronouncement of sentence that was the ramblings that we had from the district court here i don't think anybody would say that that's a clear and unambiguous sentence that would control i think we would have to look at the judgment meaning the written language to clarify that here the written language was clear and there was nothing on ambiguous that contravenes that so if you can it does not apply and under the long line of cases distinguishing be canon in cases where such a shoeman where the government objected and in other cases where the regardless of whether there might be merit to the issues raised and regardless of whether the the defendant could have or should have anticipated those issues so this appeal waiver should be i'm going to start off right away with the guideline for count one was twenty seven to thirty three months and the guy and the guy had life or god two was a mandatory twenty four consecutive to count one correct and the judge only gave your client three months for count one yes he felt what part of that was he felt that the you know gives him a total sentence of twenty seven months which is the minimum that he could have given for count one under the guidelines correct your honor however what the circumstances where where we came down to to that formula as judge wound did find that there was an overrepresentation of criminal history he also he knew he could not give credit for the time he served in state prison but he could reduce the sentence under his discretion to give i don't want to use the word credit but to acknowledge that he had been in jail all this time and essentially for the same facts and circumstances as well except he was charged with something different in the state court than an entirely different than what he was charged in the federal quo is different crimes well the st couple counts and i don't have to state case there but your client was convicted on count four months we're not challenging that that's not what we're challenging at all we're simply challenging the fact that the judge did not believe he had to discretion to run it sentence consecutive or  current versus consecutive secondly i don't think judge move could be any more clear as to what he was authorizing the defense to do with regards to the same arguments that the government made before him concerning the pilot waiver well he said was look i'm not precluding the government from arguing that this waiver covers this he said you know you're free to go argue the waiver doesn't cover this if you want to but i'm not precluding the government from arguing that the waiver does cover it but he did say that he doesn't find that the waiver cover it does he say that see that's what i'm  he does ramble a bit but when he finally gets to the last point after ms on says i go check with my appellate department he basically says look the government is probably going to contend the waiver covers this and i'm not stopping them from saying that i'm not right well i get that and it's before your honor sue to make a final determination so my question was was your client really misled into the notion that the appeal waiver no longer applied put aside what it covers for a nd that's a legal question for us but what our case is seemed to say is look if if the defendant was misled into thinking that he had a right to appeal then we'll give him the right to appeal not withstanding the waiver i love the judge here in the end even though he rambled was pretty clear that look i'm not i don't want to give you any expectations that you have any rights if the government says you don't i mean the justice you go i give them to the appeals court but i'm not i'm