thank you very much for hearing me on his behalf this morning this case involves a thirty five eighty two c motion by the defendant appellant for reduction in sentence the district court entertain the motion required a response from the government and then granted a partial reduction in sentence based on what the defendant appellate was asking for of three months but nowhere in the order doing it the district court give any of its reasons for doing any of this besides a bare bones farm where they checked twice and as we've submitted to the court we believe there's a circuit case called united states versus howard it's instructive in exactly a situation like this and that in that case the court they're remanded for a statement of reasons and one would believe that it was remanded so that one could then assess whether the district court found the a political range which we don't know from the order we can infer from some of the documents that i think we can infer that the government had said well you can only give them three months to sixty three in terms of the primary charge and we don't have any reasons that the district court did that so my question is this if if we were to determine that the district court could not go any lower as a matter of law would we still need to remain and because we don't know what went through his  head well i would say yes i would say that it is never harmless error not to put reasons that are required on the record but i would also like to point out and i think it's instructive on this point because part of your honor's question was the government said that the district court couldn't go below three months the government actually had a very different position in the district court in fact in their response in two places they said quote in this case the court appears to possess the discretion to reduce defendant sentenced to a new combined term of not less than sixty three months imprisonment that's it excerpts of record page twenty five then again it says quote for the reasons outlined above the united states does not oppose defendants motion for an amended judgment and concedes that the court could reduce his new sentence to a new term not lower than sixty three months in the emperor ins combined as to all counts so the position in the district court of the government is one hundred eighty degrees different than the position of the government in this court so you think the government's position below was that the district court could have said fifty one months on the drugs plus add twelve on the other charge and that gets you to sixty three yes i think that is the government's position but the government there quibble below was they didn't want the district court to go that far they acknowledge i don't think there's any other way to read their statements in their response that the district court could go could could structure a sentence that way i mean  understand maybe the original sentencing ok as i understand the original sentencing we first of all had to come up with a base of fans level right yes and we arrived at a base offense level of twenty eight but then we made some adjustments yes some were lower some were higher by going down and going up we came up with a new base fence level but it was twenty eight right in those adjustments it's my understanding that the court took into consideration that he had failed to appear that was one of the reasons for some of the adjustment right exactly and so therefore because he had failed to appear here i he they the base level went up from twenty six to twenty eight right exactly so when the judge was trying to make the first sentence he said to himself ok with a base level of twenty eight and a criminal history category of one gives me a guideline range of seventy eight to ninety seven and he imposed seventy eight and in beginning to seventy eight he said i'll use sixty six months for the conspiracy in the distribution and then i'll add the twelve months for the failure to appear and that will give me to the lowest level of the guideline range right now if he had instead said well i'm going to start with seventy eight and add twelve wouldn't there be an argument for double counting yes and isn't that exactly what he did the second time through i mean in fact if in fact we get to sixty three he has raised the base level by the two points to get to twenty six and therefore he has used the same reasoning to get to his base level that the government now wants to use to have twelve months extra and so therefore we would have double counting right yes now my worry about this is that when i went through this i don't know what the district court was thinking yes now it may have been the district court was thinking hey i gave him seventy eight i thought seventy eight was good and i don't think he deserves much less than seventy five i just don't think he does or doesn't matter what his base is that's what he deserves that may have been what he was saying but i don't know because he doesn't tell me right or he may have missed this that he was thinking about double counting the first time and didn't think about it the second time and therefore if he were to impose twelve of the sixty three he might be subject to double counting error correct correct but we really don't know  we really don't know because he didn't say anything and that's why i started ok so let's go let's get take that as a given we don't know but we also don't know that it was thinking what judge smith imputes to him and therefore let it be so let me just ask you this because this goes to the legal question to what the judge was thinking yes because we don't know we don't know so leaving aside what we don't know about what the judge was thinking and you're looking then at the statutes view where they're separate terms of imprisonment for the drug crimes and the thing you're to appear or does that become a single term of the prison under the grouping because that seems to me to be a legal question that the judge will have to figure out when it if it were to go back really rests on this legal question i agree your honor and i also think the policy statement that we're involved which talks about a t imprisonment over and over and over again in it it doesn't talk about it term of imprisonment on one count or another count in this you know when the sins and commission issued this amendment they thought that it was going to have to deal with forty some thousand people they're very sophisticated they know that lots of cases are going to involve situations like that are presented here so i think they could have said except that they're talking about a unitary kind of t imprisonment and in other parts of the guidelines also talk about how you reach a guideline sentence that's at the low end in a situation like this for instance pardon me just one second for instance the obstruction of justice guideline and then the commission of offense while on release guidelines in the application notes give examples of how you get to a guideline sentence and it can be this this consecutive and then you reach the lower end of the range and they term it a guideline sentence they call it a total punishment do it doesn't matter here's another perplexing problem i found you can shed some light on it ok so when you go to the guidelines having to do with failure to appear to jay one point six r the phrases that are used there are combined sins and total punishment right and not term of imprisonment what's to make the change in the language well it's interesting because to j one point six is an interesting guideline except we go in and it kicks us out again we go in it and it says no use the obstruction line group this offense with the underlying  offense so it's interesting but i'm not sure it's determinative and here's a place where the government and i have seventeen seconds left the government says their position here in this court is different they talk a lot about thirty one forty six which is the failure to appear statute in thirty one forty six v which is the penalty provision in the government's response below they talked about the sentence being commanded by thirty one forty seven and they have three pages of discussion in their response about thirty one forty seven but in the government submission here to this court there's nothing about thirty one forty seven and the commentary to the commission of offense while on released actually it gives an example the last sentence of application no one says similarly if the applicable just go in range is thirty to thirty seven months in the court determines a total punishment in quotes of thirty months is appropriate a sentence of twenty four months for the underlying offense plus six months under eighteen u s c thirty one forty seven would satisfy this requirement when speaking about thirty one forty seven talking about a consecutive extra sentence and i guess that's a good place to stop because now we can ask the government with a new great thank good morning may it please the court helen bruner on behalf of the united states let me attempt to unpack this a little bit because i think there's a couple of things going on in this case that are somewhat unique or at least sufficiently unique that i could not find any case that had precisely the set of facts we have a defendant who is convicted of three in three separate cases who sentenced on the same day the first is the two thousand and eight  drug conviction which carries a mandatory minimum six month term of imprisonment and then we have the second the failure to appear and then we have the third which is the new drug charge which is the charge that he that results from his conduct while on fugitive status and it's the interplay of these things that seem to  be so troubling in this case it's also clear that thirty one forty six is the conviction he was convicted of eighteen u s c thirty one forty six for the failure to appear he pled guilty and was separately sentenced for that and that statute very specifically says in be two that any sentence imposed has to be consecutive to the underlying sentance  clear i think that the court could have at the time of the original sentence determined that no term of imprisonment was appropriate for that conviction but instead judge robert did in fact impose a twelve month sentence and that had to be consecutive so where we are where that leaves us is his new guideline range and there's no doubt that the guidelines require that all of the sentences  be considered that the guideline range for all of the sentences be considered together and because the sentencing was ocurred at the same time what i mean by that is this explains the confusion over to j one point six if if this defendant had been sentenced alone for the failure to appear today one point six would have been the basis for th calculation that resulting total offense level would be fifteen in fact he stipulated to that in each of his three plea agreements get to the heart of the question and that is explain why in your view the judge couldn't on the re sentencing to fifty one plus the twelve and whether in fact something within that province was something that the government conceded could be done when this was argued well i think we we we certainly missed one essential point and that is that the sixty months on count one was mandatory so the only way that the court could have gone below gotten to sixty three months as the total sentence is to reduce the term on the failure to appear to three months consecutive or to zero and left it at sixty three for the drug drug offense so you said the mandatory sentence on the first count was sixty one months sixty sixty months so in your mind the judge could have gone down sixty and given sixty to bowl of the two thousand and eight two thousand and thirteen charges and then added twelve to them your honor i think not because i think the failure to appear should be considered separately all you think but you don't you haven't given me any statute or any something that suggests that my my worry about this is as i tried to explain to counsel seems to me that the judge took into consideration this failure to appear in setting the basis of fans level he took it into consideration in setting the base  offense level of twenty eight he took that into consideration in setting the base level of twenty six and if in fact he said he took it into consideration if you're going to give twelve months plus on that it seems to me one could argue this is double counting i would respectfully disagree your honor what because i don't think it is double counting where the court actually considered the court was required obviously to consider the separate conviction for the failure to appear that was the two level and hand spent that he received for obstruction and one on it's that in the name raises his guideline range as a result of that it seems to me that there are at least good press of good argument in cases to suggest if you had twelve months to that you we're now at the second which is sixty three to seventy eight yes your honor and in terms of the failure to appear there really he is the only thing that's changed here is that the drug sentence has been reduced let's stop there just to figure out what can and can't be done if this were to be remanded since this comes here as a result of the commission's reduction yesod crimes and my correct that when it goes back nothing can be done with the failure to appears and well then it would be the government's position but in answer to the court's question i think that what the district court would be limited to is a total reduction to the extent that the court disagrees with my position a total reduction of sixty three months and the only way that the court could get there then is to put the mandatory minimum sixty on the first the two thousand and eight offense and then reduce the failure to appear to three guideline range if we don't know any wanted to get to sixty three you're saying it would be ok for him to go sixty plus three and then he would have sixty three yes sure honor permissible your hon yes to the extent that he could reduce the failure to appear i would suggest your honor that it's sort of an interesting quote it is the interesting question in this case whether or not the court actually could reduce that  we don't have any idea what why i think we can only infer from the fact that he chose to reduce the sentences for the two drug cases to the low end of the guideline range and then left the failure to appear sentence in place that that was his intention that the failure to appear did not was not affected by the reduction in the drug guideline and he was taking man into account  i think you can infer that i don't but i would only say it is fairly cuz he did not express it directly and there's also a section one be one point one zero which i think factors into this that's the section which directs the court to attempt to impose a sentence that would have been imposed have the relevant amendment been in effect at the time of the initial sentencing comes out a deal and versus the united states it seems to me at that point if that's what the judge is posed to do with this given motion and all the parties agree that the defendant satisfies the first step of the motion then at that point i have a tough time with us unless there's some legal argument you can make to me to make a decision in this case without a remained your honor to be clear i mean i've read that that aspect of the guideline i think i certainly could argue that is your that you could parse these things because the court very clearly thought that the failure to appear was something that should be punished separately in that twelve months it apply but having said that i would be remiss in not acknowledging that the way the guidelines calculate this they of course calculate this as one total guideline range that the court then and apportions but it is clear that the district court at the time of the original sentencing did parse out that twelve months and then consider it sixty sixty six months as appropriate for the two drug offens that the government isn't really opposing a remit here well your honor to the extent that the judge has not explained the basis for the sentence and the court believes that the twelve months cannot be separately should not be can be reduced shall i put it that way then i think you do have to remember because the district court has not expressed why he parsed it the way he did other than i think it can be inferred you may have a minute if you need to unless the court has any questions thank you very much i think we've come to the end of where we were