sorry when mr hippie did guilty in two thousand and nine to drug possession the judge in the district court had only one choice to route to terminate his supervised release and impose a sentence there were only two areas in which you had discretion one was the length of the sentence the other was whether to make it consecutive or concurrent his discretion in sentencing was to make it between twenty and sixty months because your original period supervised release had been sixty months as were the second it was his determination he did not have to use the sentencing guidelines in fact that the statute did not say anything about using the sentencing and at that point to calculate the sentence on terminations of supervised release with the superior court sense as opposed to concurrently and that's a that's a pretty cut and dried question and i as i take it the district judge said on the record that he believed himself to be required to do your record i don't see a reason to depart from the dictates if i'm going to impose a guideline sentence you know i don't see a reason to depart to nabbing the world for well he  said it was required of him he said the guidelines do require that it be consecutive and clearly under the guidelines and under this at the time and under the statute that was not the case so so in effect the statute because of the changes in both the statute and the guidelines they've said there was a significant whitely hood or a significant risk or a sufficient risk that the sentence that would be the original statute and the guidelines as they were in place at the time and yes he might come back and say i'm going to impose the same sentence but that is not the touchstone here the touchstone here is whether he had whether he he could whether under the old statute or under the new statute the new guidelines there is the chance that it would be a more strict sentence than the one that was imposed and we're talking about purser errors here we are but i believe the government there are two reasons that is i don't think going to help the government one is i believe there's a case called u s b clark in two thousand and fourteen in which the government conce sentence imposed improperly affects the fairness of the judicial system so i don't think i think the point here a problem is solved in this case because of what happened here and so we believe that because the sentence could have been more onerous and in fact can be and in this case there is substantial evidence that because it was can had to be consecutive that the sentence here fell falls into you know how i wondered about that in this case because even though the seven character guidelines are policy statements the judge said i'm required by seven b one point three to make this consecutive so in effect he was treating it i think as a guideline rather than as a policy statement well under dillon maybe the guy the policy statement is even more binding than that calculation and in that case it feeds back into into the end clearly under under the preexisting law and the guidelines it could not it would not have fed back into the ether theory so those whether the district judge on statement is inter could be interpreted the way i'd put it i guess in the hypothetical i guess that would be right but there is an important distinction between the hypothetical in this made clear that he understood he had discretion and how and is not raising to you he said you know there's no basis for departure after he said that he thought he was required and that the guidelines required consecutive sentence but he ought to be a rather reasons for that sentence so palin had a very poor record in supervised release he's been arrested six times he's been convicted convicted of felony threats the probation office his argument this morning the argument is opening three he specifically says he's not claiming that the court didn't understand it had discretion his argument is a little more nuanced in his brief it's that it's similar to the error in peeling charile that the court was somehow pavin by the guidelines and that that somehow influenced its disk decision so and and that is the argument that the government is rebutting in its briefing and in that on trying to rebut now that  there was it was the situation in terror like in charleroi there wasn't a guideline range that simply shifted upwards here you had no nothing in the guidelines that said one way or the other whether the court was supposed to impose concurrent consecutive time and then you had a later opposed guideline that said the court should impose consecutive time and so judge labor looked at that and said you know i'm supposed to impose it consecutively and that's what i'm he did because i don't see any basis in the record for doing otherwise the court was allowed to consider that if you says specifically and it said in the government's brief that the district court is allowed to look at later promulgated guidelines and to consider them and the only question is is that an ex post facto violation i have done that but not in this case that is the one thing i wanted to point out was that i think it is important that here the guideline range didn't shit the judge clark was asking about that earlier and this is not the usual case and i understand the concern the court is expressing in that that really applies to the situation where like in here you have a guideline range that's around thirty and suddenly impute more than doubles and it goes up to seventy and you have two totally missing in the record is any narrative that matches your reconstruction and which is well i see the guidelines have changed under the a political guidelines here it's my choice but given the way the policy from the commission is going i believe that in my exercise of discretion i'm going to make the sentence consecutive instead he says i'm required and given that this is an experienced and she's doing a lot of sentencing and this kind of situation is relatively rare where you have someone so long afterwards coming out for education the obvious inference is that he's doing what he does and every other day which is using the current  utility guideline right and that's actually what the guidelines tell the district court to do and it's only the exception where you go back to the time i first because there could be an ex post facto problem and i think that actually supports the government's position because this this issue comes up on plane interview and nobody told the district court anything about this and the that makes apologise prejudice showing  well the district court gave reasons i mean the palace history of conduct when he was on the supervised release involved six different arrests so he now we know it's not a pretty picture and he's having his his release revoked right and know that's that's clearly warranted on this on this record but we don't have any discussion linking matt to his decision about who currently says consecutive right and the i mean i hear that in the council yes that's on the defense side because they didn't create the record they need and on playing our view that's the ground the burden is on them to show prejudice it's the burden is on them to show error and to the extent that it was booker error in this case it was in looking to the guidelines that all the guidelines did not apply to this case under the pretty one nine hundred ninety four statute so the reason there is no real book or error here is a book or error in paul's application erroneous application of the guidelines and that that's why there really is not this is not a question  young to a large extent the problem here was the joy that was advised wally by everyone involved starting with the probation office which used the wrong set of guidelines at the beginning it really that's correct but the guidelines on here under thirty five eighty three g but it the statute said this is what the sentence will be it will be one third of the period of supervised release to the full period of way ok and as for the the issue of ed if we look at this case on at the beginning of april two thousand and ten the probation office was calculating his guideline sentence is seven to thirteen months push come to shove the government would have come in and said no you have to give him at least twenty months because that's what the original statute said they could not have been potage lambert could not have imposed a seven to thirteen month sentence so so this is you know this is an issue that is the reason we haven't argued substantive on reasonable misses the sensor is within the range permitted by the statute but it has nothing to do with the by recognize you were appointed by the court that correct we thank you very much for your services