to one hundred thirty five months plus eighty four months consecutive pursuant to nine twenty four c that's on the first page of the probation report and in this case united states ver three motion which they did not do i don't know that distinction does exist except i don't think that makes any difference in this case we are conceding that she has to serve at least eighty for most of the nine twenty four c count because that motion was not make the issue is the word of the guidelines allow on the fifty one rule fifty one vote to allow the together and then apply the departure or do you only go to the drug offense apply the departure and then add the nine twenty four c and it seems that under the case of united states versus all the you have to look at the point of departure as the total sentence that would have been imposed had you had no departure and i don't you know and it seems to be fairly clear i don't think it makes any difference whe zero i mean it's seems to me that if you have to calculate it it's still consecutive and she has to serve it you know regardless of what thank you i can't get there because they didn't file a motion to get under the mandatory minimum right under the management of the nine file that was they were considering at the time of the plea agreement right now it was my belief that's correct but they did not file the motion to to reduce that nine twenty four so you can you know i was not trial counsel but i understand that a nine twenty four c count as part of the same sentence that's the problem here it's not a separate sentence it's consecutive to whatever and so if you look at the whole sentence together the guidelines concept place that even though it is seven years or even four months it is part of the same guidelines sentence and therefore the five k one point one should be applied after you've completed and calculated the entire  have no case on that right no i think this will be the first one yes but in any event i think i do think that united states forces old which came down before the sentence was imposed in this case mandates the conclusion the total counts taken together under the guidelines the humanitarian minimum person only has one sentence if i look at your grief correctly if i read it correctly your previous jurisdiction to correct that sentence but united states versus all did come down well before the sentence was imposed in this case and if we look to go back right to the probation report it says guidelines one way to one hundred thirty five months plus thirty four months and and that is the issue here is this court obviously is going to have to decide is a nine twenty four c count a completely different entity or is it part of the total sentence and that's the issue here i just have one last thing about  t know if united states versus old had applied but i think given the complicated guidelines the fact that the violence on i think it should be remanded for reconsideration of the raised before the district court and what the district court made clear was that even if all that was a political to this case the court sentence would have been the same well look that may be what do you disagree with her you would imply apply the downward departure that the government recommended and only after that has been applied then you would impose the eighty four month consecutive sense that they says for that is this court's ruling in the united states of versus right rodriguez martinez and there we were in a situation similar to this one although there was no consecutive sense it was a mandatory minimum and it was actually the government in that case that attempted to argue that what we could do what should be done and what the district court simply based on the defendant's criminal history comedy where that sentence would fit into on the sentencing guideline range this court felt that that type of analysis of merging the sentencing guideline range with a mandatory minimum  hoc and it felt that it should not be done because what are the attempts to do is to substitute a statutory sentence that's the most without any reference to any of the different factors are considered in the guidelines substitute that it attempts to substitute a guideline rationale for statutory sentence so the government's position is that what the defense is advocating this merging of a minimum sentence to a guideline sense is not appropriate what the sentencing with the district court did was appropriate that is make the analysis of the guideline range and the downward departure which are off actors and sentencing guidelines independent of the statutory sentence which by its nature has to be imposed after that case that case was largely really an analysis of thirty five fifty three easy and those types of motions that the government did made and what the court said there was that last sentence in that statute the motion that the government has not made in this case does not permit the court open discretion to simply downward depart as much as it wants that that discretion should be guided by the guidelines and the language that the defense has held onto in this case that while thirty five fifty three each is not explicitly state where the departure should begin it is clear by implication that the court should depart from the sentence that would have been imposed had the motion nothing made that was speaking to the issue of the case of the sentence that is imposed on the guidelines can run concurrently the sentence the mandatory minimum sentence that's not at issue here here as your honor pointed out what first must happen is that there has to be a sentence imposed by the guidelines and then after that sentence is imposed the nine twenty four so you can't have to run consecutive to that so the distinction between all these cases and by virtue of the fact that no thirty five fifty three emotions made is that that this report made clear that it's sentence of one hundred twenty months was not a strict adherence to the count to a sentence in calculation method or a downward parchment it was a sense that that court felt was appropriate in this case so really what the defense that this hundred twenty month sentence was not sufficient if the court were to analyze that it would find that while the court the district courts discretion to impose a sentence or the extent of a departure is not reviewable on appeal government or the defense was putting forth simply what it felt was an appropriate sentence given the defense cooperation in this case as far as you're concerned what the judge did it was he took the prosecution's recommendation for a lower downward departure if he or she zero in the robbery charge and then impose a seven year sentence that's correct i don't know i agree that there be consecutive sentences would have to be consecutive to some other sentence so don't put to depart downward to zero the government would argue that there would have to be some sentence imposed on the other counts looking down to a day down to a day at that situation yes then i believe what the court was doing and to get away from what the government's recommendation was and a level downward departure but if you look at the court court did was exercise its discretion after analyzing the defense cooperation and impose a sense of one hundred twenty months yes the government put forth and a method that has been challenged in this proceeding about how that should be calculated but the court the one point out this government arguing that this was an artificial attempt to merge the mandatory minimum with the guideline sentence under guidelines section two mandatory you know would the court have not followed the guidelines here we're talking about the correct application of the guidelines and the construction of that then what would the court do so that's kind of the flip side of that and i think that if this court does find plain error