morning may please the court my name is michael romano and i represent my shifts in this appeal really the only issue that we are here about is whether or not mr ship season title to discretionary sentence under united states versus booker court issued its mandate and i submit that the overwhelming case law of the circuit is that appeal is still pending until the mandate issues and that therefore because the mandate issued after booker was decided that we get the benefit of jurisdiction to consider a new sentence after the mandated issued in other words all it could do was execute the original sentence of thirty months i think that again that the case law on the circuit says that any issue that hasn't been explicitly fo closed by this court's decision in the mandate is still open to the district court so i do think that the court had jurisdiction well it was amended in this case who demanded the mandate was just the form that's ordinarily sent that that we only had a week to do something between booker and the date that the mandate was issued with the question was we call them mandated you're saying you only had a truck or a before it was issued oh excuse me your right to extend the stay of the mandate i suppose we could have  your right i suppose that we could have asked to recall them and not only whether you could have a question is should you have done that is a proper remedy because you know one way to read at least one way to read booker or blakeley for that matter because both decisions were issued after this court's opinion in the direct appeal act to say i'm i would have to check with our rules to see whether an oral motion at this time would be permissible would you like to make a motion now to and i think that under again cases cited by the government which is united states versus crawford that we should be entitled to have the mandate recalled but again our position is that they need they did not have to be recalled because the people are still pending i didn't go deeper into the case beyond what was presented here in terms of briefs and ex urbs what's actually an issue if in fact you were to get reset and sing in front of judge johnson i believe the man of the last was contested throughout c thirty one forty three b four he'd have to necessarily find that mr ships the were he to be recent stuff the booker would receive a lesser sentence than the time that it takes to appeal a case which is up to this point in about seven months you say is not a correct statement of the factual record i mean i think we're going to get a piece of paper no he's considering it but i think i want us to get the piece of paper if you have any objection to our receiving that piece of paper now well i'm not sure the transcript from sentencing in two i agree judge jensen i think would be most useful rather than to do this on the fly if you could please consult with the government council after argument and agree on whatever it is to be submitted my guess is it's there's no dispute as to what it is but rather than settle it sort of out of our shooting from the have let's let's have the two of you agree and then submit it to the court then you can argue about its consequences but absolutely i just want to make clear that what i'm submitting is that the district court was willing to recommend this boot camp or shock treatment program and that under the rules of the shock treatment program that mr sipsey would have been able to get out and six months or towards a halfway house anyway it would have been litigated sentence less than the the government opposes the oral motion to recall the mandate untimely and there is no showing of extraordinary circumstances and from the you're with the notion of an oral motion but for the record the government  need although that is the finding that the rule technically requires to remain on bail pending appeal in this case judge johnson explicitly said that sentence could end up being more i don't know i think we're going to go in my booker well was trying on all except for the issuance of the mandate well it was final for purposes of the end of the living case then according to the supreme court's opinion in griffith versus kentucky which is not a draft and either the moving papers or in the reply brief that the appellant filed with the first is kentucky the supreme court specifically spoke to what finality means and they say that a case is final for retroactivity when language very short this case involves extraordinary circumstances sufficient to justify a recall of the mandate because number one the sentencing judge expressed explicit reservations on the record about the sentence required under the previously mandatory sentenc an this case because that mandate issued before the decision in booker rather than after now i don't know i guess maybe i'm going to find out i don't know the degree to which the judge announced that all  any time is discomfort with the guideline sentences but how we supposed to deal with crawford case well there are a couple of things that i would suggest with regard to the crawford case in that case the court  january eighteenth was somewhat meaningless because the supreme court had spoken and when the supreme court spoke the case was over the issuance of the mandate didn't really change finality at all because of  opinion there's an additional problem i don't mean to detain you and dilly frappe the relevant crops that the mandate must issue immediately upon decision by the supreme court which was long before the mandate actually issued why should we treat the not mr ships he would receive a lower sentence i think that by granting bail as i said before the court found necessarily found that he was likely to receive a lesser sentence than the time it takes to appeal and  guess i'll leave it that in this year for the course i think thank you very much now before we had john let that settle on what the logistics here absent objection from my colleagues what i'd like to suggest is that the two of you get together to give us the record of the