pleas to have our colleague from the middle district of florida judge john and assist us with our work this morning and this week jan town and in addition to having a distinguished career in the middle district is elected a couple of years ago to take senior status and we're grateful for his willingness to continue to work for free for the american  especially appreciate his willingness to assist our court again this week with our work in addition to the work that he does on the middle district of florida so thank you  legation to correctly calculate and consider the guidelines is not when the requirements of five g one dollar b n met the result is clear the district court is required to adjust the defendant sentence as part of its calculation of the guidelines under reduction must be made by sentencing court but it seems to me that this is not part of the calculation of the guideline range which the book or remedial opinion made advisory because of the th amendment problems after a sentence has been determined and the district court has determined whether to sentence within the guideline range  provision of the guidelines it seems to me is mandatory and requires the reduction of the sentence that the credit for that for the for the other time served is is that not really the better reading of this your honor i'm certainly agreeable to that reading one point three b and i think your honor is correct to point out that in court specifically held that five g one point three b is a mandatory adjustment not a discretionary departure as a result the sentencing court must apply it when the requirements of five g one point three b and i think it's very clear and i'm not even sure if you can you do you can apply it right you can apply until you've actually determined what the sentence isn't that right that certainly seems to be what the application notes seem to suggest i'm talking about application of two d which illustrates you know how to apply this and sort of how things went awry and in th case it seems to me that the problem here at least from my perspective i can only speak for me is that judge watkins appears to be under the impression that everything now about the guidelines manual is  sentence or at least reduce that's exactly correct your so i mean in this case the court calculates the guideline range of one hundred and twenty months under one b one point one eight seven but then it just wholly fails to consider or apply five g one point three b so as a result the court determined that one hundred and eight months was the appropriate total sentence without realizing that it was necessary to apply fifty one dollars to achieve this result so effectively mr henry will be serving a one hundred and eight months starting at the date the federal sentencing hearing and so i think really by failing to look at five g one point three b the court has deprived mr henry of an important procedural safeguard well i mean not under the the reading that your honor just previously was i mean if this is advisory then you know you go down from twenty four months from one twenty and that's the absolute most you can get to if it is indeed a mandatory adjustment frankly the court is not at liberty to just ignore five g one point one because it restricts the guideline sentence to the stat max so i think it makes sense that five g one point three b could be determines in this example that thirteen months provides the appropriate total punishment the commentary splaying the court should then impose a sentence of seven months to run concurrently with the three months  defendant's state senate so the seven month sentence which is adjusted for the six months already served achieves the total punishment of thirteen months i think that commentary makes it very clear this is an adjustment that is made after the court has determined what the appropriate sentence is that's correct your honor i mean i think i think the to the determine the appropriate total sentence but then failed in its obligation to consider the sentencing requirements and five g which as we've discussed is either a mandatory just meant or even if it's if it is part of the guideline calculation and not a mandatory adjustment but if this court is inclined what's that what is that argument well your honor an error in the district court's calculation of the requires reversal unless it is clear from the record as a whole that the error did not affect the court's selection of the appropriate sentence and the court's failure to consider the five you one dollar cannot be deemed heartless because it is not clear that the court would have  posed the same one hundred and eight month sentence had it understood that mr henry would not receive credit for any of the twenty four months he spent in state custody prior to his federal sentencing hearing and i would direct the court's attention specifically to page twenty five dollars of the sentencing transcript the court explains to mr henry that it had selected a sentence of one hundred and eight months concurrent because and i'm to quote here in other words every day that you're serving and have served mr henry would serve one hundred and eight months minus the twenty four months he'd spent in state custody but i mean this is just not true he could not get concurrent time towards french federal sentence until it had been imposed p could not grant that time because mr henry getting credit for that twenty four months from the state so effectively since a court did not consider the requirements of five g one dollar b it did not realize that mr henry would not receive credit for the twenty four months he had already served in state custody so i mean frankly on this record i don't think you know even assuming that this is part of the guidelines calculation subject to harmless er language are you familiar with that section i'm familiar with generally but my my memory of five g one point two is that it sometimes uses the mandatory shawl and sometimes uses the guideline grange does it i mean that commentary i read earlier when your adversary was speaking could not be clearer that this is not part of the calculation of the guidelines right after you calculated they got on range was advisory or whether the court was varying outside of the guidelines to reach the senate and of course you know there was no variance in that case because it sends to the one hundred and twenty months that's different than what happened here here the court did address in those facts could increase the defendant's punishment that's not what's going on here that's not what this provision is about it's not about sentencing within the range there's nothing in the book or remedial pinion that i exceed just that this kind of provision that applies after the sentence has been determined and makes an adjustment to credit a a what is in the mandatory what is not after booker the court has made clear that after a book or the application the guidelines as a whole are are as mandatory is now plain error and nd and fifty three dollars a so it in the guidelines itself the application instructions guiding the district court for how to apply this provision actually requires the court to consider five g one point three be along with all the other provisions of chapter five prior to making its final sentencing determination and considering the factors under three thousand five hundred and fifty three dollars a and you're i think part of the issue here and this goes back to why it's mandatory and how we look at the application no advisory and it simply if the district court followed him reserve you that it was required to apply five g one dollar b in any sentence that the court made then that would effectively be saying that the court could not sentence mr henry to anything above ninety six months which anyway and if the court did issue or follow that that would have been committing a procedural error that would be treating the guidelines as mandatory simply will not be in grading the guidelines ranges d mandatory because this is not part of the calculation of the guideline range is a sentencing were after the court has calculated the range and has determined what the appropriate sentence shall be because it's an adjustment to a sentence certainly are correct your honor but that would still be treating the guidelines system as mandatory which probation that provision also uses the word shall that has nothing to do with the guideline range but in that provision states quite clearly that four and a vase offense level of lower than six it says you shall not sin it's so much more than three years probation but we know that provision is not mandatory because section eighteen u s c three thousand five hundred and sixty one authorizes up to five years of probation even for a misdemeanor so just like any other provision in chapter fifty five g one point three b can't be mandatory under under booker and your honor even if there was an error in this case it would still be harmless because the district court clearly stated that one hundred and eight months was a reasonable sentence in this case and the district court made very clear on the record that it was aware of five year one dollar b on page twenty dollars the record it's dated to mr henry it was aware of the fact of the the state conviction that he had received and the state time that he had already served it was clearly aware of that but the court stated that it was giving that sentence under all the circumstances in that case and to the extent that i didn't give him credit this is a quote the course quote on page twenty eight dollars of the record to the extent i didn't give him credit for the relevant conduct which was a five year one three adjustment from the one hundred and twenty dollars down that would be enough for variance but i'm these guidelines would have applied whether he had been tried in federal court or not or or in state court so the maximum would have been one hundred and twenty months  u properly consoles and considers the guidelines which the court did hear gonzalez marielle was was looking kind of at a thirty thousand dollars foot level of what the guidelines set and focus on the fact that the word shall is in five g one point three decision of course that is correct your honor but i don't think it was addressing the issues came up and in that case that are present here and i do want to get back on that point too there was a comment made from from judge granted its remaini regarding other circuits and i think if the court did a search there are other circuits that have looked at five g one point three b and generally said after book or that is advisory even with the use problem yes your honor but as far as for the government's reading i have not the president has come out from this court in other courts since then has not parsed out the guidelines and in that way they one of the things that the court would want to consider in this is clarity to the district courts because since booker this court has been very clear in drilling in into its opinions that the guidelines are advisory and it would be confusing and an odd scenario after booker if there is one provision that would somehow still be mandatory in those but i think you want to get out and work to affirm thank you we will hear a couple minutes rebuttal thank you your honor mrs mackenzie on again on behalf of mr christopher henry the government's attempt to distinguish discretionary departure in that case the government argued that five day one dollar was discretionary and therefore the defendant was ineligible for a sentence reduction below the eighty seven month amended guideline range th courts failure to apply the adjustment and vacated and re mandate with instructions for to apply the adjustment of the governor it is true it is true that the government can because there are right well i agree your honor b