charles to show how he would be harmed by leaving his situation also like the court stated reason he wasn't really i appreciate what you're saying you didn't seem to me though that there was a shifting of the burden of proof so much as there's the need to explain and use in charles best interest to explain it i'm not sure that's i would necessarily characterize that as shifting the burden of proof someone has to articulate the reason for the action to be taken that's all well i think that it's in the government it's the government's burden to articulate why there is no there is why there  would get a supervised release minutes from eighty four to one hundred and twenty months but the court went even beyond that and said that charles would have to give a sense of factual scenario in which that kind of senates would be imposed and that really is contrary johnson why couldn't we just simply reduce the sentence from thirty years to ten years on the compound because that is the guideline range if you don't have an aqua and handsome i think that that is a proper that's absolutely correct and i think another thing is that the government can see that the accident is invalid i think that particularly under the and the case where the court said this isn't even a proper application of the concurrent sentence doctrine because all of this discussion that the court is looking for a true measure if you just of convenience our case law case law i find to be remarkably unhelpful in determining the degree of certainty or lack thereof that one has to send to satisfy utilizing the concurrent sit and stop trying i think one of the questions is the you are dealing with the inherent ambiguity of future possible unknowable outcome correct and i think that's one of the reasons why the burden of proof is so important because if you're talking about speculation and the burden of proof is on the government as it is that any speculation has to be resolved  government not against the defendant unless the government can show that there is no possibility that the hours consequences are or are going to take a fact and really the government can't show that here you don't contest now that that at that time of the count one conviction but that's what he was convicted of yaxley as far as the aca as far as active hands yeah i don't think that we challenge the drug offenses so it's not really even brought up here which is the burden of proof and the question of whether his but that assumes that that is i'm still incarcerated that that did it is a burden of proof question so you sort of have to take my skepticism m this question point out some of the ambiguity to rest that's true but then you still have to wrestle with the question of the court application of the bronx us of standard  because the court because the correct standard is what was articulated helen webster the government has to show reasonable certainty that the defendant will suffer no harm and that's not the standard that the district court is sounded awfully like it to me the district court found that it was theoretically possible but highly unlikely it may not have utilized precise terminology that you did as you articulated but it came awfully close to say yeah there is a theoretical possibility that the sun might rise in the west tomorrow but it seems highly unlikely to me given the sum total of what we know so i'm not sure that the district court didn't give its best shot at addressing the somewhat confused standards that are precedent to set i respectfully disagree with ballots part of it was a messy question i think that when the i think there's a difference between well again the burden of proof is it is a critical issue and i'm not sure whether the court just with me was with me that th at the court actually shifted or does the court disagree with me that the burden of proof is on the government because i think that question make clear that the burden of proof is on the government is the district court  hurdle of deciding that the government with no reasonable certainty that the defendant will suffer no harm if the government satisfies that burden then that i think the court does have discretion at that point to apply or not  but i do think that the court that the government has to get over that hurdle and here the government show that there is no possibility or that beer is no reasonable likelihood  correct but the court had does have to do that with the correct legal standard i would like to make one final point about why a supervised release such over a four months is not all that far fetched for someone like charles because he we're how about not giving the benefit that we have to assume that we sixteen years old he's going to immediately fairly quickly fairly short order this serious offense is that i don't think the court has to assume that but the when when something his or the stereotypical speculation about what may or may not happen in the future and we're were asked to render a decision virtual could have no practical effect consistent with the law which is a supreme court case and court basically says a potential adverse collateral consequence your pet has any potential it's it's a pretty tough standard let me ask you this is it possible that under the st act that charles could get relief from the thirty year sentence i want on the dru i don't think it is your honor because the st step back i think the st step back didn't change the statutory range because it increase or decrease if it was under the act would it bring it below thirty years you know basically they remove the residual clause was in place in two thousand and four and it was not in place in the twenty eight thousand guidelines but the st step back plainly does not do that because it uses the same language that the supreme court held in dillon does not authorize i apologize right i just want to be clear there are multiple i understand we have a few issues raised by just me my st question if the question is what's our position on whether the johnson rule was violated i think it's i think it's probably more likely than my only question is we would have to go through two hoops one we would have to get into this thicket of what standard applies limits wrong or ball and i think there's a tension between the two webster and our other two cases seem to fall more closely than wrong but we're not resolve that for the district court because the district court didn't resolve that question and looks like it and i think that's wrong case or whatever the name of that case is it is an easy gate to go through is just substantial possibility so your honor that every time honestly i've seen the standard articulated i think the formulation has been a little bit different the most recent statement from his quarters and writ and it said the doctrine is the it's reasonably certain for the record that at st level up fans will not i don't think every standard i've ever seen does not require absolute certainty and the to grill what's it mean this is the language of paul and that probably is the number one thing the separate conviction apart from the concurrent sentence has attenti i don't know if it meets a substantial test she has to go through a lot of hoops to get where she's talking about what i called i think it earlier and we will decide that they could if we have to decide that i was looking for a practical way th case involves judicial fish and sea and practicality he's got that thirty year sentence that looks like it's not challenging well at this point and he's got the governments which is also thirty years now and you would say well he's going to serve thirty under one sentence on the other but it seems to me that when we we get all rid of all this whether it's potential or substantial or reasonable certainty or whatever the standard is we get rid of all lack of inquiry if you did believe that the aca senates in other words if we told the district court to evaluate the aca predicates and readjust what's the difference goes from thirty years to that standard what troubles me is we have two other cases that have scripture standard and ball which i'm not sure how that characterize it but i think you have to start with paula i think that's fair you're o concurrent sentencing dr when they must serve certain values and one of the things i suggested was that it relieve the district court getting into questions  this case frankly that's not that hard i don't know i do think the court probably presets unders it will cause i don't think he's likely qualified under the other components but in a lot of cases that question is really hard but i remember a to agree not to seek a consecutive active prison sentence in that scenario it no we have you know i don't know that i don't know that a mechanism exists to do that a thing other than to say we probably won't do that but right it's that's that was sort of my point but i do have a question going back to the last point you're making and i also want to ask ms hester and that is does it matter in both cases he's been judged require an enhanced sentence because of a prior criminal history involving violent crimes and or run offense but this was the the likelihood of a stigma or into lateral consequence attaching that it might appear the language involves not quite a red flag it might appear with risp when just when we're talking about ascent corrector i'm not aware of any circumstance where  he's going to get a summons for that well but your honor the sentence for nd degree murder would likely be punished by state court and that's what i'm saying yes a supervisor lease violation is a punishment of the violation of trust not the seriousness of the underlying facts plus except the seriousness takes it up do want to offer another point this court has held when we have the burden of proof and when standard is more orders which is under record appeal is when the record makes clear that the defendant would have received the same sentence in any event there is a criminal case it is not to good at concurrent sentencing doctrine or what appears to be an easy straightforward case because i know what's coming down the line and i'm just two things one i do think as i mentioned before and i think this is an important point but i do think the st step acts in application to the defendant's st sentence is convict count one sentence we were to shape our rules is it legitimate to note that the charles's request in this case presumes that he has to highlight the law again in order to have an in patient in other words under the current circumstances if he stays law abiding there is no difference at all he would have to violate another statute in order to  to get the hypothetical he's talking about is it appropriate to presume that somebody is going to violate the law in termin whether something's harmless so your honor it is that's a factor or i think that  court to consider but it doesn't state bright line rule is a legitimate factor count are we allowed to consider that in other words yes it yes your honor it bothers me that we have to assume he's going to violate the law again to give him a benefit is climbing a benefit it i don't see how something like that it would seem to me you know screams of lead to bear on the reasonableness of an exercise of discretion absolutely that you can say well that he was knew the it is yes i share that concern you have to assume that not only would he committed no crime he commit a more serious crime yes but i mean i do think the court i do think the supreme court decisions including all that if the goal was a conviction as you pointed out yet and that's a distinction that in this context which is meaningful to my question because absence of sentencing where is they are talking about one conviction versus another conviction yes i think it's something it's not an absolute the fact that it think that i think that all precludes the court's consideration of the fact that he will have to commit is on further wrongdoing in order for the lateral consequences to come into play even though that the conviction asanas i think the only difference between the two is that some potential adverse collateral consequences will be different for senate say that for a conviction but other than that there's no authority to say that that start applies differently that's a little different lights in the double jeopardy analysis you have to have to suffer i mean the whole analysis focuses on the fact there are two fictions and i think you could carry out on into the ball decision which talked about convictions well when you're talking about sentencing and you're saying he's got two sentences now that a concurrent and doesn't make any difference  there maybe in there or not all on where he's got the other sentence in the answer is there clearly is no difference unless you assume he's going to violate the law again in order to get another i think just i think it's analytical home violation to make a difference you had to have a serious legal violation you'd have to have a scenario where the not only was the crime serious but the court was insistent on stacking supervised releases and that stacking seven years was not enough you'd have to stack ten years that that's you're in that very very rare there's any precedent for that your honor i have you know of course we would try i don't think that there's any president guaranteeing that we would be able to do that and i would probably come back at you on a one year limitations issue too right i don't even know your honor i can just make one final point there there is an easy way to resolve this case the government all that conceived that the aca senate isn't about her johnson and that was the case directly and bill which said that the concurrent sentence doctrine doesn't