i really want to talk about i think it's probably more beneficial to mr fantasy to talk about the sensing issues first primarily because of this court's precedent on that issue i think it's you know we've made we've made an attempt to show that you could disagree but i honestly don't expect you to so moving on to the sentencing issues i mean just yeah i'm just going to skip over the  period your point would be our that even if he accepted the guilty plea that's that would be in violation of this right in other words apart from correct yes yes that's that's it sensually there's a circus but on it we've raised it to preserve it if i can move on to the so i'm going to start with the concurrent consecutive issue friday one point three so the government has come back with a number of arguments i think there are simply yeah me i have a hard time seeing why this is not for you're not under plainer you know explain that to me and the predicate for that briefly is that the court issued a tentative sentence it gave you an opportunity to  and the important thing is i guess it is one of ours cases unlike that case where you were the objection would continue to be maintained you specifically made a procedural objection but not the was cited in two thousand one and that's that's basically i have a one word answer to your question tisdale now because in tisdale what happened was the defendant's attorney did not mention five point three objection that objection is related to the testimony that took place at the hearing specific objection that is different than to still where there was a general objection and what i would draw your attention to is our  sufficiency of the evidence cases where you're much better off saying your honor there was insufficient evidence boom you have preserved a sufficiency of the evidence objection but if you start specifying there isn't specific evidence for this reason this reason this reason tentative sentences and involving courts giving opportunities to object the way i read is that in two thousand and one this court had a more lenient forfeiture waiver rule it was just more lenient this court acknowledged that if you you know it would have been preferable for him to five point three but he did alert he did alert the discord to the issue at hand i just think it was more i think today with the way this court is deciding for a church if tisdale didn't exist i think but they're just different issues i think you know canons off consecutive concur nish and i think there's a reliance issue too because it's a consecutive concern concurrent case i think so yes and i think i think there are reliance issues right because if this court said in two thousand one to preserve a five point three issue all you have to do is ask for a concurrent sentence then you know prosecutors defense attorneys they know that and they can rely on to say well let's assume that's right but what i'm saying is specifically asked him what is the nature of your perceived rule objection and there was and they was a specific objection gave given back to the court in had nothing to do with what we're talking about now and no the difference is if you make a general objection then everything's on the table you make a specific objection then the court's focus in on them doesn't make sense no it doesn't make sense boom let's move on exactly like the sufficiency of the evidence context exactly the potential to distract exists when you create one objection and the record makes very clear that that's what they that's what happened here that's not what happened until well i mean the record makes clear that five point three wasn't even on the table right it wasn't in the p s r i agree but what i'm asking is ok and this is just a record but you're saying that your recollection of the record is this maps on to this case i think it does absolutely yes ok despite the fact that it might not read harmonize with more current forfeiture decisions from this case from this court in other areas now but i do i mean we have made a plain there are no i think we can win under point here  to begin i guess i'll begin with the subsection a argument which i completely misread apparently the government's brief i read the government's brief that they were essentially putting the state term of imprisonment in subsection a so in my reply explained how that doesn't work because he was not serving that time that sentence at the time so that didn't work but apparently so the government filed this rule twenty eight so i guess what the government is saying is if subsection a applies to some other term of im exactly the situation we have two competing terms of imprisonment complex we've got to figure out what to do that goes to the court discretion does a consecutive sentence done that language is what i want you to help me tell me anywhere why i shouldn't read that language exactly as it says that let's assume you're right your client in the us as we're focusing on it now the question of the state term relates to court at any time know that his term had expired no and i didn't know that either because when i filed these briefs the website said he was not in custody so that's a recent development ok i mean i'm not f you for that i'm just saying that the fact of the matter is we are looking at the lay of the land that exists the time and terming whether there was a right but the government would have been the the party to know that because the b o p s part of the executive the government is not objecting here and you can look on right this is your challenge it is it is a challenge if the challenge you said you can one hundred plain or one problem with plain error is you have to deal with the factual circumstances if you have to do a factual inquiry on line or you're done you have to deal with factual circumstances that the court understood to exist and nobody is a court of the fact that this guy that term has expired but again there was no discussion of it there was no discussion one way or the other there was nothing in the p s r to indicate whether it was discharged or under stars there was no discussion at the hearing where there was discharge around and that's why playing are such a tough thing isn't it because it required because it requires you to deal with on a record were no objection was made a legal issue that you're now dealing with on appeal because if this had been flushed out below we could have talked about what is the inner connection between a and b how do they interplay to support those parties for d really have any relevance here at all all of these are questions we're dealing with now  on a barren record that doesn't give us a basis to determine that you know always remained but anyway on the legal issue i think the problem with the government's argument is that it reads five you want point three is grouping all under stars terms of imprisonment and i think that's the that's not a good reading because five you one point three consistently speaks in the singular so i think what you're supposed to do and what i've always understood you do you take each undischarged term of imprisonment and plug it in and you come to you know whatever five point three says you would go back take the other one plug it in and you do it separately the they're not grouped because there's nothing in the guideline that says you would group there's nothing anywhere in the guidelines of say you would  subsection b they are not fully standalone are they and b are not fully stand alone because it says if a does not apply then you applied be under your theory where you were going in and plug them in that suggests that the clause that says it applies only if it doesn't apply well that just means if a applies b doesn't mean that you can that that would that clause mean something in it when a applies there's no i don't an here in the midst presume a felony that existed but what we're talking about now but there's no record evidence that anyone thought that that federal sentence was on discharge the entire sins in proceeding had to do with the undischarged state that well we know the fact now we don't know it was on this we know it was discharge and what are we and so we're going to reverse a district court on a fact that we know now that nobody told them at the time well it's a judicial mistake so yes i mean that happens all that that happens in guidelines miscount morel is a great example of that where the supreme court reversed on a plain guidelines error that the dischord didn't know about and in that case the supreme court talks about how this is judicial error it's not an error made by a party the underlying fact of whether his term had been discharged or not but that becomes relevant here doesn't but you have to assume one way or the other and there's nothing in the record to indicate where the whether the dischord thought it was discharge or und so we don't know if the district amount of time so i stop ok thank you honor we argued the standard of review in our brief at page ten and we said if a party fails to lodge a specific objection with the district court and then we went on to say that this court recognizes a narrow exception and review y in fact would be a case that would tell you that this is for pure sense you have to do all there was there was no mention of fogey in that case either and we deem to preserve just like this one yes i understand your honor all this court found that it was sufficient that the defendant has had asked for a concurrent sentence but here the distinguishing factor is that the district court explicitly asked the parties at least two times if they had any objections to the court's tentative sentence  the court there was a tentative sentence into his deal in the court asked for objections yes and there are there was a general objection launch but here we had a very specific the defense counsel at sentencing said yes your honor i do have objections i have an objection raise the issue that the standard of review is plain error and we noted that for that there has to be plain and obvious there has to be the defense burden is to show an effect on the substantial rights so we did not forfeit our argument that this claim is subject to plain air review moreover this court can affirm for any reason that supported by the record so even if this court were to find and i believe it would be error to find that we forfeited the plane or argument your honour's could still impose that standard of review and here if i can go on when defense counsel responded to the court lodging his objections he did notice you're on a noted that there were procedural objections that he had but then when he was pressed further for more specificity so that the district court could respond to those procedural errors claimed errors and thus address them during the sentencing rather than let them go to an appeal where they would be raised for the first time defense counsel noted that his procedural errors or claims related soley to the evidence or hearing the testimony and really to his hearsay and relevance objection so the district court was not put on notice that there was an issue here as to concurrent sentencing versus consecutive sentencing and that the defendant's position was that the district court had misapplied the guidelines moreover for the reasons that were discussed earlier there was not an error here whether their review was plain or not there was no error because five g one point three d would apply given the more for his specific objections in the not raise any of those facts then that falls on the defendant here if we do apply the plain error review then it's clear that the defendant cannot meet his or her burden because there's no way that that claimed error could be plain or obvious here and if we don't apply plain error to you then we're in a situation where they are and i just still want to get clear what what is your position regarding the fact that as a matter of fact there was there were not to destroy the terms of interest your honor that was not in the record before the district court so as far as the district court knew it was an escape based on a federal sentence that was being served at that time so as far as the district court was aware there was a federal undischarged term of imprisonment that the defendant was serving an exam that but that doesn't tell me what what the legal implication of that is understand that as a matter of fact was legal import of that is your answer nothing i mean that we still look at it as if it exists i mean that's the explanation what's your explanation w the legal import your honor i believe we do have to go back to the time of the sentencing because that is what this court is reviewing based on the facts known to the parties in the court at sentencing and based on the applicable law at the time did the district court commit error i'd like to also offer another reason that the district court did not commit error as to five g one point three and that is because under five g one point three b that requires the offense  to have been relevant conduct so the undischarged term has to be relevant conduct to the escape offense and in the language of five g one point three b it specifies that a has to be relevant conduct under might be what your honour's getting into that criminal history points are determined independently of the application of the two p one point one guideline so that would be a separate determination but also that to the extent that the state's offenses of possession of controlled substances and a firearm could even be considered relevant conduct it would be under the a for  escape is a continuing offense but there's no there's no difference from the time he stepped out of the prison in the time that he was arrested but there has to be a rational relationship between the crimes that cannot be any crime that's committed w somebody is on a skate cannot get out of on a great crime he was convicted the gun was connected to an escape there are no facts along the lam why does that not matter because it was four weeks later and there are no finding that he found that these two crimes were not really related which doesn't say anything about whether there are relevant conduct under section b if you follow my argument or if you take my argument it would want i'm saying there needs to be a rational relationship between the crimes for example and this crime i understand and i understand the gun it's a bit more appealing to argue that it could be even though it's weeks later and he's in a car with another man and another woman there's no evidence that at that point he was he was fully but for example if the crime were child abuse or if the crime or viewing child pornography or rape there is no way it's not the crime here  mean with an escape offense that is the continuing offense yes but i think your honour's proposition at least the proposition that opposing counsel made was that because escape is an ongoing crime any crime that occurs during the escape even if someone's on a scape status for five years any crime committed is going to be relevant conduct under a one three which means that five point three b always has to apply and there has to be a concurrent sense and that just logically does not follow and as a policy matter it does not make sense there has to be a nexus i get that i get the ok let's let's let's go with that per second not every offense is going to be sufficient if you were if assume e child pornography i'm on a ski how's that relevant conduct for my escape fine the reality is we have a gun offense here and we don't have to quibble about what could could be and i mean one could put principle limits on this well you've got a gun offense here and more to the point more to the point there was no discussion about any of this now what is what we're looking at right and let me ask you this if we're if the question for us is did the court properly comply with the requirements of the guidelines in imposing this sentence if that is the question is a legal question then the court could have committed legal error by just not going through this analysis not trying to in at all determine where to fit these crimes you know you're you can make the statement well there's no nexus they're not well fine but there's no analysis as to whether there is a sufficient nexus for them to fit within that guideline provision why isn't that in itself legal error well your honor we don't know if the district court may have considered five g one point three and found that provision d applied it which gave the district court discretion to impose consecutive concurrent partially concurrent and found that under his discretion and looking at the thirty five fifty eight three thirty five fifty three factors he was going to impose a consecutive sent in may have but we're doing if you're going with  vacate for the record tell us what to do here in this situation putting aside the preservation issue if there is a legal question on the table do these offenses constitute relevant condom where in this losses is there and tells will basis for us to know that the court addressed engage that issue and decided you know there was no discussion of the one point three no explicit discussion of  it so we don't know exactly how the district court arrived at his conclusion but he may very well have realized under five point three d that he had discretion in imposing it consecutively could currently or partially concurrently and he did consider we know he considered the defendant's request for a concurrent sentence and rejected that that request i don't know that the district court had  specifically especially where a defendant isn't raising the issues with any specificity that the district court then has to lay out every single stab of his or her analysis and how he or she reached sentence we know that the district court considered all the fifty thirty five fifty three factors we know that the district court considered the guidelines we know the disc or read the p s r we know the district court here i would argue  was aware of what the crimes were at issue in the state crime because the discourse specifically asked the a u s a in the usa provided that information during the sentencing and the district court did state that he did not deem the underlying state crimes to be related to the escape offense so that factored into the district court's decision here and so i would argue that five point three d applies there was no error here the dischord exercise its discretion not only under the statute that controls on just charge terms of imprisonment but also under all the thirty five fifty three factors and came to a sentence that it believed was reasonable and fair given all