sentencing of mr thomas as a career offender let me ask you a question about that sure if i understood the pre sentence report right it's two separate robberies there months apart as separate robbery separate people separate have the only reason that they were sentenced at the same time was for the convenience of the prosecutor and perhaps the court in wrapping up everything having to do with this guy  appearance they don't even consolidate the cases under one file number as i recall so i don't know that that would matter and it looks to me as though our standard of review is abuse of discretion there's one of the multi factor test that lets the judge do whatever he wants he articulated things in terms of all the factors i don't understand how we can say he's had a line and abused his discretion in view of there being two separate robberies ok well let let me let me talk about that a little bit first of all the two separate robert i mean there's a there's various ways of looking at things to whether they're related or not related one would be considering them as a common scheme and plan is there anything to show that they are i would not push that here i mean they are a month apart they are both robberies but that's not a point that i'm pushing i think the more i work on two cases a month apart and they're both cases doesn't mean they're related i don't know i have never been a robber i would think it would be the same thing now right but there's cases that talk about there's cases all over the place on what a common scheme or plan is and i mean you know the closer in time that you have  to incidents the more reason to think that these robberies are part of a common scheme oh i mean i'm looking at the pre sentence report and there's some reason to think it just in the sense that they're a month apart they're both robberies they both seem like the same sort of street type robbery but again and that's not an issue that i'm pushing good what's council why i don't want to get to the issue of the sentencing is being together ok under oath for and i think i think what you have is a real question here as to whether these cases were consolidated for purposes of sentencing and if they were then they are related that's that's for sure so the question that we have were they consolidated for sentencing and i think when you look at this case that you know the fact that there are the fact that there are two separate cases helps because you've got these two robberies on two different occasions they're being prosecuted separately and then on the day of sentencing they're put together for sentencing they're given nearly identical sentences never for the same judge and they're set to run concurrently and when you sentencing let's take let's take the asked very factors i think you agree this didn't occur on a single occasion it wasn't part of a single common plan or scheme so it's really whether it was consolidated asked for a factors are whether they were sentencing on the same day that occurred here in the same court that occurred for the same or similar offenses while i was it was they were both robbery so they're identical offenses pursuant to a single plea agreement and that wasn't the case here i i think that's something that we don't really know we don't have any written plea agreement but there are you know on most of the time as i understand in state court there aren't written pleading something someone just goes and enters a plea for the next one is under the same docket number with these same or different they had different case numbers and after a formal after a formal consolidation order there was no consolidation order there was no formal consolidation order although there's cases that talk about that not being necessary right and then under circumstances that resulted in concurren sentences and they got concurrent sentences were they different so they weren't but different places they were slightly different i think one had an extra year but they were to run concurrently and they both ended up with three year terms so basically as i see it four out of the seven aspirate factors do apply in this case one of them not for sure but possibly so it's almost a fifty fifty situation so basically you're asking us to  determine based on four for a one point two that they consult just was consolidate for trial or sentencing and for that reason he's not a career offender is that correct that's correct and let me just say that the reason i think that judge king when he looked at it he focused he focused quite quite a bit of attention on the fact that there wasn't a formal consolidation order and i just don't think in you know in state court criminal practice that's a realistic thing that takes place all that often you know we have these cases that we all just talking based on our general convergence well about state practice i know that's not part of the record  t i don't mind talking from experience if that's what we're doing but i wanted to know if it is part of that that's what i was doing just that i have experienced sap in alaska i don't know about this state and california ok how they do it i i you know to be in alaska everybody want to save themselves the trouble of walking in and out of the courtroom door for nothing but formal separation so they get everything done with one guy at once whether they mean to consolidate in some sense or not just prosecutor saving work yeah well and it looked to me like that's what happened here i mean that's not my feeling about this case i of the guidelines manual in the guidelines manual for a one point two so if you how to do this the official application notes for a one point two says that this whole multi factor test thing is for nonviolent offenses where it's crimes of violence that they're treated as separate offenses for a one one s will apply and these are both robberies and just out of curiosity how come that doesn't take us out of the multi factor test and just put us under for a one point  to to be perfectly honest i'm not familiar with that i had it was my understanding that if they were consolidated for sentencing then they would be treated as related offenses even if they were both violent offens the application notes says they're related if the offense occurred on the same occasion well they didn't hear that small part a part of a single common scheme and you really don't have anything to show that they were but you say well to robbery some of the part might have been or were consolidated for sentencing well it was done at the same time but they weren't consolidated into one numbered case so formally in technically they are not consolidated and then it says this refers to nonviolent offenses and then i look at asbury and it holds that the district court did not err in concluding that the offenses were not consolidated and that notes that we reviewed the district courts determination that the offenses were not related or consolidated with due deference that's why i'm having trouble getting to first base here with your argument it looks like you've got nothing it looks like the application notes against you and sperry's against you and the differential standard of review is against you well i'm missing i i think it's more open ended than that i guess we would just disagree on that because the only thing open ended i've been able to pick up from the argument and tell me if there's more is you think a guy goes to robbery someone to part of must be part of a common scheme you know and i don't understand why you know that's that's not the argument the argument really is basically that these cases were consolidated for purposes of satisfying i think the only thing that's really missing in this case is some formal consolidation order but other than that all the other indications are that they were consolidated percent so there was not a consolidation or there was not a formal consolidation order that's right it was a little serendipitous counsel pardon me wasn't just serendipitous that they were she was on some of the same that i don't believe it was serendipitous i don't think that would happen through serendipity i mean i think it was a concerted effort to put these cases together i'm interpret ing something but i don't think you can call it serendipitous when in the los angeles court system these two cases are being litigated separately for months and months and months and then they come together and they're and they're both the same offense and they're both at concurrent terms these are things that the cases which discuss consolidation for purposes of sentencing refer to this to make practical sense to me i mean it's a you mugged one person a couple totally different people a month apart we don't care it's all the same to us we'll treat it just there's no worse a criminal for the two most things than the one why well i think you're asking me a question that doesn't really have to do with what the present state of the law is the not deciding whether it's right there is what the law is about it says ole timidly the judge is supposed to determine the seriousness and there's that sentence in the application note that says if you follow the multi factor test and it leads to consolidation well the judge thinks that that under represents the seriousness of the defendant's criminal history in the danger of presents to the public  don't give him the break that's what the application of to this but that's not what judge king decided he didn't decide that it up or shut up and represented the seriousness of it he decided that these cases were not consolidated for sentencing and what i'm arguing is that when you look at all the facts this not separate or finding these separate in light of the lack of a formal order i think they do in this case in part because when we look back at judge king's reasoning he specifically focused on the lack of a consolidation order and it did to sidelining some of the other factors and not really paying as much attention to the whole the whole history of these two cases  that reason i think there was an abuse of discretion i think these two cases were as you say based on chalk next consolidated for purposes of sentencing and mr thomas should have been deemed a career offender unless there's some other questions i have a few other points i'd like to raise i don't know how much time were you ok at all thank you in the underlying proceedings and there were a lot of delays in the sensing proceedings as the docket reflects while we gathered documents and thought about how the shaped up but i think the fundamental difference a chap nikken by cero is the court's  ago the lower court the state court imposed three identical concurrent sentences and then again in chapnick the court imposed two identical concurrent sentences for the two burglaries  present case there is no question that we have two different sentences that were imposed concurrently for the first robbery the defendant received a three year term of imprisonment state prison for the second robbery which involves both a second degree robbery charge and an attempted robbery the defendant received a two year term of imprisonment plus a one year enhanced meant for carrying a firearm during that robbery as well as a two year term for the attempted robbery all of these terms all three terms were set to run concurrently so they did ultimately result in him serving or being ordered to serve a three year term of imprisonment but they all were different want to caution there's no there's nothing in the record to show that this was in fact pursuant to a single sleep dream and it may or may not have been the record is just simply devoid of any information on that point it's i think it's just  several different judges along the way i think an equally possible conclusion for us to to make from this is that in fact maybe no judge had actually taken over this case and it was just simply a sign the judge should not be for a convenience purpose counsel helped me itself that doesn't tell you everything you need to know but often burglaries are nonviolent and burglary of a store that's closed for the night or something and many burglary certain nonviolent some are vile and the arrow it was a perp curium it looks like maybe a memo disposed turned into an opinion and that i can't tell a lot of what the facts are abit it looks like one of the priors was for forgery which is nonviolent here you've got robberies that's a point to sexually violent crime one of it's one of the telemann do we just get out of that's asbury guideline scheme or it's violent  ignored i don't know i don't think so my understanding of for a one point one asked is that a defense lawyer sort of a backstop should the court consider them calculated you would then i guess add one extra point to a criminal history had that been been actually done so for example instead of the full three points you might get in an ordinary situation if each was counted separately maybe in this case she has extra points for having those two having been deemed consolidated but i don't think it gets  c p certainly assault with a deadly weapon i think would be categorized as a crime of violence regardless what was decided on the weekend that it's three f thirty three twenty five so it just doesn't matter for this purpose what i don't i don't think that it does i think it's it's isn't actually an excellent point and i actually was was looking at this last night but i think fundamentally ultimately it doesn't get us around the chapnick and add very factors to your saying that the actual case law really show that that monetary note is being ignored i'm saying that i don't know as much about this is perhaps i should know and i would not make the statement to the court that you just made simply because i lack adequate violent crime right did anyone bring this violent nonviolent distinction to the court's attention i don't want to call i don't recall that being an issue let me ask you about something that's disturbing me usually the guidelines make a whole lot of practical sense some people think they're too harsh some people think judges ought to have more discretion but you can always see the sense here if what we focus on is the existence of consolidation i don't see the sense things are sentenced in one hearing instead of two partly for the convenience of deputy clerks and not having to do the typing start another docket sheet and partly for the convenience of assistant da see and not having the inconvenience of having to get up from their chair twice and take the elevator to the courtroom neither matters at all in terms of the public interest and that's a kind of thing we're focusing on i don't understand why well i would actually quite concur with the court's assessment but i would also point the court to the serious of the and the seriousness of the underlying federal offense and the extent and nature of the defendant's past i think it out mindset the call is to not be overly harsh with a defendant who may have been as as i believe i think the goal is perfectly obvious it's a control some prosecutors will charge the major crime and some will do like we used to do in law school figure out how to charge eight separate felonies out of one instant of indiscretion and this offer some control on the latter type of prosecutor no that's right your honor and and i think also if the court chapnick also mentioned that the reason one of the reasons besides the identical concurrent sentences that it felt the case of consolidated the court also ceded that the defendant's burglary spree in that case was a result of an ongoing drug problem that he was experiencing at that time and so as you state it simply gives the court flexibility to make these kinds of determinations but in this case the powerful factors that these were two separate robberies separated by a month involving two different victims i think it's important that they that they involve a firearm and i think that that when you take out the for this court said the district courts are in the best position to evaluate these types of situations the nature of the legal decision it's fact based and the district courts are uniquely in the best position to decide so given all of all of the factors in this case and the record that is before the court it certainly shows that the judge king carefully considered this and made a careful decision that that he that he outlined on the record the government would i would argue that this was the appropriate sentence that these were not consolidated and the sentence in this case should be upheld instantly as far as the robberies go i know something about the second robbery because there's a description in paragraph forty eight of mitchell sentencing position paper is the actual charging document in that case i just like the name of the victim and that information so if you look if you look at that i think you'll get at least a little bit more information about the nature of that particular i just like to say that i think what it comes down to in this case is whether you believe that this is the sentencing for mr thomas in the state court cases was just a matter as you said of serendipity and i think when you look at the record it's hard to come to that conclusion so judge king focused on the absence of a formal consolidation order that clearly is unnecessary based on chapnick the other factors are all present there for why these cases separately litigated up until the dat break down the parts of the sentences they were quite different they both ended up with three years so i think that will end the net effect with the some parts were different well slightly but i think that the more important thing is that they're both three years they're both  concurrently i mean i think that's the significant thing and the fact that these cases while being separate the whole time come together for sentencing thank you thank you