advised as to how his state of sentence would run concurrently with his federal sentence based on the same fats rodriguez alleges that is attorney advised him that his federal sentence would run concurrently with the state sentence he was serving for an offense based on the same underlying criminal conduct the plea agreement in this case best of five that the government would not object to concurrent time for any  discharged a portion of the state sentence however the plea agreement did not state when the undischarged portion of the state sentence would begin to run it's a problem in this case that there was no agreement as to how  would treat time served what kind of credit he would get for time served well your honor because the bureau of prisons allocates credit for time served in the way the issue has alternately been handled in the united states versus freddo in this court's decision was in terms of an adjustment which has the functional effect of a credit but it's something that the district court can do at sentencing in order to achieve the desired degree of co currency between the federal and state sense as your claim that he was on the table to get that adjustment and he wasn't told before he entered the plea that it was not in the cards or is it that mordor was ineffective in failing to accomplish the reduction your honor his claim is that his lawyer miss advised him as to how the sentences would run concurrent and that's apparent from defense counsel statements at the center in hearing where he said your honor these loops sentences are going in time do you make a straight claim that the lawyer was ineffective in failing to argue that drake should be extended to this statute and that he should have gone down the judge could have gone down below the mandatory minimum well your honor essentially the lawyer did make a claim similar to that he did ask that the district court to run the census from the same date in other words to essentially back date them rodriguez's claim is different he's saying that mine lawyer told me that that's how the sentence was going to run and that's was my understanding of how the plea agreement worked so his claim is that his plea was involuntary because his lawyer told him your sentences state and federal are both going to start i don't like the answer to the question is no you're not making a right i see kind of the i'm not making it he didn't make ok straightforward i see claim it's essentially that his plea was involuntary because his lawyer was ineffective in the advice he gave them it's a hybrid essentially claim of involuntary please the plea agreements reference to an undischarged portion of read read as a state sentence is begun and confusing because it doesn't specify when that on discharge portion would begin to run and because it's the use of the term undischarged in this context is also confusing the applicable guideline refers to an undischarged state sentence as one that has not been fully served and that may be true but what your response to the government's argument that the district judge said look i know you want it to be concurrent but i'm giving you no guarantees on that it i mean to basically said you have no assurances on that why isn't that enough to say he knew what he was getting into well your honor it's true that the sentences would or wouldn't run concurrent and to make predictions about that mr rodriguez understandably was relying on the more detailed conversations that he had with his lawyer prior to the police and that's something the district court discussed with hearing did you talk with your lawyer about this deduces discuss it in detail so mr rodriguez understandably relied on his lawyers assurances and not this rather fleeting reference to something being up in the air this is a tough subject for even a lawyer to understand how it works and it hasn't been fully resolved in this circuit until two thousand and seventeen when the decision came out that said that the district court can construe the state sentence and the federal sentence as a total sentence for purposes of satisfying a mandatory minimum this court said construe any uncertainty in the plea agreement and mr rodriguez is fabre because the government drafted the plea agreement and because mr rodriguez should benefit from the rule of lenity that applies in criminal cases his allegations that he was mis advised as to the issue of concurrency would also establish that his plea was not knowing or voluntary it is he contending that the government and the court also misrepresented to him he does make that contention although i think the core of his argument is that is lawyer miss advi essentially he seems to have misunderstood what the term undischarged meant in the plea agreement versus what it means in the guideline and the statute and one can infer this from you reference the guideline and it references undisturbed but it doesn't use the phrase undischarged portion does that change the result i think that supports what i'm saying here that it would be confusing to a lawyer and to a lay person that the term undischarged in this draft the draft of this plea agreement it refers to a portion of a sentence that has not yet been served but the phrase  undischarged that applies to concurrency between state and federal sentences refers simply to a state sentence that has not yet been fully completed and there is a very big difference between how a fully completed sentence is handled for concurrency purposes and one that has even one day left on the the state clock so mr rodriguez was understandably confused about out how that what that word understood meant it's obvious from what he wrote in his pleadings that he thought that given that he was not done finishing his state sentence at the time of this federal sentencing that he would receive the benefit of the guideline which states that in undischarged state sentence hearing had assured mr rodriguez to the contrary that's something that he should be allowed to prove it in evidence you're hearing it to make his argument that i just didn't understand what he was counsel i'm sorry were you his trial counsel when mr rodriguez was represented by trial counsel at that time or not his trial no i was not going so he should be allowed to present evidence as to what his lawyer told him and whether or not he relied on that and defense counsel statements at the sentencing do support what mr rodriguez is saying defense counsel said at the end of mr rodriguez his sentencing well your honor this federal sense is going to run from the date response that mr rodriguez hasn't shown that he wouldn't even heard the police but for this misrepresentation however he submitted a declaration with his you know traverse or his reply brief stating i wouldn't have accepted this deal if it wasn't for the assurance that i would get credit for this fifteen months that i have served my bit of begin except the deal it's not likely that i mean it's likely that he would have ended up serving a substantial portion of the state sentence anyway i mean i don't hope that was real realistic option for all the other him responses to prejudice is that these continuances the sum of which were solely for defense counsel's benefit mr rodriguez would not have stipulated to continue a sentencing hearing for two hundred and twelve dollars days a total of five stipulations and if he had known that his concurrent time couldn't begin to run until the date of his federal sentencing he sort of at minimum receive the benefit of that two hundred and twelve days because under the circumstances any rational defendant would say i want to be sentenced as soon as possible particularly when the sentence that was going to be imposed was a mandatory term i'd like to reserve any room ok you're out of your good morning may it please the court jennifer cho on behalf of the united states and i'll note that i was the prosecutor at the proceedings below even if the alleged mis advice by were true it doesn't actually change this court's analysis because it is a street name and what he's claiming is that he relied on this allegedly suffice and that was given prior to his entry of the guilty plea and that business advice caused him to decide to plead guilty but the record conclusively shows that before he entered his guilty plea at this very extensive plea colloquy the district court judge fitzgerald did everything that the law of the circuit requires a court to do to advise the defendant prior to entering the guilty plea that he can have no expectations as to what the sentencing is going to be and so what a judge fitzgerald said he said i want you to understand do you understand understand judge gerald so do you understand quote the sentence will be determined by me and me all alone do you understand that the defendant said yes i understand so the defendant said under oath he understood that judge the chair of the district court retain what his defense counsel may or may not have advised him prior to entering his guilty plea that the defendant did not have an expectation at the time he pled guilty that the sentence would be a particular way that he understood the consequences and one of those consequences is that the district court retains sentencing discretion now in this case judge fitzgerald actually took an extra step and he specifically addressed this issue of whether or not the federal sentence would run concurrent or consecutive or how it's going to run with the state sentence and at that point as as the court has pointed out judge this child specifically said do you understand that it's up in the air how any federal sentence might run with that state sentence i know under the plea agreement that it's your hope that they'll run together but you can't be certain that that's going to happen so the district court took this extra step to specifically advise the defendant that whatever hopes he may have had for the concurrency whatever expectations he may have had based on conversations with his defense counsel even based on the plea agreement which the court was not a party to and he made sure that he understood that or that district mckenzie in the st three stipulations were requested in order to allow mr mcveigh's ian to investigate and then address and try to resolve issues with the defendant state criminal history which  mr represented could be critical to a determination of whether or not the defendant would be safety valve eligible so those were the st three stipulations and then the next appeal ation continued the defend mr d z and represented that he was in trial was about to enter worked he wouldn't have gone along with the continuances which were going to have the effect of substantially lengthening the amount of time he was going to serve in coast today yes or no but that's not what he alleged in his petition and that's not the believed based on the advice that the two sentences would run fully concurrently i'll note that he didn't allege in his petition that there was any prejudice the allegations of prejudice didn't come until after he filed or in his his reply or his traverse and he did not allege that the court erred by not giving him credit that the defense counsel was ineffective for seeking and obtaining these stipulations and continuing the sentencing he's not alleging any of that his only now i the number of those issues yourself in your response to the twenty to fifty five motion about what the scope of the discretion was and whether drake applied correctly or in the sense that what the expectation  defendant was at the time that he pleaded guilty his claim is all about whether or not at the time that he pleaded guilty he had an expectation based on his reliance on defense counsel that a sentence would run a particular way and the record conclusively shows which is why the court did not abuse its discretion and summarily denying the petition the record conclusively show was that he was advised in so many ways before he was allowed to plead guilty that he could not have any expectation as to your service in this from whether he raise it or not you know i don't know it comes in the context of prejudice but the i really troubles me too because it was your honor it's not for the government to determine whether or not it was an appropriate request for a defense counsel to try to seek more time at the expense of i was not the government i'm not even suggesting it's the government i'm suggesting this right your honor and i have to take it back again to what the prejudice is for in the context of claiming ineffective assistance of counsel in the pleat proceedings stage of the proceedings below the questions of prejudice is what because the defendant was told repeatedly advise repeated plea that he couldn't have expectations he swore under oath that he understood he never once said during this extensive colloquy well wait a nd my lawyer told me that the two sentences run fully concurrent  maybe months to explain because this is what the opi counsel had explained to me there is something called willis credits some of the credits or credits that come from nights or days that he's spent in custody they didn't get applied to other states and this is so i mean i'm not saying that's what happened but say he had been picked up on an outstanding traffic warrant and spent the night in jail and then they let him go and there was no sentence that arose from it that credit if it occurred if that incident occurred within the time period of the charge conspiracy he would get credit for that night that he's been in jail some of the will is credits are in fact credits for days that he technically did get applied to another outstanding sentence but the p o p for whatever reason in its discretion decided to give him credit for that after all was it so was it an error in your declaration when you said as set forth in exhibit a the b o p applies credit for all days of petition spent custody whether state or federal between the earliest date of the fence february st twenty you have and the date the petitioner commenced serving his federal sentence aug th that to me suggested that if that's accurate this there's no issue here well the last part of that sentence is if those dates are not applied toward another sentence so if he spends time in either state or federal custody as i was that time that he spent in custody however because of and i see that my time is up if i could just finish the question the that time that he was spending in custody st in state custody before he was raided over and  get of course that he was initially sentenced to probation for this conduct for having the pound of meth down his pants he was given a suspended sentence and then he was picked up by the federal case he was released on bond and then he violated his federal custody he was still occurring state credit but he wasn't occurring federal credit and to answer your question judge wardlaw the question of whether or not there was something untoward about the continuances you know whether or not  and really needed that time to investigate potential safety valves release that's not before the court and the only question that this court needs to ask itself is was the defendant truly not advised at the time that he went into the guilty plea that the you could have no beyond that it's an invalid plea if it was not knowing as to the stipulations there evidence that both defense counsel and mr rodriguez didn't understand how the concurrency rule would apply because defense counsel wouldn't have done this to if he had understood that he could not persuade the district court or the bureau of prisons to what he viewed as back date the sentence to july rd if he thought as is apparent from the record that the sentences would start on the same day then it doesn't make sense for him to ask for all this additional time but as a practical matter mr rodriguez had several driving offenses he had minor criminal history points but they were seven to nine points the idea that he was going to be able to get this down to less than one i mean why i asked for months and months to do that it just didn't benefit mr rodriguez at all from the right thank you very much counsel rodriguez versus the united states is