hear argument this morning in case fifteen ninety two sixty dean versus united states mr stoller mr chief justice in may please the court the question can running confronting this court is whether a judge can exercise discretion now the sentencing in light of congressional directives in section one twenty four c the thirty year mandatory minimum must be imposed as part of the total sentence throughout the sentencing reform act and the myriad of factors such forth for a judge to consider it arriving  aggregate sentence the meets the overarching goals of being sufficient but not greater than necessary we submit that there is nothing in the language of section one twenty four c the prevents the judge from reducing the portion of the sentence for crimes violence we don't doubt that if the mandatory minimums were out of the picture and all we had was the underlying offense here that this sentence would be reversed on appeal do you i would i would submit yes that would not be runs in addition to the predicate offense but the concurrent language in there is the same language that we would find for example in section ten twenty a day of the statutes which has its own language but it goes farther when you look at the language in ten twenty  exist and so you had to argue from this language and this essentially repeats justice ginsburg's point but this language says it shall run consecutively it shall not run concurrently and your version of this statute a sensually allows a district court to negate that language it's as if that language were not there in terms of what that that the district court can do we submit that the district court has to give some today i mean that couldn't have been what congress meant concurrent plus a day when it said it shall only be consecutive but congress we assume knows how to write was it the right and they had the ability to strictly you know sometimes sometimes the way we try to understand statutes is to say any reading that utterly eviscerates something the congress clearly did say can't be a good read mandatory but afterwards many many court of appeals basically two district courts you can't impose a second simply because you disagree with the guidelines you can impose it for independent reasons to ensure a just result but you can't oppose it merely because you don't like the guidelines and they monitored that pretty well that's basically what this district court didn't say it didn't like the mandatory minimum it said instead that it thought of what a fair sentence was and that in that would have been one day if it could have done it given that the rest of the sentence thirty years was even further beyond what the judge thought was adequate for punishment deterrence and all the other factors under three five five three correct correct so it's not negating congress's purpose if a district court gives one day correct i would i would say not no and one day is a day a punishment isn't in the question as to that your honor yes isn't that your point basically it is that and that the we also have to take into total sentence and when you look at the factors that are set forth within thirty five fifty three and with them thirty five fifty one which talks about the circumstances of the case in thirty five and thirty six sixty one which says there is no limitation as to what can be considered by a court in determining an appropriate sentence in light of that parsimony requirement that ends up in the results that we have in the now twenty four  according to the statutory provisions nine twenty four see limits as to having to be the consecutive sentences in this case thirty years but it does not tell as to the underlying crime of violence predicate offenses well just say it is you to decide it it seems to me that you have to concede that your position completely negates the if or can completely negate the effect of nine twenty four but that there are other reasons why congress probably would have allowed that and i suppose that's thirty five fifty three to take into account all of those factors so you're saying basically that thirty five fifty three overrides nine twenty four c but that it's hard to read the statute that was you know i'm not i'm not suggesting that it should be read that way i think that they were read together but nine twenty four c does have restrictions that or i thought that your answer to the chief justice was perhaps telling because you said that you thought that were it not for nine twenty four c this would be an unreasonable sentence under not under thirty five fifty one thirty five fifty three isn't wasn't that your answer it then doesn't that show that congress although it generally conferred on district courts the authority under those provisions to determine what is a reasonable sentence in light of enumerated factors withdrew that discretion with respect to the component that is covered by nine twenty four c so if that's what the if that's what congress was doing then why shouldn't that entire sentence be ruled out in determining the sentence that is reasonable under the count that is not governed by nine twenty four c because we don't read nine twenty four see it as being in conflict with with thirty five fifty three and you read all the statutes together and congress knows we believe they know how to how to set constraints and set limitations and they did so in  you foresee to ensure that a violent crime such as carrying guns and commission of a predicate of found is going to carry a long period of sentence and the severe sentence and they want to ensure if you look at the history of nine twenty four  reform act took those away so they recalibrated nine twenty four c to reflect that and they've done so over time and they didn't have the the ability after ten twenty eight came into existence to say that you can't consider you can compensate for you can't take into account that that in that case a negative identity theft but that mandatory minimum sounds when you're making a determination as to that underlying  if we would answer that the and the congress had the opportunity to do so and they didn't do so when they amended nine twenty four c at least two times since the advent of ten twenty a day and it's not a redundancy issue because there are they went forward and said this is how you they used all the language in nine twenty four c and they went farther and then put that additional restriction on the sentencing court to make a determination as to the underlying predicate of found that you can't consider that mandatory minimum in doing so congress has that ability to do so they know how to write the laws and they know how to limit sentencing discretion and they did so to the extent amending nine twenty four and well ma'am maybe we better strengthen nine twenty four to make it in line with ten twenty eight do they have any reason to think about that at the time when they amended nine twenty four smith came down in two thousand and fourteen it was also a six circuit case united states versus franklin that i believe came down in two thousand and seven that the post stated the changes in one in intent dated or predated the changes in nights when you came out came out of him after the changes well pick up justice alito question is there any indication that congress was aware of those court of appeals decisions galv congress in the past has made changes to nine twenty four c based upon what courts have done if we look at the views the opinion for example they courts had interpreted that there was no requirement for the consecutive additional sentence and they went in they changed one twenty four c in response to what this court had done in music so i submit that the court that the congress has that ability if they do make changes to nine twenty four c in the future obviously that would be  in relationship to what they feel is a is the appropriate punishments that must be imposed for the crimes that have been committed how old was she had just said that do you know he was twenty four years old his his codefendant brother was twenty three years old so quickly that i may have lost track but but the thirty five fifty three b is what i'm looking and that talks about departures and i take it that the sentence for  robbery was a departure the guideline recommendation for and you did sentence the judge under the guidelines correct the judge calculated the guidelines or he we didn't depart from the guidelines he didn't say but he did depart from the guidelines sentence which was forty eight months or forty four months the ones in this case right are and he went from there to one day and thirty five fifty three b says you wonder if it's still law have to impose a guideline sentence unless the court bons there exists here a mitigating circumstance of a kind or to a degree not adequately taken into consideration by the sentencing commission in formulating the guideline so you'd look and see their guidelines says forty eight months and they departed down to a day for the reason that there was this add on sentence the mandatory now is there anything that suggests that the commission did not have that in take that into account in other words is it a proper factor for departure viewed not now from what congress intended not viewed from point of view of the statute to been referring to but viewed simply from the view of the commission and the congress as to when you can depart downward you know and i would submit that this is not really a guideline analysis is it that the judge made to deter no this is a statute and the statute says judge if you want to depart downward you can do so if you're applying to god only for a reason that the words are to repeat them and a mitigating circumstance of a kind or to a degree not adequately taken into consideration by the sentencing commission in formulating guidelines i'm and he gave various reasons for making that departure and that very instant the basic reason was he thought that the mandatory was long enough well he also indicate the judge indicated that the reasons he was considering this was the role that van dien jr had played compared to the role that his brother had played to determine that based upon his criminal history in the nature of those convictions that he had he articulated numerous reasons as to  as he thought the mandatories were long enough if he could if he could have gone to the ground i mean assume that then and it seems to me as if i hadn't thought that through till this moment and i still haven't the relation of thirty thirty five fifty three b it maybe you haven't thought through either maybe nobody has but but i mean and maybe there isn't one but i wanted to learn as much as i could if there is a relevance of that well and i i look at the factors that are set forth under thirty five fifty three a of which the guidelines are one of those factors same as policy statements are one of those factors and they go i submit to the overall sentence that the court imposes and when a judge in this case it's not a guideline sentence  he's he's deciding he's varying based upon the thirty five fifty three a factors those tapestry of factors that the thread of parsimony runs through in which he makes those those determinations let's look at what those four main tenants of parsimony are for example the turn oh i know i know thirty five fifty three day that isn't a problem for me but i'm trying to think of is maybe this is a matter that lies in the hands of the commission maybe you could say well the commission didn't say you couldn't to part for that reason and therefore it is a factor a mitigating factor not considered by the commission that maybe the commission should it choose to do so could consider it and could say when it could and when it couldn't be in which case the judge couldn't depart downward that's that's what's going through my mind and there's no point repeating myself you might have thought about it you might not have a little bit of a side well like to think i thought about it from the context of looking at the guidelines as a as a starting point as a as a determination there to that helps to to guide to the court to consider sensing but it's just a factor for the court to consider and the overall factors that are set forth and thirty five fifty three a day as well as thirty six sixty one as well as thirty five fifty one leads us to consider all of those factors in what total sentence should be imposed in this case the court varied in this instance based upon what he found the guidelines to be but then those additional things that he considered those factors that he looked at to make the determination as to what and any any total sans is obviously subject to a pill or review for substantial for substantive reason was under abuse of discretion stand standpoint so the government if in this instance felt that th normally work not in a mandatory minimum way but if you've got three different offenses and you're going to be sentenced on each of them on appellate review how is that reviewed is it the total sentence or do they go by one one two and three and say we think you use your discretion in only giving you know five months for this in and that doesn't affect the three years you gave for that how does that actually happen i my understanding is that appellate review standpoint but the over overriding consideration i would submit would be the substantive reasonable notice for abuse of discretion in first looking at this case my thought was that it would be very difficult for the judge to determine what the sentence should be for the underlying crime without looking at what he was weak or he or she was required to do under nine twenty  four but then it occurred to me that judges and lawyers do this all the time we we think of a hypothetical case suppose mine twenty four dig not exist what sentence would i give judges do this all the time in condemnation cases we don't look at the value of the improved we we can look at a problem in in an abstract way so i think and nothing that prevents the judge from making the quite a proper determination for the underlying offense and then saying but looking at the statute it has to be consecutive then the consecutive sentences as been the length of the consecutive sentences have been set forth so i i see nothing analytically difficult about the government's position but that  united states versus smith the tenth circuit case that we're relying upon talks about that you can have judges having blinders to look at just the underlying crimes of violence and then in doing so is the the congress could have written the statute to include what they include in ten twenty eight and they didn't do so in this instance now in terms of that analytical difficulty there is inherent in this scheme a bit of double a lot of  double counting because the substantive crimes are almost always in trying to judge the severity of punishment for that you're always thinking of the gun and that always adds to whatever analytically separate punishment you think should be given for the substantive crime so there is a little bit of twisting of a judge by saying you have to somehow put yourself in the position of punishing this person without knowing that he's going to be punished for the gun anyway for thirty years and think of what the punishment should be without that punishment because the me and in many ways it's punishing for a separate activity than merely the possession of identity theft items while there are listed within the ask to leave to have the most of my time for no thank you counsel the nine twenty four c accepting his position would directly circumvent nine twenty four c's longstanding harm and the courts would impose a specified additional and consecutive sentence beyond the punishment for the for the choice to bring a gun it would circumvent it on the other hand it seems to me that if you're talking about thirty years for an offense the judge thinks merits a lot less if congress wanted to prevent circumvention they should have written a lot more carefully well i think it's true that congress could have written it more clearly but we think that congress here when you take a look at both the provisions of nine twenty four see and then read them in conjunction with the provisions of the sentencing reform act make sufficiently clear congress is intent then are you sure i'm not sure sufficiently clear is enough i think maybe indisputably clear i mean you in your brief you quote to be clear that this is contrary to the thrust of nine twenty four c and i'm not sure when you're talking about this amount of punishment a thrust is enough well it's not always doesn't pass th language and there's nothing in the language that prevents the judge from imposing a sentence recognizing that the defendant faces thirty years already i agree that th the court and i think the court recognized that when you look at nine twenty four see it particularly when you look at the drafting history from one nine hundred seventy one onward congress was taking step after step after step to restrict the that said i didn't say it anywhere this is not taken into account by the commission unless you can tell me there's a guideline on this particular application of the mandatory minimum and the statute and the guidelines both say a judge can depart for a reason not taken adequately into consideration by the commission so unless you can point to me some place where they take this into consideration although might in the future i would say they didn't take it into consideration at all i think therefore the language allows the language allows it and indeed the theory allows it because the theory is you could have a person there who's convicted of nineteen multiple counts you know and the judge is given considerable power to work all this out so that you have overall a fair sentence that's the whole argument so what's your response well i guess to the whole argument we have a few responses but i think first of all on the on the guidelines point the guidelines have taken this into account since the very beginning when you were on the sentencing commission here where word i'll take this is what we're well the guidelines specifically address in section two k two point four comment note for it to talk about how do you calculate and as well as in chapter five about determining the total sentence based on aggregate sentences multiple terms of imprisonment the guidelines said that what you do with the predicate is you determine the predicate under the guidelines but you don't include the specific offense characteristic of very much i'm going to let you get back to a fuller answer just prior but that's certainly cuts against you the idea that they recognize that yes you do have to look to the mandatory minimums you should take that into account in imposing the sentence and now you say when it gets down to what the actual sentence is you can't look at the mandatory minimum at all i don't think it cuts against us and we're going to have  multiple discussions about these various factors first i don't think the guidelines shot a lot of light on the statutory question here if you were to a disagree with our understanding of the guidelines that would not mean that the statutes wrong it means that the guidelines would have to give way we're defending the cited in our brief back in the pages around the forty's when we discussed the guidelines but about the guidelines in the statute the guidelines would have to give way and we are defending the commentary because we think not only have the commentary been around since one thousand nine hundred seven when the guidelines were first sent to congress and have since been there we think this is a sensible distinction between the conduct that the court considers when determining the sentencing of the predicate and knowing that the conduct is accounted for separately in the nine twenty four seat and considering the total aggregate sentence that is something different congress specified where courts look to the total aggregate sentence in section thirty five eighty four in section thirty five eighty four congress said when there are multiple terms of imprisonment the court shall with respect to each offense consider the thirty five fifty four or thirty five fifty three a factors when deciding whether to make the total sentence by making them concurrent or consecutive but we know that section nine twenty four c wholly remove that power and in doing so it remove the power of the court to tailor the total aggregate sentence which is a power that was sexy the government must recognize nine twenty four  for the predicate you ignore the offense conduct with respect to the gun because they don't want to double counted but if you drop the nine twenty four c it should it should go back for the court to consider the offense conduct as it considers the the  sentence for the predicate this what was really here we're i mean i my quick reading of four i promise i didn't memorize the god lines i used to know them pretty well but i don't know him perfectly by any means and never did but it seems to me that comment for two k two point four is saying that the defendant you have committed a crime in our guideline is punishment for the crime part of it is increased because you had a gun and so if we're going to apply the mandatory over here which is our special statute here don't apply that but i don't see anything there this is you can't subtract well when you go to five g one point two which governs the total sentence the when you have multiple offenses with terms of in prison it says you you calculate the total sentence with respect and on twenty four cs and then tack on five g one point two i believe this is addressed in pages and i think around page forty two of our brief  they were applied in fact in this way in this case the district court calculated the sentencing guidelines which is eighty four to one hundred five months based on the guidelines and the one disputing that's what the guidelines required and in fact they conceded that was the proper question i'd go down to one day because i think thirty years is enough but that is essentially a just a disagreement with the policy judge no then on the ardor for you it's harder for you because after all if it's a variance he's not applying the guidelines and if he's not applying the guidelines all this stuff in the guidelines that support you is out the window and including the sentence i read it and it's out the window or we're trying to do is back where we started is the statute does the statute which doesn't mention  lots to happen and i mean presumably the guidelines reflect an idea that there shouldn't be any double counting of the gun right so what is the how does the court do the under the sentence on the underlying crime taking away the fat of the gun another went most robberies have guns in them and the sentences are written to reflect that they have guns in them done but aren't there no actually the guidelines take into account things like hobbs robbery and separately account for the gun with the two local enhanced men and so the guidelines range when you commit a got hobbs act robbery without a gun will just be the standard hobbs act robbery range now there are going to be other offense characteristics if you injure someone or you know these things can affect the amount you think ought to happen is that is that the judge should say ok imagine a robbery without a gun what would be a reasonable sentence for that i think the judge should do take into account what the judge offense sentencing approach which is you look at the offense conduct you look at the history and characteristics of the defender offense kind of does that mean without a gun what without the gun we say we think the judge has discretion ultimately to either just consider it with a gun or not because congress hasn't expressly prohibited that but the guidelines approach which we think is permissible is to consider each concert without the gun and then you see the reason for that is the guidelines say congress has separately provided member the legislative history i think there are senator mansfield that was the main proponent of the relevant text the very stringent sentencing provisions make clear that the whole purpose of this was to impose additional time in prison solti for the choice to use the gun well so the guidelines that's an excerpt from a legislative history that it seems to me an important in light of what thirty five fifty three thirty five fifty three aces fifty three no what we say is thirty five fifty three doesn't apply on its own homes so it doesn't apply on its own terms if you look through the sentencing reform act there are at least nine provisions all of which when you're looking at a fine or imprisonment or pro probation or whatever it might be the court this provision says the court shall and setting this sentence consider the thirty five fifty three a factors in addition with respect to multiple terms of imprisonment and this is on page five they are she's made eleven a of our appendix if you look at thirty five eighty four b it says the court in determining whether three so normally what happens is the courts will determine individual sentences so you could have a sentence of seven years in the sentence of another seven years and then you once kept at five and the court says i've got these individual sentences i sentence for each offense what's the total sentence you could make that five in seven and seven you can make it nineteen or you could just make it seven it depends on whether you make an consecutive or concurrent so the question about the total imprisonment when you have multiple terms and of the with offenses with terms of imprisonment thirty five fifty four b affects that and it says that's where you applied thirty five fifty three a factors and to determine the total  congress took that power away congress took that total power away totally in one twenty four seat by directing that you cannot do that you must impose them can consent but that's why i don't understand your argue your your answer to justice kennedy because used said no you're not saying that nine twenty four supersedes thirty five fifty three i think you have to be saying that you might still be right but you have to be saying that there is this background principle which is thirty five fifty three which is this parsimony principle and all of these factors and then one hundred twenty four comes along and says but not here i guess in a sense we are saying that but i don't think it's operates directly on thirty five fifty three because i don't think thirty five fifty three a operates as a free stoning freestanding provision it comes into play at various points in the sentencing reform act where the court congress has said you consider these factors in making this determination and setting deciding whether to set on the amount of a fo one way you might look at this and this goes back to what the chief justice said he said well when there is a thirty year sentence implicated you better be pretty clear and also when you are legislating against a fairly strong background principle of thirty five fifty three you better be pretty clear that you're displace and that background principle but and here you're just not it you just have not been clear enough you were clear enough in ten twenty a day we know what that looks like but here you just haven't been clear enough to upset this background presumption we think that it's clear enough because thirty five fifty three applause when you for purposes of setting the total term of imprisonment the only reason thirty five fifty applies is because congress provided that they are to be considered in thirty five eighty four b and setting that the consecutive or concurrent sentences and so that has been removed that has been removed if that were true the thirty five fifty three just generally was a free floating provision that applied everywhere then all the nine provisions of the sentencing reform act that specifically say you must consider the thirty five three fifty three factors with respect to these specific types of sentences would be superfluous if this case had arisen before the sentencing reform act was adopted i think that dean's argument would certainly be correct would it not i think we would have a more difficult the judge would complied with the statute the term was in consecutive and other than that it was discretionary so it was completely within the judge's discretion i think what we would have to argue in that case is that congress would have known that the very tough argument on the other hand if this case had arisen before we decided booker if you read the guidelines correctly and it does seem to be they do seem to say what you say they say then you would clearly be correct you know where in this kind of weird where we're in this weird world that this court has created where the guidelines are advisory but then they're not advisory and so that's why we have this problem is that correct well you don't want to say that because there's nobody but me we obviously accept booker as the proper interpretation of the law of the constitution but i think what i would say is that the guidelines might be a slightly different analysis and i think the guy lives with them provide yet it indifferent mr yang and i think the that the lack of beauty of the guidelines is there so artificial and so many levels all right what differentiates a theft robbery is the use of force and the guidelines in defining the guidelines really for theft starts at a much much lower base level it starts at a seven ok for robbery it starts at a base level twenty once you start with that he huge difference between the use of force and the nine use of force obviously the robbery guideline is always going to include the use of force the fact that it might be with a gun as opposed to a knife as opposed to a threat of violence or whatever else you want to define it the use of force is inherent already in the guideline calculation because otherwise that there's no reason they could have just had one table and said if you rob someone if it was a pure calculation as you suggested without thinking about the gun it would have been twenty thousand dollars is taken we're all going to start at a fence level of five years and build up from there but that's not what the guidelines do so when you're taking discretion away from a judge i think that's one of the reasons we often require specificity because the guidelines are artificial in so many different ways and there are  gyrations that we go through as judges to comply with dictates that are not often very clear well i think i'm not here to criticize the guidelines i think the guidelines have worked for quite some time and have brought some rationality to sentencing that didn't previously existed which was an important thing the guidelines post book or of course advisory or advisory what i'm trying to i'm not criticizing your criticism i'm trying to figure out what's the right system putting this case aside well  had the guidelines or told try this if the guidelines were here it wouldn't be such a problem because they do it would have that the commission could look into this and it could write take the factor into account and then we'd have a thirty fifty three b and we'd follow that in the future  irrational but they're out the window ok they're out the window because it was a variance so now we're left with one twenty four see you know the statute and we're also left with the provision that says  e part when they're doing the review is it reasonable or and he know but i'll look it is reason i think it is ok so now i'm always a good word correct or correct correct so that's the that's the question in this case beyond the case is really how do we do that and so so what i would try out is it will be obvious if you're right in the statutes clear ok the nine twenty four c then you win that's the end of it that's what you think i don't think it's clear if it's not clear what do we do well i think and now i know what about looking looking to see what the commission said about it noting that this is an individual case not general not general where the court has more power or other things now you tell me i have those are floating around in my mind i'd like to know it's floating around in your mind i don't believe the commission gets any deference with respect to spring federal statutes with respect to the guidelines yes but w federal statutes i don't think so and so what we're back to is nine twenty four c and its interaction to the various provisions linens and reform act the key provisions they rely on thirty five fifty three and they said you have to consider all these factors but thirty five fifty three a applies in very specific places of the sentencing reform act including when there are multiple terms of imprisonment and a court has to decide what the total imprisonment is going to be counts that's thirty five eighty four and that's been taken away because congress took away the power to continue to have concurrent sentences if you think the case is resolved at a higher level it seems to me that your friend has a very good technical argument this is these sentences have to run concurrently one day they run concurrently end of case and your argument is you know you look at the drafting history the commentary two k two point four all the other arguments you've got and you make the make and the basic one is well that's technically correct but it's obviously not what congress had in mind congress obviously had in mind adding the mandatory on to a normal sentence one way or another under under the guidelines and third and all the provisions we've been talking about so if you view the case that way technically correct you know contrary to the obvious policy what case can you give me to tell us how they would promote a conflict like that which aren't what's your best case where you have a very significant sanction in the balance and you have a technical compliance on one hand but clearly contrary to purpose we don't think that the that they're technically correct no minors we think that there is a plausible argument that they make on the tax but we think that the proper approach is you always have to approach statutes holistically you look at the statutory tax you look at the congress the state structure the climate also they pay such i mean you insist when citizens deal with a government that they turn square corners and i think it's right for a criminal defendant when they're facing thirty additional years to insist that the grievous ambiguity that you might at the end of the day i don't think you have to go to a principle of learned a very mr stoller to be right i mean you were just saying this is very much along the lines of what the chief justice was saying he would just say something like look of we're going to be strictly textualist here this does not have the kind of requirement you wish it had which is to say it doesn't have the language that in ten twenty eight egg your essential argument is that read mr stoller is way this would  see one detail that consecutive requirement and i'm quite sympathetic to that but there's still this question of when a statute doesn't say what you would like it to say and you're reduced to saying if you read it the other guys way it would have this or a what we what we meant when we passed another provision you know what what should we do and where do you point us i would say that it's true that it  purpose in the whole structure of the statute but the statute says a lot by removing authority so the question is what authority was removed i think it's helpful to look at page eleven of the government's appended thirty five eighty four thirty five eighty four b governs the discretionary skip cision of a judge when there are multiple terms of imprisonment how do you decide the total length the total length is set by making them concurrent or consecutive and thirty five fifty four b or thirty five eighty four be sorry specifically says that in deciding the total length by making executive or concurrent you apply the factors set forth in thirty five fifty three and that's what they rely on but nine twenty four c removes that authority nine twenty four c removes the authority to be able to set the total length of imprisonment when there are multiple terms of imprisonment so you're saying that in this case the judge  separately addressed how you make those terms how you add them to the total it depends on the aggregate right you when you add them or run concurrently with each other so that is what thirty five fifty fo b or thirty five eighty four b addresses and that's where the thirty five fifty three factors are applied to congress that authority away that's that's what i think speaks volumes and when you look at the structure of the sentencing reform conduct you're asking the judge to say in calculating the sentence for the underlying offense i'm going to look at all of these factors frankly it's meaningless because what i'm going to do it in one thousand four c but do something  no not at all if for instance a judge would say as in this case an appropriate sentence is fourteen months right the judge has an appropriate sentence for this each of these four has a fourteen month term in a normal world if there was also a five year sentence the judge would then go to thirty five eighty four b and so when you consider the thirty five fifty three factors to decide if i going to add that forty to the five years or going to just run concurrently so that's five years total that's what normally happens section the thrust of the understanding of of thirty one twenty four c it is a harsh provision there is no doubt but congress intended that to be harsh because of the extreme danger presented when you add a gun to either a a crime of violence or drug trafficking offense and congress made that determination that it's going to be at least five additional years for the gun and if there's a second or  because if you were in the room of what's reasonable you're going to the judge is looking at where you are under the appellate provision because he's very from the guidelines of course you have to give the mandatory minimum there it is the gun twenty five years and now the judge thinks you know this is way beyond what this guy did it's fine for the gun but his total conduct here was doesn't warrant such a long sentence on appellate it's on the other part it's a why you know when you have a predicate offense that congress had added additional mandatory on you don't look to the length of the total because maybe maybe thirty years in a judge's view is not reasonable but congress required that that is separate that is for congress to decide what the minimum is going to be for the one thousand foresee what would be reasonable is when you take a look at the predicate offense and you say would this be a reasonable one day for four felonies would that be reasonable and the answer to that is of course not as as my brother conceded in his argument so again i think the whole the idea that a judge would go down to one day because of a disagreement with the length of the indicate that we look at thirty five eighty four b we agree that it limits that there has to be that thirty year consecutive sentence but it just guides the court's discretion with respect to the thirty five fifty three factors it doesn't say that it only apply to each count not the aggregate sentence and you look at night thirty five eighty four and you read the third provision it talks about the aggregate sense in itself so the reliance by the government on thirty five eighty four is we  don't quarrel the thirty years must be impulse and the mandatory minimums we do quarrel with is whether or not the court should be able to take that those factors in consideration as well as all those other factors that are set forth in thirty five fifty three eight thirty five fifty one thirty six sixty one which gives us the the determination to be made as to what what should be the appropriate sentence in this case and the other question i ask you know thinking of is at a deep level of what thomas reed powers said about the law he wants us to think of the second part you know as related but really now look at the second part keep it totally separate statute means that the part about robbery has to be done separately read policy that if that you can think of a thing that is inextricably related to another thing without thinking of the thing to which it is inextricably related matters that it's a thirty year mandatory minimum what if it was a one year mandatory minimum with the result be different it may i mean that's the key word length really well it may be different from the standpoint i mean you know the one year has to be imposed a year and a day would be if under the total test of reasonableness and applying the factors of the court supposed to apply makes that decision that he think that that that he or she thinks that's the appropriate sentence that may be right thank you counsel case is submitted