i think it's pretty clear it's got two parts to it the first part is whether or not the district court judge that have given their september two thousand and sixteen sentencing and then the recent and seen in october of two thousand and seventeen and i'm a little bit puzzled by the procedural where we're at where we are in this case  o goes up on a court up to the court of appeals everybody agrees that one of the charges have either has to be dismissed or merged into the other charge so it gets sent back down it's remained without any real instructions other than to amend the judgment and it appears from the september sixteenth sentencing that you went through a whole really new reset and seem process but believe that's correct i wasn't just turning it that way but then the judge reimposed the same sentence that he had originally imposed two hundred months yeah and i and let me just finish sol then but he doesn't say anything about whether or not he could have are wrong about the predicates he could have theoretically gone down to one eighty or so but then in october he says a year later if i could have i would have went lower but he never said anything about that in september i mean what do see it when they when they send it back down seemed like they eliminated whatever other issues there were besides that one and that seems unfair my client so i think that  time before in september he just went through why he was re imposing to two hundred months well yesterday darden was not a violent criminal and and all that kind of stuff and he he never made any indication that he wanted to go any lower but a year later he says well if i could have i would have i guess i i guess what i'm trying to figure out is whether that september two thousand and sixteen sentencing was in full re because that's what really a feeling from right here right well that's one of the arguments that i made that if you if you if he's not able to appeal from the last then you should be able to appeal from the time before  remained for sort of a technical change in this and that pepper doesn't apply as i said i think that's unfair to the defendant because somehow he's going to about two hundred months that's right or does that depend counsel does that depend on which order you're you're actually appealing so if you're appealing the earlier one it seems to me that you sentencing package argument may have some some merit now and then if you're appealing the second one now that was just to allow them to write the filing of a notice of appeal wasn't wasn't and so that kind of is a different situation i guess you could interpret it that way i think the way that we argued that we were arguing that the last scene should have been of recent so and i'm not sure how valid that is anymore but in any case i think he needs to have some further really so the court understands what its discretion is i just think you're wrong about that i think what you're really appealing is the september two thousand and sixteen sense not to not the october sentencing because they're told her sentencing was done only because he didn't file a notice of appeal from september they granted them trying to to to fire relief and then they allowed him to just be reset and for purposes of appeal only say there was another motion before as i recall the him with the understanding that he has discretion that's that's can you help us out with that procedure posture this case and i'm sorry your honor can you if you recall judge malloy is question can you answer the government's perception perspective of the answer to that question yes sure i'd like to clarify recent thing in order to merge the two counts of the conviction of course as your honour's or where we just missed one of those counts so that became that issue became moot however in that two thousand and sixteen sentencing the district court did hold it in novo recent saying in fact they heard argument from the parties they heard a lengthy allocution by the defendant they heard actually testimony from the family members they addressed the defendant's arguments that his prior convictions did not qualify as predicate offenses for purposes of the our criminal act and in fact the district court at that time her post sentencing rehabilitation argument and said that it was considering i believe it was a pretty per imposing able guidelines term of imprisonment of two hundred months and i've quoted that in my brief what the what the district court said he essentially said i'm not unmindful that you've made history and based upon the evidence that was presented against you at the trial after that well i i don't disagree with the new that in that if you read only the subject for two thousand and sixteen cents in transcript it looks like seen and the judge said draw the reasons you've just articulated but i'm going to reimpose the same sentence before and i've considered all your arguments and if that's all we had i don't say be an easy case but  i would understand a little better but then in october of two thousand and seventeen and this is what is confusing when he's reimposing that sentence for purposes of appeal only he says what if i could have i would have went to one hundred twenty a credit for his post sentencing rehabilitation efforts in the district court issued an order in response to that motion denying the motion and in fact said i have considered that evidence and i sixteen now of course fast forward another six months in the defendant as before him again soley on the twenty two fifty five issue for his counsel's failure to file a notice of appeal and i will tell you that it when you read the transcript and the briefing related to that two thousand and seventeen hearing it was surprised about the district court and the united states when the defendant at that reset and started making arguments attacking b conviction as well as again raising the post sentencing and rehabilitation efforts it was everyone else's impression at that hearing that the hearing was to essentially grant the defendants to twenty to fifty five motion vacate the judgment and then advise the defendant of his right to appeal so that he could then timely file a notice of appeal and of course our position as we've always as we've expressed in the brief is that the controlling precedent in this this court's decision and credo and where it says in that context where the sole issue is the failure to file a notice of appeal the proper procedure is in fact what the district court actually did which is vacating the sent imposition of the new sentence and are circuit and alone in that in fact it's been joined by the first third tenth and i believe the eleventh circuit as well from a policy perspective we would argue that that that by that are imposed are authorized by law in when you apply that policy or that procedure to the circumstances where the sole issue is counsel's failure to file a notice of appeal you do just that well but let me let me just  that by doing that however what he was doing was allowing an appeal from the two thousand and sixteen sentencing you agree with that and then you have the opportunity appeal it's exactly what's happening here and he's essentially raised additional issues on appeal attacking his conviction what he's he what he's a i just want to make sure we understand what he's appealing here or he was my understanding is he's appealing from the two thousand and sixteen day nor will recent the issues that were raised with respect to alexander now of course at the two thousand and sixteen re sentencing he did not raise the issue as far as the number  thousand and sixteen sentencing he did argue that essentially alexander was not controlling i'm not sure that was his the essence of his argument i mean there may be a lot of arguments about the merits of the appeal but that's what i just want to make sure we understand what we're we're dealing asking you is not really even appealing the two thousand and six you know what i was trying to get to this with with opposing counsel technically judge malloy is right but the basis for why he's appealing is the statement that was made at the two thousand seventeen hearing and so it's unclear to me exactly what order he is appealing from and how we resolve that particular issue well i think it's in my opinion it's very easy to resolve it under the circumstances i think that if the court affirms obviously we are asking that the court affirm the defendant sentence on two grounds one that the district court did not air in denying it in a recent thing and instead it reimposing the  was mistaken about not having discreet well if that is your holding your honor if if you're holding is that in situations where the sole issue on the twenty to fifty five motion is  a failure to file a notice of appeal and if the court is going to instead not follow their prey to procedure and instead impose a different procedure well then you're correct in the court would hold that the district court did in fact have discretion to truly believe that he had no authority to go below two hundred months which he had the authority to do that to me he could go down to one eighty he could go to one hundred if you truly believe that then that's an error and he should there should be a recent incident has nothing to do with the two thing if they were to make that argument then i think that their record conflicts with the district court statement that in two thousand and seventeen he didn't believe that he could go below the two hundred months in fact he said i'm considering all of these  easier to use but then in two thousand and seventeen he says but i didn't have the authority back in two thousand and sixteen to go below two hundred months and if i had the authority i would have so why do we make of that statement i agree your honor i think that the record as far as that issue is concerned is certainly messy but i do think that we have a situation where a judge in two thousand and seventeen here is not really revisited the issue or the case in a while is saying well in two thousand and sixteen a year ago i didn't think i had that discretion but his record in two thousand and sixteen when the case was before and and the arguments were made it certainly you certainly at least from that record you can certainly take that he believed that he could impose a different sentence and then like i said again subsequent to that i believe it was maybe not quite six months later when the issue comes up in a different context it again says i consider it but i still think that this is an appropriate  i mean i understand that the judge when presented with the defendant here is making her sentencing rehabilitation argument it's compassionate to those and maybe at the time that's how it felt but certainly the record prior t contradicts the statement in the in the two thousand and seventeen can i ask one more question on the two thousand and seventeen hearing and this is this is why the opposing counsel brief for the arguments so confusing it didn't two thousand and seventeen did he when he was doing the your sentence we reimpose and then you can appeal because it puts him in the exact same position because he can still raise those issues on appeal as he's done in this case because that answer your question does it if your hon he realizes that by two thousand and seventeen so the reason he wants to a de novo resort and seen in two thousand and seventy is because he wants to raise issues that he didn't preserve in two thousand and sixteen i mean that's kind of where we are procedure in this case right your honor it would be taking either a third or fourth bite at the apple that's what he's wanting to some that thank s and given the defendant time to appeal and they cite beers and hollows cases for money six and eighty two and then they cite but see united states eighth circuit two thousand and twelve affirming procedure is to reimpose sentence but adding that the district court may again consider the thirty five fifty three a factor because the guidelines  and pepper and farms that the defendants posts innocent conduct may be relevant in determining a substantially reasonable senate so between the time that there was two thousand and sixteen sentencing and the two thousand and seventeen sentencing there could have been additional factors that came along and i think that's so the problem with that the council is actually we looked at that line of case you're right about but my understanding is we have about three or four cases that go the other way that suggest you can't do that you can't have that the whole purpose of this is to remedy the right that was violated and the right that was violated was the coun not filing the notice of appeal and so the the way you remedy that violation is by re imposing the same sense of the you can appeal the original sentence i understand judge i wish i had looked at this more but i think somehow wishes think both counsel for your presence before the court today and the arguments you provided to the court and we will take the case and it may be excuse