absentia so he would at least have the possibility of receiving no additional time of incarceration after his present term of service is up the district court denied that motion but the district court's order as we now know was fundamentally premised on errors of fact regarding the underlying record in the case and we are here to correct those errors the district court denied misters apart his motion for  single reason timing it said it was premature also the reason that the government gave for denying misters upon his motion but the reason that the district court thought that mistress upon his motion was premature was because the district was laboring under the misimpression that the revocation proceedings had not even yet been initiated when in fact we were right in the middle of the proceedings the district court socks that the  the probation office had not yet brought a petition to revoke other supervised release it was under the impression that it had not yet issued a warrant when in fact all of these things that happened the district court had found that there was probable cause to probation office to give further input than the probation office had already given but if the district court had known that that was all that was left to do i think by the face of the order it's clear that that that this court certainly might have exercised its own discretion in a different way let's assume now that they think this is going to just punch i think this is clear from what you just said but i want to make sure i understand it had the district judge been properly factual record that was correct without the record yet and it's that second question how certain are away that if the custody all sentenced that he's now serving were to expire that the district judge would to how are you taking the certain position that the district judge could not run concurrently if the time sentence had been your honor i've gone out of my way in my not to prejudice my clients in any future proceedings i think that there are that there are arguments on both sides of this case there's a recent case united states to be held that suggests it might even be unconstitutional least in some circumstances  for a court to to lose the power to you rely on the fact that it's uncertain whether the district court would have authority to impose concurrent sentence after the criminal sentences run a little more than uncertainty i'm looking at the face of the order which is under review and the fact that the district court itself acknowledged the likelihood that it would conclude it would ultimately lack the power this court can analyze and i think the danger of of the district court concluding that it lacked the the power to impose a concurrent sentences later on is is clear from the face of the order but beyond that your honor even even frankly even if the court did have the power to impose a concurrent sounds at some uncertain later date this is about it would still suffer the horror the very harm them in seeking to avoid that harm being the possibility of arguing for no additional  term of incarceration after his present term has served so even if he he did it even if the district court either gave him full concurrent sentence or downward departed two zero months the as those from court hold held  as united states the very harm that my client is seeking to avoid would already have transpired but the council that's where i think i'm having the problem with your position in this case is that the supreme court has stressed that it must be an important interest an important issue and there are many things that as a former lawyer myself or theme very important a speedy trial violation the supreme court has held that cannot be reviewed on under the collateral order doctrine even though if the guy were to win he should never have been in jail the first place quite possibly so i'm wondering how you can square this case with the important issue requirement that the court has held can you talk about that sure well first of all the macdonald case that held the clowder order that there is an important issue that there is or is not an important issue here but it seems to me you're on to that the important issue is a man's liberty is a man's ability to go about without being incarceration the possibility of of less  time incarcerated i and i see where you're going with that but then i think here comes my next question so the next defendant comes by and he says well look the judge district judge just sentenced set my sentencing for ten weeks from now which is standard in many districts to give the probation office enough time to prepare the pre sentence report but my family can be at my sentencing in two weeks they can't be there in ten weeks and i think my family is there they'll do a really good job of convincing the judge that i should get probation rather than incarceration in that situation here's a good argument that having his family at the sentencing would increase his chances of not having to be incarcerated for a longer term the district or says no you know what i need the p s r in this case you gotta wait ten weeks under your view of the of this doctrine could the hypothetical because one of the things that bring court is stressed is that you don't need looking at collateral order you don't look at the one instance here you look at the category so i'm trying to understand how you would define the category in this case in my example someone wants to move up their sentencing and bike celebrating their sentencing they have a better chance of receiving a long term of probation rather than for their incarceration your honor i think that the the order first of all i think that this can be narrowed to this especially with these appeals and so i think that were there sufficient sufficient time to allow the appellate process to go through if the defendant had given the district court court sufficient time then then i don't think that that particular hypothetical i don't see anything that prevents that hypothetical from being important enough certainly so your view would be that if a defendant could make an argument to concerning his sentencing date that in some way would benefit him it in the long term what a sentence would be that would be immediately appeal i think i think the issue would have to be  would i mean would have to be important in the sense that in this case we're talking about a district court possibly lacking power it or let me put it another way the order that is under review here if this court were to were to deny this appeal and dismissed the appeal we know for certain that this was a part it would absolutely lose the opportunity to have a sentence that that would not exceed suppose the government had just waited until after he finished his sentence and then decided to revoke the probation and give him a sentence for that is there any way to force the government to bring this case to a head before the sentence of the main violation before that sentence has been completed can you force them to bring petition to the court in the first place so i hear two questions from from what you were saying the first question if i could answer am i arguing that that mr is a part of has a right to to a sentencing this as i think you were alerted not too long ago to a couple a case is by the clerk not mentioned by either side i'm particularly interested in the court's opinion in the sr case written by justice  or changes the other alice's under section thirty five eighty four that most courts had interpreted thirty five eighty four that the initial language in the first sentence to restrict the occasions upon which concrete sentences could be given this is say only if you have a continuously running first sentence can you then run concurrently a second sentence with that  says no sr says that word only is not there and cannot be read into it which i read as then saying that well the earlier law such as move the course decision and moody was not overturned by that statu as i read moody moody says that a parole revocation sentence may be imposed retroactively even after the terminations of the earlier custody of sam's that is to say i think it entirely possible that we might hold that the district judge doesn't need to have the authority after the terminations of the current custody or sentence to sentence concomitantly with respect to  that the the harm just to focus the harm it's the ability to receive no it did the possibility of receiving no additional time so even if the district court a later time were to to impose a concurrent sentence which if if things get there we certainly you know we would welcome still in this particular appeal that does not do away with the harm that necessarily will occur if this court were to deny by the district court to be that the district court simply loses the power retroactively when the loser is the power to send concurrently if it becomes retroactive well then you've got a major harms not merely inconvenience it is  well the so the way that the supreme court in flanagan describes stack the boil versus the other cases the criminal cases which which concern me which well fortunately it's a lovely afternoon here and i don't think we're going to hold you exactly to the time if anyone has any questions  my name is sam points and i represent the government in this case this court should dismiss a district court dismissed defendant's appeal from the district court's order deferring an education of defendant supervised release revocation without prejudice because it does not fall within the narrow category of orders that fall within the collateral order doctrine even if this court has jurisdiction now it should have from the district court because the district court didn't abuse its discretion in proceeding on declining to proceed on such a limited record based on what was at best a partial concrete loss of an important opportunity and i think the answer is here that what it means practically is that the court can either sentence him to less time or indeed no  here if if you if you think you can be sentenced to in fact to a concurrent sentence or two no time because i think there are two issues here that are of importance well beyond this case first the scope of the collateral order doctrine because as judge jones pointed out what this court is being asked to decide is not whether this particular order is appealable but whether this entire class of orders are and so if this court is saying that any time  hearing under a mistaken impression of what that is you know again i think i understand your worship of the collateral order doctrine that's representative of our asking a court to sentence based on an indictment and a penalty should the district court and i think look down there and say the government couldn't give whatever additional information it had no but in fact what the defendant had done was he had only waived his right to be present you know if any of his other rights and in doing so he only way if that right if the court agreed to give him a concurrent sentences sense or the court was caught in a procedural quagmire it could only proceed if it had already reached the conclusion that a concurrent sentence was appropriate and at that point they didn't have and looking at the court's order i think a fair reading is not that it was predicated on a mistaken assumption about a form twelve which in fact the court had available to it in the d procedures that the defendant was asking them on the limited record to bypass this was a district court judge who had never seen this defendant before had never handled this case before and was being asked to make a decision about whether a concurrent or consecutive sentence was appropriate would rely this was a case in which there was a limited record available to her a partial and conditional waiver that required her to research result without being able to go through the procedures that would help her figure out if that result was correct under the local rules what happened was the form twelve was in fact filed on march twenty sixth two thousand and thirteen and then the defendant in this case in the southern district case the information was filed on a fall ninth be present for the government to provide the information no but i think absent that absent a chance to have a hearing where these issues are fleshed out a chance to have probation actually file a written recommendation all of those are rights that the defendant if could return to the collateral order issue because i think the problem here is that it really doesn't meet any of the three requirements at first it doesn't conclusively determine disputed question the district court specifically said that this was a denial without prejudice that he was entitled can i can i interrupt you right there the deferral may be more than a mere deferral that is they may change the nature of the decision if it is possible to as it were retroactively issuer can impose a concordance sentence after the completion of the first of the first instance well no harm no foul on the other hand if the district judge is prevented by law imposing a conqueror and sems if the first sentence has been completed we're in a totally different universe now you may say but the district judge may accomplish the same thing but is a very different game if one  disregarding the guidelines and imposing a zero time stems with a very substantial departure from the guideline as distinct from countryman sounds so i'd like to address the question that i addressed here adversary a moment ago  do you take a position with respect to whether the judge has the authority after the expiration of the first custodial sounds to impose a concrete and sentence for violation of the conditions supervised re can currently or consecutively without knowing what the state court sentence was going to be right well understandably a district judge is going to say wait a man this is too hard for me i'm not sure i can do that and i  the judge trying to stems in anticipation of a yet to be imposed federal sam's so it's all in anticipation of yet to be imposed i don't regard either montas ruiz or that footnote as addressing in any respect what do you do when you haven't already imposed and already served a sentence and now the question is does the judge have the authority to impose retroactively a concrete sentence i do think that i read and i  as much ambiguity about it that the analytic structure of justice scalia's opinion assessed her is to say that it's wrong to read that word only into the perfectly phrases of thirty five eighty four and he says that that is not designed to effect and i think the only issue is whether the use of the word undischarged occludes cases where there is in fact is charged that i think there are at least two circuit only that i think pretty much every court has been reading into thirty five eighty four isn't there and shouldn't be read there so i mean it has to be a process trick is for me to say well ok now i think i better take take that into account question in front of the district judge the district judge has a pretty good answer to a pretty sure her answer and that is she does not have the authority retroactively to impose a cunt current sense and then the question  collateral order reveal that this is more than mean mirror convenience or family showing up to make a better showing it is eligibility or in eligibility to get a kind of current sentence retroactively is that a sufficiently important interest and i think then later one of those question comes to us well did the district judge have the authority afterwards to impose impose a cunt grandsons and we say no well i think this last well is it would not have been lost if the district judge final appeal and the supreme court has held in this court is held in the context of the statutory speedy trial act that that is you know that that is a sufficient remedy doesn't require a perfect remedy but some remedy and the fact that here the district court has the ability review it and here in this case the court can it will when it is conclusively decided when because the issue here really isn't separate from the merits what we're looking at is the when he's sentenced is our question is is he entitle to a determination of whether he should have that before you no longer can obtain the termination i think i think your view is that he cannot any longer after he's finished serving receive a concurrent sentences but that he could receive no no additional time under a different gu doesn't matter whether the guy can get no time as long as you say well ok i'm going to give you no time because i would have given you a concurrent sentence if i could but it's offensive to say you should be should be able to have had that hearing what you are you agree loses right totally except that in some other proceeding you can give some weight then you retreat to the idea well maybe maybe the defendant was in the vice and he would challenge to make sure the hearing that's pretty desperate argument but but  i don't see the argument that the government couldn't have given the district court all the information he could have water i think ultimately it is as if you could recognize it held the discretion but in this case based on this record it was not an abuse of discretion not to proceed i think with your section what the government's position on the merits ultimately would be the government didn't articulate one below the sentencing guidelines to argue in favor of a consecutive  but in this case with defendant is asking is that this court find first that every order in this class every order from any defendant who faces both a substantive criminal charge and a supervised release revocation then he has a right to have a hearing on that supervised release revocation so that he does not lose a right that he doesn't actually have that is a right to have a concurrent sentence so i think essentially what he's asking for is first unworkable second i think it poses a significant problems in terms of what a defendant can then appeal because if in essence a scheduling order can be the subject of an interlocutory appeal i think that is fundamentally problematic and it i think runs particularly fell the second prong because here the issue of what sentence he got was implicitly tied with when that sentence would be announced or general rescheduling orders are  are circumstances under which they are i don't know what do you remember the case of the judge who insisted on having the last day of the hearing when the defendants father was dying and would not give them a day's it did i think sets or leaves it ambiguous and i think there is some confusion so i'm not sure that the answer is clear it is clear i think that the district court as i've said could take that into account in fashioning the sentence ultimately ok it's the government's position i think our position is clear but our position is that i think in this case the district court's decision didn't rely on a belief that the right once this goes back to the district court in some form does the government reserve the right to argue to the district court then it loses the authority to impose a conqueror and sentenced once the current custody all sentence finished i think looking at the sense of the language i think we would take the position that thirty five eighty four that under storage still means a sentence that has not been completed and that sets are ok to the extent that while it may make that more ambiguous because it does clarify that there is no only implicit in it at least if you were looking at thirty five eighty four as the source of that authority  time that it takes to get him in front so under judge but your scenario about whether the part the court has the power to concurrently sentence when it senses expires in reality he shows up for court sense to one day is effectively it's the same thing yes and i think it's ultimately in which case i think the race it's a big deal if you let the court say directly and honestly what it's doing which is sentencing him to the time  sense that we're allowed to play these games with it instead of saying what we're really trying to do we're really trying to say look the right sentence for you at this time you've already done calling guidelines and doing jumping through hoops but what i really want to do is give you concurrence and you know i think it would be a lot better off if we could say in those circumstances what we really mean and be that's not your fault but count on your experiences as a prosecutor i think i remember the guidelines in the sentencing and the methodist probation revocation are very very loose and always have been cracked they were never they were never binding we'll give you extra time thank you your honor i just had a few points to make if i may the first is the argument came up it was almost a sort of a slippery slope argument that if if it's been eight years i was able to find only one other case just this year that i cited in the brief so it's not like the tenth circuit has been daily with these sorts of appeals so i think the slippery slope argument just just on the mcdonald the point the reasoning the supreme court's reasoning was that a speedy trial violation requires an analysis of the prejudice at the trial and so it's argument that the defendant raised in their mannish was that it that this statute gave it a right not to be tried and so that's the only argument that the ninth circuit then analyze and said actually this does not give you a right not to be tried so that's the only the only basis for the for the ninth circuit and i think both of those are are distinguishable from this case  v nevada that shows that a an order of involuntary medication is reviewable later from the final sentence under they could sure but nevertheless the court help the harm that cell is trying to avoid would already have happened so even though it's imperfectly remedy of all perhaps down the line now the harm will have already taken place and that's the most recent supreme court discussion  were also said there that what if cell is is acquitted then how will he challenge his involuntary medication and you could make a similar argument here of if if this court dismisses this appeal for lack of jurisdiction in the mysteries of pata is taken into custody and as many of these cases show there is a possibility of a very prolonged incarceration  the government also again raises its argument its contention that mystery's upon his motion was a contingent motion and that he was trying to illegally negotiate a sentence with the district court and cut the position where it should decide the motion before the end of the sentence what has to happen and what if those things don't happen to him i mean the right is lost  general to to a constitutional is not raised a constitutional right here or something to that effect his request to this court is very minimal it's merely about this court correct the errors that the district court clearly made  he certainly would not want to prevent this court from speaking more broadly on the ways that the united states sometimes manipulates this process