the court really southern i represent thomas hankton this direct appeal the issue that i'd like to address in my brief time concerns the scope of the thirty five a which is issue roman numeral one  judge feldman deferred acceptance of that agreement and directed probation to issue a pre sentence report that report was issued in the final in the final version of that report probation recommended that mr hanken receive a credit for his prior relevant conduct sentences under five to one point three it was outlined in the final report an actual yellow highlights that that's not then in its statement of reasons touched a development adopted this report so this report is actually becomes judge feldman's reasoning for his sentencing they're there between the time that the report was issued and the statement of reasons it was issued and the sentencing occurred there was no objection by the government at sentencing i think i do think we know the facts so i i really want to get to the point you at the beginning what you said i was like good because i didn't feel that the briefing did a very deep dive into thirty five so would you announce for us if you were writing the opinion besides the besides reversed what would you say about what the standard is for what other clue is clearly not technical or arithmetic so the question is is this an other clear air before we know that we have to know what other clear error means please tell me what you would write if you were writing the opinion as to what other clear air meets well i think the answer to that we could look to other things too we could look to something like playing there so it would be plain error to issue a rule five g one point three in an eleven c once he case i we have discretion nonetheless we can also declined to correct it even if it meets the other three prongs how does that translate at a district court level which of those progs applies if i would say if there were if there were a clear controlling legal authority that that showed that that way to that answer is necessary i think instead what we can look at is the fact that there's no controlling legal authority in this jurisdiction and that there are two circuits in which a five point three credit can be granted in an eleven c case i think the other thing that that that thirty five day tells us that i think is again might might allow us to not fully answer that i think more complicated question is that what thirty five they shouldn't be doing is providing an avenue for objections to be made after the fact when none were made contemporaneously this is really an incident at least with respect to the thirty five point in the and the the three hundred month reduction that that this was that this would really allow the government to subvert the contemporaneous objectionable so i think between those points is that true when you're up here arguing plaine r in general i mean putting aside the what the so let's say the judge had not done anything and instead the government simply appealed and now the government starting playing here which isn't the usual order but it's still free to do that would it i mean it's always true they did make a contemporary suggestion we get playing your cases i want to say not daily maybe but at least weekly sir and so that's necessarily true if you're fixing a mistake or you know whatever i mean it's because you don't realize you're making a mistake when you made  one point three and asked us whether this rule thirty five a motion is the proper way to urge that issue i think and also with respect to that point i think it's thirty five a becomes this essentially motion to reconsider a sentence you know i am in the me if we get if we if we reach some point where we disagree you know instead of filing there's appeal that we do is seek a thirty five a motion on the thirteenth day or maybe better yet the fourteenth maybe on the fourteenth day so that's got another aspect of this is i mean i'm not accusing the government of doing this on purpose but instead of being able to argue this and consider this at full at sentencing which is where he's supposed to do it it's and not even on appeal we have full briefing in you know days and months to write things and whatever you have no time at all to respond is not in play in at all that's exactly the situation that we're in my understanding when i'm when i'm given a final pre sentence report is if i don't if i don't make an objection i've waived  forfeited that objection i think that that's that that should apply in this context i think exactly what happened is that you know on the thirteenth day we get this motion we're where we were told by the court you need to respond tonight because it's a that was created by the government that we had no role in but that of course the court realizes that it only has it's fourteen days so we're in this position where we need to respond in this expedited fashion to something that should have come up weeks weeks earlier that in fact has ra concurrently then i would be up here in plain air and they would have the burden to show that was playing error and they might be able to establish that i don't think that's a given in this case because what could have happened is the court might have been applying five k to twenty three like it was five to one very circuits upheld you can credit below the minimum so i don't think that's the kind of error you can correct certainly in rule thirty five so it doesn't matter that he got what the minimum in that respect  a plane air review because there's controversy about whether you can credit so you can have a mandatory minimum that should be given and he was actually given higher than that and then the subtraction was the time served and you're saying there's a debate about whether that subtraction is appropriate with a mandatory minimum if i sleep there is a debate and in the court so it doesn't reach a clear or so even if the court had and if they had raised the ground below and and the court bought the ground i don't think i would have stab clear air but i like to also say i was the government is trying to benefit now by raising it so late on appeal because had this been raised even in the world thirty five motion the court would have the opportunity to say ok maybe the minimum should have applied and reduce the reduction that i gave a sentence to satisfy the minimum i would do so from or from ninety and actually increases from ninety to one twenty so i don't give them a twenty four month reduction instead of the fifty four month reduction it would have had the chance to conform it sends if it believe that it was can constrain by the mandatory minimum to one hundred twenty didn't have that opportunity and now the government's trying to ask this court to keep the one forty four in place so they're seeking to benefit from their raising it right now we have the power to say  you can't subtract from the mandatory minimum and therefore reform the cents to one twenty or would if we accepted your argument that it should have been corrected to one forty four billion also accept the argument that the mandatory minimum applies do we have to send it back or re sensing or can we reform to one twenty i mean so i'm not a scholar in eight hundred thirty some forty two but i believe it has to be remanded for the sentence for the court to consider this and and do it i would certainly you know if you if this court did find that it required conformance i don't think i object to that but my understanding is there are some forty two it would have to be put back but i don't think this court has to get there because even if the court finds ok we think you know a five to twenty three year it's fairly plain if you look at the law you can't credit it below those mandatory minimum that's still not a plain clear error for purposes of rule thirty five so even if it had this been raised the court would have acted and had it been raised at sentencing yes certainly the court considered you're right you know i'm going to interpret this guideline provision in this way later it's not the place of rule thirty five to reconsider how the guidelines superficial and my superficial one is a you know it's an error that is beyond clean air in the sense that the air has to be clear in the sense that those either controlling authority in the circuit or that there's a non controversial reading of the guidelines and law which does isn't really open to interpretation so it's an automatic application in those cases where the government you know whether the court makes a mistake for example just applies the wrong guideline that clearly implies there's no controversy or the guidelines not controversial so that's my that's my pitch layer plus whenever plus but i think even on a plane or the way thirty five doesn't give the court discretion to reconsider how it applied the guidelines or reinterpret the guidelines which is what would have happened here h warning we should send you on behalf of derek's mothers at the speak up if you want your voice to be recorded sandu on behalf of derek's mothers with respect to mr smothers the court was clear and imposing the one hundred sixty eight month sentence that was granted the court called it a credit but in light of taking into account mr smothers characteristics his background the severity of the offense that he had committed i mean he was a low level player in the overall criminal enterprise the court considered one sixty eight and i think it can be inferred that the court considered one sixty eight reasonable and not offending thirty five fifty three and say that it was a mistake that needed to be corrected because the court specifically asked at the time of sentencing does the government have any objection and the government said whoever was representing him didn't record didn't require the person's report didn't mention time credit for your client correct but the white sixty eight is within the statutory range so for count one you're correct ok and unlike chair terrelle i use first names because they're both names mothers but in a way unlike terrelle where there was an actual ruling on a downward departure here it was just kind of like i'm just giving credit moving on well i think the has a very clear meaning and when somebody departs then it's a guideline sentence but it's based on a guidelines departure and then you have to follow the guidelines rules on that versus a variance where you can say well under the guidelines you would get but i think that's unfair because i've considered all this other stuff and i'm going to grant a variance and here the judge wasn't very clear about what he was doing right in terms of all that that's part of the confusion that is cruel what about the notion that perhaps he was just actually directing the bureau of prisons to do something he lacked authority to do that that was his later holding what you think about that are arguably is later conclusion or holding he didn't state that originally to come back i think was a hesitate to call it a do over but i think originally if he had wanted that the prisons to he would have said to your point judge clement the first thing that i'd like to do is apologize on behalf of our office these were mistakes that we could have caught these are mistakes that we should have caught and there's really no excuse for it so with that said i'd like to break completely yes been in trial the lawyers or something like that i mean it's just lucky actually if they were even around to respond because i would hate to think i'm on twenty four seven call for every case i ever have as a lawyer isn't this just plain unfair i mean i don't know that that's the right standard to judge cases but it just seems wrong and unfair for y'all to be able to pull something like this while in your honor i did want to start by addressing kind of your questions about what the standard for rule thirty five should be and i want to make sure i've hit on all those points that you reason for the filing on the thirteenth day this isn't for a for b this isn't seven months this is an issue that we deal with a lot and so in order to before going to the district court to upset these judgments which i know we wanted to get it right  that was the primary concern here but again that aside the fourteen day requirement is kind of the only thing that's there but doesn't the forty days then kind of inform us on other clear it should be some you have to spend thirteen days researching to figure out in a in a do in a division that as big as yours or department as big as yours and handles as many cases as you do in just get out the hay truck yesterday and if you take the thirty days to explore this and research this  then it seems to me that informs the fact that it's probably not another clear right there with arithmetic where one plus one equals two i don't need thirty days to figure that out or technical it doesn't seem fit in that  something that requires a bunch of research and thinking in calling you know the department of justice and all that and your honor i understand that in such a to go to begin kind of your second point what constitutes this clear air of course the first box a check off as timely as a second one is this clear error and looking he said i'm pretty sentence and to me those are two different things that make it rather unclear to me he went on a clear air that he was relying on wilson at that time versus later in retrospect saying well maybe i sounded like i was directed to the room and that's the problem it's hard to know what the judge was thinking it any given point here but what he actually said to me doesn't direct the bureau of prisons to do anything and your honor to the extent that this isn't  typical case where we do have kind of that that extent of uncertainty about what the judge was thinking we do have at this thirty five a order or to the extent that there was kind of static between what the district court was saying and what happened with the sentences that's clarified the district  this is what i'm going to correct what he could've done what he did and maybe he couldn't have done what he did depending on which rule he relied on so i guess what we have is when he senate she didn't make it clear which rule he would relying on in reducing the sentence but he could have under one condition but not under another and the problem we don't know what he was doing when he sentenced  correct doesn't matter you know but to go to your question judge prado i guess let's start off with your question judge clement i think well to the extent that again that we kind of don't know what the district court was doing at sentencing that believe that that the only one that is within the statutory minimum and maximum not counter to an eleven c one c plea agreement there are of course these kind of secondary errors in addition to the thirty five eighty five years with states versus rico where exactly this scenario played out so this is this is this use of thirty five a to bring a stipulated two sentence under eleven c one c is considered what's considered by the committee and blessed by the c mandatory minimum here mothers did not this was not a safety valve case it did not provide substantial assistance the only two ways that a drug defendant can be sentence below the mandatory minimum so this was just as we say in our brief it no matter which way you look at it in a legal sense that needed to be corrected what the judge actually says is notably the court seemingly credited the sentences of these defendants by implicating eighteen u s c thirty five eighty five to me that doesn't tell us what he was thinking at the time he's he's kind of looking back at the same record everybody else is looking back on and saying what it looks like seemingly credit in the same thing is that's what i thought i was doing i thought i was telling i mean this is a judge has been a judge a long time and certainly knows the law about what he can tell  time served makes those sentences correct and that the sentences that all three of these defendants have today there's nothing wrong with them i feel like that's a point that kind of gets lost in the brief except that they didn't have the benefit of in person sentencing i mean the whole sensing is a an unusual animal to me because you can't just change your mind later or whatever like you can in a civil case you have a summary judgment here you go i'm a great summary judgment then when you sit down to write the judgment you go oh my gosh that's there's too many fact issues and you deny it no one would have would say a word but in sentencing you can't do that because a defendant has a right to be present and has a right to participate and the defense attorney has a right to make argument as does the government's attorney so it's a different animal and you can't just decide later wow there's nothing wrong with fixing this and rule thirty five doesn't allow for that it's very near or whatever other clear means we know it doesn't mean just i woke up one day and decided i didn't like have this came out and your honor that's right if these were  sentences that were otherwise within the guidelines otherwise reasonable and legal that we just didn't agree with you right thirty five they couldn't be used to correct those sentences but where there is this this clear error thirty five aide to the on  there's nothing wrong with these sentences that there was some kind of questions about fairness here they're within the guidelines they're within the statutory minimum and maximum and notably they are the result of favorable pleadings for these defendants we point this out in the very thing but all three of these  face considerably more time without the plea deals and two of them face life sentences without the plea deals so at the end of the day what you have here is sentences that can not only fair not only the result of favorable plea deals but for that and most importantly for the purposes of this appeal of sentence controls said to the extent that there's a discrepancy between those that the nineteen month sentence the one below the mandatory minimum control so if the judge intended to reduce the  we couldn't send it back to say maybe he wanted to give one hundred twenty i mean there's nothing to say that he was at one forty four looked like he intended to reduce it somewhat and we're not clear what you intended but he couldn't go below one twenty but maybe he would have reduced it to one twenty or we stuck with the one forty four and your honor that the relief that would be available to us and others that's also a little unclear to me it to me it seems like that the only two avenues here are to keep the one forty four or to go back  that not only the sentence boiled statutory minimum or frankly i don't really know what the legal foothold for that would be to send it back sorry supposing that he's making is that it is well actually he didn't make an argument but the argument though would be made is that it's not clear you can't credit a mandatory so you let's say the judge had wanted to give the mandatory minimum just without regard to any other sense never been sentenced anywhere else would've given the one twenty but now it turns out he served this other state since it he thinks is sufficiently related and whatever the question is can he then credit a mandatory minimum and there appears to be some confusion on that and to me that makes it not clearer so the argument would be it wasn't clear because there's confusion over it and so he should get the ninety months that's the argument in on his side and i understand the argument on your side but that's the argument on his side and your honor when we cite the carter a believe in the phillips i do believe that it was clear to go below the mandatory minimum here at the in the drug context the only the mandatory minimum and in the drug context and again i don't want to repeat myself on that i think you and i read the thirty five day order differently judge hands but we do have the district court saying in the thirty five a order  that not in so many words but i may have been giving talking in this departure language during the sentencing but it appears that i base my decision on thirty five if it's also based on legally or that he can have the discretion to do this but i think it at the discretion to do it under either and your honor that a be happy to talk about the issue with with the parole i don't know if it's totally necessary for purposes of this are going but i would be happy to talk about it as well i mean again we're not talking about how would this come up if everything was preserved error would ever what's the right answer that's only a small piece of the question the question is is the right answer so darn clear that anybody would know it and it doesn't sound like even your office with all of your resources and whatever knew it took you thirteen days to figure it out so i'm questioning how clear the sira can be if we're spending this much time running in circles around it and your honor i would point again to the supreme court's decision and wilson into this court's interpretations of wilson unwinder and morgan granted those aren't published cases but this isn't playing or we don't have to have that at least that the thirty the cases that have looked at will thirty five don't use that same language where it's binding law word that controlling authority is a what is you announce your vast everyone else so let me give you a chance to run our opinion force on this senate since what is another clear please write which you would tell us say which we would write what you would have us write the language it is consistently that this court has consistently used is an error that would almost certainly result in appeal the two times that this reliance on thirty five eighty five has gone up in this court has considered it in winder and morgan it has resulted in in a reversal those are unpublished cases but to me that constitutes clear error for purposes of rule thirty thirteen day filing october twenty six twenty sixteen so they they're trying to explain the reasoning they're saying we contacted the bureau of prisons they told us that the only way to apply these related conduct prior sentences which through this five year one point three that's why we did what we did so so this was the best efforts of probation of defense counsel of the judge there was no objection but by the government that's where we stood this is a complex issue and  changed you know looking at your concurrence i'm sorry this is separate i'll rehearing in henderson you know the question comes up what is in this and with what you said is this is not a to make clear that we are making the argument that it's not clear air even though i didn't do that because again the legal said it was only brought up in their response brief i my reply the principal brief was all about how the judge erred and i don't think there's no question that then they come back and tell me well it's a minimum sentence so i hadn't replied to that in my reply i relied on the procedural issue but i do sort of rely on the fact that it's not clear air for it in the legal sense in this case where the court could mean through the point about the drug cases specifically going below mandatory minimum is very severely prescribed and this isn't one of the exceptions well co counsel during the break gave me some cases there are cases seven circuit ninth circuit i believe in the second circuit were upheld that five g adjustment even and i think it will even think in drug cases i have to go back and look those cases been drug cases considered and just move the sentence so the total time you serve is what it counts so that state time is added to the federal time to put you over the minimum so i think the court could have done that it might have interpreted five k twenty three to do that as well i mean i've been a correct interpretation but that's not something that can be corrected in rule thirty five so  as with respect to dear there would be no additional arguments all defense counsel or court appointed we want to thank you very much for your work