were happy to hear argument in our first case number twelve forty three forty six feet versus only under section four and a one point two subsection eight but that provision by its very purpose applies only if a defendant has multiple prior sentences that condition isn't satisfied in this case because mr davis received only a single sentence under north carolina law north carolina law is a little bit unusual in this respect the default rule in most states in the federal system is that each conviction case in their judgments you wrote well established federalism principles do not permit federal court to reject north carolina's judgment as to the seriousness of north carolina since prosecuted in north carolina court and  ted by a north carolina judge merely because the federal court might expect a more serious punishment that's exactly what the general seeking to achieve that it's clear that the state prosecutor could have insisted on a more onerous look at the fact around though it's actually for a one point walk the commission acknowledged their state practices in charging the fences and sentencing vary from jurisdiction to jurisdiction so that any measure you could have picked their play acts might create a soft light sentencing disparity in this case if that's true the solution is to twist up the plain words the guidelines it's to apply the mechanism that the guidelines put in place for this very  and that is to see we're going to see a departure under section four a one point three based on the argument that the guidelines as written do not actually take into account mr davis family history so that it to the extent there is a question about whether this is a plain meaning of a guy that doesn't do justice to us mr davis history that it's the appropriate so it actually options yes i wonder why you would given  ask you something similar which is isn't this essentially a red herring because at the end of the gang a judge could treat someone if even if this were in fact ultimately decided to be a situation in which he didn't die as a career offender he could be treated gap in this case between the properly calculated guideline range and a career and a range it's a gap that spans between nine and thirteen years so if the judge decides will remain to consider an upward departure he ma that that's a good reason not to raise that finally in time i would say that because the court the government has not and cannot identify anything within the plain text of the guidelines that were sentencing and this court held that those two offenses were to be counted separately and that the defendant should in fact be sentenced as a career and there i think how many with this it's right because i thought it was pretty clear from the joint appendix that huggins received two separate sentences well i understood you cherish martin and i did not see the join appendix and against i don't have access to his pre sentence report what i saw was that he had  read the briefs and he had two prior convictions under north carolina state law that were consolidated for sentencing so i assume that one sentence was imposed if i'm wrong on that then fine let me just say this it's been quiet since one nine hundred ninety nine for fourteen years in a case in several cases involving prior north carolina census melody is one of those where we know for sure because melody argued that he had received only one sentence and the court in the middle of  there is no judgment that's made it easy and administrative process that the courts simply consolidates for sentence for says he purposes one sentence is imposed that happens routinely it is not a case where what driggers diction in which it is a single one sent by the measure if you look at those cases seven circuit a circuit all everyone that i've seen it talks about how was it formally consolidated in the first circuit uses interesting me about these things with each other it's just sort of a very administrative cleanup right now that's true but that's what i don't think and that you can't so much rely on the first circuit talking about there's been this judgment that they should be consolidated first who are set time even though they don't receive the same sense of well with all due respect i think we can because the per point behind the first circuit was it doesn't make sense because the sentencing commission wouldn't say these are related unless a district judge made an error not a district judge but a state sentencing judge made a real determination that they were and that doesn't happen in north carolina i mean what happens in north carolina is they are all combined that happens now let me just note this because this a this is something i heard to me last night to look at which is that you know i ask myself well what happens if this is in north carolina courts right i mean if it's a single sentence and it's faded what happens does it just go away what happens to the other convictions rejected that constitutes two separate convictions as long as there was an intervening arrest and honestly even even if it's at all ambiguous it doesn't make sense it does this is not a discretionary decision as to finish   prosecutorial kinds of discretion this is hey they're all coming up for sensing for a one day sentence him to the highest you know based on this most series of beslan be done with it and it wouldn't be tremendously  unfair and i think it doesn't make sense for this for a whole that a defendant in north carolina who happens to be sentenced on the same day and has to robbery says this person is not a career offender two very serious but i do think that what the goals of sentencing are just to play devil's advocate let me suggest that if you're going to be saddled with a career offender the whole point of the sentencing is at least as i would see it you want to have giv someone a chance to be rehabilitated to rehabilitate themselves and learn from the punishment and so before you sort of label them as a career offender with everything that follows from that if not the someone is only served one sentence that's quite different than saying you were you committed to offenses and you serve two sentences and you still can't get your stuff together to behave here we have an individual who may have done more than committed more than one robbery but he only was punished once and doesn't that make a difference when you analyze whether you should i mean is that possibly a rationale for why the guidelines are written the way they are judge onder with all due respect if these were concurrent sentences and you know he only served one time nobody in this courtroom suggests that that doesn't qualify as career offender and so if i asked you here was i think i asked you if it was against your colleague was there was any increase in the sentence here and the answer is no i'm sorry all north carolina under north carolina law they tack that one sentence to the highest in a series sense but i'm saying that under any other state's laws virginia new jersey where if they receive receive concurrent sentences for two prior offenses that were separated by intervening arrest they only go to prison one time but they happen to be serving two current senses it is well established that that would trigger a career offender enhanced so there is no judgment in the guidelines that you have to go to prison get released and come back to prison to qualify as a career offender that is absolutely not true now here's the other issue with respect to the possibility of moving for an up or departure also the defendants can go down right this poor this judge palmer  jurisprudence huggins and beyond this question has considered to been settled by husbands and it has been routinely apply and there is no difference between what happens in north carolina for purposes of how many times the defendant has to be in prison and what happens in any other state one term one time of going to prison while i was a career ender as long as you have to offenses and in every other state that's easy you know because they can be current in north so i understand the defendant's textural are he met but i do think that that makes prior sentences in isolation without you know it is part of plain language is to consider the context of the whole and here the context of the whole also includes four b one point one which defines prior convictions as offenses that generate more than one year prison this defendant was convicted of offenses that were not related to either each other in any way and to hold that he is not a c  ender when it was simply a matter of the day that he was sentenced on and the idiosyncracies in some ways in north carolina law that allows the entry of a single sentence when multiple offenses are sentenced on one day it just doesn't make sense it would