and instructing the district court and the bureau on remand this court gave the bureau to instruction first that it invoked no presumption under section thirty five eighty four the first time around on remand the bureau again invoked this presumption in a sense corrected that error and its compliance with this portion of that court's mandate is not contested here today but the second instruction from this court was that the bureau fully evaluate all relevant factors under thirty six twenty one b in a fashion consistent with this court's opinion or the views expressed by this court's opinion and mangum one and this court explicitly stated that one would reasonably believe in this case at the would weigh heavily what the state court judge did say rather than what the federal court judge did not and could not say under binding for circuit precedent at the time but now the press and has changed and now the district court has said something isn't that the sort of fundamental difference between the postures of these cases there is no need for a presumption the district court has come sentencing federal court has come right out and said oh yeah consecutive yes it has said that and it's very important ye this is a question that the federal district court judge gets to decide and even if it's only by operation of the presumption even for me presuming the federal district courts intent b o p has no authority to countermand that so if it were not presuming it if it's actually expressed intent i don't see where b o p has the authority to go counter to that nobody if you supposed to be establishing the length of prison sentence in a way that is inconsistent with what the federal judge said he or she obligation is to be federal courts but also to the interests of the criminal justice system as a whole and that's i just don't understand why an administrative bureaucratic v o p gets to overrule a federal district court rooms of how long it's charged with the just to exercise discretion in evaluating these requests when there are courts that give contradict that was an unusual set up that an administrative agency would have the power to overrule the sentencing decisions of article three judges and state judges that's exactly why that sets her case gives priority to the federal sentencing judge in exercising or in expressing an opining on whether the sentences should run concurrently or consecutively at the beginning of this criminal process and not necessarily as solicited on remand and the bureau's letter shows that with the supplemental joint appendix that was submitted on friday shows that the federal bureau of prisons is treated the federal federal sentencing court's opinion as dispositive in this case despite the fact that this court said in its mandate in mangum one that this that in this case the federal bureau of prisons should weigh heavily one would expect that they would weigh heavily with the state court judge did say rather than what the federal court judge did not and could not say at the time and by denying mr mangum snowshoeing to compel compliance with that mandate the district court has violated the mandate rule as expressed in united states versus bell well i agree with consecutive why is that not binding and my question is does that statement that it is consecutive does it fit if in fact the four or is it part of the sinister it's outside effect of all if it's within factor for your honor and it's bureau's charge under that statute that it weighed not just the federal sentencing court's opinion but other factors because of the interest of the criminal justice system as a whole and the bureau is not under this court's opinion and trial to give the  that is changed now but because we specifically stated in the previous case you may not consider the statements of the judges that dictate is that a mandate that has to responses to your question your honor first the sets or case did change this court's or did change the precedent relevant to this court's prior opinion in united states versus smith but it did not overrule this court's opinion in united states versus trial or in the in the trial case a post statement from the judge a letter or whatever to say ok judge what did you intend to do and he says well i want to run consecutive that he now outside of what was going on then do that yes  of prisons is allowed to do that under the statute so the only thing that distinguishes this case is your contention that we had a mandate in the previous case that prohibited to be done under the law as it existed at that time yes this court and under united states versus bell the pharaoh was obligated to follow both the letter and spirit of this court's mandate but i say i guess i will leave this alone i just have one i want you to address specifically the part of  footnote i believe i don't have it in front of me where the question is when does the presumption apply the court explains when it applies and when it doesn't apply and then it says when in a footnote when that presumption applies if we are presuming and intent that sentences run consecutively be opie does not have the authority to effectively run them concurrently someone in the case i think the government in the case was arguing that p o p did have that authority and the court said no they don't that's crazy beauty is sentence or this isn't a sentencing statute this is a place of confinement statute who would give you pete the authority if we can presume sentencing court intent to override that intent so how do you square the idea that b o p when the intent is expressed in a letter from the district court judge b o p those situations must be different for your argument to be right so why would it be the case that b o p would have the authority to overrule express intent but it doesn't have the authority to overrule presumed intent doesn't have the authority to overrule express it does you say it does have the authority to overrule the express intent of the federal sentencing judge says it doesn't have the authority to overrule the presumed intent if that presumption applies b o p s has to has to conform to the presumed intent that's because there are contradictory opinions expressed in these request and there's a state sentencing court opinion that this court privileged in its prior opinion the views expressed by this court and mangum one so you're saying basically look the manga mandate is sort of ruse and in time it doesn't matter what happens afterwards who expresses what intent or anything like that that's basically your argument we have to deal with the mandate as it existed at the time it was issued and if it doesn't incorporate new information no your honor that i mean the federal sen g court's opinion is still relevant in this case but it should not be straighted dispositively under trial and it also needs to be weighed on with the bureau's discretion along with this court's prior mandate and mangum one and this court's mandate expresses that it should evaluate all relevant factors under thirty six twenty one be in a fashion consistent with this opinion that speaks explicitly about the opinion expressed by the state court and that your mangum sentences should run concurrently and differently the district  rt's denial also upholds the bureau's failure to fully evaluate all of those factors administrative entities are required to fully articulate the reasoning behind their decisions and is it specially true given this court the second part of this court's mandate in order to be a full articulation explanation for an action must be reasonably discernible from the record on appeal according to the supreme court precedent f c c versus fox and courts cannot supply a reason basis for an agency's action that the agency is itself has not given according to the supreme court opinion in turn chen or e to and additionally the supreme court has said in bowman transportation that the bureau is required to articulate a rational connection between the facts found and the choices made and the bureau has failed to do process matters because when the agency fills out this one page work sheet they take four and a half years of a man's freedom into their hands this is the difference between mr mangan mean released in two thousand and twenty five or says twenty thirty a quarter administr agency that has this power without any direct political accountability i see that i've read about out of time at least making plea should not use it so lightly and certainly did should do so in violation of this court's mandate for these reasons we ask that you reverse remand for further consideration so that the bureau can follow the letter and spirit of this court's mandate thank you remember the afternoon you know it please the court my name is mike going to represent the government the sole issue that this court identified for a briefing is whether the district court consecutive because this in his head need been imposed and therefore he was powerless to do so and then the court used the word to said whatever the federal judge said was you know legally irrelevant and therefore you could consider what the judge said law changes allows it but it wasn't the law at that time how do you i guess you characterize that your brief i think you say that's dicta there's a lot why is it not the law of this case there's a lot to unpack from that if you'll allow me to try to do that so the smith case is the case that we're talking about where the fourth right it wasn't change when this opinion went down that's right and this opinion relied on the law at that time and said you can't consider what we know to be right now to be legally irrelevant and is it your position that because subsequent supreme court in says well actually it is relevant but now the mandate of that court is dicta as opposed to the law the case know what what sensor is there so in answer to the question that mangum one did freeze this case so as the facts of this specific case it's the government's position that the b o p cannot rely on the directive of the district court even after the bureau of prisons got the letter and when i mean by rely on is make it dispositive so that answers judge harris's question from from previously but what the  going forward the views of the just recorder dispositive going forward it's question outside of this case the government's position is that sets are gives the district courts the authority and essentially takes that authority away from the bureau of prisons in most cases where the district courts actually make a determination that seems to be agreement understand what you argument is that as fact before still is something because they've got this broad discretion they can assert considered a statement but not as dispositive as it is now but the problem is is that the mangum once he says that judge is statement legally irrelevant it was irrelevant to the judge having the authority to impose the sentence at the time that he could have done so but what it's relevant to is the bureau of prisons statutory duty so it's two totally different things this is not the court's authority that we're talking about right now we're assuming based on smith and the law at the time that the judge in middle district of north carolina could not impose the sentence concurrent or consecutive to get to the end post sentence but where it's relevant is when the bureau of prisons has to make a determination like this case where there was no decision in this case there was but it has the practical effect of being silence so this is one of those cases where the bureau of prisons has to fill in the gaps in the right question for this is posed so you've got a case in which the federal judge imposes a sentence and then it goes over to the state court because they've sort of given just lift him to the court or take it by him and in effect that would have given effect to the state's judge's determination this were run concurrent and worse is it required at that point that he would be serving the states in his first as  opposed to federal since so the answer is ordinarily the primary jurisdiction rule requires that the individual service time out with the state they owned him first they arrested him first and the federal government borrowed him on the writ but he goes back with a limited purpose just the trial for the trial listened to federal government could have required that he served a sentence or is that a discretionary thing i try and understand i suppose that it's a possibility but in the ordinary course absolutely not the federal government returns him back to the primary custody which was the state so in answer to your question earlier your question is could the state have done something yes the state could have done something the state could have said we're going to dismiss the charges we're going to let them go to the federal government and that that was something that could have happened what happened actually in this case they wouldn't do that when the question i have a question i'm saying is good they say no you've been sent about a fellow well served that federal sente bail or something that's another way it could happen so your your thought process is how can the state do this the state can do it but what happens is they end up giving up control so they dismissed the charges they let him go they put him they released him on some kind of bond he court reason i'm going to slot a question is it practically this could be done it would have been done this way why does it make sense that maybe that wasn't done in that way it all works for the federal government's perspective the federal government has an interest only in a federal sentence and and their idea is do they care if he's in state prison or federal prison during that time period and ours if you got ten years and he spent ten years over here in the state prison does that prison differ in a different interview been instant federal prison the issue there is not where he serves the sentence the issue is the federal government being in charge of the effect its own sentence so that's where the difference is so yes the answer is if the federal government wants to it to effectuate its two hundred sixty two month sentence they're going to do it in the federal custody they're only going to be able to do that once the state relinquishes in some way the primary jurisdiction that the state had now what the state did do in this case is they actually paroled mangum i don't know about early but he only he was sentence and after his sentence date he only served three years and one month of a ten year sentence so the state parole them i do have no idea what the intent was of the state but it's perfectly reasonable to think that the state said he's going to a two  hundred sixty two month sentence in the federal government let's just go ahead and parole him it'll essentially effectuate our concurrent sentence that we wanted to happen and we'll just let him go i don't know if that's why it happened but it did so when the argument is that could have done it consider the five factors in making these determinations if the bureau of prisons is put in a position where we have to they have to make the determination they have to follow the relevant five factors in this case there were three that were relevant the first was the crimes the convictions that this guy had it was the federal crime and the state crime were unrelated that was a factor that was considered the history and characteristics of the offender it was a second factor that was section number three  that factor suggested that he's a career of offender he's got a some serious crimes and suggests that some sort of heavy punishment is necessary and then of course the one of the factors number four which is was at issue when we talk about is bright and so that's the only want to so that's the one where the bureau of prisons was able to finally get the intent of the federal sentencing court we already bureau of prisons already had the intent of the state with the concurrent sentence order finally the bureau was able to get judge tilley out of the middle district to provide input all of those factors and say what other what was the import the inputted with the opportunity to him we want to concur and we don't want this man to spend another day in state captivity so that he can go and spend the twenty one years the federal government knew where he was opie and give hard deference to what the state wanted is of no moment what the federal judge wanted a federal judge made his decision respect there he said twenty one years but the state said that's enough and then the federal government just let him stay there do a sentence that the state never intended to do and then say you start day one hundred twenty one years after that is something about  it there in terms of appellate court it's ridiculous to say you can just keep him there and then the state doesn't want to give him any more time and then you go back and ask a federal judge what would you could have done if you still could have ahead i what we are stuck with i get as as i was the chief judge said once said words matter and what we what the bureau of prisons had to follow was mandate and directives and the mandate the directive from the court was written in shall language the district court shall return it for the bureau of prisons to make a determination shall not invoke a presumption no question about that and  motion to compel compliance that seems like that was probably a pretty strong motion there's no but but and that was when the motion was filed and clearly that one should have been granted but then now we have a whole other thing but that doesn't make the case go away well it's interesting that you raise that so the government recognizes and identified the potential move this issue in a footnote in our opposition brief the government did not raise mutinous at the district court level so the district court did not have the opportunity to rule on this it may have been a that the government may have missed that argument early on but in answer to your question i think that this court could find it moot as a part of the subject matter jurisdiction kind of argument the motion to compel was filed after the erroneous decision by the bureau of prisons it said joint appendix one zero six it was a letter that the bureau of prisons wrote himself and it basically was wrong he said we presume consecutive miss and it said that suggested that with the district court said was going to matter so it was in error  and you can see how that would raise some concerns for us about it because any one of you petey seriously well that's a very good question as well but it was it was just an administrative error it was an oversight this is not an excuse it's more of an explanation but every other circuit in the country does it a little bit differently this is a unique case there's a lot of the case in this case it was way out of the ordinary so yes b o p mr there was a communication problem as soon as the motion to compel was filed and someone saw it you're a prisoner was immediately made aware and they remedied the problem but in answer to your question is the motion to compel was filed because of this erroneous decision in october of two thousand and sixteen not december of two thousand and sixteen and what happened in the government's response to the motion to compel is they provided or attached a worksheet it's a joint appendix one seventeen and that is where the bureau of prisons correctly identified the five factors the three relevant ones and fully evaluated them so what the offense it's a serious offense is he ought to spend more time in prison they've got that's basically how do you know i think that the the relevant port part to that is the fact that the federal and state sentences are separate and again to maybe two to answer chief judge gregory's question about fairness is the dual sovereignty nature of the two sentences if they were similar in related that might be different but they're separate so that are still in that but i just i look at the statute and it doesn't look to me like these are factors that are designed to get at how long should someone spend in prison you're supposed to be saying like the nature of the circumstances of the offense ok they want to have designated a halfway house and i don't think so because he's a authority to effect to eight sentences this is the only statute that does it so the government agrees entirely that the statute was not created for the purposes of determining whether sentences are concurrent or consecutive as can be seen by some of the factors factor one will almost never be relevant right in a situation like this and even the ones that seem like they might be that's not really what they go to these factors are here and i reckon the government these are here for like someone wants to be in a the statute was not created for that but it's the only way that the bureau of prisons can affect to a concurrent sentences and in this particular situation where the district court did not order it the bureau of prisons has to fill a gap and make the determination and based on after barden was a case out of the third circuit that talked about this and explained how this works that's what courts have been doing for years using the statue now i will say after  the the usage of the statute for this purpose is going to be restricted significantly because the occasion for the bureau of prisons to have to fill this gap hopefully will be shrinking to maybe i don't understand from your perspective because it's going to the bureau of prisons and what we've said in this opinion here that basically said that the federal district court in this judge in this circuit was powerless to impose a sentence that that was consecutive subsequently was chain's if this opinion had gone to a district court judge that district judge would have no option but to foll if the district court had the authority where you have an opinion goes to a district court judge and says what is this opinion says right here that this the court just doesn't have in a fact as they go look at it it's got to do what this opinion said but you maintain th bureau can do something that the district court judge can't yeah right in this very limited circumstance yes well because it's a limited circumstance and it doesn't appear as though mr mangum is going to  even if he wins this case that they are not going anywhere anytime soon but it just seems to me that a case is what it says when it goes back whether it goes to the district court and goes to if the situation that you're suggesting takes the power because of smith takes the authority away from the federal sentencing court and because of mangum one there's no with already for the bureau of prisons to consider and make the determination or undetermined is authority and there was authority from the beginning but just like a district court could have had authority once we give you the law of the case guess what it narrows it to the law of this case you don't like it take it up up top and no one did that that's the law he and it may well be that sometimes when we send something back what but in a case you know this it may conflict with something else out there but you are bound by what this court also statutory it's thirty five eighty five k and the way that it works for mangum you can make a determination as case but you can only do in this limited case you cannot consider the statements of the judge because the judge i thought the mandate in mangum was you can't rely on a presumption of intent by a district court to do something that the district or didn't have the authority to do at the time why would you presume he meant to do that that makes sense to me but i are you  is it your position that that also means that if that intent later me to express you agree it is your position that if that intent is later made express it would be inconsistent with what man about presuming intent to consider the express intent i think the in i think the presumed intent was the intent of the presumption of the thirty five eighty four and second i'm right so what what is still there though is the bureau prisons authority to weigh all the factors thank you she as a judge when i mentioned earlier the case has what it says and this is particularly unique because of the mandate that came from mangum one and how that intersects then with the previous law that was the law of the fourth circuit at the flipped over says well there's another little matter here and second alternative and for which the government reasonable that's kind of big because you really didn't need it it wasn't needed to overturn it at that point was it your honor to answer your question about what the mandate was from mangum one it was to evaluate the factors consistent with the views expressed in this opinion and part of the views expressed in this opinion were to weigh what the state judge did say rather than what the federal of the fourth circuit's opinion and united states words not all of the case i don't know why i keep thinking of that as being the way you could do it because when you send cases back it may be dictate to other cases but when you send a it's a direct line and it simply means that you follow whatever we tell you directly this is we will go dig in our that this is not big to you it might be dick to everybody else out there but for you would telling you right now this is how this is done is not don't you think that's a yes there are principles of administrative law here but the court's mandate is binding on the lower court and the lower court and struck to the bureau of prisons to follow the instructions that this court laid down those principles of hierarchy and phonology are very important to be as was the fourth circuit binding precedent and united states versus smith i think it's very important to be precise about what that law was quoting from the court's opinion another sentence must exist at the time a district court imposes that sentence a court cannot impose sentence consecutively to a sentence that does not yet exist and as the federal judge said and their letter responding to the bureau of prisons request about whether or not they would have had the sentence or sentences run consecutively or concurrently they acknowledge that they were unaware of the charges and oklahoma even i don't want to make your head explode or anything but do we have the power by way of a mandate to sort of change the law because after setser it's clear the statute always gave it's not like it used to be that the district court didn't have the authority to do this and then after setzer it turned out that it did after setser it turns out he had the authority at all times we were reading the statute wrong under that statute the district court did have the authority to impose the consecutive sentence like that's how you know the law ever present thing it never changes so it turns out even a time one at the time of smith and at the time of mangum one the district court did have this authority do we have that given the framework the statutory framework it is always more respectful of the state sovereignty for the district court to make its decision up front rather than for the b o p to make the decision after the state court has acted so there are certain federalism concerns there and although we can see it again that of the dissent had a really good argument going the other way saying it's much better for the district court to make the decision after the state court so they know whether there's going to be double counting they have full information when they make the decision about that at the time we could not do so we maybe they look at what the state did but didn't in effect we allow in the district court to really extend his sentence no more beyond the twenty one y i think that's correct or it's just the effect of it is making it more than twenty one use yes and it's upsetting of expectations and unsettling of expectations definitely our client was under the impression that his sentences would run concurrently as per the state judge orders and to then have that determination revoked and changed is very unfair to him as you pointed out exactly what relief you want because i think in your brief the relief you requested was that we actually  can be done with this but now you're saying we should remain the case and the instruction would be send it back to be o p until then you may not look at this letter by the federal district court judge but other than that but looking at the rest of it yes yes that's definitely available even that first factor to your point about that was calculated incorrectly by the bureau of prisons they looked at the state facility as opposed to or they looked at the federal facility