good morning may it please the court and quentin calhoun this is a criminal matter and it grows out of a sentencing in a violation of supervis the arguments that i making are the final asian proceedings are different from criminal cases the focus there is different the standard of proof is different and it should be no surprise that and that sentencing rules are different one of the errors is that there is a pretty specific guidelines to policy statement i don't know if you call it a bright line but it's it's it's pretty clear that any term of imprisonment that is imposed in a violation proceeding  construed has to be consecutive to a term of imprisonment that the defendant is serving and just to make sure that quite has been made clear it's repeated in the application calhoun that that policy statement is silent as to what should be done in the case that we have before us it says if he's already serving the state sentence it must be secular that means that in this situation that policy statement does not apply and so it is not mandatory under the all is the statement or the sentence to run consecutively but why which same state cabin us into fairly small area where of consecutive sentence can be him but doesn't say that it says any term of imprisonment imposed must be little differently from your order but apparently the one that's not good news is you just tell me why i should read it your way well well i was focusing i guess looking at the very st words of the policy statement and it by the way i do have a nd argument if you do want to get to but but it does say that any term of imprisonment and it doesn't have that audience and without it it really doesn't seem to prohibit what you wanted to prohibit well it is certainly if if there was another if the defendant is is not serving a sentence that i don't know if concluding sentence which would be necessary or not if there is there's nothing to  and you happen to know mr calhoun i don't i'm right i just occurred to mention researching this whether that policy statement was written before or after the supreme court's decision in sens or before and then maybe they were just assuming that there was no possibility of imposing any consecutive sentence consecutive to something that did not exist yet because that used to be the law at least in beyond the district court's authority to to to run consecutive to up to a new senate so now my argument with respect and core structure then came along and unsettle the law said i will note note this that it did not get dealt with a criminal case but not a violation proceeding and not with the st circumstance where the criminal sentence was made consecutive where district courts were not given the authority at that point to to run senator his wife's or in point is why should that make a difference to this timing issue  after all i had to stand the point you're making at the beginning that the purposes of bio lesions directly punitive on the other hand notwithstanding that the policy statement violation proceeding it's so that distinction is important to make a consecutive term to impose that on a defendant particularly i i just haven't seen that kind of authority subsets or didn't didn't deal with i mean they they dealt with a criminal proceeding but did not get into a  type type of setting and certainly you know so it's been around for a number of years could've been addressed i mean the supreme court could have spoken more broadway i suppose that it did but it it didn't and as far as i can tell it left intact no so holding it as it applies to violation proceedings so that's sentence there was no mention of that in the sentencing transcript of the defendant at that point in time notably and presumably because at that point in time and it was a primary state custody and the day of the federal sentencing and  it was as i said in my brief no surprise to anyone that this was going to be consecutive and i think maybe but i messed up and i think my colleagues missed abit i missed as well is that it's important that he was in state custody at the your honor to page a fifty five of the annex defense counsel states he's presently in primary custody he has not been ruled over into primary federal custody safe the date that he  difficulty revoked a stream of supervised release the unmindful this entire time that this proceeding occurred because it was supervised release violations of her supervised release was revoked and the additional sentence of twenty one months was imposed we've talked a lot about in our briefs and i guess this is my area as well a bit to the extent that we got caught up on the concept of whether it was consecutive or concurrent i think the fact remains the important fact the most important fact is that he was in primary custody so the sentence would be conserved consecutive in addition to any state sentence consecutive only because he was already in primary state custody are you aren't you need to rely on your reading you length of the sentence that doesn't talk about consecutive or concurrent and by my count we've got two published opinions and a summary order all of which say that in that circumstance the waiver the appeal waiver does not  r objections to whether it was consecutive or not i really did not mean to sound like you might train your honor with that point but i do believe that because there was no sentence at that point and it does go to my colleagues point that there was no sense as of yet posed which is why i decided to be one point three so this judge was considering it to see it state sense and i completely agree with the court that it was not addressed in a clear agreement but again i decision to make it consecutive there was an arguing about whether it could be made concurrent why couldn't it have been made and it was no argument for the district court about whether it would be making a crime your honor the only thing that his attorney requested it was a time served but the general said with regard to the sense that was imposed there was no abuse of discretion here it was a reasonable stance procedurally the sentence out was imposed in agreement with the statutes an agreement would be a political sentencing guideline policy statements wasn't close to twenty one months and again a district court explicitly acknowledged it was imposing a mid range sentence because he was aware of the fact that this other sentence would be imposed by the state court unless there's further questions imposed and what was still open at the time i'd be asleep he was standing in front of a federal judge you know he may have been really good in from the state for purposes of that but there's there's no requirement in terms of marking the rich satisfied and returning him be the federal judge judge for no could as you know very well remanded into the custody of of the marshals to begin district court and the sentence that had not yet been imposed by by the state court i will say that the it at the time of his federal  was was pointed to earlier it just wasn't wasn't an issue at the time until the actual sentence was was pronounced and again i think  concurrent and there was nothing in in the plea agreement either about the use of a state sentence particularly one that has not yet been imposed so i think the court  more discretion than when i see either in the policy say statement or in sets or i think that portion of the sentence that was imposed by the district court was was an error and