our next case is united states versus charles the well in case number sixteen dash one zero eight zero three in mr lewis case the lower court erred in determining that he was not eligible for a reduction of sentence under eighteen u s c thirty five eighty two in particular the lower court had no authority to determine in which order mr lewin's sentences would be served even though even though temporarily the sentence imposed in this case was imposed close to a year before the second sentence was imposed yes your honor because congress instructs that it is the attorney general through the bureau of prisons that determines how sentences are served under eighteen u s c thirty five eighty four isn't this a for administrative purposes and this is an administrative purpose your honor it's a subset of purposes and well i do not believe so the vaughn case upon which the government relies i think made an error in its assessment and i say that respectfully but i think they did the von court concluded that this was substantive because it was part of the court's decision making process discretionary decision making process but there are two parts to a thirty five eighty two issue the first part is not discretionary and that's the part that we're here on today that is a question of law as to whether or not an individual is eligible under thirty five any two for a reduction i do not believe that the court has discretion in that regard to say eligible or not eligible now in the thirty five fifty three factors which is the second part of the inquiry of course the court does have discretion in that part of the issue now let me ask you this question do you obviously if if a sentence work completely served and a second term of imprisonment is imposed after the amendment comes in then there's no eligibility for relief there right it's impossible that would be correct or ok that would be correct the you need you need it under your even under your theory you need at the very least i'm going to give it a term of mine but it doesn't mean that it's legally correct you need overlapping terms right yes terms one is being served while the other one is imposed and then you aggregate them under your view so that there is one sentence and because you think that you don't know which one gets served first someone like mr llewellyn is eligible for the sentence reduction yes your honor under the statute the individual has to be serving a term of imprisonment in this case the term of imprisonment is the result of two consecutive sentences imposed by two separate courts but it is still one term of imprisonment and in this case it's four hundred two months if this isn't doesn't the result violate the judgment of the second court your argument doesn't  violate the judge's second court because this is a pretty court as indicated the second court can determine whether the sentence is going to run consecutive concurrent or partial concurrent or consecutive correct and the north carolina court determined it needed to run consecutive and your client goes to that court first and has that sentence reduced and then goes to court hear a lower court here and attempt to have that sentence reduced was which has ultimate effect on the second well under under my argument once again i don't believe it does have an effect on the second sentence but there were two harms in this case and amendment seventy two has recognized that there should be a remedial effect on all sentences in which people were overly sentenced which and so what if what does happen in the north carolina case if anything it received a reduction in that he and he originally received three hundred sixty one cents which was reduced t two hundred ninety two months making a total aggregate sentence now of four hundred two months as opposed to what was it before the aggregate before he said four hundred  with the reduction sixty eight month reduction i believe your honor if my math is close sixty eight plus four o two it originally it would have been yes or ok it was it was three sixty plus the one hundred ten in the southern district of florida to heavily on the supreme court's decision in united states versus wilson because i think it is very analogous to the situation in that case the court considered whether a district court could determine time served bolan case the clark case and numerous of the district court cases that have ruled that a defendant may receive a reduction under the circumstances but in wilson the court addressed the particular issue of whether the district court had the ability to determine time served and ultimately determine that it did not in time served is another one of these administrative issues which you know theoretically a district court probably could know exactly what the time served was what the supreme court said no you can't do that that's within the purview of the of the attorney general through the bureau of prisons and i i urge strongly that that's analogous to the situation what we have here is an administrative decision how the sentences are served whether one is served or not served whe is over or not over is an administrative decision under thirty five eighty four a defendant does not get a letter from bureau of prisons saying your hundred ten month sentence is now done that defendant is told that he has a four hundred two month sentence and until that four hundred two months sentence is done that's that's what his sentence is when when against beaking temporally when did he finish serving the sentence in this case compared to when amendment seventy two came out it would have been prior you would have finished serving it before seven eighty two was issued if that was his only sentence he would have finished serving it prior to amendment seventy two i also take issue with the von case in respect that i do not believe that one properly gives liberal construction to thirty five eighty two thirty five eighty two is a remedial statute as such the supreme court directs us that it should be applied liberally in this case the von court merely shrugged that off and said that well that liberal construction was simply a creature of the in custody question in haiti's cases and it was sui generous i believe it was not sweet generous this is also this is very similar to the twenty to fifty four in custody requirement that was considered in ghar lot by the supreme court it was a remedial statute in the supreme court term that it should be liberally construed and i suggest that the  court did not look really construe the statute as it was required to do so in vonn discuss wilson specifically and in the court environ say that if the argument was accepted that that would  essentially extend thirty five eighty four not just to administrative purposes but for all purposes would rewrite the statute where you're out of what one did mention wilson i don't believe there was an in depth discussion of it i don't believe it would rewrite it for all purposes once again i think there are very distinct parts to the thirty five eighty two inquiry the first part is not discretionary the first part of whether you are l whether a defendant is eligible is a question of law and not a question within the court's discretion to decide if it is within the court's power to decide but not it's not a discretionary decision the second part thirty five fifty three factors those are discretionary so i don't believe that finding that thirty five eighty four controls affects the court's discretionary power under thirty five fifty three in any if you sit down let me ask you a question about the standard of review your notice of appeal is that only the denial of the motion for reconsideration is our standard of review abuse of discretion or to know  i technically it is an abuse of discretion but this is a question of law so it is the no vote in that a mistake of law would be an abuse of discretion that when consecutive sentences are imposed at different times that the sentences should not be considered in the aggregate in the thirty five eighty two context appellant cites mostly tave use cases and the other cases which ponces to which are in the thirty five eighty two context are solely in the one twenty four c context which again is a distinction where consecutive sentences are imposed at the same time so all those cases are distinguished now just to clarify first your honour's there the appellant did actually receive two reductions in the north carolina case he received thirty five eighty two in two thousand and twelve based on amendment seven fifteen he received another thirty five eighty two reduction in two thousand and sixteen beast on amendment seven eighty two i apologize for the lack of clarity in my brief on that but he did receive two sentence reductions in the north carolina case but here were here were only concerned with the effect if any of seven eighty to the other one is by the way side by now correct your honor now to address thirty five eighty four see the von court was correct that this is soley for administrative purposes if we consider the consideration of a thirty five eighty two c motion in administrative purpose it would essentially rewrite the statute there would be no point to saying administrate a purpose the consideration of a thirty five eighty two c motion is strictly judicial it's a judicial question it's not one of and in fact if we wrote out that phrase for administrative purposes and if we took the opponent's interpretation of this then there would in fact be no point in providing the district court with the discretion to determine whether sentences should be imposed consecutively or concurrently which is something that that very statute provides the district courts with discretion to do so it would in fact undermine the entire purpose of that statute additionally  the cases are also as i noted earlier distinguishable there in a much broader context than thirty five eighty two emotions they obviously look towards challenging the conviction itself in fact if an individual is out on supervised release s challenge at that point to in an attempt to reduce the additional constraints on their liberty at that point thirty five eighty two is a statute that is very limited in its scope in fact it's not even a full  recent unsing it's simply a modification of a term of imprisonment it's very limited in its scope and cases for example are not subject to the limitations that thirty five easy to see motions are for example in one b one point ten b to c there is a limitation that the reduced term of imprisonment cannot be less than the term that the defendant has already served he's cases are not subject to those types of limitations and for all of those reasons all of the cases that opponents cited are distinguished well from here because they're either in the hebrews context or in the one twenty four c context and so for those reasons we've asked that this court affirmed the denial of the thirty five eighty two in cases where consecutive sentences are imposed at separate times i don't know if the government has a position on this and if it doesn't you can just punt but do you agree with the position the seven circus taken in different factual circumstances in other words one of consecutive sentence gets imposed at the same time then the result is different in terms of eligibility as opposed to a situation here where the consecutive sentence gets imposed in a later time when the person has finished serving the first sentence already by the time the amendment gets promulgated i do believe we would agree with that at least in the limited context i would say of the nine twenty four see situation where nine twenty four c term of imprisonment is imposed consecutively at the same time or an aggravated i mean assuming assuming an amendment reached as a guideline aggravated identity theft i think in that case the really matter because you're going to serve an aggregate term of months or years and it doesn't matter whether you start with the seven or the five or the two and then tack on the fifty six or vice versa that's correct there could be some fairness concerns implicated i think in one of the cases the order of the sentences just happened to occur because everyone expressed an difference as to which way the sentences would occur so for instance in that situation it would certainly be unfair to hold everyone whatever everybody happened to agree with at sentencing when there is no rhyme or reason behind it what happens when there are concurrent sent and again the government may not have thought this one out because this it's not presented here but i'll ask anyways what happens with concurrent sentences imposed at different times in different places concurrent sentences imposed so a defendant was involved in drug trafficking in two very different districts southern florida district of maine indicted at different times but sentence within you know days of each other and both sentences are the same period of time and both judges say run concurrently i believe if they would be running concurrently at that point and he hasn't finished serving either of them by the time the amendment comes in eligibility for both don't want to tie myself down to an answer not only it's not it's not presented in this case so if the government hasn't taken a position i want to put you in in a box but i'm not aware of we have to figure out not only how to decide this case but how to write it one way or another because there are different factual and procedural scenarios that might come down the road i i don't want to tie i haven't thought the concurrent sentence in the thirty five eighty two context through i believe in the he views context it doesn't affect it i think that was addressed in one of the cases where it would also depend if it was different sovereign well i guess would only have photos i would have to rewrite for two otherwise it wouldn't kick in and that's ok i don't want to i don't i don't want to make you speak on something that this case does not concern but i figured i would ask anyways i'd have to think that through more your hon or but as to the scenario i think the answer is should be following the four circuits that have decided this case and that have all decided consistently on this case and so if there honor i don't mind jumping in on that and then committing i think the problem with that is you're still speculating about which sentence may have been or which had not even let's  say for hypotheticals purposes that there is one hundred months and a two hundred munson's that are run concurrently the court still is not does not know when each particular sentence ended because it is not within its purview it may make common sense but it knows when each one began it because in a federal system you're going to get necessarily credit from the time you're in federal custody on both  arrested on two arrest warrants for each one of the two different allege a drug trafficking crimes then you know at least one each one has started i totally agree your honor and common sense may allow us to accurately see certain situations but other situations we may not we may not know for instance let's say that the defendant has a state sentence pending as well let's say that there is a he spen some time in immigration custody or whatever any of that incredible number of variables that can happen in a case like this the district court is speculating about when the sentence in did in which sentence is still running and that is why congress has put that within the purview of the bureau of prisons and not the district court it's once again it's the same as time served it may be very clear to us only though isn't the answer that it matters who you go to first because in a concurrent situation you go this the court is sentenced first it's not going to matter because the second sentence is running the two hundred month sentence in the example well once again judge though but ending by my position i don't think that we can tell that but it matters if the sentences are imposed the second sentence is imposed to run consecutively that's when it matters as well consecutive does mean running one after another but it also means in plain english running without interruption  and so i did once again i don't believe that  situation you're still going to have to go to the to the court that imposed a longer sentence because otherwise it doesn't matter correct if one hundred months is passed there's a consecutive concurrent sense that's two hundred months that's the one that really matters the question is whether you can go to that court to get a reduction under the amendment i think in practical effect yes or in a consecutive situation it matters because in this this case is a good example of that because you go to the court first then impose the consecutive sentence that's a longer sentence and has that reduction with a core understanding what the sentence is going to be and reduces the back into the sentence then you go to the first court you seek a reduction and that has the effect of not only reducing the first sentence but it reduces the second sentence as well and the second court didn't have any say in that well i don't think it does reduce the second sentence i think it reduces context let me say very quickly that the government referred to the one the one point one provision that says that a defendant gets to sentence cannot be reduced lower than essentially time served  i would point out that the boleyn case which i have relied on noted and concluded that that was the result of the bureau of prisons policy when after a violation of supervised release the defendant was carcer rated it was the o p s policy to give them credit for any time that they wrongfully served on the initial sentence before hand and that that was the reason for that commentary in the in the guidelines thank right thank you both very much