may please the court my name is brandon back and i represent dennis johnson the appellant's in this case in my limited time before the i'd like to focus on the first half of my alternative arguments assuming for the sake of arguments that the other conduct described in this case was relevant to the off chance of conviction in that light this case is about safeguarding the protections the u commission put into place to prevent for offenders from serving double time for the same or related conduct and there are two reasons why this court should reverse in remand for the limited purpose of ordering  the instant offense run concurrently to the anticipated state often it's stemming from relevant conduct we are reviewing under playing there oh yes your honor we are first the district court intice a paid to the state term of imprisonment and second even if the district court did not subjectively anticipate a term of imprisonment it reasonably should have done so  word anticipate it turns in part on the word anticipates certainly the concept of anticipate has to be there my argument is that it doesn't necessarily turn on the interpretation of anticipate and i know that there is some dispute on that in this case intice a pates one of the discussions i've had with the u s attorney's office is that anticipate can be read perhaps subjectively or objectively my argument here saying that the judge anticipated or even if the judge didn't he reasonably should have done so is seeking to cover both eventuality  argument is is that i prevail whether it's interpreted as a subjective standard or an object of standard so in that sense this court need not decide that now one of the arguments the government has made on this point pate is to be read synonymous with the concept pending and there is there appears to be at least the government's justification for that comes from a case before this court unpublished opinion in the united states versus loony from two thousand and fifteen and i wanted to make a couple comments on that the the the loony case what it's talking about here is whether a defendant should receive back time that the guidelines provision at issue in loony was not five g one point three c but rather five gene one point three b in the particular phrasing that refers to a five  one point three c as pending comes in a description a very short discussion right at the end of the loony opinion where is just seeking to explain the differences between five g one top point three b where sentences already impos and five g one point three c where the court says in other words and that's the beginning of the sentence we're talking and in this provision about something that is perhaps pinned in now my argument is that if the sentencing commission wanted to use the term pending it could have instead the syncing commission chose a different phraseology to quote the sentence for the instant offense shall be imposed to be run concurrently to the anticipat from currently or alternatively did not impose a variance there's no indication in the record that there was a variance and pose so that's the error in this case to the second prong plainness my argument is that the error was plain because five g one point three c s requirement is clear in this case if it's anticipated shall be run concurrent to the other of consecutive is the default based on bureau of prisons interpretation then the defendant will effectively serve more time part of that will be double time for the same conduct what i mean by that as when his sentence was hand enhanced in the federal sentence based on relevant conduct the guidelines seek to balance that there's a counterbalancing provision that he doesn't then serve additional time released for that enhanced  and in the state senate it's he will do so here and then fourth dealing with fairness or integrity i think by substantial rights argument kind of is similar to my fairness or integrity argument specifically in terms of fairness the scheme put in place for sentencing is considers kind of the negotiation between the federal court system in the state courts seto's states court system in the general thrust of it as if your conduct outside the office of conviction is take into account in that increases the sentence on your office of conviction we're not going to then allow that to believe it over into the state context now if the state judge sees what has happened in the state judge thinks that the offender deserves a lot more punishment and this just simply this for the full and handsome and the state judge is certainly free to impose whatever sentence that's within the statutory maximum there so because we received the detriment here for the relevant conduct but not that counterbalancing benefit that five g one point three c provides that calls into question the fairness of the proceeding below  obvious and that's the supreme court has said that's one of the issues subject to reasonable the views and just because the guidelines has anticipated are lots of different meanings of and peers have played it as far as these proceedings are nobody i recall from the colloquy at sentencing about maybe the pennants lawyer said well the states just waiting until you through something to to to indict him and the judge had a response to that so and so forth but i'm not sure it's the just to say because the word anticipated is used in the in the god line that's open and shut question can you and i can you cite any opinion from our corner of the shorebirds where they've taken the position you're urging that when he hasn't been charged and there's a thought he might be charged by the state that's quote anticipated even though there's just the colloquy it's in and saying no proof no your honor i can't cite a case in which someone had not been charged yet it was plain error for the judge not to anticipate it my point is that ordinarily a judge won't be able to anticipate a case that's not handing i would concede that that's the t typical circumstance but i also don't think we can rule out the possibility that in some circumstances a judge could anticipate or should anticipate a charge that hasn't even been indicted and the reference to page one of nine this colloquy that you mentioned i think there's two takeaways here not only that the number one that the judge acknowledged that perhaps the state prosecutors are taking a wait and see approach but the other takeaway is that the judge thinks that there's no evidentiary barrier to the state bringing charges so defense counsel  argue well maybe we should make something of the fact that they haven't brought charges perhaps they don't want to put certain witnesses that are unseemly before a grand jury in the district judge correctly acknowledge  problem in all the cases and then i'm not being sarcastic or something to counsel this comment yet his comments i'm sorry i'm not saying your argument is ridiculous i'm saying there's a little bit seriousness of the alleged conduct relevant very serious conduct it's not something that a person or a judge would nor are they really believe that a state prosecutor would just let go of in the second observation is that the state maintained an interest in this defendant be the original charges the misdemeanor possession of marijuana an unlawful possession of a firearm those were the original charges they had been dismissed by the time that mr johnson was brought over yet the state maintain to detain or maintained an interest in him maintain some power over him so i think when we look at the judge's subjective acknowledgements about the lack of evidentiary barrier and the correct prediction that the state was taking a wait and see approach and you take that in conjunction with the of the very serious allegations at this stage in the existence of its heinous i think the judge actually did anticipate and i don't think that anticipate is a difficult word to define i think in common parlance anticipate means to expect or to foresee and if you grant you the terms we're talking about are lastic very they're capable of potentially different brauer and so your point is well taken that the federal court here could have anticipated that the defendant could be sentenced in state court would you make of the fact that it didn't say could it's as will the federal court anticipates that the defendant will be sentenced in state court does that anticipated i mean we can't ask the federal court to predict the future five g one point three c doesn't ask the judge to predict the future what it says is if the judge anticipates this in you're going to enhance the federal sentencing give gift the defendant a higher sentence there is a calendar balancing measure to that in my primary argument is that the district judge did anticipate and that suggested here on page one hundred nine of the record in this exchange your honor so what i think happened here and i think this happened both to defense of counsel and to the district court is that the conversation became so focused on whether this other conduct is relevant to the office of conviction that they lost sight of the counter balancing measure that if it is then we run it concurrently and it is a minimum of what we're asking for is that it be remained for the district judge to make a finding to either say yes i did anticipate it and i'll run it concurrently or i did anticipate it and i'm imposing it up or variance and here's why or that i did not anticipate a state sentence i think within this court supervisory function we could remain and just for that very limited purpose although i think the court should go further in remain and and say in light of the fact that you can to support it or reasonably should have done so we ask you to reform the judgment to run the federal sentence concurrent to the states and we now believe mr johnson is certainly facing and it's going to be very lengthy and for these reasons we asked this court to reverse of them and i reserve the rest of my time  please the court sean taylor for the united states this court should affirm the judgment the district court below because the district judge did not clearly or one of them plainly err in deciding to to impose a sentence that was silent as to whether or not he would read and currently with the dissipated state since because the case was not even follow at this point so in essence the district court denied anticipate the state since because charges were not filed moreover the district attorney's office had not acted and there were some unrelated charges that have already been dismissed in terms of the charges based on the robbery they are there is nothing pending moreover during the exchange between the district court you reference on zero nine and one ten of the record there is an exchange between the district court and the defense counsel as to the nature of the robbery charge and what was being discussed during this exchange was whether or not there was sufficient evidence  robbery to support the hand and handsome and under into k two point one not whether or not the district attorney's office would file charges so in one breath that the defense attorney was undercutting the state's charge  false dichotomy what the present the question the question before the court is whether the the district judge anticipated the state since it's not whether that was playing there not to do so importantly there was no objection to this issue at the at the district court level so we are here on plain air review and there is no case out of this court or any other federal court that has held that a state case has not even been charged should be other court has not made that clear based on its interpretation the guidelines would be unfair to hold the sentencing court to that to that production opposing counsel mission mentioned the nazis versus w district court has the discretion to impose a sentence concurrent with a future state since when state charges are pending against the defendant now i'll need that to circuit was not directly addressing this issue in making that statement that's important because that's just the way that it's always being interpreted that's the way that this court has interpreted that in previous cases and that's just the common meaning of the word and to supply so it was not here for the judge to because at this point there has been no state senate and even if the state would impose a sentence mr johnson could ask the state court to run it concurrently he still has an opportunity to me he said has been no actual harm at this point  this rights because there has he saw the opportunity to attempt to address in anything theoretical harm before the state court right you're not supplementing the record by telling us what the what the new situation is sentenced to ask the court at the state level to impose a sentence that's concurrent again it would be unfair for the court to have just a whole to have been expected to make this determination based on the current state of the circuit another circuit law as well as the exchange the colloquy between the sense counsel where he was centrally undercutting the state's case so  both both in terms of what the state of the law is at the time of sentencing as well as the facts in the record before the court there is nothing in the record that there would have led the court to believe that a state charge was coming beck did mention the fact that there was a detain or put on the defendant never he was brought from state to see to federal custody but that was of no moment to that that should not have put the district who are on notice that pending state charges because the detail was lodged in response to the possession of marijuana charge an unlawful possession of firearms charges which had been dismissed at this point so the fact that there was any detain or by the tenth county sheriff's office is not reason to trigger in it at your decision i'll just i'll just briefly touch on that list of other questions on the anticipated question just briefly your honor i think the record is clear that the record should provide sufficient factual basis for the district court to have made a finding that mr johnson decent drug trafficking and in robbery i'll just i'll just clarify that the question of the robbery whether or not that's relevant conduct the question before this court of the for the district court was whether or not mr johnson's possession of a not the firing position the fourteenth was building on that to the farm position on the fifteenth are you asking us to reach the fourteen day issue or is it enough just to address the forty one making the drug on either basis i will note that because the judge made both findings there has been no indication of the record that state charges were filed based on the drug trafficking crime and because the because the sentencing judge found that court your honors three points on the bottle of first as to what was the basis for the relevant conduct enhanced and that's on page one hundred thirty two of the record and that's provision from the police in its report it was the previous day's robbery in addition to the possession of marijuana on the date of the office of conviction so there were two reasons that the pre sentence report advocated for this enhanced moment the judge adopted both of them of course possession of a firearm is a continuing offense and you couldn't be charged or enhanced for each day or each minute that you possess that one particular fire so that was the previous day's robbery as well as the possession of marijuana and both of them were found to be relevant contact to the off chance of conviction second i want to make a comment about united states versus loony and i think united states versus looney as used by the government to show that anticipate means spending of course i disagree with that and i'll continue with that in a moment but secondly shows us what should have happened in this case right after that language right toward the end of the opinion it describes that case the district court did order that the off chance of the instant all fits of conviction to run concurrent to the state conduct there is talking about back time up until that point but as far as front time what we're talking about here the judge did exactly what they should have done and i want to read the language that the judge put into the judgment and it's what i'm saying the judge should have done here this the senate of imprisonment is quote to run concurrently with any state sentence imposed in the state court action growing out of the same conduct that's the language the district court put into the judgment in a loony and that's the same language the district court should have put into the judgment here now third of a city the definition of anticipation versus the definition of pending i do believe that anticipate is not a difficult concept to apply to skate meaning it's a broad concept admittedly but it means to first see or to expect and i want to draw a contrast between that  which has a very specific definition that the grand jury has returned an indictment and that is and i'm not saying that the district court has to always be under the burden of seeing the future of anticipation something that's not pending what i'm saying is that that's possible the district cut judge can do that if the circumstances suggest it and i would actually go one step further in say that the district court actually did anticipate a state senate stat would be imposed in the future it would have been easier for the government if the sentencing commission had put in bright line rules here said pending but the what the sentencing commission did is they created five g one point three c in two thousand and fourteen in response to the u s supreme court's holding and sets are versus united states what the sentencing commission wanted to do is to say finally in light upsets or we're going to take one step further and provide district courts guidance here in say we're going to treat anticipated sentences the same as sentences that are already imposed in the reason for doing so was one of fairness and that's described in amendment seven hundred eighty seven so for these reasons your honor we asked the court for very limited re remand to the district court to modify the judgment or add a minimum to put to enter a finding into the record as to whether it's and to subpoenaed and what the consequences of that intice haitian will be is not listed in your list of cases yes or no if you would give a cite to the court work so we can have them yes and i want to tell you first of that's coming from the government cited in their i was responding to the pending argument based in the loony that the government had made here here's the citation for your honour's six hundred six federal appendix seven fo