birth that morning on our michelle parth on behalf of mr smith who is the opponent in this case the judge said he was imposing a twenty four year sentence on counts one and two so the problem presented here is that count one has a statutory maximum of twenty years that's right so we believe that the sentence was unlawful in three ways it has to be opposed in court  to count by count that's right seven you're saying that's right it's a pretty recoils down and that's that's the normal practice so here is what happened i guess you know there was the end of the guidelines and a right that's correct if that was his intention and so it's impossible for the sentence on count one to be higher than twenty under the law so why does it make a difference why isn't it just automatic that it's going to be twenty and then twenty four well i think that there are two reasons for that one is that's i'm somewhat circular logic in the second reason is because the guidelines are advisory with respect to the circular logic by any time a judge fails to do something on the record that he is required to do we don't then assume that he did it because the principal count driving the court's sentencing calculus if we look at the sentencing transcript it's not the drug counts so much that drove the the court's calculus on the seriousness of the offense it was the h robbery that was the focus of the parties and the court and why i excuse me but i am sure judge walker's question to be and if it wasn't that i'm going to ask it why don't we just we this court just remained to the district court to have the district court clarify the points the junior saying were and well we obviously have to have a clarification on it and so the question i think you're asking me is well why don't we just send it back and say hey judge did you mean twenty years and i think that that is also a reasonable conclusion however the two counts need to be considered judge could go through the the the proper procedure and in effect entering a new judgment imposing twenty and twenty four with the other consecutive and just correcting the paperwork i is on each count without reconsidering the factors under thirty five fifty three so in that sense it's a more full blown sentencing reconsideration and i think the court could look to some of the other circuits that have looked at this issue and ward  may please the court my name is just you know it's your aussie i'm an assistant united states tourney here in the southern just and i represent the government on the subpoena as i did before the district court below your honour's there's there's no necessity to remand for recency we sensing in this case the record clearly shows judge berman's intent regarding the sentence that he was imposing well in terms of the guidelines and where but what the total sentence was going to be but the judge did not that the judge imposed a sentence of twenty in the absence of directly stating that something is running consecutively or concurrently there's a presumption of concurrence and that's under eighteen u s c thirty five eighty four a if you if you impose twenty years on as explained by the second circuit is we can't tell what the judge has done and the only as far as we can tell the only this eleventh circuit has come up with this per se rule every other circuit looks at it on a case by case basis some circuits have a bit of a preference for a broken out sentence but but the reality is you can look at it on a case by case basis so your honour's example if the judge gave no indication of where the sentence came from there was nothing else on the record just simply impose a sentence that encapsulated multiple counts with perhaps different mandatory minimums different maximums it certainly wouldn't be all right that's not this case your honor on the record before us what judge berman said both at the sentencing and even before that seven months before that the plea is that he absolutely understood crystal clear what the mandatory minimum minimum is in certain cases were and the at and the statutory maximums for each count seven months before the sense he put on the record at the plea and i could direct your honor to the plea transcript pages thirteen to fourteen recited each statutory maximum for each count seven months later at the sentencing and i'm sorry i should note that he went through the pimentel letter the government's pimentel letter which also set forth the statutory maximums and minimums at the sentencing then penalties including the statutory maximum for count one which seems to be the issue here he adopted the factual findings of the p s r he then discussed at length the robbery conspiracy the narcotics conspiracy and the cold blooded murder that resulted from this box rob very so he went through and he went through those to discuss the facts of the case as well as a thirty five fifty three and factors he made a very fulsome record as to where his sentence came from and i do agree with my colleague that the sentence on count one probably is the more substantial sentence because the robbery is what caused the murder it was an attempted robbery of a drug dealer and mr smith shot the person in the head in cold blood during the course of that robbery so the idea of a twenty year sentence on that robbery count makes total sense it is the more substantial of the acts that the judge was considering at sentencing so your honor on this record which is different than your honour's hypothetical there's there's ample evidence that judge brinn was not confused there was no misunderstanding about what statutory maximum was applicable for each count particularly count one and what he did was aggregate the two sentences on count one and two count them on essentially what have been the twenty years because that's the special maxim to run concurrently with the sentence  now geographically i do not know but he's not right next door for example or over a judge i don't believe he's in the tri state area for example but i think i don't know thank you judge the state of pennsylvania in my head it does judge but i don't think is there either the other thing i wanted to point out is that clearly the judge understood this was an advisory guideline regime the judge imposed twenty four years on count two and that was six years below the guidelines