benefited twice might have been given more of a benefit than entitled to on the issue that you got before us today your honor are you speaking about the aggregation of the terms of in prison yeah i  evidence here hearing that the bureau of prisons considered him to be serving the sentences at the time the president entered this order and just just just in terms of trying to understand the order that the president signed  and making sense of it just as a matter of ordinary language it seems to me it was now serving the st that the two sentences you are the bureau of prisons family was now serving both and under wilson they have the authority to make that determination and that is the determination they made and having made that determination we look to what a total certainly was the senate serving any other senators your honor he was serving the two thousand and one caissons because supreme court  months portion in the whole of the revocation or or not and that may be the ultimate issue in the case but my four more fundamental question is assuming there's ambiguity you are assuming there is some confusion in the language what are we trying what is the deference we give to are we giving deference to the president's order is that the operative thing to which we would give deference in the case of confusion or ambiguity or is it the b o p s regulations that we would give some sort of deference whether a lot or a little depending on skidmore or is it the statutes that govern this well what are we looking at to give that sort of deference think you have to give deference to the presidential commutation ok and who do we give deference in it reading of that commutation letter that is a difficult question because the look at the plain language and the total sentence of imprisonment as i read it is that the total sentence includes the sentence the entire sentence from the two thousand and one well  there is some ambiguity or some confusion on this and we have a magistrate judge a district court judge and at least two smart judges on the right side here who who have are debating this issue and thinking about this issue  the next paragraph in the president's order gives the bureau of prisons and specifically the c c whatever that is the authority to go calculate isn't that the agency or entity to which we give deference to you the defendant here the b o p s shall immediately forward electronic copy to the pardon attorney which will deliver the copy of the pardon attorney to the appropriate personnel at the bureau of prisons who will recalculate the projected really states of each respect the recipient argue that there really isn't any rule that governs clemency there is no so given that it's up to the b o p to sort of give effect to the words that are in the end we all agree the words in the cup and the commutation orders what governs to give effect to those words right presidents govern different situations like double jeopardy an ex post facto and lots of other things but again you all affectively argue when you're in your briefs this situation really has nothing to do with any of that it just defining what the term sentence means in this context in the context of sentence as just the twenty four months and the original sentence because that's all that it was listed on those documents that were in evidence yet that is the b o p s documents that's correct i'm sure the government raised the fact  sentence again and a president that relates back to the original sentence he was still serving that original sentence otherwise it would be a void since he couldn't continue to serve a supervisor at least read the case how does how does this even assuming i agree with you that the term sentence in those contexts would apply in this context how could it possibly apply the term sentence in this context where there are two ways to look at the sentence could be the whole thing or the twenty four month question and you'll be made a decision as directed by the president though again his decision was we follow what the president says and so it's really the presidential order and here again the sense of imprisonment does have to necessarily relate back to the original sentence otherwise it's avoid it but doesn't the term serving and i think you know what i'm going to say that the total sentence necessarily relates back to the two thousand and one sentence yeah but but but that's part of an order that has a lot of different offenders some of whom are received are serving concurrent sentences some of them are serving consecutive sentences right by order to me in the presidential executive branch of government see what government exhibit five there are a where the president thought that was appropriate as distinguished offenders he did so if you'll notice in the next paragraph after mr andrews commutation charles b harrison is dealt with individually right thomas kelly in the paragraph after that as is dealt with individually if there were a believe that mr andrews needed individual treatment in this commutation order the president certainly could have done it the president tried to formulate different sentences for instance the st two the st pages dealing with offenders where there a date certain that the terminates if the president meant that my client's sentence was to end on a date certain if it wasn't to include every sentence he was now serving credit wise he certainly could have used language to effect that intent he did not we are now left with what is the total sentence and imprisonment that my client is now serving a sentence is more than just a prison term the government uses prison term eighty six dollars times in its brief as opposed to dealing with what is a sentence of imprisonment and what is that total sen here to make sense of total sense of imprisonment under eleven so that you go both ways to that that the whole point aggregating that that's that's looking at it in terms of total when farm both title to deference under longstanding case law agencies interpret executive orders your arm my point is simply that only deference to the b o p deserves the deference it gives to the commutation order which is what its program statements require to do my good morning your honest team stooge will representing the warden i'd like to cut right to what i think is really the heart of this case in two thousand in johnson the united states the supreme court ruled that a prison term imposed upon violation of super supervised release relates back to the original offense that's undisputed be a piece acknowledged and enforced that rule of law at every stage even when it st revisit the sentence after the commutation and of course i acknowledged in my brief so that's undisputed but in this case andrews makes a rather large leap from that principle and said argues that the post revocation prison term somehow extends or revives or resurrects the original prison term that andrew's completed ten and a half years before the commutation there's no case whatsoever that holds anything remotely that there's no case supporting the fundamental premise of andrews's argument and the reason there is no case because it just doesn't make sense according to three independent areas of law the st is governing precedent both in supreme court precedent and this court's precedent numerous times this court has held that a post revocation prison term is a new sentence a new part independent part of the overall sentence package it's held that i'm at least three occasions that i could find so it does not extend the original prison term it is  happened in two thousand and nine but it but it does say inmates should be given prior custody time credits for times and official detention regardless of whether such detention predated the conduct that led to the revocation that's that thirty seven months was credited to the initial prison term imposed back in two thousand and three because otherwise if you read it differently if you read it as the is the the other side which is to read it what would happen is he'd walk in with thirty six month credit and walk right out right that's correct right you have to read it to be a credit for something that's not something he already served and that's great for that time that's correct if andrew's argument were correct it would be well nigh impossible for any prisoner who's violate supervised release to ever get sentenced to another prison term it happens thousands of times every year in federal courts across the country under andrews's interpretation every time a prisoners violate supervised sentence him or her back to another prison term that prisoner would necessarily have to get credit for the original prison term years ago that led to the term it's not that i don't think that sanders argument here though  argument is that the the totals at the time at the total sentence not that you apply the thirty seven months against the twenty four right interest makes three distinct argument the one to which i was just referring derives from section th statute the requires a credit for prior service and that statute says you get it or you get a credit that has as long as it hasn't already been credited to another sense and so this one was credited to another sense i users reading were correct that would apply only to a sentence imposed upon a different offense of conviction in fact interest uses that exact phrase in his brief and so if that were the case then anyone who gets sentenced to a subsequent prison term it would never apply to a different offense of conviction and so every almost every single prisoner every year in federal court could not receive a subsequent prison term upon revocation because he would have to get a credit for the original prison term nine the middle district of georgia imposed two sentences the st was a life sentence for the subsequent crime the nd sentence imposed on the same day was twenty four months revocation consecutive right to life so yes i have i have to understand i confess that your honour's point was my initial reaction when i started working on this but after reading the evidence here hearing transcript the convinced me for two reasons  case i know they give him the benefit of the doubt to give him the benefit of doubt yes and this i'm just saying if you really look at it based on ordinary language the only one he's now serving is the  that's correct would be the life sentence and if no you know the difference between senate and term against you for purposes of her argument but it works against or with with specter what i'm talking about that's a good idea that because you start for the reason you just started out a man ago sa terms that when it really says senators and if you if you look at it in that respect it's only serving one sentence right now that's correct that's correct if your honor is correct the erde that was an  says favor in fact it lopped twenty four months and justifiably under that reading off a sentence and so that's just another indication of why the the be a peace actual order was correct but doesn't the  justification that in case law for example in the in luling this court held that a minute you aggregate for administrative purposes when it can figure out the service for prior service credit and that that was you elaborate on that what you get are into i was just i was just reading the testimony they said that this is their policy the the the aggregate in almost all these situations they thought that that was the meaning of the commutation order because it said imprisonment that would probably include both of a life sentence and the twenty four month that the district court imposed on the same day you agree that for the commutation of pardon power the president is not bound by whatever is decided by statute or or rule regarding calculation correct yes i do i do the president whatever he wants yes well yes within as long as he doesn't violate some other independent provision of the constitution if i would consider other than that that's the one limitation right yes but we but we still have to presume that the president knows the background law and he knows that be a piece policy of aggregating sentences so i still think that's why he used the term that term total to at to include both the t ear witnesses agree that does not have rules regarding clemency at least for the calculation part of things that that's correct right that little one applying for it there is no rule for what happens after you get it that's correct but the reason there isn't a if there are no other questions or concerns thank you ok thank you  phone only briefly your honor i'm not here today to start an insurrection about supervised release revocation and credits this is a very narrow situation he was one of twenty nine people i've met here about the slippery slope for my friend and i hear about the parade of horribles all know this in supervised release revocations outside of a presidential pardon there are b a p regulations that specifically govern those there are also administrative office forms that give the district courts the correct language to use so that we don't get into the the way of the total sense of imprisonment and beyond that there is an adversary process that goes into supervised release revocation so at least two sets of eyes with different interests were to view this judgment this is just a presidential commutation power it gives broad relief to my client that relief i believe relates back to the original time served on the two thousand and one case thank you thank you and your court appointed