highlight three three points if i may let you update us some where you are we did receive a motion and so if you can maybe start there and then we will work backwards if necessary yes  the corps guarantees that that actually is going to happen since it's not something that mr duggan or myself are involved in as far as the state action so our ally and someone else and so what is a completely different sort of w if the state court judge accept your proposal what if the state except suppose or what will happen is that in essence the state court action sentence will be satisfied that way and it was basically object object if you by the government but a trial court fashion a remedy whereby it ordered that the defendant be transferred from state custody in federal custody priority is discretionary and that's important warren court said that's discretionary but that discretionary aspect of that priority will rest with the executive branch in the warrant case the court i mean i'm hopeful you all resolve this but if you don't then let's get to the underlying issue here and in essence you proceed with a plea agreement that you knew you knew ultimately would ultimately not be guaranteed the written plea agreement which is what's before us and the whole for me the whole issue is the statement of the prosecutor at the time of the hearing and whether a failure to surrender would be concurrent with the state and that would be first and then his underlying crime would think oh second not quite sure how that all what research you all did to think that that would happen because i think the court made it really clear that he couldn't guarantee and i know that there were present taisha from the prosecutor that perhaps that would be happening because that he had talked to someone from b o p and they said that they could make it happen but when you look at the written plea agreement all you had was a recommendation so what's what's your best argument here what authority well i think that case itself as if thore for this case and that that statement deals with the court on its own discretion ordering it which is different they did that in that one case under c r thirty five motion here we have an agreement by the executive branch through the u s attorney's office which is a specific to complete control over where they serve their time but few all want to enter into this go let's go ahead that's basically what happened so i don't understand with that combination how you would see how you're arguing that that somehow it's discretionary and that discretionary component rests with the executive branch which is basically the u s attorney's office so when the u s attorney's office exercises that discretion in says we're going to put together this plea agreement that basically says we're going to recommend that the court take this action of transferring you from the federal pesci to the state custody i think that constitutes a waiver it was just a recommendation but but that was that the government was and in essence exercising its waiver in order to complete this plea agreement with the defendant and i think we understand you're going to reserve your one minute and forty seconds and thank you question i just want you to confirm here on the record today your understanding that you agree with what's been discussed as what will be happening in the state court or you're in agreement with that ser i am in agreement and we have been in discussions on that very topic we had hoped that it would be completed before today's argument but we were not able to do that and i agree that it can be accomplished within two weeks of today's date and if it is accomplished that you're state court confirmed its agreement to the roll please once once the state court agrees to grant credit for time served that satisfies mr mcdonald's in this case so that's  dismiss is appeal correct your honor and i will not be objecting to a dismissal of this appeal so long as mr mcdonnell's and his attorney are satisfied with what we believe they get in state court so that regardless of whether they get that for not i will not be objecting i got you your out of the main points i want to make in addition to my brief was that the defense claims in this case that this order of the sentencing in this case was so crucial to this plea agreement that he did not make a knowing and intelligent plea but i would argue that it's not because the united states made a recommendation followed through with its recommendation and if this issue were so important to the and i believe that that coincides with the recommendation the recommendation was that the sentences be served in a particular order and i contacted b o p and was given their assurance that that could happen if the plea agreement was and or the way that it was case the defense and the prosecutor asked that the defendants be given a lower offense level abbate on a minor participant role models agreed to that the court did not find that they met the threshold for a minor participant and ended up finding them with a higher guideline sentence range and ultimately gave them a much higher sentence than what was agreed on well it's not exactly the same because in in weber honor and the other point i'd like to make in conjunction with that is that if this plea agreement were never entered into if this charge were never brought or if it were dismissed the defendant would still be in the same position that he's in today well that's an interesting but when we talk about that ok well how wasn't the surrender i count the failure to surrender that occurred because he didn't turn himself in for the sentence that he had previously for the underlying court but how could the fourteen months have gone before the ninety four months that was after the night four months how is that going to ever be served before ninety four months we don't know when you look at the the end result of the sentence will it make any difference whether or not what the fourteen months is sort of before the ninety three months that's not a matter make a difference but i think you know from b o p s perspective it's consecutive to the ninety four months so i'm sure they were perplexed when they got this because they get to do what they want once they have them in their custody so i don't know if anybody thought that through but they're seeing a night four month sentence that he was the happen well we thought we could go on or apparently we could not but the court is correct we were trying to accommodate the defendant's medical needs while in custody and crafted this plea agreement to try and accommodate him unfortunately that's come back and cause this heel and i often ask myself whether the appropriate relief is to penalize the government for attempting to assess the defendant with his sentencing he's well i think it's just a matter of you know one not only ensuring that the government of the two it's a promise but how the representation the government they should be configured in how is it you know defended entitled to in the b o p in the not in the u s attorney but still isn't there some equity to his being able to rely on your represent in court it was yes i talked to be opie and they assured me that this could be done and i you know i i'm not in any way questioning here good faith but it just didn't work out that way so so when that happened and what should be done that's a question yes and i understand your point your honor i would equate that to a situation where the parties recommend a particular guideline range to a sense in charge and then it turns out that guideline range is incorrect or the judge doesn't follow that guideline range you know but the difference there is i thin and that's that's where ever the determination of guideline ranges you know up to an independent party that is a district judge but here the the determination of the  order in the sense is up to the current hero that's you you're here representing the attorney general that's correct your honor and i can tell you that well we are all part of the attorney general's office when i asked the opi to do something i take it there was either a plea or a conviction in this a court that's correct your honor was the ever appear for sentencing and was a judgment entered based on that sentence in the state court previously yes your honor the guilty plea and judgment was entered on november eleventh two thousand and ten the defendant was then given a report for his state court sends that report date was in december that's not the issue that that issue is was there something created just trying to figure out what to do in light of it but if your argument is that you know you please rayment you know needs to be upheld  to force the criminal judgment that was injured by the court and as i indicated since the u s attorney's office and the o p o basically fall under the umbrella of the executive branch when that