the court as the court is already mentioned my name is james packer i represent the opponent when i am a member of the federal defender's office here in the just from minnesota and i represent out of primary state custody in order to answer to the federal indictment and he had been held for thirty six months at that once one how many months thirty six months figure and some days i believe thirteen days those well you'd have to be in the right for that to happen where because the way i read it is b says the word shall adjust the sat and so it seems to be mandatory whereas d s is very permissive that gets to the heart of the matter your honor when we're talking about the subdivision be it is pretty unambiguous in my opinion and the case law that i've seen including that cited by the government doesn't seem to be the mechanics related or not the final sentence imposed by the district court may taken to account other factors that might not reflect a simple deduction from a guideline range sides but that only goes so far because we have to look at relevant conduct here and so when i read when i read through the materials even if there's thirty six months here my notes suggest that fifteen months of those overlap with non relevant contacts so that the most the reduction could disagree with that i'm just trying to figure out you know if we're writing the opinion suppose we adopt your position and that's for the court to decide do we send it back down and say the most the most you could do it is twenty one months or do we send it back down and say you've got to figure out what the rather than a non relevant conduct is and and do this again pointing out that air what's the right answer in your view i think your honor i would suggest that the former would be the more appropriate the there was already an ample opportunity to could have a adopted by the courts and without objection from the government so i believe the government's already had its opportunity to examine its had its opportunity but the district court may have not been clear in its expression of what  report the government was on notice that it potentially challenge what would be considered relevant conduct or not the court never suggested during the sensing hearing that there was a controversy about this and therefore as the court of since the court the united states i was also the assistant united states attorney before the district court in this case i'd also like to focus my time today on mr winnick arguments with respect to five hundred and one point three in this case and i would st want to explain why contrary to mr and not subsection b apply in the case that the district court properly exercised the authority afforded to it under that subsection and rd why that means that ultimately there is no error here and that the court should affirm the judgment allowed to get away you said th it really means i think the court can tell from the sentencing transcript what the district court intended to do a party has requested clarification from the court after it initially pronounced that it was applying a subsection be both parties requested that clarification and the district court specified i do not intend to do what mr when x requesting what i intend to do is credit only the period of time from his federal or on word and so that's precisely the authority afforded to the district between the parties as to what sentences would apply i would just note for the court that mr winnick argument depends on a major assumption in this case that we know how his multiple undischarged and apply in this case we do not contrary to mr when it's argument know what sentences he was serving when he was subject to three undischarged sentence only one of which constituted relevant conduct that is abundantly clear on the record there's no dispute between the parties that's the case and that's equally clear that the guidelines therefore subsection d and not subsection being would apply so the only ambiguity in this case your honour's is unfortunately a somewhat murky record as to which subsection the district court explicitly provided but her ultimate intent was fairly clear she knew exactly get my arms around it and i agree that the district court could have done what it actually did under d the problem i have is what the chief is coming up with which is if we don't really know if the district court saying b but it was really proceeding under d error if it was proceeding under b it's not if it's proceeding under d sounds to me like we have to remand and send this back down for at least the district court to clarify which which option it was choosing i think your honor's point is well taken however i think it is case if there is such a thing was actually a case nine thousand nine hundred and forty four that's the case that the sentencing court in the at the state level used to the point of departure and from there went went on to impose the sentences in the other