may please the court i'm john di racine i represent the element in this case gary lynn and i'm from the middle district of north carolina a little defender's office in greensboro just to clarify at the outset the current status of mr lynch case he is currently serving a thirteen year stacked states and so it's a twelve year sentence song or twelve and change on one charge and then a consecutive charge that makes up the  gosh these are in the north carolina is or serve indeterminate sentence there are your honor and they're not like in federal court where you get an exact number of months so it's there used to be structured sentencing now it well it could be partially concurrent and that's the that's where the rub is it's this particular type case most cases that i see and i do a lot of district court work as well as deals the cases that come before us most often have the same conduct charge state court in the state just holds on to those charges and specific case because by and large people get more time in federal the opi than they would in the state in north carolina but there is a discrete group of cases where the conduct this is so serious were so unrelated  that we know it's going to be unrelated and we're not even worried about it we don't even necessarily have an argument or strong argue for running it concurrently under five g one point three d but this is in that sort of twilight zone so that's the question where does this become abuse of discretion and so let me preface that by my second response to the just floyd's question of the first response the practice is a legal one the second one is a practical one i think where the case before this court and it's still on direct appeal by far the most practical solution is to send it back to the district court judge and now that he has all the information allow the district court to fully implement the total sadly as it was in her sleep so the error part is the legal analysis that undergirds that and that is i think on it there is there is a place in the statutory framework so the statutory framework was really ruled on squarely and so what sets or didn't do it couldn't do because the guideline didn't exist and was well on how we deal with the one point three c as it now exists which is totally different and precepts are so i think the place where that becomes abuse of discretion and becomes legal there is where the where judges lawyers point where it becomes a undue deference only be in a really rare situation where there really is not enough information to make a decision because otherwise as the stones pointed out isn't that going to swallow all the situations in that just saying you don't have to make a decision where is the guidelines say  so we want to implement he he did make a decision he made a decision not to run it currently or karsh he actually said i defer for making a decision i said i won't decide as to whether it should run well would but with winds of happening man is so maybe the bureau of prisons does because he said it on the record so in the letter there have been cases where the group was never sent the letter there have been cases where the bureau sent the letter in fact this court decided one very long ago statute and but in how i'm back the courts analyzing it in that posture it's coming before the court on the bureau of prisons decision and what the court said was the bureau of prisons abused its discretion and in plying  this and so what we've gotten to is we've come all the way around to the bureau of prisons abuse of discretion being in front of the court instead of the sentencing judge which is where that discretion longs and that's what sets are set should be happening and i think that's what five g one point three c was written precisely to implement was let's make sure that the sentencing judge is the one makes this decision in every case where it's comports feasible any at any level and what josephine could have done at it legally because that's the default and the god unless we're varying over the default under five to one point three c is this is relevant conduct it should run fully concur and there are cases where the bureau of prisons says well we're just going to look at the mall guideline that's changed since then the rule that's changed the court ought to fashion a workable rule that allows the district court judges to have clear guidance on what they should do and the best thing that a judge can do where there's you know relative lack of information is to come down with a specific ruling and say this is what i think under the circumstances this is how i envision this case turning out and make that the ruling and then if it turns out that that's incorrect that's where the corrective action well but not to leave it totally open corrective action judge says if it's clear in the text sense so that they're there are no assignment of error from either side under any angle if the judge rules in a specific way to just think it said i'm running this partially concurrently and it only overlaps by two months i don't think mr lynn has an argument in fact one of the cases cited by the government in its brief is in ender's brief that was my case where barack basically was what happened the the court said here's how it is my client didn't agree with that obviously  and it mostly rank effectively and there was no sign of error made there the judge made a specific ruling he considered the guideline he made a calculation based on the states and and we didn't have a five g argument where the port doesn't so the court has to consider those things and at some point has to arrive at a specific federal sentence an argument is just that the court has to make that specific finding because here the guidelines say the court shall run the sentence concurrently sophistry the manner in which the supreme court's ruling will be implemented on the gods and so it's not a willing the supreme court's there could be a case and i agree with with your judgments there could be cases where that is true where there is a court just simply does not have the that not enough information should be limited as much as possible to avoid the statutory framework and sets or sets out this the preference for the judicial decision making and the appointees are then there is this the process has become so common i think in district or practice judge jones was alluding that it's almost like a matter of course that the bureau of prisons will be doing it and if you read the guidelines what the way the process should work post sets or is there should always be a preference ability of the court to under this you know fall into the civil twilight are the more serious offenses because in if it's a really not a very serious sentence it's not a big issue most of the time if it's clearly related conduct it's not an issue so the big issues are where it's related conduct which brings it right front and center for the federal courts so it's really relevant conduct that we are already punishing this person for by crashing a federal sons and then it's serious enough they're running it that we think we anticipate the state is going to hold on to because i have loads and loads of cases where they just waits in this misses the charges because they're duplicated in the sense it's going to run concurrently i've had you know this is actually a case that's i think prototypical isn't the difference here is so he was really into it i mean as to what we've come well again it almost as if i don't know that the question was complicated by the number of charges the charges were pretty straightforward in state court there was a wrestling match for a gun and the gun went off and both mr lynn am police officer shot so it was going to be a relatively serious case one way or the other and i think that that falls into the same thing that i was just saying which is most of the cases that are going to be decided this way it's going to have a big amplitude it's going to have a large impact on the total sentence because it's only a case where the judge really has to consider do i take conduct that is already fully interpreted into the federal sentence and extend do i make that consecutive based on the same conduct so it's only in those cases where it matters most and that is i think in answer to judgements is question why the footnote shouldn't necessarily control and why five to one point three c should be followed whenever possible because if that tipping point over to where this becomes a bureau of prisons issue is happening most often in cases where the conduct is fully incorporated and the conduct is also very serious we have a maximum opportunity for that is the argument and the substantive part is the potential for a structural i mean at the extreme a structural section of powers issue but also just a statutory interpretation based on sets or that says this is not an understanding judg s the point that you may well which is sets are does acknowledge that this isn't one hundred percent but sets are expresses very clearly that this is not the preferred way to carry out the statutory framework and all that's true that i'm still i just don't see how we find i think the easiest route your honor is what you just asked which is that this was a real issue that there was not a ruling on varying from the guidelines when in fact the guidelines were not followed so the guidelines say again has happened a number of times where the bureau of prisons does not follow the standard operating procedure and doesn't come back and do this and the other part of it is that in doing that it's not just a question of separation of powers the a whole other lawsuit has to to run the senate's concurrently and the reason for doing so is just right before he says that he says well if the defendant was going to get an aggravated assault he says if the defendant was convicted and got some second degree murder that if you found that this district court did not make a decision that that's not a reason to do a reversal there's no interest that's not a reason to send it back because i know i understand what i'm asking is that correct we've the government's position where it says do you not have the ability here to me i don't have adequate information and therefore i will for big just the court says that that's not well i'm argument is can get and not two hundred eighty eight months to all the way down to senate you know so in a situation where you you can intelligently make a decision the court should but if the court and whether the search or witness was and i say that it is so that's a really wants to judge the district court judge who has all the evidence and has the case to make a decision not to give it not one of the first impulse i gave was when the defendant had a gun in federal court you know on the tenth and in the night the day before he broke into a house and they want to say they wanted the district were to run the federal gun count to senate to any part of the state so he did and did and he got a consecutive senate situation where the senate has not yet been imposed in a state court in a separate court to the prison and that is not otherwise that becomes the bureau of prisons exercising judicial discretion and so my point here is and i think judge matsch has made this all this point very clearly is not that there is no sentencing mission of the district court is not affected by the so the district court's job then is to say what if the court does more here's what i would do here's what here's what i would impose in that situation and the court can say at five years at ten years  the sentence he imposed was on reasonable because of the magnitude set and that's indeterminate i can't i can't say it was unreasonable based on the length of the sentence because we don't know the why it's so i can't answer that question and i'm not saying a sense of the statutory maximum is in anticipation of what was a pretty clear case where there was going to be states that i don't think anybody thought these charges were going to be dismissed a police officer was shot so this is one of those cases where we're almost certain there's going to be state time here and the question is just how much and so what