sentence and it's not about whether the court reached the right conclusion it's about how we got there it is because it seems as though a cruel defendant complaining  not such a big deal but a criminal court a district court who first asks who presumed begins with the presumption of a longer sentence and looks for justifications to go down we think is getting it one hundred eighty degrees away from the policy that the united states claims to follow thirty five fifty three a begins with a sentence sufficient but not greater than or with the cause or rather the sentence should be sufficient but not greater than necessary everything else in the case law in treatises written on the matter and legal scholarship in in in the high minded concepts of due process indicate we should begin with doing as little as possible to the individual the power of the government is being brought to bear on an individual and it's incumbent on the government to exercise some restraint at every level from the officers to the prosecutors to the courts there should be some restraint this should begin with the set with the with the presumption that we should do the least to this individual that we can under the circumstances and then look for justifications to do more if it's necessary not the other way around the courts statement on the record that the defendant had not shown enough justification for the concurrent sentence that i believe is just taking the wrong approach and i do believe this presents a more serious question that it might appear at face value and it's worth considering maybe in the end the court would reach the same conclusion but it's worth considering it from the right point of view the presumption should be the lesser of the two not the greater of the two the second question is similar the government doesn't very good job in its brief of laying out what the court might have been thinking with regard to whether or not to give mr harper credit to reduce his sentence to give him credit for the time he served in federal custody it's possible that the court considered it and decided against it but i don't think the record is clear that that's what he did and the court of the government mike you're right that that was the court's thinking but they had to read between the lines to get thank you what i meant to address here your honor is that the second question that was posed at the sentencing which was whether or not if the sentence was to be was not to be controlled by consecutive then that raises another question of whether the total something should have been reduced by the twenty one months that he was in federal custody on a writ he was technically in state custody his federal time doesn't start until the day of his sentencing so he was here at the m c c for twenty one months most of that time working as a cooperated for the government he withdrew from that cooperation agreement he gets no benefit for it but worse than that the government doesn't even want to give him credit for the time he was there at their at their he ha understand that the court again might come to the same conclusion might the court might consider this question and decide as the government has argued that he doesn't deserve that of the credit and that maybe but the credit record is not clear and due process requires that the defendant be made aware of what's going on that these are separate questions they're not the same question they're related but they're different but he knew he had already been awarded credit in the state sentence for that time because reduce the federal the total federal sentence to account for that the judge just doesn't have to rush in to do it and my position is that under cunningham he has the obligation to address the question and come to a decision it's possible that his decision might not change on me and what the defendant has the right to stand there and have these things explained at the sentencing hearing the question was raised by any why does the church have to explain why he's not getting  credit because it's a legitimate question within his discretion and exercising his discretion not to give somebody an available sentencing credit i think that has to be addressed that was we raised the question and we basically conceded it as moot assuming the consecutive sentences we said we don't have to get to that the sentence is going to be consecutive in the court much later on decided it was not going to be a consecutive sentence and we didn't revisit that question and that maybe as much my own fault as anybody's but the record still not clear and i think the defendant deserves to have a clear record and with that if there are no more questions with my time's up unrelated state court sentence in a case like this the district court has discretion to select rather the sentence that it imposes will run concurrently or consecutively to other sentences that have been imposed in state proceedings district court did not begin with the presumption of the longest sentence and then require the defendant to provide justification for a reduction of that sentence stead the district court started with the fact that there was no overlap between the instant federal offense and the unrelated state court offense before imposing that sentence in this case the district court reviewed and addressed each of the defendant's sentencing arguments including his arguments in favor of  concurrent sentence on count three well he is there all due to restart robberies right so he has a serial jewelry store he's on it he's a serial criminal and armed robberies are one of the crimes that he commit before imposing its sense in this case the district court also addressed all of the relevant thirty five fifty three a factors and provided a detailed statement of reasons for sense and the district court had good reason to impose a concurrent sentence in this case  specifically the district court noted the very serious nature consecutive sentence i'm sorry consecutive sounds like you're the just recorded at the very serious nature of the defendant instead offense which included physically dragging the victim around the store while pointing a gun at them before the defendant shot out the glass door of the store to escape into the street and the district court considered the history and characteristics of the defendant and noted the defendant extensive and serious criminal history which included double digit convictions fan for a this is like armed robbery drug offenses unlawful use of a weapon in assault so the record reflects that the district court offered a more than adequate statement of reasons just to find it's within guidelines sentence on count three to run consecutively to his unrelated state courts with respect to the defendant secondary argument he's not entitle to remand for reconsideration of the issue of credit for time served when he was in federal pretrial custody because he already made that argument to the district court as your own is noted there was a lengthy discussion at the sentencing hearing about the take that into account by imposing the sentence on count three to run concurrent with the state court sentence the district court considered that argument and rejected it and i think defendants argument here is no different so for the time spent in federal custody it's just that that time went to his state court offense right if the difference between a fully concurrent sentence and a partially concurrent sentences correct to reduce his sentence for the time spent in federal pretrial custody would just be the equivalent of  judge does not have to give it its it is an option correct correct the d the time spent in federal custody was because the matter state was in a right to take i was given state court but i'm talking about if we just look at the federal offense the federal offense has a certain period of time from which the judge imposed on many months of was there's a statute itself or is there a statute which covers what time served already so if there are no other questions from the court i would ask that the court affirm defendant sentence thank you how much time three minutes make it first with respect to your most recent question your honor i think the case the most clearly lays it out it is in the discussion of the court is the cruise case which was cited in the briefs if you want to look at that and and again i would concede that is within the discretion of the court you didn't have to give him credit for i think because it is within his discretion and the exercise of discretion that could result in a higher or lower sentence i think  the presumption should begin with the lower sentence in the for justifications to go up not the other way around that is just sort of the philosophical point of view i think is laid out pretty well in the statutes and and or stand reasonable minds might disagree with that but the court saying well there is not sufficient justification based on the record to impose a concurrent sentence in this case is i think an indication that the court was looking at it from the wrong view and maybe i'm reading too much into it and the court may not agree with me but i think this is not jim a question and it's something that deserves consideration as is the question whether he should be given credit for time that he was sitting here at the at the government's bidding essentially this is something the court could have done and doesn't have to do and should consider whether to do or not and should explain to the defender of whether he wants to do it or not there was a discussion on the record about whether to give him credit i did bring it up counsel's correct but that discussion ended with my saying that offends saying to the court that that question of the sense of the mood as long as the sentences are concurrent which as it turned out