i believe that most of the she's that have been previously raised have been briefed sufficiently so tell the court that i'm going to focus my argument on the question of the sentencing in this matter and whether the defendant whether the appellant was given a term of a sentence that was a actually a sentence beyond the statutory maximum in this case when my client was given a single term of supervised release of the two thousand and ten revocation hearing by judge bramlett specifically using the singular phrase a term it's the appellant's belief that it prevented the district court from imposing consecutive terms of revocation and supervised release at subsequent proceedings opposed to a statute a guideline a regulation something of that nature and i'm just asking are you know i've memorized all the cases in the world except those two you just cited do they address that i believe they address the one yes there is i thought that that was part of the record that i know the sentencing transcript was transcribed and sent to the fessor on the twenty as it was ok is really mentioned about which counties imposing the soup term no your honor there's not any mention of which camp or where in the record is that he went to ten the original sentencing hearing transcript where in our record of boilerplate language and it still being construed as a term unless the court specifically set out multiple terms and because the othe circuits have have ruled that it a term means a term they have all ruled in favor of appellants and these same issues in town but they didn't have the added wrinkle that you have which is you all been contest this at least properly were successfully for that matter in twenty in the two thousand and thirteen appeals how can you get past that now that you're in the two thousand and seventeen world well if you look to esk would submit that the same facts happened there as here in eskridge there were a belated three subsequent revocations and only on the last revocation wasn't actually addressed by by anybody i mean it was that was an issue that kind of was was just not caught by anyone but the appellant's the governments or the  court and even that even at that point where they were i think on the rd revocation when the court caught it and acted upon it because it considered it a manifest injustice to allow a sentence that same logic of eskridge and the other cases in the other other two circuits that have followed that that premise and avoid a what would amount to a circuit split if it acted otherwise i think the court in this circuit would normally try to avoid unnecessary circuit splits and i think to act otherwise in this case would create a circuit split and that's why we the lower court in two thousand and ten gave the defendant at the time a five month sentence and because of the five month sentence then gave fifty five months for supervised release which was not even the amount that would have been required as a statutory minimum under count eight so i think it is clear that what the judge was going on was can't take the st silent on it that that silence and ambiguity about which count was actually be up being applied should work to the benefit of the appellate because to do otherwise would give him an a higher sentence that he would have got another then he would get another capital if if he did give that some some count too he was given above the statutory max they were saying we wanted to do that  i'm not sure i follow the court but if i had if i do understand the court's question it seems to make clear that what he was doing was was following the limitation of camp two because h had a maximum sixteen months supervised release that he could give an account to in light of the five months imprisonment that he gave him he reduced that's supervised release by those five months and gave him a fifty five not sentence with  months sentences he reverted back to count eight which the appellant contends had already been revoked and no longer existed was no longer even ing in existence in two thousand and thirteen he gave  to thirty six months sentences to run consecutively and then in two thousand and seventeen again did the same thing circuit but he did raise the issue and because he raised the issue we believe that the standard for this corker a view that should be denoted because he raised the issue of an court it was only only at sentencing you know i mean and all i think it was think it was right something when you're back at your desk if you could look that up in on rebuttal give us that cite so we can look at it and set the record side of where further reading of count eight to say that they could to say it could give consecutive sentences when county no longer even existed after transcript of twenty and here it is not in the record it's only incumbent upon the appellant to put it there it's not there we do not know what judge bramlett said that would counter an argument that we have to construe it in his favor because if you have a duty to provide a record and years sixteen months so this argument that only applies to count two cannot be accurate because that same five months of imprisonment with fifty five months supervised release adds up to be the sixteen months so we would argue a natural rating that applies to both campaigns now the flip side of term is born or plate as relating to imprisonment under the judgment of conviction so i would not read too much into a term as being holding this matter what i would tell you is the defendant argues under united states versus w his st predication the problem with wing is it doesn't follow supreme court law wayne tell us about united states versus johnson which addressed this issue not a states versus johnson the supreme court said the term revoke does not have an ordinary meaning and under ether a it says can serve imprisonment during all or part of a term of superbugs release so you can't rebut something the supreme court says but then serve imprisonment under that same supervisor rule for the government on the sentencing issue then we are creating a circus i don't believe it is true ok tell me why now well because the the issue of a term is not even played here as i stated earlier it's conviction or not we have to presume a district court judge follows the law in this case he revoked both counts and i would argue because that same law says he's required to close a term of a president because it involved controlled substances that that imprisonment and supervised release follow both counts even though he didn't say specifically where i meet if the judge is required to do something but doesn't it where we left i mean that's what we have here he didn't explicitly impose term simpson on only revocation of candidate but your honor i would also say even if he didn't do that the other argument back to johnson is if you go with that count two was the only one that was revoked and since under johnson count eight supervised release the original sixty months continues after the five months imprisonment that continues in effect count eight and other courts of appeal bit as i mentioned six circuit in the th circuit they have said supervised release even after revocation continues and so that i think you can have it you can have it this way you were talking about a two thousand and thirteen but i have to go back and look at it again i'm just asking you would we be creating a circus by finding that failure to raise the issue in two thousand and thirteen forecloses raising it in twenty seven end with the government would argue that it in fact is wave either other rescue to condo or collateral estoppel that are either the message or either case law that you look at because you did not write a bit to raise it he effectively waived question in the case law that we found you are correct the rule of lately that we see in the statutes and even the cases that mr miller reference is that applies to the statutes or sentencing guidelines i have not seen a case i'm not saying there's not one standard view in this case daughter's if there are no other questions our lama of the rest of our brief and we would ask i would like i just want i want to clarify and i mean look i've been part of cases that are circuit splits and i have no problem with doing a service but but i'd like to know that i'm doing so i just want to be clear on the sentencing point do you agree with your counsel opposite that if we were to rule that  by failing to raise these arguments in addressing the two thousand and thirteen sentencing he has therefore waived or is a stop from asserting them on the two thousand and seventeen sensing that that ruling would create a circuit split i don't think that ruling we create a circuit split and that's what he did not appeal but is now before you arguing about the two thousand and thirteen of the two thousand and seventeen sentences two sentences were illegal because as you said judge the twenty t n in his view only applies to counsel and so what we have i spent my time looking for that site in our briefing and of course i know it's there but i can't find it under these circumstances and trying to hurriedly find it and trying to listen to the other i'm sorry that the definition of revoke is somehow different from the common ordinary meaning of revoke i would i would point out though that in johnson it was only abrogat  having used a controlled substance so johnson only abrogated the a comma meaning a revoke to a small part of it it didn't it didn't abrogate the common meaning of revoke otherwise that revoke means a no or resend it or cancel with respect to the other arguments that the government is making i would point out to you that the government has never argue revocation when they on their own brief page forty three dollars argued that judge windgate could impose terms of imprison to imprisonment to run consecutively but this is the important language without regard to judge at the end of the day we have to get this right whether we all make it is your honor whether you all understand what the judge said or not what we're supposed to do that we don't have the two thousand and ten drinks it is and you think we do but i haven't seen it judge davis hasn't seen it your opponent hasn't seen it so it is and i thought it had been you know sent from the lower court by transcription to the th circuit and i because that's the world pronouncement well if if if there's any if there's any contention that what he said was different from one of those in his order and i haven't seen that as an argument by the government i have the option that's not been addressed dillon in that line of cases even with that being the case of not having been previously raised they found that collateral estoppel would not be imposed because a it was discretionary and they were not going to oppose it and b to impose it would would create a manifest injustice to do so and the court instead corrected an injustice and corrected a sentence sentences that would be on the statutory maximum so i don't think that that that is even necessarily required is not some some issue that has to be imposed and the other circuits have not imposed it when they were dealing with an issue of a sentence when  sentence is beyond the statutory maximum it's it's an illegal sentence and the courts have recognized that and addressed it to prevent and manifest injustice i'm sorry thank you donna we appreciate the