pertaining to his fifteen year mandatory minimum sentence i don't think i can adequately delane to both sets of issues with the time i have this morning so although i think suppression issues are very strong or should revolve result in reversal i'd like to go to the sentencing issues unless of course if the c same offense the guidelines recognize the defendant like mr corey should get full credit for that state time against his federal sentence in the majority of cases where there is no mandatory minimum this is very simple whether or not the sentence is been not yet imposed fully served or only partially served as counsel didn't the judge as if they referenced the fact that he had considered the thirty five fifty three a factors that he thought that this wasn't an appropriate sentence and quote having done those two things how do you get any traction and i'm not sure how you i think you're pushing us as to whether this is harmless unless that's right that that's certainly one aspect and right i think i think that the answer is as i laid out in the reply brief this circumstances indicate that the court probably would have granted a lower sense if it appreciators dissents and discretion certainly the record doesn't meet the government's burden to show that it didn't and here's why there's two things one i mention the brief and there's another thing as well the first thing is that in a pretrial hearing at page one fifty seven of the record the discourse started off by questioning the government why was even bringing this case of the california had already impose a was appropriate so it already started the case wondering why they were even having this case but when we get to sentencing it was actually split up into two parts the court spent the first part hearing delving into this issue the dispute among the parties whether he can grant this credit he says you know i really want to take the night in read these cases before i decide what to do comes back the next morning and says i read the case and i think the governor is right i can't grant the credit the court would not have gone through all that if it was going to impose a fifteen year sentence anyway regardless of the credit so i think given those circumstances the government can't meet its high burden to show harmlessness that there's not a chance that the district court would have imposed even the slightly lower sentence one month lower if it had known what a sense in discretion of one of the judge say that he  quotes i happen to think that this is the appropriate sentence in quote that's it thirty nine to forty that's true even though that's a separate issue your honor because it's because we all agree that the fifteen years is the appropriate sentence the question is whether he gets credit one he made that statement but he didn't separately say and i'm already taking into account all the state times you have said he well i i think if he had the government would have a case about harmless error but it didn't and i think that here's where the disconnect comes the of the court said was i think that under the circumstances a fifteen year sentence is the appropriate sentence for this conduct it then becomes a question about how mr torres has to serve that fifteen years our position is he's already served almost five years of it he shouldn't have to serve another ten what the court the record reflects of the court never really got got into that because a bought the government's argument that it didn't have the discretion to do anything impose a fifteen year mandatory minimum so i think that it's not it's not inconsistent to say fifteen years is the appropriate sentence for this conduct but knowing i have  discretion i think you've already served part of that time in state court so i'm going to deduct that time and then impose a one hundred twenty nine month sentence so you've served the remainder of that fifteen years in federal court and that's the heart of the issue here did the court have that discretion  and i think we i think that he did because the the main restraint on the district court's discretion was the mandatory minimum section twenty two fifty one that says that for the couple of cases one is really dull helpful are they i believe i believe they are first of all there's brito which i think is a court's recent case it doesn't deal with the mandatory minimum but it deals with a very similar scenario of the thirty five eighty two motion where are some seven circuit cases rawson particular side in the reply brief where they acknowledge this concept that distinguishing between an adjustment and a credit is or are saying that you can't give credit for exulting form over substance and that you basically knology indorsing what i'm asking the court to do here which is to say i'm posing the mandatory minimum but usually recognizing you've already served part of it without applying any setting i mean we have this particular factual image is it your position that if there is a minimum sentence that's required by a federal statute or sentencing guidelines and someone is charged in a state crime that is involved is saying that whatever that sentence is that the federal sentence has to give credit as far as service is concerned for any time spent in the state institution that's your position our position is only with our oppositions only the court has the discretion to to do that i will say that in some other case future case the court may have there may be a question of whether it's mandatory for example if the court imposes a federal sentence at or near the maximum such that the federal sentence in the state sentencing come for the same conduct and combine to be more than the total sentence that might be a problem the court might have to address one day but we're not even close to that  he can exercise his discretion to decide whether or not he's going to impose the mandatory minimum or give some creditors caressingly much argument and you and and you don't think that his statements that this is the appropriate sentence in the mandatory minimum is what should be imposed makes that irrelevant no i don't because i think that that's a separate question he said fifteen years of mandatory is the appropriate sentence for this conduct it's a separate question for him to decide whether or not i don't want to say again knowledge that even a it's been i thought my obligation and i happen to think it's the appropriate right for the good but that is a separate question and that's the same with the appropriate sentences for the offense conduct he because he had already by that time bought the government's argument that it had no discretion on the crimes against him never said  erroneous and the court has further questions on the sit on the suppression issue i'm happy to turn to sentencing and on that issue i'd like to get to harmlessness in a moment but i'd like to start with the defendant statutory claim which is the one that he preserves below and the defendant claims that the district court had the power to take into account his discharge state senate against the mandatory minimum the problem is that the defendant can't point to any source of law any statute not even the guidelines provision that empowers the district court to grant some suggestion that the government agrees with this and i want to be sure that that's the case as you know there was a discrepancy between the oral and the written sentences in this case is the government agreed to the very least we need to send this back to the district court  district court can conform the written sentence to what he said orally we wouldn't object to a limited release and on that basis your honor but we don't think it's necessary because in other cases this court has just corrected those sorts of conditions on its own without sending it back but we wouldn't object to a limited remained on that basis to address the defendant's arguments about about the statutory argument that the district court has the power to take into account his discharge state sentence he points to this court's decisions and trick in britto and those cases are different because neither involves this situation which presents both a discharge state sentence and amended one minimum related brit or distinguishable because in both of those cases the sentencing court undisputedly had the power to take into account the state senate and drake that power came from the courts statutory concurrent sentencing power under section thirty five eighty four and guideline five to one point three d neither of which apply in this case because we're dealing with a discharge state senate and then prieto that power came at the initial sentencing from the court's undisputed power under thirty five fifty three eight to take into account the state fours with this case those are cited in our brief and they've rejected the defendant's claim i'd also like to briefly address the defendant's constitutional argument which he raises for the first time on appeal because there is no statutory power under the existing scheme and i'd like to explain why that distinction in the charging undischarged sentences as interpreted by this court has a rational basis and the one i would emphasize to this court is that that distinction ensures that every defendant who serves the mandatory minimum for production of child pornography serves a continuous fifteen year sentence and congress could have reasonably thought that a continuous sentence would best serve the penal logical purpose of a mandatory minimum better than a sentence that the offender can serve and bits and pieces with time free in between i'd like to turn finally to the harmlessness and i guess i don't understand what's rational basis of the bar's low but given the durations we're talking about here if you served what was it five years something like that with the state offense and to be a gap in time and then serve at least another ten years that's a pretty powerful punch consecutive fifteen years really that different congress could have thought that the gap in between would have made a difference and might have made a difference in that punitive effect and might have made a difference in incapacitated effect because the defendant has an offender could go free after for instance five years and i might make a difference in terms of specific deterrence but again as your honour's question recognizes wonder rational basis for a view under which this court is deferential to the legislative judgements and doesn't second guess whether outcomes are wise for  the issue of harmlessness i would remind the court that the district court took into account arguments by the probation office and the government and the defendant that the government that the defendant was entitled to a departure from the guidelines to take into account a state senate remember said that down one hundred eighteen months to be the appropriate sentence that took into account all the concerns that it had and so we think that even if there was a misunderstanding which we don't think there was for the reasons explained it wouldn't have made a difference in the sentence and therefore i time with regard to the first issue about whether the court for the use of the constitution should just has the power to grant custody in this i would urge the court to look at united states versus ross the seventh circuit decision at page five ninety five range it simply is another way of treating the required term in prison so that's exactly the kind of idea that i want the court to apply here and just say that that's all a court is doing is when it's giving an adjustment or credit again so i assume this is the same seven  thirty five eighty four where you could have a concurrent sentence and there's a logic behind saying the sentences should have run concurrently but the concurrent power appears to be limited to undischarged terms and here the state in terms been served correct your honor and that's where the cases that i cited that a found a constitutional violation have basically said that's a problem with thirty five eighty four that it that it creates this arbitrary distinction where you have two defendants who did exactly the same thing they both get five year state sentences one is on the day he's steadily sentenced to fifteen years he has one day left on that see case he gets full credit for the five years he spends in state custody the other guy has just