in time issued no opinion on the matter it was silent and the oklahoma state court sentencing seven months later was explicit in its wishes that the two sentences run concurrently with each other sentencing court had the intent and discretion to have those of consecutive sentences here they believe that there is a default rule that when the federal court is silent that the two sentences automatically right and sexually to each other that is not the case as this court as well as the supreme court and sets are of the united states has every rule this court first in two thousand and six in the united states versus smith as well as later a s recently as twenty fifteen in the united states versus ok let's make clear that there is such a consecutive presumption of and statute but it applies only when the prisoner is already subject to and  discharge term of imprisonment it was not applied to a case in which the federal court sentences first in time and the state court only sentences after the fact if you're right about the statute that  isn't isn't easy isn't the most straightforward thing to do now to send this back to be r p they got it wrong they thought that their hands were time becomes an imputed this intent to the district court to have the sentences run consecutively that turns out to  method of resolving this case but it doesn't fully in our opinion answer the textual interpretation given by the supreme court and sets or be united states on the issue of the discretion to feel that he claims that eighteen u s c thirty six twenty one  he gives them does do the discretion to reconcile competing sentencing orders and they would claim that there is power here under thirty six twenty one b to affect whatever sentence they choose but what we do not want to have happen is ha r other states or to its general reflection on that and see if i did because i really i didn't have trouble sort of understanding your position in the brief so you're arguing that the really doesn't have this kind of sentencing that's already you can't make this decision which doesn't have the discretion to say you know what sitting in your living room is not what we have in mind we're not going to designate your living room as the facility in which you're certain are federal sometimes it's a case in which the federal district court is silent but the state court is the split that think that there is no asking my question say the state court in this case said i want this person to serve a ten year concurrent sentence and on i'm sentencing him to home arrest which should be concurrent with any federal statute has no presumption to control in this situation of silence on federal judges support it has no way of knowing how long a federal census going to be put on the back in both this state court even tried on four separate occasions to transfer sentencing order would trail separation of powers and vs sentencing powers and same hands of that do the prosecution the executive so what would happen if the state court were silent also t so here it factor for congress has limited the beer piece discretion by pie factors under thirty six twenty one b and i really like to draw your attention to factor for under this analysis in which to be a p as instructed by congress to the b o b s incorrect and online factor for as meaning that the federal sentencing court and tended to have the sentences served consecutively we argue that because it has basis opinion this factor incorrectly one of the three factors it in relevant should be remitted to the agency to reconsider under correct interpretation of section thirty five eighty four eight which again it set out for the presumption that the of sort of highlighting is the concept of primary jurisdiction and that's what is a real issue here and you just alluded to it today gregory at the end about the state having the ability to do what it wants that is the jurisdiction the sovereign that has primary jurisdiction in this case because megan was arrested by the state first the state attained primary jurisdiction and never gave it up when he was read out to the fed as for the feds charges he serves another sentence that was already in play for four and a half years and as judge gregory pointed out this didn't do enough whether they trying to get the beer is a take or try to get the federal government taking some kind of wa wherever knows we're good lawyers clean up all that mess because otherwise this is what happens good lawyers want the federal surplus to come last ok because  know should know about primary jurisdiction they should know about preferences they should know about how the federal government is going to affect you eight sentences whether they do or not we don't know but they didn't execution of that sentence and that's where the bureau of prisons has this big job to answer all the questions as to how to do it and they do that by following the statutes that apply the if there's a stated intent by a district work and  there's a situation like this with a question of concurrent sentencing whether they can exercise its discretion to designate and use their designation authority to designate the federal inmate to the state and in this case the b prisons did all they looked at all of the sentencing statues the application of how sentences are supposed to be run they checked into the kit intent of the federal district court didn't get an answer and did the five factor review that there are to do under thirty six twenty one to determine if there's a nation to state phillips of the syllabi is appropriate they did that they did it appropriately and they came to a decision and a conclusion that our position that it was impute i believe that it was that there are factors that we can look at including the presumption of consecutive nights in there if i may for that helps the bureau of prisons make its determination on what to do so you're saying even the rule would play into factor four which is the intent of the federal court and so if the default world were not to apply that would just be one factor that the bureau of prisons couldn't consider the b disagree with the judge davis point of course but district courts believe that they have their own authority and that they can make their own decisions without being told by other people what to do just my experience and  i think if they hear from the fourth quarter of you know they may be prompted to answer a question but for whatever reason judge jillian decided not to answer the bureau of prisons request is intent he chose to do that and we don't know what it is court if the d fall of the statute applies then also be appeals without authority to kind of contradict that through what is effectively a concurrent sentence if the disappoint answers the letter and says now that i think about it i do think it should run consecutively then does very prisons have discretion secondly or concurrently i'm sorry to consecutive if the disregards is now that i think about it i'm answering your letter let's go with consecutive does that bind your prisons in the same way as if he had done it with your original sentence yes i believe that the bureau of prisons would treat that intent that affirmative intent from the district court as a part of the sentence directing the bureau of prisons what to do so it would be binding i know we have smithy and it doesn't matter what i was wondering it doesn't matter what the district court says and it's no different if the district court says thanks for calling this to my attention what i meant to say the first time was it's consecutive that's binding and it's also binding if the district court judge says i actually have no intent at the time i didn't know what was going on but now that i think about it today i think it should be consecutive that is also binding you know you are using the word binding i think the way i would put it is that the bureau has ins were certainly i us in this case combined with the remain for that answer to be considered in reevaluating this matter it is our position that if the b o p granted not proton designation in this case it would have effectuated the st so the court of need not pass one issue to the thirty six twenty one the discretion issue the faction within the wishes of the state court is still possible even if the b o p still has discretion under thirty six twenty one the last point is in response to an earlier point made by the government regarding the five factual review it's worth noting that this court's unpublish in that five factor analysis are looked at with equal weight the views of the federal district court when asked are given a controlling weight but it's also worth mentioning that in fact or for as my colleague mr andrews  smith that that only applies in the federal court of sentencing second and not f applying in all situations that when the federal court is silent that sentences are deemed to run consecutive we know after setser and from this court's precedent in the united states versus of if that is not the case