nick please the court counsel my name is joe cham i represent harold lacy the appellant in this matter before this court we are asking this court to strike that portion of the district court's sentencing order wherein the district court order that the federal set used to be served consecutive to the state court sentence that may have been imposed the now facts in this case are rather straightforward indicted for distribution of care when he entered a plea of not guilty on he subsequently entered into a written complete agreement which was set to by them and it was taken by the magistrate court sense of record recommended to the district court district court accepted that plea of guilty the mr lacy cooperated with the government cooperation agreement was entered into with the government eventual a of course it went to sentencing and mr lacy was sentenced what was unusual about the facts are that at no time during that process did the issue of consecutive vs concurrent sentences ever come up not in the plea agreement not and the change of pleas hearing not in the cooperation agreement that the sentence be consecutive and almost if i may suggest almost apologetically requested by the government mr lacy lacy objected lacey's counsel even indicated that he was somewhat caught flat footed by this sudden action of the united states government considering that the negotiations that had taken place the first issue i want to address is the issue of the appeal waiver i could find no seventh circuit case which addresses this on point i could find a first circuit case from twenty fourteen united states or says santiago versus concurrent is not addressed in the read please remember we hold that on not binding we believe that is pretty powerful precedent that this court should consider also on the issue of the itself that is absolutely correct your honor absolutely correct and and if i may even add not even at the beginning of the sentence he almost almost near closer to the end your hon argument your honor thank you our next argument is that there was a mutual missed mistake of fact in the sense that everyone contemplated i say the same facts that you disagree with and i respect that your honor i said show me where the record doesn't sentence when it was largely unknown as to what if any sentence in the state cases would result it that sounds a lot like very sound argument made by the dissent  that it's very hard for a judge to make a sound decision about consecutive versus concurrent decisions or sentences when you don't know what the state court is going to do yet but at the supreme court so that was the we believe setser is distinguishable in the sense that sets are dealt with and a probation revocation and not an issue of a full blown case is that we're still totally undecided and the the circuit court of making county we believe sets or that we believe sets or stands for the ultimate proposition that if the district court feels they need the district court needs to order consecutive sentences sense or does give the district court the authority to do that but we're complaining about is the process and the procedure of how the district court got to that conclusion when it was never discussed at any time up until in the middle of sentencing and the district and brought by the government at the last moment and the district court struggles with this it's clear from the transcript struggles with the issue o should it be consecutive should it be concurrent so we believe that the process is what is so fundamentally flawed but mr lacy could have addressed the argument at the time that the  objection was preserved because he made it his choice he made the objection at the hearing but he could have substantively addressed it and made the argument to the district court to say why it should have been consecutive well quite frankly and  the government said oh we would like this to be consecutive as well and interesting enough that even words from this if the assistant states it says the united states attorney with it was not their policy presumably not the policy of the u s attorney to make that request this was a request that was coming from the macon county state's attorney conveyed on so it's our concern it's our contention that the court could not have properly factor that might be an appropriate remedy your honor we believe that the court didn't didn't even consider those factors and it was really sentencing on the its rationale for it sentence was last question you asked of counsel judge hamilton actually if he's going on the theory of mutual mistake a fact which was raised for the first time in the reply brief i would suggest to the court that the appropriate remedy under the restatement of factor of what the state has called piling on in football but i think the argument could have been made appropriately for what we raised our brief that there is absolute disconnect between what occurred in the state case of breaking and  and committing a battery and and assaulting the mother of a child in their home and then what occurred in this case with the distribution of heroin and that is the argument the a u s a should have made and asking for that sentence but the appeal waiver itself contemplates mistakes because it says any and all it so says it and you know it severs and so i believe mr cham way just admitted that he's backing away from the argument of breach which was circuit i'd like to point out two things first that was not a breach case that was a scope of waiver yeah argument that was made secondly the waiver language in santiago burgos is completely distinguishable from the waiver language in this case  the defendant here by agrees that if this honorable court sentenced him a census him according to its terms terms conditions and recommendations of the plea agreement then he waits appeal the sentence in our case it says that he waives any and all issues relating to the sentence so in such a burgos because that plea agreement was silent its terms conditions and recommendations concerning consecutive or c i believe when we apply the factor apply the law of this circuit that by parties rights under plea agreement are limited to those matters upon which they agree there was no agreement to the consecutive or concurrent nature of the sentence that the appeal waiver needs to be enforced and that's without defending as i said the way in which we asked for consecutive sentences i don't believe again that that was a thirty five fifty three a factor or appropriately articulated by the assistant ni state's attorney but i think on that basis alone the appeal needs to be dismissed there's also alternatively i don't believe the judge abused his discretion in imposing that consecutive sentence based on the criminal h i guess i just have one is not sure i think the record would have supported the district court's imposition of the consecutive sentence but to my reading of the think you offer really any explanation for the base i think that the basis could have easily  t offered but i don't think the district court offered it i think that and i understand because he says here is the basis for the hundred sixty eight month sentence and then and then it poses as well at the end the consecutive sentences that the well i would have taken much he could have said it's kind of completely unrelated to the heroin trafficking charge so i'm going to leave it to the to the state court to impose whatever they think is appropriate because it's a separate crime but he didn't even do that know it and he didn't you i think though that we're somewhat getting into a five g one point three argument there to the next under the guidelines of when consecutive versus concurrent should be imposed the problem with five g one point three though is that it does does not apply  to this case nor does thirty five eighty four so i think the way to affirm if on a piece of discretion be looking at the court's comments as a whole similar to what this court is now doing with respect to supervise release that it's not necessarily bad there's a finding for every single thing that happens but we look at the court statements as a whole could the record be better absolutely i don't disagree with that and it could be much clearer for reviewing court to say yes he definitely took this into account in imposing the concurring are consecutive but then our fallback position certainly would be back to the appeal waiver for that reason which walters i guess i don't know that the supreme court actually addressed this and such  but i understood them to so the court has the statutory authority to make this determination before the state court rules but i don't understand is how district judge can sensibly apply the thirty five fifty three a sense the factors to that question without knowing what the state court's decisions and and sets are the majority brought that up as a matter actually they brought up some conflicting policy language on the one hand they says matter good policy the second judge in order should be the one to make that determination in a paragraph right before that judge hamilton the court said that as a matter of respecting the state sovereignty the district court that imposes the first sentence should convey whether they expect to be consecutive or concurrent so it's not then left to the department of justice component being the bureau of prisons under section thirty six twenty one of title eighteen to make that determination potentially twenty years later after the state sentence has been determined when they write a letter to the district court saying what was your intent and i've handled enough twenty to twenty to forty ones in my time to know that that's a complicated process and i think it it's almost better for a district judge to speak up ahead of time as opposed to leaving it to some case manager or whomever within the bureau of prisons and they certainly judge peterson it could have been done better in this case but i don't think it's inappropriate and certainly under setser we're looking at the time that this decision was made and not whether it was made more difficult by the state court had it said well we want concurrent sentences so for the reasons given our this court should review during oval for the procedural for pretty errors and as are and already been discussed also it's note worth noting that the substantive err is that the statutory maximum this sentence is thirty years and initially the court the district court and initially the district court intended to and in dead impose sentence of one hundred sixty eight months and then when the issue of the consecutive verses concurrent came up then the court did it imposed consecutive two not knowing what the macon county circuit court committed substantial absent of due air and that the when you add a sentence of the state court and the sentence of the district court it's four hundred eight months which is well beyond the thirty or maximum less or any of the questions thank