good morning runners my name is michael bacharach and represent the defendant appellant alexander new look the question for this court is a very simple one the question is whether the defendant sentence of twenty four months imprisonment followed by two years of supervised release hoc by the government of allocating so long as it's intense periods so long as is in the context of an over over sentencing the district court could interpret could examine any argument the government thinks up just like it should be rippin is required to determine an the defense comes up with at that point though total redo total redo yes you are and that's i think perfectly fair whether or not their argument with stands to reason was angry is another question it's not a question before this court right now but that's not what the government  there's no disagreement between you two well no there is because what the government is asking is not for doing over recent incident the government is asking to go back to the court just for a limited purpose of asking the court asking johnson judge di to sentence in this manner did you really mean to sentence in this this manner that no one talked about in district court initially not the defense of the government not your own or did you really mean to sentence him in a manner that is not consistent with the standard practice in this court not to say it can't be done that way but to say that you didn't it wasn't discussed or argued for it advanced in any way even though notwithstanding the fact that the government mr buford specifically the same prosecutor is handling this on appeal that is the judge to clarify what exactly did he mean he said your hon was the twenty four months and two years of supervised release concurrent and all violations judge says yes mr buford the government did not ask you did not ask the judge judge when you said twenty four years i mean twenty two years and twenty four months you don't mean two years on count one and twenty four months on count two that's not what he asked he asked a very simple straightforward question consistent with the general practice in this district in fact in this entire circuit to my knowledge and the judge gave a simple and straightforward answer so that is the difference your honor i do not believe appellant does not believe that we can go back to the district court just for the limited purpose of asking the judge did you mean to really find a way of contorting yourself around the statute as opposed to simply age and over resentencing where both parties get to argue what they believe is appropriate and i'll say this your honor i do question whether or not the government's alternate theory would survive reasonless really i don't think it's a question that needs to be answered right now but i think there has to be a reasonable basis as to why you would sentence the defendant one way on count one in relation to count one and another way in relationship to count to one counts one and two both relate to the same underl release the judge can impose a sentence of imprisonment and a sentence of supervised release to follow imprisonment if the judge divided it up and said ok i'm going to impose two years imprisonment for violation of the supervised release on count twelve years supervised release for a violation of supervised release on count two the supervised release would not be following a period of imprisonment for a violation of supervised release on count two we're going to be contrary to the statute but i think these are the cases that the government cites to which this court has never that sentence if you look at it as count pacific the term of supervised release to follow in prison would not be a term of supervised release following imprisonment because he would not be imposing imprisonment for a violation of supervised release on count two that's that's a very good point on that but as i understand i mean this could all be determined at the district court level but the limit was a three year be with him the thing based upon the cases in the other circuits i think that is possible assuming again he can survive a recent survey when there has to be a reason his review when something like that is done and i don't see when you have the same underlying conduct there would be any justifiable  the court is inclined to to do here we do think though that what i think the appellant is asking the court to do as we understood the brief was to vacate the sentence that was imposed as being plain error we think that the sentence is legally correct and i think that's right and judge total to to your point i understand the point about the statute with imprisonment to be followed by supervised release but the example in our brief may not be the best way to structure the sentence but there is another way the district court could do it under this in dhaka case and the th circuit which is that even on concurrent terms of supervised release imprisonment for revocation can run consecutively so judge johnson if there were no re sentencing could order sentence was illegal that we could sort of finesse that and send it back to him and i think don't we the sentence is illegal it doesn't have to be they can i think you have a case where maybe we years imprisonment for each violation what he did not speak to is whether he was allocating the two years imprisonment to the underlying in terms of both terms of supervised release which i think is that is the issue that would would matter for purposes of the cases we cite being the most recent case so that certainly judge johnson may have been ill served by the parties and i include myself in that regard but the specific question of whether or not you are revoking both terms of supervised release respect to both counts and then allocating the imprisonment and the supervised release that he wanted to do among those counts was not an issue that with your honor's point about thirty five thousand eight hundred and thirty eight i think that's right that when the when the judge said two years imprisonment without specifying one year consecutive on each count the sentence that was described by the district presented in the papers yeah very good i'm right rated by his brief when you wrote the nd time after you wrote yours i still think the sense is legally possible but not the route that was taken all right thank you very much for your arguments we have two more