and we'll begin with usa versus jonathan  associated with no criminal conviction and did not satisfy any other criminal justice sentence he was in state custody on pretrial detention for forty one months in connection with the september two thousand and eight fatal shooting at brandon howard he was dismissed forty one months later and subsequently federally indicted for racketeering enterprise ultimately pleading guilty to two counts the st one of which was a nine hundred and twenty four c violation for lying facts of the one hundred and twenty four c violation where the very same september two thousand and eight shooting for which he had been previously detained why why isn't this a question for the bureau of prisons turny general because there is a statute on its face might seem to suggest that he deserves credit against the sentence that was imposed agreed judgments and three thousand five hundred and eighty five dollars he says that for a period of time served in detention that has not been credited toward another sentence should be credit for the same conduct should be credited to the sentence the problem here is that judge engle meyer in the judgment and commitment order noted the date of the offense conduct as two thousand and fifteen and not in the record but i and so i am not sure how much to say other than his current period of incarceration does not reflect any bureau of prisons adjustment under three thousand five hundred and eighty five b for the forty one months even if it should have been well that's all right i mean either then then one can apply to the prisons and say this ought to be credited and if they don't credit the prisoner thinks it should be credited then you have judicial review under section two thousand two hundred and forty one although in the in the context here we're presently before the circuit the court could definitely remain on the case for judge uncle meyer to revisit the judgment in commitment order recognizing that he needs to indicate in the imprisonment portion of the chain see that the offense conduct dates to september of two thousand and eight the wise it's not clear that the bureau prisons will independent i'm no i'm just puzzled so you're saying i mean because i was not aware that there was i don't think it said in any of the briefs in your brief that there was an error in the and that one of the things you're really appealing is to ask for a allowed to do that in light of the mandatory sentence then wouldn't the if he gives a sentence that is forty one months less than the mandatory minimum doesn't section th commitment order stated that he was receiving sixty months minus forty one months for the period of time that he was in state custody in pretrial detention the bureau of prisons as a matter of administrative practice would not then doubly reduce his time by that forty one months and the fact is that  we're here now and there's an opportunity for this court to send the case down to the district court to remedy it in an expeditious and streamlined way as opposed to a maybe expeditious and streamlined but isn't that exactly what congress did not say should be done congress and exhaust his administrative appeals and then file a new cause of action and potentially return here but there's also an alternative faster easier way to do this which is simply to allow judge to clarify in the judgment commitment order and you want him to change or do you want him to that the judge can't order the bureau of prisons to proceed in a certain way but the bureau of prisons the fact is the bureau of prisons relies on the judgment commitment order and the direction provided by the court in the imprisonment section to determine when the will in the wilson case the rights of the wilson case says the district court doesn't get to use three thousand five hundred and eighty five b to fashion a sentence directly what i'm saying is that judge could still nevertheless impose the sixty month sentence if in that section of the judgment commitment order said i recognize that this is not how the how it was briefed fundamentally that the concern here is that mr rodriguez spent forty one months in prison that he's not getting credit for it toward any sentence well we don't know that because he wouldn't be out now anyway right now he would not and he definitely would not be out so no harm per year harm has occurred because his ultimate sentence doesn't account for that forty one months well maybe psychological harm but he's not doing a single day to day that he didn't supposed to do know but at a certain point three hundred and seventy nine months he well there will come a point right at the three hundred and seventy nine and forty one months of the end of a thirty years although i will say that there are there are yes but there are collateral consequences depending on nation depends on the length of your sentence your programming options sometimes depend on the length of your twenty six years correct but that but i'm saying that right it's not just sort of a psychological or individual i want to know what my your contention would be that it's just an error by the judge not a legal error just practically a scrivener's error to say the offense conduct took place in two thousand and fifteen when in fact it took place in two thousand correction of that ministerial error if you look at page eight thousand one hundred and sixty three dollars in the appendix the judge already notes to the bureau of prisons wilson notwithstanding that rodriguez was to be credited with time served no that's exactly the sort of five where is the error with respect to i thought you said there was about when the offense conduct took place with this sentence as is he should be given credit for time served dating back to the date of his arrest on this charge which he should be of course you're saying of course he should get something extra or else besides that we're is the thing that would need to be corrected he could it could be corrected in that section the fact is that  is the bureau of prisons is using the date of october sorry october th two thousand and fifteen as the as the offense conduct date and is giving him credit from october th two thousand fifteen they should also be giving him credit for september two thousand and eight until his release date on may it was on may th two thousand and one more confused why should they be crediting him from october of two thousand and fifteen for time served when  time only began to be served when he was arrested not when whenever this is romney's date is as to the offense conduct i think i think that that may be driven by the northern district conduct and not reflected in the jane c from the southern district is agreeable changing that before you go i have a question or two what your argument here today what is all of this entirely new or is this let's just stick with stay right there i just i'm very simple and these matters what happened before judging omar with respect to these matters about which you are greatly concerned about authority to impose a sentence of less than thirty years six months sixty months on count one and twenty five months on count two so that's where the error was in this record when judging them are considered this very question and resolve it on seve sentence you must give us thirty years and that's what he gave that is that the sentence that he must give is thirty years and the defense argument was you calculate that thirty years by taking the forty one month that he was previously in custody it's not it's but it's not really a credit question so to the as far as i can tell from my research where you have a period of pretrial custody attributable to no other criminal conviction or criminal sentence maybe maybe even that he gets the credit  were i am not why are you here i agreed to take the appeal from her and you were admitted to the bar of this court i am i am and your name is bennett with one  know certainly not and that remains our primary that remains the st argument we made because we believe it is a threshold argument the waiver was tied to the time that was assessed was not tied to how the court got there but since since the court was asking questions about the merits of the appeal i'm happy to hop there as the court knows this appeal was teed up as an argument that mr rodriguez should should benefit from an adjustment under the under five  discharged prior term of custody but but even if even putting aside whether the prior term of custody was was was best analogize to a discharged or undischarged one under the supreme court's decision in gonzales and us versus gonzales which which is cited in the government's brief given the mandatory consecutive scheme of nine hundred and twenty four dollars c sentences the judge the judge was foreclosed from effectively assessing a sentence that would run concurrent with a prior period of time what i interpret the defense to be to be doing the appellant to be doing is to be trying to pivot now to a credit argument is as judge as judge newman put it away from an adjustment argument because i think the adjustment avenue is totally foreclose i would just note with respect to the credit argument number one i don't believe it was made to jangle meyer but number two in the u s vs rivers case that i think the  he he stated in the judgment what credit should be given in his view but in fact his view is not controlling the prisons determines that is that correct i believe that is correct credit based apparently on time he had served in the northern district some related or unrelated or other charge and so calculate his sentence starting back to october  it is i take it the defendant's position that that's still incorrect because you should have received credit for this earlier time in new york state custody does the government that is to say the department of justice which  credits assigned that question is saying that i want to confer about but i think your honour's question actually actually strongly supports the government's argument here because it your honour's question embedded in your honour's question is the fact that the bureau of prisons you to take with respect to this appeal i understand that at the same time granting that mr rodriguez is sadly for him has many many years to work this out with the viewer prisons with whatever appellate review might be necessary administratively we're judicially there's all the time in the world for this to happen it certainly would seem to me that now that the matter has been called to the government's attention it might be useful to just figure it out just have people in your office talk to the people at the viewer prisons lay out all the facts and so that if it is the case as at least a work that out if that is in fact the correct outcome and it would make life very simple for everyone you are that your points of course well taken i don't know that it's that it's the correct outcome that that that time spent in cost city on that on the state charge prior would be would be putting aside the question of adjustments which is raised in the appeal here that that would that that would be  but you're basically saying you don't know because understandably no criticism of you or your office you haven't asked maybe you could ask and find out and maybe you might find out that the bureau of prisons once notified of the actual facts maybe they take the position no sorry we don't read the statute that way he doesn't get credit and then that might have to be litigated if the defendant wants to litigate it in some other some other but least we know where we stood and if they decide he does get credit then it seems to me this appeal would be withdrawn and your honor i would i think what i would say in response is that i think that the bureau of prisons seems not to believe that he would get credit for it maybe they don't know these facts at least ms bennett suggested somehow she said there was some about the offense conduct which i don't see in the judgement and i'm not sure why it would be in statute to to provide credit for the prior time in secrecy because if my memory is right one of the appellant's brief says if the time had been in federal custody then then it would have been calculated differently by the it doesn't say anything about federal custody maybe that's going to be a turn out in the long run to be a difference of opinion between the bureau of prisons and mr rodriguez that is not to be resolved here but has to be resolved in some other form and some other date i agree with today so standing here right now i don't think the judgment reads december to two thousand and fifty so that's the day we're talking about did they date of time on his total combined said this between the two cases of thirty five years you are i apologize that this is this is on me but standing here i don't know if the december nd date is the date that mr rodriguez was arrested in the northern district but i  don't think i think that the correction is if in the event that there is a scrivener's error i don't think that that would require vacating that the sentence i think because i don't think because i don't think it would agree to that the judgment not deciding the legal question just the date question the judgment should reflect the date when state custody began so that later on some wiser heads can decide the period whatever it is whatever the correct date is from the northern district is continuous custody happens to be all federal custody in two different jails in two different districts the state time is several years earlier and began and ended he was in custody pending a charge in the state the charge was dismissed he was released and quite a number of years later he was arrested on related charges are dissent made a point that i think is similar to the kind of equitable argument that miss bennett is eloquently making making here which is that well what if i think in that case the issue he said was well  exactly right i'm saying that the supreme court has can say the supreme court has considered what i think to be a substantial and that that case was not about the credit issue but it was about a substantially similar equitable concern that's that's that's not what the supreme  cents which are foreclosed so what is the procedural effect of that if any what are we to make of that fact that it wasn't before done that and more that mean that the simplest thing is three men that them for to consider all of this or is there think it's it's certainly it's i don't think that they're saying it's not at all because the judge correctly rejected the notion that he was legally entitled to give a sentence of less than thirty years and you're saying that with respect to the credit issue that is essentially for the bureau of prisons as the bureau of prisons has already recognized by not giving effect to the language in the judgment as to how much credit should be given but giving for reasons we are not absolutely sure of or you have no idea what it would be why they gave him credit in the act back to october rather than december so the evidently made some kind of independent inquiry so the mistake if it is a mistake in the judgment is irrelevant and the only issue is whether the bureau of prisons should give additional credit for the time spent in custody back in two thousand and whatever it was eight and  is the government going to come in and say you can't go back to two thousand and eight because the date is to anything fifteen are you going to in other words are you going to invoke that date against her know that i have i understand your honour's questions about that date and i certainly am not going to put in papers something that that would that would undermine the car with the government have any objection to consulting with the prisons and advising us as to what the bureau of prisons position is once it is apprised of the facts whatever they are relating honor i have every reason to believe that they do and you you believe that you can get us and that you can put that question before the bureau of prisons and they will give us an answer is it right for us to make that decision you are i not i don't think at the moment it's right because i don't understand mr rodriguez to have yet pursued any remedy with the bureau of prisons i think if he if he does so as a expect if that if the court affirms  will but the bureau of prisons already has calculated the date from which they are giving credit i suppose he has some remedy where he can go and argue about that but really the facts here as far as i aware are not in dispute the statute is on it's face strongly indicative that he should get credit that doesn't mean that that's the correct interpretation the bureau can look at it and say what their interpretation of the statute is they gave him a certain amount of credit more than judge angle meyer thought apparently was correct without consulting anybody without consulting my or us or you they did it because that's their job to do it and no doubt if these facts are called to their attention they will be able to say i mean it's not right in the sense that there's some litigation pending but there's no reason why they shouldn't it's right in the sense of there's no legal there's no litigation i would say we'll cross that bridge when we get to it our position totally unexplained for reasons known only to ourselves it's like over the nd two thousand and fifteen and that's fine if that's their position and then the defendant can go and take whatever legal steps the defendant wants to take in response to that it just seems to me that if it is the case that the bureau of prisons looks and says oh we didn't know about these facts if those are the facts against forty one months of credit then this whole appeal goes away right and that's why shouldn't the government writ large not your office why shouldn't the government want that to be worked out and then they take the position no she's wrong that's not really the way the statute should be read well fine i don't think that issue has been properly raised to us and i don't think it's for us to do it's for the bureau of prisons to do and only for the courts to do  that's the whole problem here  we'll just assume that within one week of the receipt of a response which you will file with us i will hear from mr bennett but before you go can i ask you about your threshold argument was waiver i assume for the argument that mr bennett prevails after all this business before the bureau of prisons were to leave us in your view does that mean that the sens so i think if you think trying to think through it analytically i i would want to think about whether the waiver would cover but if we're talking about a credit that's a question of how the thirty years of what is thirty be thirty years is the lowest sentence that's a right no one has waived any issue with respect to how the bureau of prisons will calculate the beginning and date of a thirty year sentence and judge gengel meyer did not say this man must been thirty years in prison and therefore i'm giving him which he had the perfect right to do under the statutory maximum thirty years and forty one months because i know the bureau of prisons going to credit him with forty one months and it would be shocking and disturbing if he got out whatever date with good time credits he would get out with thirty years rather than with thirty years and forty one months right i mean no one was isn't right to do the same quite apart from what it does we'd like to know what the effect is as a matter of law on this appeal yes yeah and that may take us back to the waiver question may not but whatever it is it takes us back to we look will agree what the relevant dates are not what the significance of them are but what they are so that if she says in her view what's relevant is the date custody began you will can sort out judgment in the majority decision there the court says congress made clear its desire to run twenty four c enhancements consecutively to all other prison terms judge justice ginsburg and the abbott decision the five that there is only one gun conviction there's a single conviction nine hundred and twenty four dollars c is intended to avoid double counting so you can't do state time on a gun charge and get credit for that state time on a federal gun charge here he hasn't even gotten single credit for that forty one months he spent forty one months three and a half years in custody for a for the very charge for which he pleaded guilty in federal court and for which he got a sixty month sentence and none of that forty one months counts toward it on the harmless error issue which is that mr nicholas talking about how i heard his discussion of judge on miers comment about the thirty years i would also point out that at the point when judge uncle meyer was noting that the thirty years had to be consecutive to the five year drug term imposed in the northern district that though it was mandatory there was also a compelling a compelling argument to impose that even if it weren't mandatory to me what that says it's not an unequivocal announcement that the sentence absolutely be the same irrespective of this issue that the parties have been arguing over and the just case which i believe judge could run as was on that panel where the judge it was a child sex trafficking case and the judge on a sentencing guidelines issue express noted that it was an open question and he was curing it up to the appellate court but no matter how the decision came down from the circuit he would absolutely nevertheless give the same sixty five year sentence that is an unequivocal statement that the sentence would be the same the record here does