judicial officer has federal agents to take an individual gets custody then you have a mystery ability to execute that would judge bats made it very clear that she was not commanding that the officers at this with the state judge in two thousand and seven take the mystery guy into custody you know your i respectfully disagree with that on october two thousand and be taken into state into federal custody that created their obligation to do so the state court and with the bridge the district attorney and my dad agreed that mr guy could go into federal custody in recognition of the previous think that all sentence so judge bats as of september of two thousand and seven the only clear record evidence is that she had directed the marshals to take the survey to custody it's only two thousand and thirteen the judge that honor it's entirely possible that he would have because the state judge might not have been able to give him any less time based on the record before it so the fact is that mr guy was from where he was released it was right actually around the time  clarify one point the state court and the district attorney promised mr guy as a condition of his guilty plea that he would be turned over to federal custody so the secret never intended that mr guy would serve for some certainly can deliver it's undisputed that the federal government had primary custody of mr guy up until october two thousand and six when he was there were some bond by judge bats our position is that he was  in primary custody of the federal government in september of two thousand and seven because the only reason that he wasn't actually in federal custody was that the marshals ignored judge bass's order to take in a custody and there's no evidence that eleventh two thousand and two thousand and six mr guy had been arrested on the state charges that he was eventually sentenced to ten years for and then that was dropped on the seventh but at that time judge bassett ordered the marshals taken into custody it that you had a prosecutor come in in twenty thirteen state level and say you know what he's saying is really what i intended to know so with regard to what was going to happen here why wasn't that prosecutor recommended against i mean the idea of the whole thing is comedy here between federal and state yes you know if the state says hey we really didn't mean that we were thinking that some of his federal time would fact be concurrently served in state prison that would seem to have helped i don't know why that person wasn't brought up before back when the board position was married i can't i can't speculate as to why that tickler person now it's later and you're asking yourself why you're trying to get communication between federal and state officials seemed at the time to broaden petition to best time optimal time in order to bring this prosecutor forward saying i don't think justice for cho could have made that determination but what he did here the government's position here is essentially saying that because mr guy was because the state had ordered him released in a courtroom instead  immediately outside that there was no connection of the sentence and that's just an absurd result it turns on a technical formality rather than looking at the substance of what the stake what was really trying to accomplish just   you know september eleventh two thousand and seven than simply the issue of the body as a factor in  transcript from the sentencing proceeding in the state court on september eleventh two thousand and seven indicates that federal federal agents close quote were present in the courtroom you know that the you know we were i'm sorry you don't even know w counsel at the sentencing but what should he have done if he perceived at that time that in fact he should be in federal more when he was working out the plea in the new york supreme court he wanted to serve ten years total on his previously impose federal  years later at the reset and saying before a judge fitzgerald in april of two thousand and thirteen the ag or dorothy indicated on the record at that time her and he wanted to have that he wanted to have his ten years or the state sentence to run concurrent with the federal so she said i was fine with that he also wanted to spend his to the state i would disagree with any suggestion that the place of the can for it to serve his state since was a critical part of any agreement that's not what judge that's general seem to be indicating the promise he made was she gave ten years and that that would be concurrent with the previously imposed federal sentence of but it hadn't commenced running that's what i mean yeah that's right yes it hadn't commenced running yet so until the federal unless the federal sentence commences first the state court judge can't control how the federal  your position they ross that primary jurisdiction when the state then took physical custody of them the judge bat's relinquished primary jurisdiction over mr guy when he was released on bond and that had been the situation ever since is that oral arrest well but they still had federal court had not only primary jurisdiction but exclusive jurisdiction over him right they could have rounded him up at any time for violating the conditions  that's right but when she was primary jurisdiction over him was when he was arrested on the state triage and brought into state custody they lose primary jurisdiction over him when he's a when he's actually arrested by the state that's right but they've already relinquished primary jurisdiction over him by releasing him on bar and at that point yes they could have picked him up at any time at that point but he once he was out on bond and the earliest that he could have been released from his ten year sentence was april twenty seventh twenty ten that's the earliest he could have been released  state place of incarceration for service of the federal sentence that would have the effect of advancing the commencement of the federal sentance the b o p s goes back to judge if we grant this request that will be zero p will start the commencement of hysterical sentence added that will result in the immediate expiration of that federal sentence judge what's your recommendation judge that's right back in the most unfair to the judge the court does not approve now it's not just a matter  charges whereas the defendant is currently incarcerated at a facility and records live on as a result of the arrest but b l has been set it's hereby ordered that the defendant permitted to remain out on bail and should voluntarily surrender in a few months time he's gone out and committed while he's been arrested on charges of armed robbery state as a federal judge says no i don't agree with that i don't recommend that the b o p very seldom it's my understanding very seldom makes granting non protein as a nation absence the federal sentencing judge bat's head not only imposed her sentence but if he had been actually taken into federal custody and had begun serving his federal sentence and then got caught up honestly tried and justice for a stroll right after he was in serving under the b o p s computation by starting his sentence on the date that he was actually released from his reduced sentence the difference here is seven months and the reason for that is that when he twenty twelve he's ash really released may second of twenty thirteen that's a difference of seven months now that difference he's serving exactly the amount of time that the state court intended he was serving exactly the amount of time that the federal court intended the seventh month difference left after he was told from the first proceeding in state that this is what you have to do you need to go to the federal authorities and ask for a non  state facility and if that's granted that will achieve concurrence for concurrency between the two sentences if mr guy had made that arden request sometime in twenty eleven request was denied he think goes back to state court then gets a reduction of the sentence because the reduction of the sentence to the seven years that he still can be released from that seven year sentence until october third of twenty twelve cell the difference between the additional time that he's serving the circumstances of that under the bureau's calculation when the bureau starts the the the commencement date of his federal sentence under the federal statute and consecutive per judge betts clearly express your honor i would just say the district court judge here correctly accepted it examined except that you bureau's sentence computation for this justice for child partial remedy that he granted later so what the government's doing is saying that the harm he calculated from the standpoint of what justice fitzgerald did it to give mr guy some state kept custody of him and he didn't straw out of that courtroom when the marshals quite reasonably concluded that judge batts was what it was not triggered the state kept actual custody but that's because the federal agents did not take him into their custody had wanted him to go into federal custody and i need to add one point which is that the federal government never violated mr guy on the shares of his the terms of his bail for killing the robbery essentially what is happening here is the government is taking