that morning your honour's my name is anjali percussion i am a teaching fellow at the georgetown appellate education program i'd like to introduce my student jennifer sachem miss astron will be arguing the case a student council on behalf of and with the permission of appellant robert finds thank you thank you concurrent sentence under eighteen u s c section thirty five eighty four and u s sentencing guidelines section five g one point three c which govern the imposition of multiple terms of in prison the bureau prisons is required to implement that sentence but has made a mistake in failing to count the nineteen month period between mr barnes state and federal sentencing this court should reverse the holding of the district court for three reasons first the sentencing court's authority to impose a fully concur in a sentence is derived from the statute guideline and application of that authority gives the court broad discretion to make the sentence concurrent to achieve a just an appropriate on their own what in the language of the court's order indicates the court intended to impose a fully concurrent sentence as opposed to simply a sentence that began to be current from the day your honor defense counsel at the time of the sentencing hearing request that the sentence be made to run concurrent with the decade and a half mr barnes was serving in state custody that coupled with the court's agreement of that framing and the government's lack of objection in that case demonstrates that everyone was talking about a sentence that was ill but the court speaks the roots orders so what in the court's order indicates an intent to impose what you refer to as a parolee concurren sentencing order itself your honor captures the essence of the conversation at the sentencing transcript that better luminance these points because of the dialogue between both the parties and the court itself so what part of the order best captures the essence of what happened at the hearing what language the use of the term concurrent itself in the order reflects the discussion from the sentencing hearing that concurrent was used in a way that captures the entirety of the fifteen of the decade and a half again with the direct quote from the transcript but captures the entirety of mr brown's state sent you do understand the problem though the fact that the judge used the term concurrent in the order doesn't say anything about when it begins correct your honor but in cases such as rios energy  court has looked at the entirety of the circumstances of the proceedings in order to make a determination about what the intent was in a particular situation accordingly looking at not only the order but also the sentencing transcript in that discussion illuminates not only defense counsel's request which was repeated twice regarding the decade and a half but also judge nickerson's framing of the inquiry which was that he was using five g one chant of the sentencing court in the first instance do you want us to determine what the sentence in court and ours your honor in rio know the third circuit determined that that was a quote that was it was essentially legal quote essentially legal in nature and was a determination that could be upon plenary review by the court of appeal in this particular situation the it was not an issue that was raised below by the government you know if we rolled in your in your favor or sit in the district court decide that in the first instance here what think it's also important to note that in this situation there was a thirty month three three month period between the time mr brown submitted his a p s petition and a final determination by the district court because of that delay missed if our calculations are read upon by approved by this court mr barnes would have been eligible for community release as of last year and fully released in may of this year as such we request the what if anything cap and which is sort of the threshold a threshold question if i'm understanding your question correctly your honor if you're asking about what not what in the record reflects the court's intent no no i think the question i think the question is what in the court's order i can your honor i can review the language again but our position is that the consistent reading of concurrent from the order as associated with that broader dialogue during the sentencing hearing demonstrates that intent thank you thank you additionally that broader framing of defense counsel request which was clearly for a full fully concurrent sentence was not objected to by the government and noting that the sentencing court's authority to impose such a sentence is derived directly from the  authority gives the court project's freshened to make a sentence concurrent to achieve a just an appropriate sentence and there is no limits or prohibition in the statute or guideline that that would prevent the court from achieving that goal by and federal offenses that occurred within a one month time period if you to calculate help me understand just how this plays out because you have to look at a lot of different date yes ron if you factor concurrent to the state sentence that was being served ok thank you the fact that the sentencing dates were scheduled nineteen months apart should not be the cause or should not be what determines how long mr barnes spends in prison then i just go back to my question for a moment about the nine twenty four c the reason i'm having a little bit of trouble with that in mind or standing in is that by statute a nine twenty four c cannot run concurrently with any other sentence so regardless of what the district court may have intended it was not with as i understand it explained to me if i'm wrong it couldn't pass statute make that not twenty four c one concurrently it you and it might make a difference to the outcome i  d my understanding is is incorrect that's fine too can explain it to me when you come back i am just to additionally note the supreme court in suster affirms the authority of thirty five eighty four specific saying quote thirty five eighty four specifically addresses decisions about concurrent and consecutive sentences and makes no mention of the bureau's role in the process the implication is that no such rule exists additionally the government's interpretation of thirty five eighty four i flawed for several reasons first the government reads in the term portion where the statute and guidelines say i'm just charged term of imprisonment that interpretation is incorrect because both under th statute and i like the i apologise under the guidelines the application notes demonstrate that the there is the ability to run a fully concurrent sentence from the start of the preexisting term ok what language are you relying on demonstrates that there is a fully concurrent sentence as we're just writing possible under that application no consistent reading of both and just charge term of imprisonment as well as a consistent reading  concurrent across both of those provisions kirby doesn't it seems to me that application note might mean that the court could adjust the sentence for the period of imprisonment already served in other words if the court had wanted to give was thinking that one year was appropriate for the sentence but the defendant had already served six months on the state sentence the court could then give the defendant a six month sentence you see what i'm saying rather than say i give you a year to run fully concur and i maybe that's part of your argument of the ambiguity but that does the ambiguity of an application note get you anywhere as opposed to an ambiguity  cases it's what we were just speaking to your honor that concurrent is not the the the firman court does not address or reconcile the readings of b and c and so under its analysis the term concurrent can have one meaning in b and a which the supreme court in which noted and which is also stated in the application notes themselves regarding language to achieve a reasonable punishment and avoid unwanted  also when you sit down if you look at j one thirty four and one thirty five which is the judgment in this case the court in fact ordered the nine twenty four c to run consecutive with othe source for supporting authority has been consistent reading of the guidelines that selves over time in the preborn version of the guidelines utilized hypothetical calculations to achieve a fully current sentence the guidelines time the current guidelines and the time period after mr barnes that were concurrent is combined with a list actor i apologize is the uses a downward departure in the situation with mr bunce the work in her aunt is combined with a list of factors but no specific methodology and again contrast in provisions b and c a five to one point three in this case the provision to be a mandatory concurrent sentence or as c provides the authority and discretion for the court to exercise it's judgment and you that utilizes the fact in this report has also in its mostly decision noted that the guidelines include the type and length of the prior industry term the time served which court and when sentencing occurred as well as any other circumstance so if you are you know getting back to what i'm worried about your physician assess that anytime a district under your analysis anytime a district court says to run concurrently under our analysis it has to be fully concurrent or we look to the sentencing hearing to determine what the court really meant what's the  should look at the facts and circumstances which in this case based on the exchange for a demonstrated in the sentencing transcript which can be read consistently with the order itself using the term concurrent demonstrates according go order any kind of a conclusive wait if we have to go behind a court order to find out what the district court really intended to you i mean you see the problem with that present time pretty explicit the question yes can we read some ambiguity into that based on what was said during the hearing again your honor because the term concurrent itself can include both of those  meanings we should look to the sentencing transcripts in the situation which again is consistent with the order and i will resist i apologize for going home i nodded off we ask questions and that's exactly the right thing federal sentence to include nineteen months that barnes had served on a preexisting and unrelated state sentence and that nineteen month period ran from the date of  no do you agree that the district court and the government as well apparently intended part of the sentence to run concurrently the government did not object so the government agreed to a federal sentence to run concurrently with the states and the government did not agree to the federal sentence starting to run at the beginning of the preexisting states what about twenty four c can't run concurrently with any other sentence then at least that five years of the consecutive nine twenty four c is can't have any other sentence run concurrently with it is that correct i would agree with mean concurrent to the beginning of a preexisting states and that means concurrent or the date it's imposed going forward also to hear the district court recognized that barnes could not receive credit for this time period because it would have been an impermissible double credit under eighteen u s c thirty five eighty five b so that allows the be appealed to grant prior custody credit to those defendants so long as that credit hasn't been already credited to another state sentence so here bourne's had already seen receive that credit on a state sentence so he couldn't receive it on his federal sentence he was prohibited for that reason so here the district court correctly denied the twenty two forty one sentencing court's intent and imposition of the sentence which should be brought in a twenty to fifty five petition before the sentencing court not in a twenty to forty one petition and beyond that the remedy in this case would be for the sentencing court to reissue its order to grant an adjustment or barnes on his sentence the remedy is not ordering the bureau of prisons give him credit for this time serve would not be entitled to this one thousand month credit now barnes relies on a two thousand and two case rouge says right out of the third circuit to argue that the sentencing guidelines of section c gives a sensing court the federal offense level so in a case like that the defendant should receive credit for that time period survey in order to avoid a double punishment because he's being punished for the same offense in two separate prosecution subsection c cases are those where the the offenses are unrelated so where in this case all the parties agree that subsection c applied in that cases because the offenses are not the same a defendant should not be able to see the credit for that time already served on an unrelated state sentence and in this case the sentencing court order the sentence the federal sends to run concurrently with the sentence now being served in the state system there was no mention by the sentencing court in its judgment order or at sentencing that this defendant was also to to receive credit for time served and that was the focus of the third circuit's opinion and rouge yana that sentencing court specifically said this defendant is to get a concurrent sentence in his to also receive credit for time already served on that prior sentence and that did not happen here in this court the sentencing court if sentence that was in the middle of the guidelines range not even at the bottom of the guidelines range the only other thing i would like to address at this point is in arms reply brief they contend that the government waive the ability to raise counterarguments that were not raised to the district court below and that would be a good argument to make if the government were the power in this case but were not and so that proposition  under the law so for that reason the district court's decision should be affirmed unless there are any other questions thank you very much those seven years took place from june two thousand and eleven to june two thousand and seventeen which would have been six years with good time at the eighty five percent ratio or june two thousand and eighteen it's no good time was credited and we can provide supplemental briefing that outlines the timing of the sentences to demonstrate that even without any of the time credit the calculation would only be to june instead of may as we had outlined in our briefing additionally i'd like to make three other points regarding the government's response in this case first the government asserts that there the court should have adjusted but this court in moseley recognized that there is no math requirement in that there isn't any margy abhi in the second circuit recognized that there is no particular verbal formular and that is required here doing a downward departure would have actually which was not explicitly authorized under the guidelines as it relates to mr barnes except in a very narrow circumstance outlined in application seven which would have led to the presumption by the court that it could not do a downward departure except for that narrow circumstance as such the court's remaining alternative was to set a timeframe within the guideline range and run that concurrently additionally it's important to note that this is appropriately a twenty two forty one petition the we are challenging in this case is the bureau's implementation of that sentence and not the courts under and not the application of the you know factors or something else to challenge the sentence itself and the supreme court inserts are also recognized that twenty to forty one was the appropriate relief for this type of situation additionally  we are not to baiting in any way that this is a see case in the guidelines simply drawing analogies between b and c that demonstrates the use the consistent use in reading of the term concurrent as well ultimately the rule we are requesting this court adopt is that the sentencing court when issuing when intending in issuing a concurrent order under the ninety five zero three guidelines that they run concurrent from the start that it run concurrently from the start of the previously imports and and that the bureau must calculate the time within within the imposition of the federal sentence given that mr barnes would have been eligible for community release despite the questions regarding one nine hundred twenty four c would be i would already be eligible for community release under either calculation we asked this court and to consider it to we request this court we request this court reversed the holding of the district court in determining that judge nickerson had both the authority to issue it fully concurrent sentence as well as the intent to do so as demonstrated  within the sentencing transcript and the framing of the defense counsel and the judge given your able and conscientious representation before this court thank you