good afternoon william stevens appearing on behalf of kevin hakim may please the court judge miller repu to impose a kind of current sentence and kevin hoffman for the federal crime and the state crime of which mr hoffman had been convicted mr stevens is it in fact true that the state court case involved the same incident that is the basis of the crime here yet as it were the one that occurred on september fifth twenty five fourteen and didn't involve conduct that had occurred many times briefs which cited an earlier version of the sentencing guideline which required not only relevant conduct but something that enhanced the sentence as point three b says if subsection eight does not apply and the term of imprisonment resulted from another offense that is relevant conduct to the instant offense a conviction under the  concurrent the prior version of that guideline talked about not only that the kind of had to be overlapping relevant conduct but then the relevant information before it from the state trial and judge miller also reasoned that it didn't want to limit the state courts ability to impose a sufficient total punishment for h whether he's correct or not about how sentencing guideline five chief one point three applies it doesn't seem to matter so i think that that  a correct application of the guidelines is still an important element of it's a place to start and then you move on and to exercise of discretion using that thirty five fifty three factors or other factors that would that would inform the discretion so i think that which clearly do overlap with the with with the state sentence or with the state conviction at that point that the state court had imposed the sentence but  didn't judge miller leave it up to the state court to decide whether or not to be concurrent the sinister drusus more information whether or not to be concurrent state court could run concurrent with fifty years  that would be known to the state judge and not not known to him we had a pretty thorough sentencing process that included the forensic in  interview of the victim and of all of the other things that he cited so that we had a pretty pretty expansive view of the of the defendant's in effect the the federal punishment would have also resulted in in in double punishment if the state with the state imposed the consecutive sentence and that's and that i think is something that just miller was already in a position to evaluate but that that the starting place should have been with a correct interpretation of the guide like and then go forward with what ever other aggravating factors he may or may have seen  that judge wrote in or asked about whether this this this case involves the same case same conduct that was before the state court in my friend mr stevens has in his brief in here represented that it does and the fact is that it definitely does not the state court charged mr hoffman with at an eighteen month time period of molesting this little girl physically molesting the little girl from january first two thousand and twelve through september fifth two thousand and thirteen and the our charge was based on one day september fifth two thousand and thirteen last day of that time period and it was for production of child pornography it was not molesting the child it did not even depict molesting the child unlike the the situation that that was president in nanya that mr stevens referred to so the two charges are very distinct  and so the issue here is mr stevens would like this this case to be sent back to the district court for a third sentencing very when the district court has already stated that and our position is that that that is not necessary for purposes of judicial because to me but it also isn't necessary for purposes of double double sentencing or multiple sentencing as the district court as the court in this court in nonie a stated that where there was a similar situation where you've got molest charges and then a production offense that the state offense is punished to the abusive conduct itself while the federal offense punished for the memorial zation of the abuse  pornography and we don't even have that here because the the the depictions of the six year old girl in this case were were sexually were explicit but they didn't involve the abuse that she had been subject to by this man for an extended period of time and the if we would do what mr stevens would have us do that would subject this individual to absolutely no additional punishment for the federal offense which this court said in ninety s was a consideration should be a consideration so we're not we're not talking about double punishment here we're we're talking about two separate offenses and and as the district court said in this case it fall the guy at the advice of this court in hawkins that worry if are faced with a debatable guideline issue the court can bypass that issue and state on the record where whether it would have ruled the same if the debatable issue come out the other way that's what exactly what the court did here and it explained that the state court might have more information before it than then they had judge miller add and in this case there was perfect this is a perfect example of that because there was some confusion at the federal sentencing as to exactly what the period of time that was covered by the state court offense not be easily the state court judge would know that and knew that at the time of sentencing  d also the state court judge also had a better idea of what sort of time credit would be given the to the to mr kaufman and judge and the the state court found that mr hoffman i you know i'm i can explain a little bit more about the state courts reasoning but that's not in the record so i hesitate to do that  but in any event judge miller was in a good if i could sit it was in the best situation to determine whether or not who could make the call which court was in the best position to make it all and as sets or the supreme court said in the case someone has answered the question of consecutive versus concurrent sentence the issue is who will make that call and the federal district court is one possible court but it's not the only one and in this case judge miller found that the state court would have been in a better position and that the government asked that the the court uphold the m s rendered and january fifth two thousand and fifteen that's the first sentencing memorandum if you go through that memorandum it is plain that he is talking about the whole offense kind of not just the charge defense in the in the child pornography case but the sexual abuse that happened over a long period of time he review really are talking about the same and over and over laughing relevant kind i think that in that it becomes apparent from judge miller's rulings here and that the