the next case that we have scheduled for argument is united states versus ramallah docket nineteen dutch one thousand two hundred and twenty one counsel if you're ready to begin good morning your honour's and ma'am please the court i would like to reserve two one circuit find there was no plane air that isn't that really what's kind of important here even assuming there was air how was a plane we have been we are operating under a plane  if the traditional plain error standard does apply we maintain that the errors still was playing i believe the two decisions out of other circuits your honor is referring to or let's talk about the circuit for reasons the st is because there is no intent made a preservation in that case the nd is because there was no argument by the parties that the sentence was even legal and therefore satisfied different clean air standard and there's no sentence so they were so specific the court was about the supreme court about saying we're not going to resolve this issue it may have offered some commentary on it but i'm wondering how does that sentence by itself he does not speak one way or the other to the concurrent consecutive determination nowhere in sets or does it say that that that last sentence in which the watson car lies creates a rd common scenario it's merely aspect of plane air and i should mention that here because like i don't i think by your very discussion here you indicated it's not well settled the u s supreme court in souter like  is given to the future sentencing judge what the footnote for and sets her says is that because that decision is given to the nd at the later sentencing judge it could therefore be argued that the st there's an implied prohibition of st i have not seen any citation by the government that says footnotes are to be considered any less than the rest of the opinion or any considered any implied and this court found that that was enough in that case at least to be plain and we maintain that under the under setzer's interpretation and guidance es an issue of a future federal sentence was the one her your honor no as of yesterday mr mone has not been charged and so let me ask you this way and maybe this is too practical and understand big issues are at stake here but we except that your argument on prong one that indeed there was there that the district court could not consecutively sentence in advance of another federal judge is there any harm the rule is announced next time around it's plainer and mr ramon doesn't do any more time that is a potential outcome yes well how how long is passed and he's not been charged if he was sentenced in june of two thousand and nineteen and his sentence runs in june two thousand and twenty one so he could still be charged and sentenced and at that point of course it would matter the nd the nd judge could indeed do that and then there would be two conflicting orders why would they conflict one when the say it runs consecutive one would say the same term runs concur that if it ran consecutive to a concurren he'd have to serve that amount of time would he not at least if i understand your honour's question it at least the original amount of time i think it would it would be confusing for the bureau of prisons to long has been long understood that are said to be authority in which a sentencing court can make the concurrent consecutive decision as sentences they impose or that have already been imposed in other proceedings and that's the context in which issue however the government did not race play an error on appeal and so that circuit court decided that well it could apply plain or it was all using its discretion to not under cases like the wainwright case i did enter briefly because it is new legal sentence in excess of the district court's authority under three thousand five hundred and eighty four the traditional planar requirements need not be  i'd like to focus on the nd prong of the planer test which is the requirement that mr ramon has his burden before we get there and we take it chronologically she says it's an illegal sentence and if it's illegal there is no need to go through the planer analysis what about th i three responses your honor st this is the concept of an illegal sentence does not apply here number two the concept of an illegal sentence should not apply here and rd even if these the concept of an illegal  that is well established in the law this court has also indicated that a in the legal sentence in the restitution concept context is one where the restitution order is for an amount greater than the total loss caused by the often so there is the legal sentence concept in restitution matters this court's also held that an illegal sentence and is also sentence where the judgment of conviction did not authorize the sentence concept of illegal sentences is is narrowly prescribed it hasn't been expanded beyond certain small types certain small area so in the in the legal sentence context it's the type of sentence which the the district court lacked the statutory authority to impose mr ramon is is arguing something entirely different here pete pearce to be arguing that the statu sentence to an anticipated federal sentence to determine if that consecutive sentence was an illegal sentence to the contrary all the courts of appeals that have addressed this issue have reviewed the sentence for where the issue would have been resolved addressed under the plane air standard no court has ever stated that this issue is one there which is reviewed to determine if the sentence is an illegal sentence so st the concept doesn't apply nd the concept of in legal and should not apply here if it is applied here it would essentially swallow the plane error standard or review mr ramon is trying to expand the concept of a plane air sentence beyond the a a reversible plain error and i didn't cite these cases in my answer brief but i happy to submit a twenty eight jail letter the this court's decision in united states vs james held that this court's decision in the united states versus gonzales  where to kill that and the wainwright case which is cited in the briefing this court also stated that that even if the defendant below waived the issue  even if it's even if he's waived it and he has no right to appellate review that in the legal sentence may nevertheless be reviewed by this court so so that the idea of a legal sentence is far beyond the the the  review in the considerations this court makes in evaluating a sentence under the plain error standard so an illegal sentence may review be reviewed even if there's a complete waiver we submit that the illegal sentence concept should not be to it anticipated federal sentence footnote four does not carry the day for mr ramon because in that sentence rather yes in that footnote the supreme court left the question open as the th circuit and watson recognized the judge here said concurrent rather than consecutive would anything be different at all for mr ramallah today no your honor because he has not been sentenced for the subsequent crime as as your honor as you pointed out  during counsel's statements there has not been any any sentence issued in it for the underlying offense so if there was any harm here it was he didn't he wasn't there i'm sorry there was no harm here any error by the district court was harmless because he would be serving that time today regardless yes that's right if the court has no other questions on this recognized that footnote four and setser was merely the court's demonstrate the supreme court's demonstration that it understood that sets or was not dictating a clear answer to the question as to whether a sentence consecutive district court had the authority to make a sentence consecutive to an anticipated state since there is nothing in the in this court's wins decision to suggest that that reasoning would not apply just as well to a an anticipated federal sentence my nd point is that even if you go outside of supreme court law in this court's long williams no other circuit has held under the plane air standard to review that a consecutive federal s consecutive sentence to a an anticipated federal sentence is plainly erroneous to the contrary all the circuits to address this have found no plain error where the issue was not preserved below he cited those cases the whims rather th  our brief but that was a case where the court review the issue for an abuse of discretion that was an unpublished decision and obey decision from the th that came out the year the year later it isn't is not helpful to the united explicit language in this is sets or pages to thirty four dollars it to two hundred and thirty five dollars and we also pointed out in our opening brief that the us sensing commission also has indicated that has not indicated that it's improper for a district court judge perhaps maybe the commission didn't didn't take that and take take that into into into consideration it there is there are indications in the in the guidelines however that that that this is something that would not be viewed as improper and as we pointed out in our answer brief the supreme court specifically in in the sensor case noted that later is not always better that there are three reasons why  later is not necessarily always better the supreme court's stated that that concept is overwhelmed by the text of the statute by the tradition of judicial sensing and also by the last information to issue a sentence consecutive to an anticipated future sentence that it's not always true that later is better because the st sentencing court may have that information available and so may be have the opportunity to make an informed decision  mpose federal sentence and then the nd judge would be in a position even if things had become much worse to decide whether to ignore their own judgment or by the opposite conclusion of what the  i'd also like to address the state's point about the difference between the legal sentence under the circuits president and romy a sentence under the soviets president president and i think that's us address by comparing two different cases in the way in right cases of restitution under the restitution statue the core order that that defended pay restitution for charges that didn't result in convictions and the corner this car determined that that was in excess of the court's authority into the restitution statue and therefore that sentence is illegal that is in contrast to the brown case also cited in our preview in which the court explained that that the error in that case was erroneous although not legal and that case it was a error in calculating the guidelines which still resulted in it with an in range sentence we submit that does it only become an illegal sentence once it has an effect in saying it's a consecutive sentence doesn't mean that the judge can order time be served and that's exactly what's happening right now i don't know that it consecutive as opposed to concurrent the day yesterday no i would say for mr alone that would be the same correct i have no other points to make unless you're owners have any other questions and the cases submitted counselor excuse