welcome to day two of the sitting of this particular panel we have three cases this morning we'll hear the first two in politic recess brief recess before hearing the third main thing i'll proceed further our first case of the day is united states versus friend she's  isn't a valid predicate for applying guidelines section two k two point one a for it that's a question of laws just park show has told us it's an application of a lot of facts specifically in their degrees sets of authorities that demonstrate that to be the case in ascending order of specificity you've got cases like or no less home and standard and this court's decision in trinity industries that tell us when you have undisputed facts and the question  applied i believe that's exactly right that you might like the loud shouting if you think it's a bad rule but that still wouldn't help you unless on backcourt joints in a shout i don't if if my present process which maybe doesn't as you already articulate not apply the court doesn't need to reach the issue that's that's really even going to sound however i was listening to talk about the other plane error criteria because lopez is functionally the state of the government's main opposition to correcting so i just want to reassure the court the other the actual a lot of plane or a criteria are satisfied without any serious question in this case the question as to clarity an definitively the case here if you're honest can look and see again on the timeline of reproduce the text there subsequent to sustain it all these people make this mistake if it's so obvious you know probation the judge the lawyers i got him i cannot say  think i i'm a civil practitioner and i was appointed in this case after the the nose of appeals filed so i have no real insight into how things occurred that somebody missed this you don't talk to the trial practitioner was sort of not raised sort of raised but it was raised as to the credit for time served so the retrospective issue of concurrency it was not raised as to the prospect of going forward and sure i agree the two k two point one a for a guideline we just remand from re sentencing we don't need to reteach all the issues do i agree with that your honor with one caveat and that is i've asked the court to make express that the only thing is if we acted kind of like we're only ray manning to reconsider this the first point that you create two point one then there might be some confusion but if we say full recent thing that's a term of art our directions of slavery we're very concerned about supreme court direction to your point judge parsnip because two k two point one would be a potential disqualifier as the government argued for the sentence concurrency issue the fact if if you are going to reverse on the to take two point one planar i agree it would suggest that you need not reach this as well as the point of saying if you're going to remain for forty sentencing it's off the table but i thought that things have state custody and is now in federal custody three rivers he completed his state's that is the the implication of that but i would want to investigate that with the probation office and find out from the state authorities precisely what the situation is and whether he is actually complete ok and ok so we don't know that i apologize your honor i do no mean there was a little confusion in the district court as to whether it was really finding that it was really finding it to be relevant conduct because no one hand that seemed to be the case in the criminal right to find that they didn't facilitate the commission debates so that has no bearing on the question of whether that possession conduct was in the same course of conduct and that's the relevant conduct description for one the one point three that's a much broader set of things and so finding that the guns did not facilitate the aggravated assault does not imply that they were not that their possession was not within the same course of conduct and that's that's the answer to helpful is there any dispute about any of these days is already fact for the disc because the whole notion of lopez's you need to do some fact finding you need to raise that with a district court of this record is a fact finding there not been here that were that's be previously it was if any part of the office occurred you know and there was a prior conviction or a conviction that happened even after that contact it would have been alright but then turned in minutes here and then the guy then was admitted to say that the incident office was subsequent to sustaining one conviction for a crime of violence and that would have been evading arrest with a motor vehicle  so there was a kill why is that a fact question i mean again we don't have any fact question about when he sustained the conviction we don't have any backwash an about when he committed the instant offense sometimes we could augury with you sometimes we could if it was sunk and long lasting conspiracy when did it begin and why did it in all of that here none of this is disputed there would be no facts for the district court to resolve so i don't really understand how lopez even though about you know whether we agree with lopez or not and we know we have to follow it it doesn't seem relevant to your but i i respect that you disagree some try to understand that disagreement well i believe that when it happened in in considering all of this they're set on piece of paper seem very clear however because of the length of time involved and the warrants that were issued and i think it was confusing to the probation officer  in the actual there are cases that say whether or not a date of an offense occurred that that is not a factual issue as opposing counsel pointed out that there are others where we know you know a bomb was placed but we don't know when and the bomb went off sometime later or maybe the timing there could be a dispute or something again a conspiracy selling drugs for some long period of time so so forth whatever the beginning and ending of that which could make a difference might be in doubt but here i'm i'm not seeing that to be the case here so it's kind of like almost a summary judgment standard of you know is there a not why doesn't that apply of locus of well in evading arrest case can be a continuous opposites but whether or not that would  circumvent the application of a of an error that was plain or obvious is i think a different question but certainly as a continuing office the office continu the united states versus burden and in that case the court held that the term apart felony conviction included a conviction that was not sustained until after the defendant committed is an o change in the law whether or not that makes this airplane or obvious it is the question obviously and also there the other criteria the plane error with or not this affected his substantial rights and whether or not the court can problem of the plain error standard there found that this did not that the error had been playing that it did not affect the fairness and integrity of the conviction and they i don't think the court would have to do anything on that it it's just but what about the statement by the district judge that this was it didn't say wasn't relevant conduct but he didn't kate there was no connection in maybe suggesting he would not find this was going to conduct we need to address  sort of thing one way or the other to we need to address at all whether there's relevant conduct involved here in light of what the judge said in a somewhat different context  i'm i don't think the court needs to address it but i think the court certainly could and could certainly find that as a probation officer calculated the can't i do know that in general about this he wouldn't have been set to federal detention it is a case for still pending but whether or not that applied here i don't know so ordinarily sent back to state finishes the term state comes back to federal and so if he's back in federal that would imply usually usually that the state is fully sir but that's the sort of thing of course a district court could explore if we do ring and exactly and that you your honor i don't really have any substantial points out of the bottle unless you want to hear about goodman and the fact that the sensing commission abrogate it by its own actions but what you have to factor in is whether you like what you've been hearing from the bench and whether you want to risk saying anything further i believe your honor the discussion would be the better part so if the court doesn't have any questions all right count i would simply point out you hadn't received the notice yet i didn't receive the right as well i would just simply remind you that twenty eight day letters are not three argue your case or just to cite new authority to us and of course the authority you cited is from twenty leave to fall asleep on grief if that's appropriate we may or may not grant that but that's the right vehicle to raise something that you feel like you should have before but didn't and then we can rule on that i will say if you discover a case that's directly on point you've got to let us know about it somehow but that doesn't allow for re arguing that's the piece of it if you had said i apologize i did not find x versus y before here it is that would cause less problems than when you have three pages of argument