additional issue claiming that mr martin was not eligible for release based on his offense conduct an issue that it conceded and an issue that has been decided against the government by every group that to address it i think the county is now the facts and i think the hundred and eighty miles term instead of a two hundred and ten month term now this kind of relief has been afforded and maybe several if that force in my including district court in this circuit and elsewhere there's nothing unusual about it finish his supervised release and it's then committed new crimes and been sentenced and then moved for f s a relief i know that sounds pretty farfetched but it had been moved for relief while in different charges and serving a diff different sentence and just that sentence just happens to be consecutive to the earlier one i don't know how was that any different than what the situation because he still still sentence and there was some constitutional defect in his original charge that held him for the time that it actually serve that he served him and that sentence was complete would he be entitled to hate us relief based on a constitutional blue mr martin brings the hay vs playing with regard to something that occurred the devil's unconstitutional with regard to his drug conviction for which he thought relief judge kogan given the fact that he had served his s still be released would still be available don't says this court held in holloway that even though the defendant there was no consecutive been there the defendant had finished his sentence and because they couldn't afford him any relief on  they could not if the court cannot afford any relief on on the prison term however the case still was not moot because he could get some relief on his supervised release term so it's  legal error now on the motion for reconsideration the court read here to its ruling again relying relying on leg error western district of new york case that held that god my one the one incorrectly  there's no such thing as banking time against a future ascension the government concedes in a brief that any judge think consider and it's free to reject any request for a lower sentence based on some past unfairness but there's no such thing as automatic bank time  e me and you have one more minute of your total time ok and then it makes so little sense that it's actually backwards because if there were some judge out there who would give credit on  sharon the discretionary ruling was based on the same legal reason it referred to just what it called the think policy reason which were these legal grounds importing guideline one b th prohibition and the bank good morning your honour's my name is andre spector not represent the government on the supreme mr martin is in prison today with a project the release date of this coming september not because he's serving a sentence from a crack related offense but because he committed two additional federal crimes and either the fair or something act nor the st step was not for defendants like mr martin leaders of large scale violent drug trafficking operations who are in prison not for dealing relatively small amounts of crack cocaine but because they could not stop committing crimes even while incarcerated now there are two interesting statutory questions presented by mr martin cecile one of which i recognize a prior panel that included judge leslie heard but this court did not reach either of those posed offense conduct was somehow irrelevant in addition court had a reason basis for exercising its decision making authority a lesser honors of questions about the statutory issues i will roughen our submission for those arguments and if work we're looking at single in frustration or the separate well there's no dispute your honor that he has finished serving his time as a between somewhere between last september and december the parties agree on that and that he began at that point serving the two consecutive sentences the receipt that he has been asked serving the time for a couple offense with the reason that they're sort of aggregators because of the way the b o c you know aggregate sentence it's not because he's still we still don't know what he's his sentence with regard to the drug conviction was two hundred and ten months or whatever it was correct correct i mean there's a there's the sentence the judgment put him in prison for a definitive number of months to the fact that he does something wrong in prison later on and gets adjudicated something else produces additional sentences but the test that are then calculated by judicial  conscious of law as to whether they're consecutive or he can get credit for time being served on both of them at the same time correct correct so i mean there's a tendency to think about the sentence as the time he's doing in terms of one continuous thing but the sentences the sentence the term sentence is a distinct legal matter defined in the statute so that when he originally went to jail there was a judgment of sentence that was two hundred and ten months that the case that's exactly right all right now let me ask you this if he was still serving the two hundred and ten months and had  you still doing time days were being credited against the drug sentence that was what was holding him there at that moment in time he's eligible for a reduction in the sentence which could have gone below the amount the defendant it was all about the relief that was available holloway the mutinous part of it was a was how can we grant how can we really can really still be granted and we can't do anything about this the prison sentence because he's already been released the court ruled but he can still get released on his on his supervised release so it's not moot here or there can't in this case it's not moot because the defendant can still get released release even on his  believe you're not being you're not being inappropriate at the switch a difficulty of the circumstances that we're in so please and we're just i'm just trying to figure this out like my colleagues are but just tell me if he had released could he have gone to a disk or judge and said i want to reduce my sentence that i serve for the drug conviction you know because in that case he would it's not because he wouldn't be eligible into the congress certainly intended d intended because it did not bar a reduction below time served although that had been barred in the guidelines and everybody knew that such a thing could exist it did not part because of course it intended for someone doing foresee this is like that this is like that situation it's true that it's a bit different because he incurred those convictions later but that's something the judge can accept to take into consideration the exercise of the discretion it is not a legitimate basis to deny relief legally ok so just summing up there's nothing in the language of the act that prohibits a sentence to lower than time served in so the only arguments against