unambiguous well let me stop you right there because why wouldn't we say that the oral pronouncement itself was ambiguous because the initial statement was of a term of years term of months rather that is more than what you're now advocating for there is ambiguity obviously introduced by the allocation of the that that number of months across the counts but why wouldn't we say that there's just ambiguity and that you would even in the oral pronouncement read the specific use of the legal term the legal term of art concurrent and concurrently or twice initially the district judge indicated that the the two counts were to run only partially concurrent and then decided no i'm sorry as to both counts to be served concurrently there's not the south that wouldn't anybody who left term as opposed to everything the judge said including taking the bench when she took the bench she said i don't like this deal right and i'm inclined to go i think it's not enough read made very clear i thought that she was very inclined to want us to look to that's really my question again well i would point the court to title eighteen united states code section thirty five eighty four specifically multiple counts of conviction are presumed to run concurrently unless the court on its own elects to have it partially run concurrent run wholly consecutive or affirm that presumption and run concurrent and here the court used that specific legal term of art which has meaning which has meaning to a criminal defendant to indicate that that but i  mean i hear you but i'm just i was struck by your statement at the outset that this is the sentence the oral pronouncement was clear and unambiguous because i don't see how you can say that when there is an obvious conflict between the first line and the second line where the court stated concurrently just it just goes to time the us timeliness i would argue as to the third written judgment which increases the only time in the record ever that the term consecutive was used was in the third written judgment which is nineteen days is that your position that the  she was not comfortable with the plea agreement she apparently after there was a discussion about the victim and she said reluctantly indicated she was going to accept it but didn't she state that she was going to impose a sentence of two hundred seventy six months right in the breakdown of the sentences where the actual sentences are served on both counts count one two hundred forty months count to thirty six months to be served initially a portion was only going to be concurrently so so your argument is two hundred forty month error but when there is a pronouncement of sentence using that legal term of art when it's clear concurrently that that sentence must must stand true especially in a situation where mr frazier leaves the court room and believes that he to serve a two it two hundred forty month confined wouldn't believe that when he was told over and over again that the judge was imposing a sentence of two hundred seventy six months that's why i just don't get your your position on that front there's ambiguity i'll grant you that but i don't see how you could say that it's just crystal clear that everybody who walked out of the courtroom that day thought he'd been sentenced to two hundred forty months well you're going to respect with the court's questions divorce this term and some somewhat avoid this term concurrently how is that squared how that i mean that's adding even more emphasis to that legal term of art here specifically how the sentences are to be served and the increase in sentence in the third written judgment that that is the first time in the record that again the legal term of art consecutive is ever used and the only way the are stronger argument that there is ambiguity in the oral pronouncement and that the written can't control because it enter too late we should send it back so that we don't have a lawful sentence respectfully no your honor i believe that the second written judgment supports a concurrent sentence and in that situation we would be on similar footing as garcia where the district court  parole i believe it's under forty two o five b in that case i'm sorry go ahead go ahead you know in that case the court stated that the citing to that statute cleared up the record and was crystal clear and we could not go back  and under rule thirty five motion brought by the government in that case where that district court judge came out and said i'm sorry you know my intent was always to sentence mr garcia to a term approach would it where he would be eligible for parole in twenty six years rather than ten if i understand your argument then the third judgment the judge signed which i guess would be the second amended judgment is of no effect at all yes your honor that that judgment was issued increases the sentence so the court was without jurisdiction to refresh my that i know there was a gap in time between the oral pronouncement and when the judge signed the various sentences were they all signed either on the same day or within a day of each other or am i mistaken eighteen days for the first judgement commitment order and the second judgement commitment order on the nineteenth day the third judgment the final judgment and commitment order was issued when was that issued the nine hundred nineteen days after sentencing same day as the first amended judgment the second judgment one day after you're on very briefly to to address the court's question it's not without that the court was without jurisdiction to issue that judgment under world thirty five even where a party makes a motion under world thirty five to correct the judgment within fourteen defense races two separate arguments here and i'll address some both in terms neither of arguments have merit as to the first argument regarding the the amount of imprisonment of this argument of two hundred forty months vs two hundred seventy six months as a threshold matter i would argue that defendant is barred by a valid appellate waiver specifically defended entered i guess and i'm sorry to just jump in but the reason i don't think that argument gets you anywhere is that we have a we have a problem when we look at just the oral pronouncement and just trying to figure out what was the sentence actually imposed somebody has to figure out to seventy six or to forty so it's not even a matter of his trying to challenge something on appeal that's barred by the waiver we just need to figure out what was the sentence right as a as a matter of just the the most basic threshold issue we just need to figure out what was the sentence the judge actually imposed in the in two hundred forty months on count one and thirty six months on count two consecutive we have to get there first you have to get there first was the oral pronouncement ambiguous my first argument would be that it isn't ambiguous given the totality of the record so what if we don't what if we're not persuaded by that given the totality of the record then it would be ambiguous to honor and write and so i'm just going to ask you for purposes of argument if you could assume that part please then what's your right there there is you're right and we're just a three judge panel so we one think we want to take that in bonk and talk about what jurisdictional really means because of course there's a whole lot of case law about how that term has been used over used in recent years but we're three judge panel and we have that binding authority right certainly so it's jurisdictional is it your position that one of those written orders was timely the i believe the first no none of them were i mean they're all out of time but i thought  i understand that a district court must issue a judgment of and commitment order within fourteen days the fourteen day limit is base action this is a correction right so if we that's why it matters if the first world pronouncement was ambiguous then we have to look to a written judgment right and that will control if we've got one that we've got confidence in that's our case law and it seems to me there's some tension right there in that intermediate part of the sandwich because in this case none of them were entered timely so that so there is that as to whether or not and we have under our current case law but if you get over that hurdle then you've got three written judgments right correct ok which one do you think we should i would argue that the third judgment comports with the or pronouncement but given the potential jurisdictional issues i would say that the first judgment and commitment order would be effectively biting and let me back up also your honor just because the second judgment and the third judgment and even frankly the first judgment they were entered after fourteen days that doesn't preclude the court from looking at those judgments in order to clarify the the oral pronounce know we need to bother with the written judgments when the rule is that if the oral pronouncement as ambiguous we look at the entire record i don't think you can look at the entire record here up to the oral pronouncement of science and come away with any conclusion other than that the judge intended imposed to some extent that's the end of the story we don't need to look at the written judgments i think your honor articulated a much better than i can but that would be pretty tough to overlook them as a district court judge and i think that we're probably getting to the same place but it's pretty tough to overlook them because the district court judge if she had an ambiguous initial pronouncement she saw fit to three times try to correct it in writing so one avenue would be to send this back and ask the judge to to order i think and i think this was maybe what your honor was getting at but but the fact that the district court went ahead and attempted three times to modify the judgment or twice i guess to position ok then so then what if the court is inclined to remand the matter back i would request that the court remanded back basically for the district court to issue a valid judgment mbiguity per se as to what the sentence was supposed to have been and it's just the i suppose that the jurisdictional problem of correcting those judgments divested the court of the district court of itself opportunity to to enter valid judgment so it's sort of you can't an argument be made that the oral pronouncement is not ambiguous that she clearly said she intended to impose a sentence of two hundred seventy six months she imposed two hundred  months i believe on count one thirty six months on count two and then she ordered at least at the during the oral pronouncement that they run concurrent can't you argue that that is a two hundred seventy six month sentence although thirty six months of it is being served at at the same time is that a valid argument can post two forty and thirty six she ran to pick her but can't you argue that that's a two hundred seventy six month sentence i think the problem is that we're concurrently i think we i think looking at the record there's very little doubt not a very compelling argument to be made that the judge intended to sentence to defendant to two hundred forty months i think the intent all along was two hundred  seventy six months in fact the judge took a came out it was of eleven one c one c agreement came out and basically expressed deep concern that that was not sufficient and the parties including the government had to argue the cork to talk the court the district court into a two hundred seventy six month sentence and then the court took a recess took a recess considered it and then came back and said that it would abide by the party's recommendation and  it two hundred seventy six month sentence and then in fact during the oral pronouncement the the few lines that we're all focused on right now the judge even said i sentenced the defendant to two hundred seventy six months and it's the break down that that basically in the government characterized and i think it's correct i don't think it's a stretch to say that it was a basically a verbal typographical error at that point and none of the parties thought anybody can misspeak it with it and if we're left with the the oral pronouncement ambiguous then what's the government's position about what we do or do we look at the whole record and say look we know what she meant or do we say we've got this problem with the written judgments being three of on being out of time we should send it back which is the government's position the government for first position would be the first the first proposal by the court which is that the oral pronouncement is clear the judge intended for two hundred seventy that when i worry about if there's a if they were going to say it's ambiguous then it seems to me you know the clock starts running on a defendant's ability to file a motion to file an appeal so what i'm worried about is the next case down the line where there really is ambiguity and  defendant walks out really thinking that that event was the that the sentence was one thing and in fact it's something else and and makes a decision about whether to to appeal without having getting getting that clarified so it just seems to me that it's kind of thin right we've got three of those that relate correct but then the defendant's time would essentially be told while these are being issued so there wouldn't be budget is because they would have caught it and that's the other argument i would make to her is that the defense could have raised this before the district court instead of well the government could have stood up and said hey is that what you meant it didn't happen so but even after that the third judgment commitment order was issued the court the defendant could have raised this that there is in beauty in the record i think the proper approach would be to remain for an entirely new sentencing hearing rather than just filling out a new judgment in commitment order an order clarifying the judge's intent i believe that's based on rule forty three where a defendant has a right and also the sixth amendment a right to have defense counsel raise argument and be present at all critical stages of a criminal court proceeding specifically sentencing most importantly in this case sentencing so if that is the court's intent i believe remained for a full sentencing hearing regarding the actual breakdown of the sentence would be required before the district court where parties are present and able to argue  six seconds left unless there is any additional questions i would submit your honor no i don't think so thank you very much thank you both will go on to the next case on the calendar