morning your honour's and may please the court counsel i'm here this morning representing john prady and i would like to reserve five of my minutes for rebuttal if i may all right thank you on april thirteenth two thousand and sixteen  prady was sentenced to an effective sentence of one hundred fifty three months incarceration the problem is that the district court did not have authority to impose that sentence the statutory authority of the court under eighteen u s c section one twenty two g only allowed the district court to impose a sentence of up to one hundred twenty months incarceration therefore the sentence that was imposed in this case is unlawful as a matter of law the government does not argue in its brief that the sentences unlawful in any lawful in any way rather they simply argue that this court shouldn't rule on the on on the lawful nature of the sentence because the defendant has already served twelve ninety one which gives this court authority to review final judgments of district courts this court needs to remember that this is a direct appeal and impose sentence this is not collateral review this is not hey b s review this is direct review of the sentence that was imposed so for under twelve ninety one this court had has the authority and has the duty to review the sentence additionally under eighteen u s c section thirty seven forty two that gives the court that the defendant the authorization to appeal from an unlawfully impose sentence that also provides this court with the with the duty once it finds the sentence as unlawful you do one of several things i believe it's under section d but the court can't do nothing once the terms there's an unlawful sentence but basically mr said what i understand you are hearing is that if the senses and reduce to the ten years or whatever it is that they'll be some potential adverse consequences in the future if he and every violate supervised release it's basically it is and i know that that is that is actually one of the things that i argue but there are other  eye i don't understand from reading this why he can't make the arguments and claims to a judge that he comes back before regardless of whether anything happens to change the sentence that was imposed you seem to say that he would either be waiving or he would be precluded from bringing to the attention of another judge the fact that he had said he had served more time than he was  after after this case is final he has a year to file his twenty two fifty five so long as he's quote unquote in custody and so he argues at that point that the sentence is illegal well but the government will argue that he should have raised the issue on direct appeal and he's procedur coin so he can't raise it for that reason more than that let's say that he suffers a he's raised it so that's why he has what he has raised it but there we go about that we do need to do to kid but second let's say that let's say that the he picks up a new state charge and that state charge requires the state to determine the length you know look at his prior convictions in terms of the length of a sentence it's unclear from the term time and what is the appropriate sentence in this case in a state judge might not understand that really time served should have meant one twenty not the one fifty three that he actually served and therefore that makes a difference in the state sentencing and he might any might not be able to collaterally can anybody not understand what types or time served means the time that you served it well in time served in this case means one hundred fifty three months which is illegal and so that's the problem in this case is that the sentence as it stands now is a legally imposed and there are two other ways that we get that there are two other reasons though why this court should actually go through the reasons why this court should actually rule on the matter one of them is a case that i cited two in my brief which is united states versus johnson which is a supreme court case from the year two thousand and in that case the court in its from this court it's really johnson and in that case the defendant over served his time and originally the sixth circuit had given him time off of his supervised release for the time that iranians lee spent in prison the supreme court unanimously reversed that and said that you put supervised release on begins on the day that you're released from prison but that if you over serve your time the district court can consider that down the road or a district court can consider that down the road in determining whether to release you after a year statutorily and so in this case that make this case premature then it doesn't make it premature because the we don't know whether or not the judge nugent in this case will be the one that makes that determination after a year of supervised release so the judge i bad person just the court exactly and that's the problem and that is because we don't know what's going to happen in the future and so they any future courts are going to need to know what the actual legal sentence was in order to do that but yet another reason is i the defendant rob want to appeal had served his time of custody and was only had supervised release laugh and so the defendant and the government that case argued again ok this is moot now because he's arguing a guidelines issue this court said it's not m because the the district court if it knows what the correct sentence should be could reduce the amount of supervised release while in this case at the time of the sentencing the recent and saying he was given to your supervisor release but statutorily that can go all the way down to zero or one or two or three so it remains a live issue because if this court tells judge nugent hey you are limited to one hundred twenty months in this case and he's over served now by three years make and says the court can consider the district court can consider that on remey and in determining the length of the supervised release term that's imposed but is that in this case you you agree your words are any sentence modification by this court would not impact the length of priorities federal supervised release term so yeah it may be macon says that but you've expressed a disclaim that to be the relief that you're seeking and i said that in the context of johnson and in what i was trying to explain was that johnson says that you can't get it's not a one for one value in other words you don't get it you don't get it for every day you were served you don't get a day off of your supervised release that's what the supreme court said in the united states versus johnson and that's what i was referring to when i made that argument that is different though than the then the district court's ability to determine the length of supervised release what exactly right late for you  served should get shorter supervised release that's really what you want to do here in addition to the fact that we need the sentence to be legal yet it's a yes or a yes or no that is one of the things we want to do yes absolutely yes so you don't want a bank that he can drop on later you what supervised release release i can't now i can't worry about the bank that he can draw upon later i you know i don't is obviously i cited in my brief the b o p regulation that allows that bank to occur and whether that and whether that bank whether it occurs or not or whether he ever violate supervisor lease i agree that that's not before this court because that would be premature but it brings me to my final point which is i cited to the impose sentence that he can determine when supervised release begins in his case and whether when he can ask for his one year under the statute pursuant to johnson and i understand this is about any if pursuant to johnson the only remedy that the supreme court gave in johnson was that if you over serve your time the court the district court can after a year ert release you early from supervisor police but they get that they got a supreme court decision saying that you don't need anything from us for that but they can only do that if you've never served your time the sentence as it stands now doesn't show that he's over served his time what it defendant is whether or not the impose sentence under the statute is a legal or illegal under the statute and the answer to that question is no a time served sentence can never violate the statutory maximum because it is not a fixed sentence you can even that is correct your honor the brief with a brief focused on the supreme court's decision later versus williams well which supports the argument of the government that this case is moot the challenge as this co highlighted is not to the term of supervised release it is to the sentence imposed and that sentence immediately expired at the time that the judge imposed it the defendant spent no time on the federal case under the new sentence and is no longer subject to a term of imprisonment for the federal sentence instead of curiosity we were picking on mr shedd to figure out what really is the problem here i'm trying to figure out why you opposing this well what why does the government care your honor the pool which you highlighted is a result of bureau of prisons policy which results when and that asking about a bank or else why do you care if the district judge simply says he sentenced to one hundred twenty months in that event the bureau of prisons will apply a credit to any future violation of the supervised release and it is not in the interest of justice to take individuals like mr parady who have been sentenced over a decade of prison and throw them out onto the streets without any mechanism to enforce the supervised release terms that they are released with if this sentence is remanded and a definitive sentence entered the pool becomes very important because it is on that pool that the bureau of prisons will draw and effectively it will tie the hands of the district court from enforcing its supervised release orders your d o j your the executive branch  j executive branch so you're opposing this because your own executive branch part of the department of justice has a regulation you don't like we are opposing it violation if one should occur is before the court and as this court is aware mr prodi would have the opportunity to engage in litigation with the bureau of prisons based on its  the reason that we're are the answer is you care because you don't like the regulation we care that that was the original intent of the time serve sentence was our best our best effort to address that policy and circumventing the hundred and that sentence was unexpired underwent stain and unexpired life sentence when the statutory max was thirty years here we have a defendant unlike each of those that has an expired sentence he is not serving any time for the federal for the imposition of sentence of the time served in this case he is very much unlike those other defendants when does this supervised release kick in there's a comment after his relation on the state custody or did it start that big well the difference between time served and the one hundred twenty month sentence let's say would be the difference between the statutory max of one hundred twenty months the sentence imposed and whatever the bureau of prisons calculated as the time the defendant actually served in this case he served approximately twelve and a half years so there would be a true and a half your credit at the bureau of prisons would impose and on the issue of zero privilege to calculat released it does not but it calculates the time that would be served upon any revocation an imposition of sentence for revocation imposed by the district court and on the issue of supervised release the district court made very clear that the one month credit applied it made that clear at transcript page idea one three zero five were he's the district court told mr parady that he served one year of his two year period of supervised release that he would be eligible to receive that one year credit and that he could his lawyer could inform the court of that this was done over the objections of the government that a three year period of supervised release to be imposed this is very much unlike the case cited five defense  and in his his letter filed yesterday because the period of supervised release does not play with the term of incarceration in this  not that the parent does not make an attack on his conviction he makes an attack on his sentence and the case cited we were looking at a tax law and i'm sorry i didn't have the opportunity to in the short period of time to delve into the intricacies of  cited but i can analogize to a theft of government funds under eighteen u s c six forty one where there are two levels based on loss amount a level of greater than one thousand dollars which would have a statutory maximum  term of incarceration of ten years in a loss amount of less than a thousand dollars which would have a one year period of incarceration that would affect the period of supervised release that a defendant who was sentenced under a theft of government funds was serving so that if the term of incarceration in an instance like that or in the case cited by the appellant was challenge then that might affect the period of supervised release because as this court is aware the time  authorized spirits of supervised release under eighteen u s c three five eight three or four a class c felony of ten years would be up to three years whereas in the class a misdemeanor that would result if the loss was challenged and the conviction was reduced to a class a misdemeanor would be only up to one year so we see in instances like the case cited or in the in the example that i provide to this court that some times not is here the period of supervised release that a defendant may be serving after an expired sentence may be affected by a challenge to the sentence or to the conviction that is not what at issue here the period of supervised release of two years would be authorized irrespective of the time served sentence or of a definitive sentence of ten years i've got to admit  lost me two or three minutes ago but sounds like you're talking about something that isn't applicable anyway so let me see if we can refocus this slightly if you're on i could be way off base here i don't think it's cited by anybody but i recall that when i was a district judge and would sentence people we would oftentimes be asked to address the question of credit and i thought there was a case i think it might be named wilson that basically says district judges don't deal with credit let the do it if there's a problem and somebody objects to it then they can they can take whatever actions are appropriate i'm not sure how that if i'm reciting that correctly i'm not sure how that cuts in this case whether it's in your favor or against your favor but would that resolve this question we between the statutory maximum and the time actually served by this defendant would should be should be credited but that argument that possibility that something that a future court should consider that was addressed by the supreme court in leon versus williams which is willing to help mr shed out here by green that if this comes up in a subsequent twenty two fifty five that year that government is not going to make an argument about procedural default yes that up that  that's exe that's explicitly what wilson says i'm not talking about b o p credit i'm talking about a lawful or an illegal sentence that was imposed in this case and i think the if i can about it only because you are concerned it may have an impact later on the in the in the thirteen o five that mr gould cited you too and where it said that the district court might consider letting him off supervised release after a year he doesn't talk about johnson of the johnson factors what he says is if you keep your if you keep your nose clean i might consider it that that's in essence what he says on thirteen o five has nothing to do with the complying with the supreme court decision and united states versus johnson and you can't do the united states versus johnson calculation if you don't know what the original sentence was and you don't know what the amount of time that was over served was the government doesn't even admit that a calculation that their jobs and he made today by saying this is adversely affecting him today absolutely understand how it's affecting him today because it's an unlawful to impose sentence that and the other the other thing that we talk about in our initial brief that i didn't ra yeah but how is the fact if true that it's an unlawfully impose sentence impacting him one way or the other today we because we cited into our brief the fact that he's now serving a state sons in that state sentence that he's serving is going to be subject to him coming up for parole in the state system the state system is going to determine parole based in part upon the length of his federal sentence and we cited to the a p a regulations that require the state of ohio to do that so the the difference between or the parole board there's nothing precluding him from arguing that is lawful sentence was one hundred twenty months and he was improperly required to serve too much there's nothing preventing him from making that argument maybe maybe the problem is going to buy it maybe they know maybe it won't exactly but in the meantime we've let we all know that the absolute correct legal sentence is one hundred twenty months and we can fix that for everyone today let me slim eat let me give you another example let's say that instead of time served the judge said i'm going to sentence him to one hundred sixty six months incarceration what that would have meant in this case if you buy the government's argument is that it would still be moot because he would have been released from federal custody last month and so what we're saying is that one hundred sixty months is sixty six months is just as legal as time served in this case and that can't be right he's a judge can't sentence defendant to five months over the statutory maximum and that be upheld as a legally impose sentence in a case and that is the problem with this case and that's why i cited that first first circuit case vasquez laura case which is that there is an integrity of the clerk that comes into play that requires a court of appeals to fix an unlawful sentence and in that vasquez laura it didn't make a hill of beans difference in that case either the guy had seven life sentences on top of the sentence that they fixed but the first circuit said we've got to do what's right under the law here and under the law this one twenty two sentence that this guy received was a life sentence and that was improper under the law and we're going to fix it despite the fact that it doesn't get him out of jail a