thank you your honor may please the court just lessened your for the appellant christian manuel you play you this case presents a straightforward question does federal rule of criminal procedure thirty t mean anything and if so what sanction should be imposed if it's not followed mr you put your case is somewhat it well as unique as any criminal cases i guess but his situation the sentencing was actually delayed well he pled guilty in july twenty eight team the procedure in northern district of indiana's ninety days to do a pre sentence report the pre sentence reports were done the judge then has a standard sentencing memorandum procedure which was followed all the memoranda were submitted by october however the court did not schedule a sentencing hearing until may  believe returns in may so there are no hearings held is my understanding the i filed a motion to set a sentencing hearing in november again we had already done guideline illegally in the country at that point he would have he was going to be detained following his service of a sentence answer some additional time i have never gotten an exact figure and how much time that might be before his asylum he had the judge that he was going to do at least thirty days and maybe ninety days or longer in addition to in custody in addition to whatever sentence the judge imposed was one of my reasons for asking for a bolo guideline sentence the other reason was that he had a silent petition pending which i felt had some compelling fact now i have no way of verifying those facts but mr you but you but is actually from an indigenous tribe in ecuador and he had in his asylum petition he had alleged that there was a gang threatening him his father had been killed his brother had committed suicide and we did present evidence from a couple of fish olds in ecuador saying that he had been in fact i think it was kidnapped and beaten one point and again i can't verify the veracity but at some point some judge means to do that i understand that the sentencing judge may not choose to do that but that's very powerful mitigating evidence if mr you but you claim is true and i my contention was that we should get to the asylum hearing to determine that he will be in custody for an additional period of time and if the asylum judged finds that the his contentions have merit then clearly a below guideline sentence would have been appropriate for the judge in the criminal case so do you have any authority for the proposition that the department of homeland security and the whole apparatus over there would delay processing the asylum application during the time  that mr person mystery that you've been here is serving a prison sentence and i get back to the most attractive way to present yourself that we know they do that or could you be rid over to the immigration court or i had i was in correspondence was immigration attorney i don't handle those cases he told me that they would not agree to hold the hearing until his criminal sentence was completed i did inform the criminal court of that as well ok the the there's not a lot of federal law on this and i understand and i don't want to make use argument overbroad the delay of six months before sentencing in the kit in the case we're someone is facing even a five year sentence may not be significant well that's why we're i'm glad you're going there because obviously there is the rule of criminal procedure but this didn't strike me as the case where the delay was notably prejudicial i mean that all depended on your hope that maybe the district court judge would sentence him to a time served eight months done let's move on but the judge gave no indication that that was what he wanted to do and he still winds up with a sentence i believe that's in the middle of the guideline range correct he could have gotten a sentence that was lower than that i mean it was still it was he gets the eighteen month sentence at a time that the judge could have given that fifteen month sentence or maybe even a little less but he had cert the problem is you've already served twelve and a half months before the  lester the judge could have censored the one more day and it would have been a below guidelines sentence but the judge doesn't the judge gives him a sentence in the middle of the guidelines so where's the prejudice or the prejudice i can imagine there would be cases if a judge sat and sentencing so long that maybe you get above a guideline range or maybe you bump into is statutory problem i hope judges don't do that but if somebody did something like that i could certainly see that prejudice well i think i did say in my reply brief the  case from the district district court of columbia in which case well there was a thirty three month delay in sentencing but the defendant received a much greater sentence in that case and the court did issue a letter of apology and a seven month reduction and his sentence at that point i'd be happy with a seven month reduction of stupid you present but i served it anyway so it's kind of a moot point what they did concern me interestingly enough is when judge moody denied my motion for discharge in february the specific language in its that in my appendix page fifteen defended employees unsupported presumptions defended presupposes that the date of sentencing will impact on restrict the sentencing that the undersigned will sentencing memoranda were completed in october i filed a motion to set sentencing hearing in november and instruction of the court administrator and i made regular phone contact i eventually in february which it was two and a half months later i got an order setting a sentencing date for may th i believe right when i got that i was somewhat surprised and frankly i was not happy and i researched it and chose based upon the betterment case to move for dismissal at that point within twenty four hours i got a letter that says you're not my motion denying the motion which i understand is a language of the it is indigenous people in ecuador he has learned to speak spanish he was being held in poor county jail and then he was transferred to kankakee the old jail and if you had the pleasure but it's not the nicest facility and again to communicate with him i had to get an interpreter go down there and explain the be a barker versus window says that one reason to have a speedy speedy sentencing hearing they don't want to use that term but really reduce anxiety and concern for the accused well this case we've got six months of waiting and also with the that the the the effect that his asylum hearing has been delayed for that period of time which i believe good morning your honors and may please the court the district court did not violate mr u p of his due process rights by sentencing him eight months after he pleaded guilty and at any rate he was not intitled to discharge which was the sole remedy that he sought in the district court prediction come true well i would certainly hope not george romero i don't think there's anything on this record that suggests that the defendant hasn't appealed his sentence and argued there was any procedural or substan on reasonable notice at the sentencing hearing itself the issue here has soli been a speedy sentencing claim so i think to the extent i think if there had been any suggestion of that i would have expected the defendant to have preserved that argument in some way think very disturbing to think that the judges winter living arrangements drove the date of this sentence i mean it's already he is if that's the position the asylum people are taking then they run their own shop you know that's that's their position maybe they want sentences to be fully served before they assume authority over the over the individual person that the silence in this record judge moody's reason for pushing it off that far as disturbing does what i agree that there are ambiguities in this record but that said i think if one looks at the timeline the defendant filed a motion to schedule the sentencing in november he filed a motion he didn't invoke his due process rights he didn't invoke his speedy sensing rights he didn't invoke rule thirty two he didn't make any of those claims at that time then the judge the district court judge three months later sets his sentencing when he says the sentencing i don't think that anyone could should read this record and assume that the district court judge was indifferent at all to to any of these concerns i mean the district court's order says when when when the judge when he sets the senate saying when he looks he says we're going to set this on may th and no extensions will be granted absent extraordinary circumstances we are going to do the sensing on that date the government can't have more time which i think suggests the court is at least considering a time served sentence of that point in time yeah but you know it's so troublesome this was a short range to begin with the fifteen to twenty one months you know certainly if this person had been looking at you know one hundred and twenty months this this would all seem different that merely by waiting from let's even say february th when they just record decides to set the hearing on may ten every month matters in the short ranges it may matter and it may have mattered and perhaps that the district court judge may perhaps this is not would not be considered best practices but the question here isn't whether this is best practices but st whether there is a due process violation at all sit government  isn't something that you know is violates fundamental conceptions of justice that's that's the question from the waskow in marion is does it violate fundamental conceptions of justice there are instances they don't happen often thankfully but there certainly are instances where defendants end up being detained and end up receiving sentences that are less than they alternately received i mean even in the context of the johnson case or those things that are defendants who have over served time and it may be that ultimately a defendant could end up with a  term of sentence that he has he has over served which the bureau of prisons can and does account for but in mr you put your his case that's basically meaningless you know there's there's nothing anybody can do about this and he's been deprived of the option of a below guideline sentence below what the what the clocking of the twelve and a half months basically did the right custody it actually is is slightly less than twelve months the defendant doesn't get any credit for time served in immigration custody before he is charged criminally so it's really the period from may rd to may tempt slightly under your so a twelve month and exactly twelve month sentence if that's what he had gotten he would have had thirty more days to serve ultimately he gets an eighteen month sentence he surface criminal sons until september rd so if the question here is what is the remedy i mean as we've pointed out you can and you can create over serve time there are unfortunately defendants who commit these crimes illegally and judgment be placed on a term of supervised release for two years so if the court thought that there was a due process violation here a potential remedy could be a reduction of the supervised release arm but what would not be an appropriate remedy is the only remedy that the defendant sought in the district court which is  missal of the charge of vacating the conviction that he has validly pled guilty to and no court has ever found even for the cases that we've cited seven year over ten year delays in sentencing every court has said vacating the conviction is an improper remedy that's the only remedy that the defendant sought in the district court and that is not an appropriate remedy for a do even for a due process violation in fact and better than the court said dismissal would be an unjustified windfall right in and your honor i mean in the in the sanders case from the th circuit the district judge was dragging its feet on sentencing in the government had to file a mandamus petition to essentially get the district court to sentence the defendant i'm not sick making any suggestion of whether that would have been the remedy what would have that would have been appropriate here but in a case where there really is a speedy sentencing violation and a potential that the really the only appropriate remedy of taking time off of the prison term is going to evaporate i think that's probably the way that this should be resolved not through a later direct appeal and seeking the kind of remedy the defendant has here so under those circumstances for the reasons we've stated we don't believe that there was a due process violation the st place but at any rate the remedy that the  immigration and that is unnecessarily prejudicial i agree with mr holler that there has been that it's never been done but the court this court can structure in what it believes to be an appropriate remedy i do respect the the need or maybe not need but the the position of senior judge and the fact that that the benefit of the experience and wisdom can benefit the the justice system overall but when it interferes in my motion for sentencing in november i did also oppose the alternative having another judge to sense that this was not a complicated case it was a fifteen to twenty one month guideline case so what else could have done the sentencing and we believe that that would have been appropriate we do believe that the delay violated mr you puke was due process right thank you all right thank you very much and you were appointed i believe and we thank you for your service thanks as well to the government will take the case under advisement and the