in this case there has been motion for sealing up the court room and we disfavor closing any proceedings or briefing by the court we have provided for open court to address the issues that can be addressed in that way and we have provided for a period following that when we are prepared to close the courtroom as needed however we will at the beginning of the closure we will close and we will address the question of the necessity for and before we proceed to talk about any aspects of the case because we do have a strong presumption of open proceedings we want to satisfy ourselves that there is some need and i believe consular aware  for the benefit of the public so in the open proceeding we will have arguments from mr james's counsel or going from the government you can rebut on the issues that were pressing in this format and then we'll take a break i recognize that the government makes a compelling argument that the language of otherwise provided it was added i think in two thousand and two in considered by this court and eighty three which i think both parties agree of this court has never considered i'm on able to find any other courts or consider that we consider each section to be a limitation on the district court in the situation of a revocation imposing a new supervised release after a revocation is a limitation on the district court i'm sorry you you are not relying on the five year provide a maximum and you're not relying on be wise and at the end of your case because i'm does no legal prohibition on the time that the district court chose under time no but on the way it's right that yes on the way it's arrived at the procedure we believe that h as i said provides not just a limitation on a district court but a protection for the defendant so he knows what that the families eat you need some affirmative prohibition on book term that the district court shows were more some procedural rule that you say the district court violated and  substantive question about what is it what whether whether wife minus forty six months is something lower than what your client got here well i think the in age that you say was violating the heart from the question whether life minus forty six is an enforceable upper limit that was violated or what's the procedural while i think i think you are just read it that it has to she did we have another argument that is that that's a sentence and doesn't make any sense of the guidelines it's a it's a it's a it's a non guideline sentence that requires other what is what if we conclude as a substantive matter that life minus forty six months is a life which is greater than the term your client received i don't think i can argue with that ok so than to remain  the framework for an argument that it doesn't make any sense and the guidelines you have substantive argument yes i think it is and the nature of it is is the guidelines in age implicate the goal of the guidelines is to have a determinative sentence everyone knows how many months a person is going to be in less good time and a sentence that is life minus whatever is not a determin because for a fifty one year old man there is a great deal of uncertainty of what that means opportunity to in in him put that language otherwise provided language to be indication and they did not one can make these sanctions and that congress did not intend to make the carve out for drugs a morning may it please the court adam brass gets for the united states groaners the government's position is that it is impossible to complete the calculation under section three thousand five hundred and eighty three age without terminating what the maximum would be because that is the st step in the calculation and this court held in johnson and apps that that maximum under age forty one the eighteen and in fact exceed five years and every court that has addressed it expressly this fact found that the maximum is life so if in fact the maximum period that can be imposed original sentencing is life then we are left with the calculation of life minus forty six months of this court pointed out which conceptually makes very little sense and that is what led three or four different circuit courts that have addressed this very precise question to say that this is evidence that congress didn't intend for the subtraction calculation in paragraph h to be performed at all assuming for argument's sake that the calculation was supposed to be performed at the appellant must establish plain error on this point given that there was no objection to this supervised release term below and our position is that at the very least there's no plain obvious error in the court failing to make this rudimentary calculation as the nd circuit pointed out in the c c would have been a very easy for the court to circumvent whatever benefit that palin hope to gain by having this calculation form could have just picked a long term of years subtract forty six months and plenty of room to impose a forty eight month term of supervision it's also difficult to conceive of what prejudice the defendant would have suffered in one proposed approach that he did and in some of those circuit cases like c s had it proposes that perhaps the court could convert life to some term of years and then subtract the forty six months but if that were done in this case whatever that term would be would certainly be long enough to leave the court with enough period of supervised release might be in this case precise is he as your argument suggest and then to take away from that the period that that she's assigned for incarceration and that going through those motions actually i mean you know you posit that would be easy to circumvent but pretty soon that the district judges are not trying to circumvent the time to structure their thinking about what's appropriate and so why isn't it an important left with the discretion to determine how long a period of supervised release thinks the defendant should serve after he gets out of prison and i understand your honour's question that if the court were to st take the forty eight month period subtract say forty six or whatever number they would start with that that might lead it to a different conclusion but i think ultimately what paragraph h is doing is it's intended to limit how long a period of supervised release the district court can impose only in certain cases where there is a statutory maximum and when there isn't one it's clear that congress in a sense a commission did not intend for the district courts hands to be tied in terms of how long a period of supervision could be tacked on to the end of whatever term of incarceration was was opposed so our position would be that that the district court properly exercised its discretion in imposing both that the prison term but then the four years of supervised release after that and i would add the rather than the player standard there is likely no prejudice or miscarriage of justice with this forty eight month term supervised release because the the other court that i won't get into for reasons of the ceiling but it imposed its own supervised release period that was longer than that so if anything he just ended up with two concurrent similarly lane supervised release periods so there's not much harm that he suffered and in having to just say we're consecutive i don't believe they were consecutive i think that the district indicated that her period was taking the place of what what the other court did we can certainly double check that but i think that what appellant is going to do is serve these forty six months and then be concurrently on supervision to these both of these judges and if i can just touch briefly on the other arguments that appellate advances in his brief on this point he argues that this somewhere in recess her closing for about five minutes