bad say the united states and this honorable court we believe that it was and that the district court therefore erred in applying the six level unhandsome on under two l two dollars b c b three c so what is the suspended sentence the courts that have looked likewise a gritty but the defining characteristics of a suspended sentence are one the offender is released from incarceration but remains object to a postponed prison term to such release just not a rise through discretionary executive action and three the released offender is under a continuing obligation such that if he offends he will be the can postpone prison term north carolina characterizes right in way and the reason why i was asking the question was in your judgment says language in united states persons barlow yes he says that north carolina places the statutory interpretation case and dealing with the definition of a felony for purposes of nine hundred and twenty two dollars g at to put it in the guideline context it wasn't a guideline case but to put it sort of in the guideline context for receive a term of imprisonment of seventeen months absolutely barlow would foreclose that issue that's not the issue here today though it's a question of b two was any part of that term of imprison suspended and we contend that was when you look at the defining characteristics of a suspended sentence and then consider how that operates under north carolina law so when you consider those defining second that release is no mandatory under the law the statue mandates and it is built into the court's judgment it's not a discretionary decision that release must happen so it's not the governor calling up the department of corrections and saying i want to pardon mr of alaska is it's not the department of homeland security saying that we wanted to port him so we would like you to release him it happens through the court but if something has to happen generally that's that's part of the term of imprisonment is net so your honor i believe respectfully i would just agree that it to qualify as a suspended sentence it must necessarily rest with the discretion of the court i agree with you that it does have to be imposed through the court but it's not enough that just because the coup at least the cases that i have read don't talk about that this must be a discretionary decision by the court or else it doesn't qualify as a suspended sentence it is implemented if the court's judgment is implementing state getting at is that we naturally think of suspended sentences instead of being not the executive discretion we think of it as an affirmative that requirement really captures that it is the discretion of the s is the negative about the executive as opposed to the affirmative discretion of the sentencing judge that's the point of this that i'm having trouble with i think of it as the syncing judge's discretion is being what is it the negative as i as i have positive as opposed to the positive i will say this and not be the suspension of the sentence here i think what's important to realize is that the only thing that clay says nestor of the last class into the custody of the department of corrections is the state court judgment and by the same token the only thing that releases him from that state court from the department of corrections is the state court judgment no one who doesn't particularly like you just have just to be clear that's actually incorrect because what takes him out of prison is the stay poor judgment and a state statute right is the operation of the state statute is what takes in and out of custody not the operation of the judgment if the judge would say that you know for years  would say that the state court the only thing the department of corrections is going to look at to release mr velazquez is that stick or judgment because the statute mandates that they're the only thing they're going to look could suspend the sentence and i think that's a red herring i don't think the issue today is whether there are other ways in which north carolina can be suspended under north carolina law what we're looking at today just simply whether this particular method basically functionally operates as a suspended sentence and we believe that it does and it's not happening through any other avenue other than the state court sentence and the state court as judge keenan just pointed out one thousand three hundred and fifty one says the court may you know the court has the discretion and that's what makes the suspended sentence are you aware of any other state that defines suspension of a sentence without reference to what the court may in its discretion do so in other words does anybody else use give raises suspended sentence to cover what we're talking about here i understand maybe north carolina doesn't control but it everybody else uses it in the same way then did that start to look like very powerful of things of what suspended sentence actually me so you are i mean i i will say that the courts looking at this and this issue don't it when determining whether or not it's been suspended and they don't limit themselves to considering only whether or not of the state court actually suspended sentence and there the th circuit said yes it did because basically ringback kentucky law treated this more or less as a suspended sentence and even though the district court even though the state court didn't call it that understand i understand the court's concern here but when you again when you look to when you look to north carolina state all the way that it operates this nine month period operates as a suspended sentence importantly the time spent while on post release supervision the offender gets no credit for that time towards that postponed prison term so they can see that they can be released and s eight half months on post release supervision in effect that eight and a half month mark they messed up they're going to go back and serve the entire nine month period so i think that just goes to show that this this is not some sort of alternative means of serving the sentence this is a postponed prison term and it arises through the district court's judgment no one else no action by the executive interferes or causes that release out the individual to post release supervision and we've already talked about how just because north carolina doesn't call it a suspended sentence just unnecessarily  to be released the final not the nine months prior to the expiration of the sentence so it didn't need to put anything into the judgment the said ok the final nine months he's going to be released because again it operates through the function so again your honor i would just contend that it's the fact that is not necessarily a discretionary decision by the judge that it operates through north carolina law doesn't mean that this afternoon mayor please record my name is david brad garrett and i represent the united states for most matter based on a couple of questions i wanted to st highlight that north carolina does have a sense and a standard system for suspending sentences and it is different from post release supervision and two key ways the st ways as this court has noted is that the end suspending a supervised release sentence that is done completely through the job so the judge decides to impose a suspended sentence  there's some discretion based on the type of felony the defendant has his his criminal history and in some cases an active sentence is required in a lot of cases the judge has a choice as to whether or not to post impose an active sentence or suspended sentence similarly when it comes to revocation and that is also completely done by the court the revocation process has to come back to the jobs oftentimes it's the same thoughts and that whole this was talked about some and in the last part of the parlor decision but by operation of law it's not any decision by the court but it's by operation of law that this nine months is set and any nine month release that we had here at month eight half if there's a violation that the law provides that that violator can then be put back in prison for nine minds as opposed to only the time remaining on the sentence is that your understanding of how this works i think i may have just been misunderstood as well micha understand the structure i was under the impression that it's only the time remaining on the maximum sentence so that he violated eight half months you can only go back to prison for two weeks is in my misunderstanding that your honor i do believe that missile i stand is correct want it it surprised me a swell but when i when i looked at the statute and i'm sure we could i don't have a citation handy in front of me but when i was reading some of the commentary it did say that when the court is when the parole commission is revoking that that condition they can give any of the unserved sentence of imprisonment and so in a sense  e so the the nd thing i wanted to point to you is as i think this court has emphasized the importance of looking out the judgment and we see that in bar all of them look at the judgment for what kind of sentence there is and in this case with north carolina has two separate judgement for that house a judgment form for a suspended sentence it has a judgment form for an act of sentence and the court can see examples of bo sentence judgement it is entitled the moment just make sure let me make sure i get this exactly right but it basically specifically set us it's a judgment for a suspended sentence and then specifies that the sentence that's listed is suspended and the defendant is put on probation yes or on i just want to clarify one point it's the terms and conditions ok who imposes the time back on him did you say that it was the poor old commission does that the i've reviewed the statutes there and it does appear that it is the parole commission initially there's a preliminary hearing before the parole commission that provides they find probable cause which last forty dollars days and then there has to be a hearing before the parole commission where they would then decide whether or not to run revote the posts really supervision you saying in the trial court under north carolina law talk about the importance of the judicial role in opposing a suspended sentence and i think if that's true if we accept that as as the appropriate bryant park it matters here that really this is being administered by the executive it's being proposed by the executive as opposed to supervised release under under north carolina law which is which is done through the court system the other th the court addresses a pennsylvania situation where the the court said the pennsylvania court had sentenced skins on a list to a minimum term of time sir and a maximum of twenty three months so similar to here there was a minimum and a maximum but as part of the judgment also granted immediate parole as a specific condition and so it was clear from from the courts this from the pennsylvania court's decision at sentencing that the defendant was going to be released and serve a defendant argued that his immediate parole was a suspended sentence under the guidelines and shouldn't be using calculating the god wanted range and like the defendant here he argued that it functionally call it as a suspended sentence he said the court's order created no possibility that he would serve a sentence over thirteen months in prison but the coworkers rejected the argument and it's sad you know we're looking at the minimum and the maximum that are in the judgment and we see now no basis to accept the defendant's argument that the functional effect of a sentencing order rather than the language used and the sentencing judge in that defines a  suspended sentence under the guidelines the court then this court and went on to compare that parole to a suspended sentence under and under incarceration or pennsylvania law and they said well parole is a conditional release from sentence while probation is a suspended sentence of incarceration serve on such terms and conditions as imposed by the sentencing court and found that distinction mattered and i think there are similar distinctions here between north carolina suspended sentence and north carolina post release supervision  the other thing i'll mention is when the north carolina who are imposes a suspended sentence it also suspends post release supervision so if you if you say really supervision is a suspended sentence that song then you have a suspended sentence with then a suspended sentence which i think is would be kind of i think it more makes more sense to see important and how the state characterizes and finds the sentence is important and here in north carolina found that this post really supervision was part of the term  supervision against the maximum term of imprisonment imposed by the court and so it is true as well that the commission does to term and whether or not to send offenders back to serve that term of imprisonment but i would also say that this court made it very clear in barlow that that going back and serving that postpone prison term that is part of the original t imposed by the court so it is they are not being they are not being they're not going to prison for their violation they're going to prison to serve out the remainder of their postponed prison term and i would also point out that barlow nakes very clear that it is we are we do not allow north carolina we're taking north carolina law into account but we're not allowing north carolina labels to dictate so if the the to violation zte trigger the full nine months or so and that's causing or committing new criminal conduct lesser violations trigger lesser periods to they're just making a judgment about how long if you go back but this court specifically said and barlow your honor that when the commission does that it's not it's not doing that to be true to punish the person for their violations they're sending them back to serve out the original term of incarceration and you know in barlow the defendant of course was arguing that post release supervision is supervised release and this court said we understand that north carolina call that post really supervision but that's not actually what it is it is part of the term of imprisonment and we end this court rejected the defendant's argument that that label all the way north carolina called it post release supervision meant that it was actually post really supervision is that it fell within that term of imprisonment and rejected the label that north carolina applied to it so we believe that people on post really supervision so if they're not receiving any credit towards that postponed prison term we think that's just one more reason why this operates as a suspended sentence and