Legal Case Summary

. But that argument is obviously that that is immaterial, under either, frankly, the old or the new version. The separate offenses occurring on separate days, separate individuals, separate set of facts. Not separated by intervening arrests, and so the consideration then becomes where they consolidated for sentencing under the old guideline, or were they sentenced on the same day under the new guideline. There's confusion under the old guideline as to what is meant by consolidated for sentencing. But they would look to state law for that. And the state law is very clear as I laid out in my brief that a formal order of consolidation was not needed. I was confused as exactly what the district court held with respect to consolidation. There is a lot of statements that these were consolidated, these were consolidated, and then a concern that, or a statement that there was no formal order of consolidation. But if you're looking at Pennsylvania law, and the testimony of Mr. Moore was orders aren't entered. The district court, excuse me, was looking for the same transaction or occurrence or a factual relatedness between the offenses. Under the old guideline, application no three, those were the first and second criteria for determining related cases. However, there's the destructive or not and, so you don't need those. You can just have consolidated cases. My sense from reading it, and I share your confusion with that, I think that the district court was on this misreading application no three, and looking at this first two criteria, and either assuming that they were needed in isolation, or that it was an and rather than an or, and that because those were missing. So I think that his holding really, with all due respect to Judge McLaughlin, is not how it's hurtful. I'm sorry, it was Judge McLaughlin. I'm sorry, her holding

. Judge McLaughlin. Mary McLaughlin. Was it Sean? Sean McLaughlin. I'm sorry, I'm sorry, I'm sorry. We have heard another case, sorry. Okay, that's quite all right. So I don't think it's instructive, and I think we need to look beyond the district court's holding to determine consolidated cases, and also, more importantly, whether this is retroactive, is clarifying. But isn't your argument that we looked at Pennsylvania law to see if they were consolidated. Moore's testimony was credited. It was. I.e., they were consolidated as a matter of law under Pennsylvania law and the vinkery. It was, and also that that was enough for consolidated, and that for consolidated, doesn't matter, for factual similarity, or concurred sentences, or anything of that nature. There was no third circuit precedent at that point holding to the contrary. Still is not. And our interpretation of consolidated is whether it's consolidated under Pennsylvania law. It couldn't be

. So guess, there's so many cases going the other way. There's so many cases are conflating the whole relatedness. It's curious. That's recognized in the sentencing commission's reason for the amendment, and they recognize that there is a circuit split. And our position with regard to the new amendment, relying as I did in my 28J letter on the Marmeligious case, that what we are looking at is the effect of the amendment, and whether it stays the same, and it does. In Marmeligious, this court noted that it was still a quantity-based determination. It was just how do you determine the quantity? Here, it's still a determination under the new guideline of whether these prior sentencing were somehow joined. It's just clarifying the new amendment, how we determine the joiner, and they explain the sentencing commission. But there's some contrary authority on the other side. The amazing case out of the circuit. I think that that case is squarely against Marmeligious, because they relied a lot in Mesa upon the fact that the language was changed. And in Marmeligious, this court noted that changing the language is one of many factors to be considered. There's no bright line test. Among the other fact things, the court took the language of the amendment, the amendment's purpose and effect, which stays the same here. And whether as a matter of construction, the guideline and commentary and effect at the time, is really consistent with the amended manual. This is consistent because to say that sentence on the same day is how we're defining it is not inconsistent with consolidation and is in fact a way to define that. So it's really defining and not inconsistent. Also, as this court noted in Marmeligious, noting there's no bright line test, often, and almost always, there are factors which go both ways

. And certainly, even if we consider credit, some of the factors noted in Mesa, there are other overriding and more important factors, such as the purpose and effect, having stayed the same with the amendment. Do we need to resolve the impact of the amendment in order to decide the case? If the amendment, do you mean in terms of whether it's substantive or clarifying? Yes. I think that you do. Well, no, because our position is the same under either. So either way, these cases were properly joined. They were either properly joined because they were consolidated under Pennsylvania law, which is sufficient under the old amendment, or they were consolidated because they were sentenced on the same day, which satisfies the new amendment. I thought that was your position. It doesn't make any sense. Either way. Yes. In fact, the consistency, again, it's almost circular because the fact that you reach the same result under either the older, the new, shows that they're consistent and hence that the amendment is clarifying, rather than substantive. What do you think is the thrust of the amendment, though? If you were asked just to summarize, what does it do? It moves up the language from the application of three explaining how these cases have to be joined, puts it into the body of the text, and in doing so, explains the specific criteria needed for the joiner of these cases, or how to determine whether or not it's separate. Excuse me. Does it hurt you or help you? The change in, yes. I think it's more clear cut. Obviously, the prior guideline was vague and left open, this whole definition of how the cases needed to be put together or combined. So by clarifying and explaining, yes, it helps us, and it just makes it a slam dunk, the new amendment, and the old amendment, we still win, but you have to grapple with some contrary authority and also jump from the body of the guideline down to the application note. Does the new amendment do away with the functional consolidation analysis? It does

. It absolutely does. All you need is that in the same day. It almost seemed to me under the new guideline. You could have a sentencing at 10 o'clock in the morning and another one at three o'clock in the afternoon, and they could come together, whereas here, that's not even a situation we have one combined hearing. Excuse me. No, they were completely unrelated. There was a joint plea to all three, and then as required by Pennsylvania law, as explained in my brief, they were all sentenced together after there was a joint plea. Well, the reason for the new guidelines, because there was all this litigation over what does related me and the reason they clarified and said, yo, related means all sentence the same day, then presumably they don't want us to look at the same day. That the related at all. No. That's my position on the amendment that it's definitional that previously there was no definition of what does consolidated me. Wasn't that pretty substantive? Before you had a functional analysis and you had some courts going one way and other courts going the other way, virtually identical facts, and then you come up with a new amendment and says forget about all that. If you sentence on the same day, that's the end of the story. Why isn't that substantive? It's not substantive because they're merely saying what they meant all along and the courts which helped to the contrary were quite simply wrong. Do you have any cases that we've gotten the 28J letter? Do you have any cases that go your way because there are 10, 9 cases granted, they're all there now. District, well, there's a couple of circuit cases. The one third, excuse me, the one third circuit case in the government's list is not presidential and furthermore it is dictated in the case. There's really no analysis

. It's just a fleeting comment. It's substantive. Do you have any cases going the other way? I think more merely just as the strongest. I mean, on this guy, the new case. That's from the 80s. That is the strongest case because the analysis is really on all fours even though it's a different type of case. And that's really what I would rely upon in that it explains that if the effect of the guideline is still the same and the method is the same and that's even the last paragraph. Has the effect of the guidelines the same? It is. And again, the courts which helped to the contrary were incorrect and this is an explanation of like the commission meant all along. Although in a certain state, if you have an issue of consolidation may not be just on the same day. Consolidated may require them to be combined under the same docket. So you could have a real difference under the old versus the new guideline and was that make it substantive? And that's stated could but we're not in but we're not in any other state. We're in Pennsylvania and it's not a substantive change here. And frankly, that's a problem and why the guideline needed to be amended. In some. The amendment to the guideline is clarifying. It applies retroactively. The amended version of the guideline requires that multiple priors for which sentences were imposed on the same day, be treated as one

. The sentences for the priors and paragraphs 33, 34 and 35 were all imposed on March 11, 1994. However, in the event that this court disagrees with me and finds that the amendment was substantive, I would rely on the analysis in my brief. And as this court has noted today under Pennsylvania law, the cases were as consolidated as they could have been. A quick question. There was no the amendment was not argued in the briefs. Does that matter of timing or a matter of the amendment was not available then? The briefs were. Excuse me. Because it could be we haven't gone to briefing on this issue of clarifying versus substantive. The brief was March 2007 and I think it was just in the fall that it came up right and then the guideline wasn't even effective. At that point, we didn't get the government's brief until May. Great. Thank you, Ms. Kulak. I'll have you back in the room. If the court does feel that a need for supplemental briefing, I would of course be happy to comply. We appreciate that. We may ask you for that as well. Mr

. Renn. May I please the court, Laura Irwin from the U.S. Attorney's Office and the Western District on behalf of the government. The amendment in this case, amendment 709 is substantive. It's not clarifying and should not be applied retroactively. In Marmalayos, this court decided that the issue whether or not an amendment is substantive versus clarifying really turns on the text of the amendment. It turns on the text of the guideline as it was before is compared to the text of the guideline as it is after. In this case, I think there can be no dispute that there is a drastic and substantive change to this guideline. The word related is removed. The word, I just completely forgot, consolidated, is also removed. The commission has adopted an entirely new approach to determining whether or not cases should be driven using related. I wanted to speak in terms of separate sentences. They excise the guideline and put in something new. I would agree with Ms. Girlock if they said by consolidated we meant X. But they've gone through, and with the exception of when there is a prior intervene and arrest, they've taken out on the same occasion. They've taken out common scheme of plan

. They've taken out consolidated for trial and sentencing. They've substituted and put in a whole new method. That's what was determined in the Marmalayos case. A new method of determining how you compute past defenses for criminal history purposes. Let's assume you're right. We won't consider the new amendment. Where are we with respect to the concept that under the guideline they should be considered related if they were consolidated, retrial or sentencing. And we have the testimony of Mr. Moore and the district court's apparent acceptance of that testimony that these were consolidated. Where do we go? How do the district court then have to go any further than that? Well, I think that you look at the other cases that talk about functional consolidation. They don't just stop looking at what may have happened in the state as a matter of procedure. They look at other factors. But isn't it true that we only need to address the issue of functional consolidation if we cannot tell as a matter of state law whether they were consolidated or not? That's true. In this case, Mr. Wheaton's tell here. Mr. Wood conceded there was no formal order. And I think part of the problem is, is this order by Judge McLaughlin, I found very difficult to follow because he quotes and it's hard to tell what's actually going on

. When he actually gets to his decision, it's clear that as everyone agreed the beforehand there was no formal order. And it linguistically gets difficult because the same words are being used. He finds it's a matter of fact. He credits the defendant's testimony and says it's a matter of fact, under Pennsylvania law propensivating purposes for what you guys do in Eerie County. I think that's particularly important. Is that attorney talked about only what can happen in Eerie County? I would agree with you. Marking that box on the charging papers was enough. If it had gone to trial, that's a different issue, but it didn't go to trial. But that's enough for you to consider these consolidated for state law purposes. And then as far as sentencing goes, the defendant has a right under Pennsylvania procedure to have the sentencing take place on one day. The district court goes on to say that may be how it is in Eerie County, Pennsylvania. But that's not enough for purposes of federal sentencing law. Because under the federal sentencing guidelines, we have to look at other concerns. And the guidelines speak in terms of when they talk about criminal history, real offense sentencing and decreasing disparate sentences among federal defendants. And if you don't keep those things in mind and you only look at what happens in Eerie County, if you don't look at the reality of what happened, I.E., they were separate sentences issued to run consecutively, you're going to miss the vote. You're not going to have real offense sentencing. But does the he conflate? I mean, the application said they will be considered related if they were consolidated. It's one thing to try to decide where they are, where they not consolidated as a matter of law. But he then goes on and the analysis is an analysis of relatedness. He's looking at the other circuit decisions. I agree with you. Other courts have done that. They've contaminated that. In fact, that was imbued. Should we? I think so. I mean, we don't, I don't think we should confabulate. I don't think we should, we should do what other circuits have done if it's not right. I think it is right, though, because the purpose of the guideline is to look at real offense sentencing. What really happened here? And the Supreme Court tacitly endorsed that in Bupert when they said, you look to confumional consolidation. It's a factual determination. And we owe due deference to the district court because they're the ones, they're on the lines, they have this information that are aware of federal and state sentencing practices, that are in the best position to make the determination. But the application note itself talks about the fact that this artificial measure, i.e. consolidated, can under-represent criminal history so that you may want to upwardly depart

. But does the he conflate? I mean, the application said they will be considered related if they were consolidated. It's one thing to try to decide where they are, where they not consolidated as a matter of law. But he then goes on and the analysis is an analysis of relatedness. He's looking at the other circuit decisions. I agree with you. Other courts have done that. They've contaminated that. In fact, that was imbued. Should we? I think so. I mean, we don't, I don't think we should confabulate. I don't think we should, we should do what other circuits have done if it's not right. I think it is right, though, because the purpose of the guideline is to look at real offense sentencing. What really happened here? And the Supreme Court tacitly endorsed that in Bupert when they said, you look to confumional consolidation. It's a factual determination. And we owe due deference to the district court because they're the ones, they're on the lines, they have this information that are aware of federal and state sentencing practices, that are in the best position to make the determination. But the application note itself talks about the fact that this artificial measure, i.e. consolidated, can under-represent criminal history so that you may want to upwardly depart. So the application note recognized that there was this manufactured concept of consolidation and that it's not going to reflect the fact that those three crimes that they have and sentenced the same day should really be just limited to those, those few points. So it didn't, didn't the guidelines take into account that an upward departure might be warranted so that there are other ways of taking into account the seriousness? I see a point, but I think what that commentary that referring to is the district court noted is if there is a formal order of consolidation, then you might find yourself in that circumstance to which the commentary speaks. And in fact, the Joseph Court, which is the case from the 7th Circuit that Mr. Wood relies upon, basically came to the same conclusion. The quoted portion of Wood, excuse me, of Joseph, cited by Wood says, if there's a formal order of consolidation, it could be an offense for, you know, there's something about smoky to bear on there and it could be completely unrelated. And that's when that commentary kicks in. But if the under-pensivating law of something is consolidated by virtue of the procedure that happened here, why was the court correct in requiring a formal order of consolidation when they were consolidated as a matter of state law? I think so. I think so. Keep in mind that what happened in this case was not a holding or even an offer by Mr. Wood this is how it happens throughout the state. This was eerie county Pennsylvania based on the experience of four years of the testifying lawyer. Is it your position that there was, certainly there was no formal order of consolidation? Is it your position that under Pennsylvania law it was not, it doesn't deserve the term consolidation or it does and that we shouldn't follow Pennsylvania law in this regard. For purposes of federal sentencing law, Pennsylvania's just definition of consolidation cannot be the driver because you're going to end up with different criminal history scores for virtually every defendant from every county. All right. And county or state? County because Mr. Moore testified this is how it happens in eerie county. Is it your view that under consolidated Pennsylvania law that there was consolidation in the state court cases or not? The district court found as a matter of fact based on Mr. Wood's testimony that these cases were consolidated

. So the application note recognized that there was this manufactured concept of consolidation and that it's not going to reflect the fact that those three crimes that they have and sentenced the same day should really be just limited to those, those few points. So it didn't, didn't the guidelines take into account that an upward departure might be warranted so that there are other ways of taking into account the seriousness? I see a point, but I think what that commentary that referring to is the district court noted is if there is a formal order of consolidation, then you might find yourself in that circumstance to which the commentary speaks. And in fact, the Joseph Court, which is the case from the 7th Circuit that Mr. Wood relies upon, basically came to the same conclusion. The quoted portion of Wood, excuse me, of Joseph, cited by Wood says, if there's a formal order of consolidation, it could be an offense for, you know, there's something about smoky to bear on there and it could be completely unrelated. And that's when that commentary kicks in. But if the under-pensivating law of something is consolidated by virtue of the procedure that happened here, why was the court correct in requiring a formal order of consolidation when they were consolidated as a matter of state law? I think so. I think so. Keep in mind that what happened in this case was not a holding or even an offer by Mr. Wood this is how it happens throughout the state. This was eerie county Pennsylvania based on the experience of four years of the testifying lawyer. Is it your position that there was, certainly there was no formal order of consolidation? Is it your position that under Pennsylvania law it was not, it doesn't deserve the term consolidation or it does and that we shouldn't follow Pennsylvania law in this regard. For purposes of federal sentencing law, Pennsylvania's just definition of consolidation cannot be the driver because you're going to end up with different criminal history scores for virtually every defendant from every county. All right. And county or state? County because Mr. Moore testified this is how it happens in eerie county. Is it your view that under consolidated Pennsylvania law that there was consolidation in the state court cases or not? The district court found as a matter of fact based on Mr. Wood's testimony that these cases were consolidated. The party stipulated and the judge Michael agreed however there was no formal order of consolidation. The defendant's argument was I have the page from the appendix is page 209. The district court asked Tom Patten to turn it below. There was no formal order of consolidation enter here. There's no dispute about that correct. Mr. Patten says correct. It's your position I take it that notwithstanding the absence of a formal consolidation order, there was in some cases use the term functional consolidation is that right. And he responds no with regard to I think the first level analysis is if you find a repensal of any law that these cases were actually consolidated, that's the end of the inquiry. The district court agreed with you to the extent you've got to look at what happened under Pennsylvania law. But for federal sentencing purposes you need to go further because we're in a system of real offense sentencing that wants to look at what actually happened with the particular defendant to accurately reflect his criminal history. I don't see how that then means you need an order of consolidation. That to me is a non-sequitur. If instead of this notice the judge had signed on the dotted line consolidated you know ever J. Then there's no then this concept about sentencing goes out the window. In the dog commentary accounts for that by saying when there's a form you know when there's been a consolidation. Yeah it doesn't say when there's a problem with that's true. That's true

. The party stipulated and the judge Michael agreed however there was no formal order of consolidation. The defendant's argument was I have the page from the appendix is page 209. The district court asked Tom Patten to turn it below. There was no formal order of consolidation enter here. There's no dispute about that correct. Mr. Patten says correct. It's your position I take it that notwithstanding the absence of a formal consolidation order, there was in some cases use the term functional consolidation is that right. And he responds no with regard to I think the first level analysis is if you find a repensal of any law that these cases were actually consolidated, that's the end of the inquiry. The district court agreed with you to the extent you've got to look at what happened under Pennsylvania law. But for federal sentencing purposes you need to go further because we're in a system of real offense sentencing that wants to look at what actually happened with the particular defendant to accurately reflect his criminal history. I don't see how that then means you need an order of consolidation. That to me is a non-sequitur. If instead of this notice the judge had signed on the dotted line consolidated you know ever J. Then there's no then this concept about sentencing goes out the window. In the dog commentary accounts for that by saying when there's a form you know when there's been a consolidation. Yeah it doesn't say when there's a problem with that's true. That's true. That's true. That's a key found as a matter of law and he did that there's a consolidation under Pennsylvania law. I'm just having problem figuring out why I'm more aware of this. I think it's about an actually consolidated for trial. He found that as a matter of fact in the district court has said these are factual determinations that an appellate court must apply due to a difference to and allow a district court who's on the front who knows exactly what's going on with these procedures can make that determination without the appellate court sitting there and second guessing those determinations at each turn. But in the end he required he looked at the substance of what was happening here rather than the what was going on in the nature of consolidation others. He looked at the similarity if you will and relatedness correct. He did but he also recognized the fact that although these were sentencing on the same day the defendant received separate sentences for each of them. He was a defense. So yes did he look at whether they occurred the events occurred in the same day and all the same victim those types of things but he also gave credence to the fact that the sentences were separate. So he applied a functional consolidation analysis? He did and as I reviewed the record I can't find any clear error with any of those determinations. Well this court may agree and think that it would have come to a different determination that's not enough under Anderson the best in our city to say that the district court was wrong. When there's two two diversion views it's not enough to say they're wrong. Is it clear under prior law assuming that we're still dealing with the prior guideline? Is it clear that it's permissible for the federal trial court to override a determination of what is consolidation under state law to apply a functional analysis and to come out differently as it did in this case? Well I think so when it's based on an issue of fact I mean the testimony was given by the defendant as to what happened in this case and the district court found as a matter of fact that that's what happened. I just want to say the seventh circuit in the Staubaum case said that we really look at state law to decide whether something has been consolidated correct? Should we depart from that? I'm not familiar with that case I may have cited it in my brief but off the top of my head I think that's what it says I'll take your word for it. Well we're trying to figure out when state law consideration should be overruled or when federal consideration should take over in this matter. And I realize that if that's what the seventh circuit said I think that the overlying concern needs to be that you're in a federal court talking about federal sentencing and if we're going to have a rule that it turns on what happens in each county you're going to have an evidentiary hearing in each one of these cases. Obviously not now because there's a new amendment but that's what's going to be required for any case that comes up on appeal between 2005 and 2000 with the guy might look at that

. That's true. That's a key found as a matter of law and he did that there's a consolidation under Pennsylvania law. I'm just having problem figuring out why I'm more aware of this. I think it's about an actually consolidated for trial. He found that as a matter of fact in the district court has said these are factual determinations that an appellate court must apply due to a difference to and allow a district court who's on the front who knows exactly what's going on with these procedures can make that determination without the appellate court sitting there and second guessing those determinations at each turn. But in the end he required he looked at the substance of what was happening here rather than the what was going on in the nature of consolidation others. He looked at the similarity if you will and relatedness correct. He did but he also recognized the fact that although these were sentencing on the same day the defendant received separate sentences for each of them. He was a defense. So yes did he look at whether they occurred the events occurred in the same day and all the same victim those types of things but he also gave credence to the fact that the sentences were separate. So he applied a functional consolidation analysis? He did and as I reviewed the record I can't find any clear error with any of those determinations. Well this court may agree and think that it would have come to a different determination that's not enough under Anderson the best in our city to say that the district court was wrong. When there's two two diversion views it's not enough to say they're wrong. Is it clear under prior law assuming that we're still dealing with the prior guideline? Is it clear that it's permissible for the federal trial court to override a determination of what is consolidation under state law to apply a functional analysis and to come out differently as it did in this case? Well I think so when it's based on an issue of fact I mean the testimony was given by the defendant as to what happened in this case and the district court found as a matter of fact that that's what happened. I just want to say the seventh circuit in the Staubaum case said that we really look at state law to decide whether something has been consolidated correct? Should we depart from that? I'm not familiar with that case I may have cited it in my brief but off the top of my head I think that's what it says I'll take your word for it. Well we're trying to figure out when state law consideration should be overruled or when federal consideration should take over in this matter. And I realize that if that's what the seventh circuit said I think that the overlying concern needs to be that you're in a federal court talking about federal sentencing and if we're going to have a rule that it turns on what happens in each county you're going to have an evidentiary hearing in each one of these cases. Obviously not now because there's a new amendment but that's what's going to be required for any case that comes up on appeal between 2005 and 2000 with the guy might look at that. We do that all the time don't we? We look at you know what is a felony under Pennsylvania law purposes of an immigration definition that will and it's going to change but there is no federal law consolidation is there? No federal laws have what's consolidated we have to look somewhere right but I think there's a developed body of federal law what consolidation means for purposes of this guideline and those would be the cases the parties have relied on that common law of what what functional consolidation means. Because there is no statute or guideline that even talks about functional consolidation is something the courts have developed. Is it clear that if we're under the new guideline is it clear that the government that we should vacate the sentence? That's an interesting question I recognize that you asked Ms. Girlot the same question and my answer would be no for a couple of reasons one is is that and this is not an issue briefed by the parties but Mr. Wood never objected to his sense as being unreasonable before the district court or never raised that issue on appeal we didn't address that issue but I think what the Supreme Court is telling us in its recent decisions is that that is what we need to be considered considering on appeal is whether or not a sentence is reasonable there may be cases in which a guideline error requires a new sentencing but I believe on this record this case is not one of them and I recognize we didn't briefed I'd be happy to answer the question. How do we make how do we make that kind of a reasonable determination if the district court never considered it? Because in this case Mr. Wood's guideline criminal history category did not derive his sentence the district court took that as one factor which is what the Supreme Court is telling district courts they must do and it's taken as one factor and looked at every other factor in 3553a to determine what Mr. Wood's sentence should be and that's exactly what happened here. Well that's a little bit different from the question I asked that's a so that we're starting all over again here. What is the new guideline saying? The new guideline says that it should be counted. I knew if you asked me to recite it completely I couldn't. If they're same charging document or sent so on the same day. So the defendant's position would prevail under the new guideline if we were starting from scratch. I think for all practical purposes it probably would. It would remain to be seen whether the courts would like to take it further and look behind that and see what it says but I think as you look at the guideline and the reason why they amended it is the sentencing commissions trying to get away from all litigation about what these individual things mean and kind of cadet in say that the courts you guys got a little crazy with this whole related thing and same way. Actually I think computations are what his range should be and actually I'm not even in agreement with what Miss girl I put in her brief because I think she missed a point but based on my calculations you have to remember that the crime of violence points not there because we lost that when we didn't appeal it. So is based at that level and say the stain and his criminal history category down had you want to put his point to have you want to be six or the category of three and my calculations is under the amendment 709 it would be six with the category of three and that range is 37 to 46 months. Right

. We do that all the time don't we? We look at you know what is a felony under Pennsylvania law purposes of an immigration definition that will and it's going to change but there is no federal law consolidation is there? No federal laws have what's consolidated we have to look somewhere right but I think there's a developed body of federal law what consolidation means for purposes of this guideline and those would be the cases the parties have relied on that common law of what what functional consolidation means. Because there is no statute or guideline that even talks about functional consolidation is something the courts have developed. Is it clear that if we're under the new guideline is it clear that the government that we should vacate the sentence? That's an interesting question I recognize that you asked Ms. Girlot the same question and my answer would be no for a couple of reasons one is is that and this is not an issue briefed by the parties but Mr. Wood never objected to his sense as being unreasonable before the district court or never raised that issue on appeal we didn't address that issue but I think what the Supreme Court is telling us in its recent decisions is that that is what we need to be considered considering on appeal is whether or not a sentence is reasonable there may be cases in which a guideline error requires a new sentencing but I believe on this record this case is not one of them and I recognize we didn't briefed I'd be happy to answer the question. How do we make how do we make that kind of a reasonable determination if the district court never considered it? Because in this case Mr. Wood's guideline criminal history category did not derive his sentence the district court took that as one factor which is what the Supreme Court is telling district courts they must do and it's taken as one factor and looked at every other factor in 3553a to determine what Mr. Wood's sentence should be and that's exactly what happened here. Well that's a little bit different from the question I asked that's a so that we're starting all over again here. What is the new guideline saying? The new guideline says that it should be counted. I knew if you asked me to recite it completely I couldn't. If they're same charging document or sent so on the same day. So the defendant's position would prevail under the new guideline if we were starting from scratch. I think for all practical purposes it probably would. It would remain to be seen whether the courts would like to take it further and look behind that and see what it says but I think as you look at the guideline and the reason why they amended it is the sentencing commissions trying to get away from all litigation about what these individual things mean and kind of cadet in say that the courts you guys got a little crazy with this whole related thing and same way. Actually I think computations are what his range should be and actually I'm not even in agreement with what Miss girl I put in her brief because I think she missed a point but based on my calculations you have to remember that the crime of violence points not there because we lost that when we didn't appeal it. So is based at that level and say the stain and his criminal history category down had you want to put his point to have you want to be six or the category of three and my calculations is under the amendment 709 it would be six with the category of three and that range is 37 to 46 months. Right. Where as he was sentenced based upon 46 to 57 months. Actually I think the range that he was used by the district court was his points were 12 his criminal history category was five and the range was 57 to 71 months. There wasn't enough work departure. All right so it's 57 to 71 but now it would be 37 to 46 and you're saying don't you think under a gall we would need to proceed from the right spot and go through the 3553 analysis. I think the district court should review that if we were to determine the visa have been consolidated. Well having read go a couple of times for this particular point I couldn't find anything with complete clarity that the said the Supreme Court would never find harmless or plain air first step one problem and in fact. But we can have to go in the Jimenez decision to panel this court published a premium said the general rule may always maybe the remand is required but there are many cases in which there could be a harmless or plain air analysis applied. In our position would be based on statement of reasons in this case and the fact that Mr. Wood is never claimed but his sense his ultimate sense is unreasonable that this would qualify as a reasonable sentence. Thank you. Thank you very much. Thank you. The guideline range under which the defendant was sentenced was 57 to 71 months 12 points criminal history. I think the confusion is that the PSR started with criminal history category for with regard to the emphasis on a formal order as a matter of simple fairness. I think that is simply cannot prevail because it's asking for something that just doesn't exist or occur in penciling a practice as Mr. Moore testified if you give the notice and then the cases are eventually which occurred in two of the three here there was notice on the charging document and then a combined plea leads to a combined sentence. It's just not done where there are more questions. What's the definition of combined sentence? Is that combined for sentence? That's the term I've been using but that's not a term of art in the guideline

. Where as he was sentenced based upon 46 to 57 months. Actually I think the range that he was used by the district court was his points were 12 his criminal history category was five and the range was 57 to 71 months. There wasn't enough work departure. All right so it's 57 to 71 but now it would be 37 to 46 and you're saying don't you think under a gall we would need to proceed from the right spot and go through the 3553 analysis. I think the district court should review that if we were to determine the visa have been consolidated. Well having read go a couple of times for this particular point I couldn't find anything with complete clarity that the said the Supreme Court would never find harmless or plain air first step one problem and in fact. But we can have to go in the Jimenez decision to panel this court published a premium said the general rule may always maybe the remand is required but there are many cases in which there could be a harmless or plain air analysis applied. In our position would be based on statement of reasons in this case and the fact that Mr. Wood is never claimed but his sense his ultimate sense is unreasonable that this would qualify as a reasonable sentence. Thank you. Thank you very much. Thank you. The guideline range under which the defendant was sentenced was 57 to 71 months 12 points criminal history. I think the confusion is that the PSR started with criminal history category for with regard to the emphasis on a formal order as a matter of simple fairness. I think that is simply cannot prevail because it's asking for something that just doesn't exist or occur in penciling a practice as Mr. Moore testified if you give the notice and then the cases are eventually which occurred in two of the three here there was notice on the charging document and then a combined plea leads to a combined sentence. It's just not done where there are more questions. What's the definition of combined sentence? Is that combined for sentence? That's the term I've been using but that's not a term of art in the guideline. No, no, no, but I'm trying to figure out what happened here since these were these were consecutive. These were different sentences. They were not made concurrent. They were not made concurrent but they were sentenced on the same day at the same time. I understand that and I'm still having trouble with your definition of consolidation here. I'm just trying to find out. My definition is the definition under Pennsylvania state law based on the practices, procedures of Erie County and also my opponent said that it varies from county to county to a certain extent that's true. But there was also a lot of testimony about the Pennsylvania rules of procedure which indicate that when they are consolidated for sentencing they are together and that is said forth in the brief. Again, formal consolidation or functional consolidation. Functional consolidation. And should it make a difference if Erie County has a different practice than other counties? I think in a sense that what it means to apply law of all the counties of Pennsylvania. I think in the sense of whatever happens, you can't ask for something that's not there if they just don't do it. I think it's unfair to say that the defendant suffers because he happens to be convicted in a county where they don't do formal orders or in a state where the laws don't require it for cases to be consolidated. And if I may say... That seems to argue for a federal overlay on this particular problem. And I think that's probably what the amendment was in part a response to and the reason for the amendment indicates that there was disagreement, there was litigation, there was a circuit conflict

. No, no, no, but I'm trying to figure out what happened here since these were these were consecutive. These were different sentences. They were not made concurrent. They were not made concurrent but they were sentenced on the same day at the same time. I understand that and I'm still having trouble with your definition of consolidation here. I'm just trying to find out. My definition is the definition under Pennsylvania state law based on the practices, procedures of Erie County and also my opponent said that it varies from county to county to a certain extent that's true. But there was also a lot of testimony about the Pennsylvania rules of procedure which indicate that when they are consolidated for sentencing they are together and that is said forth in the brief. Again, formal consolidation or functional consolidation. Functional consolidation. And should it make a difference if Erie County has a different practice than other counties? I think in a sense that what it means to apply law of all the counties of Pennsylvania. I think in the sense of whatever happens, you can't ask for something that's not there if they just don't do it. I think it's unfair to say that the defendant suffers because he happens to be convicted in a county where they don't do formal orders or in a state where the laws don't require it for cases to be consolidated. And if I may say... That seems to argue for a federal overlay on this particular problem. And I think that's probably what the amendment was in part a response to and the reason for the amendment indicates that there was disagreement, there was litigation, there was a circuit conflict. And I think that supports my position that the amendment is clarifying and that there was confusion that needed to be cleared up. So there was really no need for substantive change and that's not what happened. There was a clarification. Good. But the case has been very well argued. Why don't we get some additional briefing on the new guideline and whether it was substantive or clarifying. You both have made excellent arguments here today. And while there probably are going to be too many of these cases coming up, there will be a few I guess. But it could be significant for the legal principle as to retroactivity in these kinds of circumstances. So you want the additional briefing simply on whether it's substantive or clarifying. Yeah, but you can add if you want to add something, if you want to expand your arguments, that's perfectly fine too. We just make them letter-brace no more than 10 pages. And two weeks enough time for that. We're seated. Do you have any other questions? Is post-mark sufficient or...? Oh, sure

. And I think that supports my position that the amendment is clarifying and that there was confusion that needed to be cleared up. So there was really no need for substantive change and that's not what happened. There was a clarification. Good. But the case has been very well argued. Why don't we get some additional briefing on the new guideline and whether it was substantive or clarifying. You both have made excellent arguments here today. And while there probably are going to be too many of these cases coming up, there will be a few I guess. But it could be significant for the legal principle as to retroactivity in these kinds of circumstances. So you want the additional briefing simply on whether it's substantive or clarifying. Yeah, but you can add if you want to add something, if you want to expand your arguments, that's perfectly fine too. We just make them letter-brace no more than 10 pages. And two weeks enough time for that. We're seated. Do you have any other questions? Is post-mark sufficient or...? Oh, sure. Absolutely. We're not going to turn it back. If you don't have it here. Good. It's very well argued. We thank both counsel. We'll take the matter under a judgment. The next case is HUD.

The first matter today is United States versus Wood. It's going. Thank you, Your Honor. May I please the Court? I am Karen Cereyani-Gurlock, and I represent the appellant Gary Wood. At this time, I would ask the Court to grant three minutes every butto time. All right. Thank you. There are three reasons why the amendment to section 4A1.2A2 is a clarifying amendment, which is entitled to retroactive application. First, the amendment does not change the method for determining whether multiple prior sentences are treated as one. Second, the amendment explains and clarifies when prior sentences are treated as one. And third, in its reason for amendment, the sentencing commission confirms that this is a clarifying amendment to elaborate. Underbeth the old and the new versions of the guideline, multiple priors are treated as one if they were somehow combined for sentencing. That has not changed from the old to the new guideline, and the only problem with the old guideline is that it wasn't clear under it. I'm sorry. How they had to be combined specifically whether or not all of them was needed. That's what I was going to ask you, even if we're whatever guideline we're under, what does combined mean? In this case, they really weren't combined. They were combined in terms of the sentencing's all occurred for paragraph 33, 34, 35 on March 11, 1994. But they were treated differently, were they not? They were treated differently in terms of the sentences were not concurrent. But that argument is obviously that that is immaterial, under either, frankly, the old or the new version. The separate offenses occurring on separate days, separate individuals, separate set of facts. Not separated by intervening arrests, and so the consideration then becomes where they consolidated for sentencing under the old guideline, or were they sentenced on the same day under the new guideline. There's confusion under the old guideline as to what is meant by consolidated for sentencing. But they would look to state law for that. And the state law is very clear as I laid out in my brief that a formal order of consolidation was not needed. I was confused as exactly what the district court held with respect to consolidation. There is a lot of statements that these were consolidated, these were consolidated, and then a concern that, or a statement that there was no formal order of consolidation. But if you're looking at Pennsylvania law, and the testimony of Mr. Moore was orders aren't entered. The district court, excuse me, was looking for the same transaction or occurrence or a factual relatedness between the offenses. Under the old guideline, application no three, those were the first and second criteria for determining related cases. However, there's the destructive or not and, so you don't need those. You can just have consolidated cases. My sense from reading it, and I share your confusion with that, I think that the district court was on this misreading application no three, and looking at this first two criteria, and either assuming that they were needed in isolation, or that it was an and rather than an or, and that because those were missing. So I think that his holding really, with all due respect to Judge McLaughlin, is not how it's hurtful. I'm sorry, it was Judge McLaughlin. I'm sorry, her holding. Judge McLaughlin. Mary McLaughlin. Was it Sean? Sean McLaughlin. I'm sorry, I'm sorry, I'm sorry. We have heard another case, sorry. Okay, that's quite all right. So I don't think it's instructive, and I think we need to look beyond the district court's holding to determine consolidated cases, and also, more importantly, whether this is retroactive, is clarifying. But isn't your argument that we looked at Pennsylvania law to see if they were consolidated. Moore's testimony was credited. It was. I.e., they were consolidated as a matter of law under Pennsylvania law and the vinkery. It was, and also that that was enough for consolidated, and that for consolidated, doesn't matter, for factual similarity, or concurred sentences, or anything of that nature. There was no third circuit precedent at that point holding to the contrary. Still is not. And our interpretation of consolidated is whether it's consolidated under Pennsylvania law. It couldn't be. So guess, there's so many cases going the other way. There's so many cases are conflating the whole relatedness. It's curious. That's recognized in the sentencing commission's reason for the amendment, and they recognize that there is a circuit split. And our position with regard to the new amendment, relying as I did in my 28J letter on the Marmeligious case, that what we are looking at is the effect of the amendment, and whether it stays the same, and it does. In Marmeligious, this court noted that it was still a quantity-based determination. It was just how do you determine the quantity? Here, it's still a determination under the new guideline of whether these prior sentencing were somehow joined. It's just clarifying the new amendment, how we determine the joiner, and they explain the sentencing commission. But there's some contrary authority on the other side. The amazing case out of the circuit. I think that that case is squarely against Marmeligious, because they relied a lot in Mesa upon the fact that the language was changed. And in Marmeligious, this court noted that changing the language is one of many factors to be considered. There's no bright line test. Among the other fact things, the court took the language of the amendment, the amendment's purpose and effect, which stays the same here. And whether as a matter of construction, the guideline and commentary and effect at the time, is really consistent with the amended manual. This is consistent because to say that sentence on the same day is how we're defining it is not inconsistent with consolidation and is in fact a way to define that. So it's really defining and not inconsistent. Also, as this court noted in Marmeligious, noting there's no bright line test, often, and almost always, there are factors which go both ways. And certainly, even if we consider credit, some of the factors noted in Mesa, there are other overriding and more important factors, such as the purpose and effect, having stayed the same with the amendment. Do we need to resolve the impact of the amendment in order to decide the case? If the amendment, do you mean in terms of whether it's substantive or clarifying? Yes. I think that you do. Well, no, because our position is the same under either. So either way, these cases were properly joined. They were either properly joined because they were consolidated under Pennsylvania law, which is sufficient under the old amendment, or they were consolidated because they were sentenced on the same day, which satisfies the new amendment. I thought that was your position. It doesn't make any sense. Either way. Yes. In fact, the consistency, again, it's almost circular because the fact that you reach the same result under either the older, the new, shows that they're consistent and hence that the amendment is clarifying, rather than substantive. What do you think is the thrust of the amendment, though? If you were asked just to summarize, what does it do? It moves up the language from the application of three explaining how these cases have to be joined, puts it into the body of the text, and in doing so, explains the specific criteria needed for the joiner of these cases, or how to determine whether or not it's separate. Excuse me. Does it hurt you or help you? The change in, yes. I think it's more clear cut. Obviously, the prior guideline was vague and left open, this whole definition of how the cases needed to be put together or combined. So by clarifying and explaining, yes, it helps us, and it just makes it a slam dunk, the new amendment, and the old amendment, we still win, but you have to grapple with some contrary authority and also jump from the body of the guideline down to the application note. Does the new amendment do away with the functional consolidation analysis? It does. It absolutely does. All you need is that in the same day. It almost seemed to me under the new guideline. You could have a sentencing at 10 o'clock in the morning and another one at three o'clock in the afternoon, and they could come together, whereas here, that's not even a situation we have one combined hearing. Excuse me. No, they were completely unrelated. There was a joint plea to all three, and then as required by Pennsylvania law, as explained in my brief, they were all sentenced together after there was a joint plea. Well, the reason for the new guidelines, because there was all this litigation over what does related me and the reason they clarified and said, yo, related means all sentence the same day, then presumably they don't want us to look at the same day. That the related at all. No. That's my position on the amendment that it's definitional that previously there was no definition of what does consolidated me. Wasn't that pretty substantive? Before you had a functional analysis and you had some courts going one way and other courts going the other way, virtually identical facts, and then you come up with a new amendment and says forget about all that. If you sentence on the same day, that's the end of the story. Why isn't that substantive? It's not substantive because they're merely saying what they meant all along and the courts which helped to the contrary were quite simply wrong. Do you have any cases that we've gotten the 28J letter? Do you have any cases that go your way because there are 10, 9 cases granted, they're all there now. District, well, there's a couple of circuit cases. The one third, excuse me, the one third circuit case in the government's list is not presidential and furthermore it is dictated in the case. There's really no analysis. It's just a fleeting comment. It's substantive. Do you have any cases going the other way? I think more merely just as the strongest. I mean, on this guy, the new case. That's from the 80s. That is the strongest case because the analysis is really on all fours even though it's a different type of case. And that's really what I would rely upon in that it explains that if the effect of the guideline is still the same and the method is the same and that's even the last paragraph. Has the effect of the guidelines the same? It is. And again, the courts which helped to the contrary were incorrect and this is an explanation of like the commission meant all along. Although in a certain state, if you have an issue of consolidation may not be just on the same day. Consolidated may require them to be combined under the same docket. So you could have a real difference under the old versus the new guideline and was that make it substantive? And that's stated could but we're not in but we're not in any other state. We're in Pennsylvania and it's not a substantive change here. And frankly, that's a problem and why the guideline needed to be amended. In some. The amendment to the guideline is clarifying. It applies retroactively. The amended version of the guideline requires that multiple priors for which sentences were imposed on the same day, be treated as one. The sentences for the priors and paragraphs 33, 34 and 35 were all imposed on March 11, 1994. However, in the event that this court disagrees with me and finds that the amendment was substantive, I would rely on the analysis in my brief. And as this court has noted today under Pennsylvania law, the cases were as consolidated as they could have been. A quick question. There was no the amendment was not argued in the briefs. Does that matter of timing or a matter of the amendment was not available then? The briefs were. Excuse me. Because it could be we haven't gone to briefing on this issue of clarifying versus substantive. The brief was March 2007 and I think it was just in the fall that it came up right and then the guideline wasn't even effective. At that point, we didn't get the government's brief until May. Great. Thank you, Ms. Kulak. I'll have you back in the room. If the court does feel that a need for supplemental briefing, I would of course be happy to comply. We appreciate that. We may ask you for that as well. Mr. Renn. May I please the court, Laura Irwin from the U.S. Attorney's Office and the Western District on behalf of the government. The amendment in this case, amendment 709 is substantive. It's not clarifying and should not be applied retroactively. In Marmalayos, this court decided that the issue whether or not an amendment is substantive versus clarifying really turns on the text of the amendment. It turns on the text of the guideline as it was before is compared to the text of the guideline as it is after. In this case, I think there can be no dispute that there is a drastic and substantive change to this guideline. The word related is removed. The word, I just completely forgot, consolidated, is also removed. The commission has adopted an entirely new approach to determining whether or not cases should be driven using related. I wanted to speak in terms of separate sentences. They excise the guideline and put in something new. I would agree with Ms. Girlock if they said by consolidated we meant X. But they've gone through, and with the exception of when there is a prior intervene and arrest, they've taken out on the same occasion. They've taken out common scheme of plan. They've taken out consolidated for trial and sentencing. They've substituted and put in a whole new method. That's what was determined in the Marmalayos case. A new method of determining how you compute past defenses for criminal history purposes. Let's assume you're right. We won't consider the new amendment. Where are we with respect to the concept that under the guideline they should be considered related if they were consolidated, retrial or sentencing. And we have the testimony of Mr. Moore and the district court's apparent acceptance of that testimony that these were consolidated. Where do we go? How do the district court then have to go any further than that? Well, I think that you look at the other cases that talk about functional consolidation. They don't just stop looking at what may have happened in the state as a matter of procedure. They look at other factors. But isn't it true that we only need to address the issue of functional consolidation if we cannot tell as a matter of state law whether they were consolidated or not? That's true. In this case, Mr. Wheaton's tell here. Mr. Wood conceded there was no formal order. And I think part of the problem is, is this order by Judge McLaughlin, I found very difficult to follow because he quotes and it's hard to tell what's actually going on. When he actually gets to his decision, it's clear that as everyone agreed the beforehand there was no formal order. And it linguistically gets difficult because the same words are being used. He finds it's a matter of fact. He credits the defendant's testimony and says it's a matter of fact, under Pennsylvania law propensivating purposes for what you guys do in Eerie County. I think that's particularly important. Is that attorney talked about only what can happen in Eerie County? I would agree with you. Marking that box on the charging papers was enough. If it had gone to trial, that's a different issue, but it didn't go to trial. But that's enough for you to consider these consolidated for state law purposes. And then as far as sentencing goes, the defendant has a right under Pennsylvania procedure to have the sentencing take place on one day. The district court goes on to say that may be how it is in Eerie County, Pennsylvania. But that's not enough for purposes of federal sentencing law. Because under the federal sentencing guidelines, we have to look at other concerns. And the guidelines speak in terms of when they talk about criminal history, real offense sentencing and decreasing disparate sentences among federal defendants. And if you don't keep those things in mind and you only look at what happens in Eerie County, if you don't look at the reality of what happened, I.E., they were separate sentences issued to run consecutively, you're going to miss the vote. You're not going to have real offense sentencing. But does the he conflate? I mean, the application said they will be considered related if they were consolidated. It's one thing to try to decide where they are, where they not consolidated as a matter of law. But he then goes on and the analysis is an analysis of relatedness. He's looking at the other circuit decisions. I agree with you. Other courts have done that. They've contaminated that. In fact, that was imbued. Should we? I think so. I mean, we don't, I don't think we should confabulate. I don't think we should, we should do what other circuits have done if it's not right. I think it is right, though, because the purpose of the guideline is to look at real offense sentencing. What really happened here? And the Supreme Court tacitly endorsed that in Bupert when they said, you look to confumional consolidation. It's a factual determination. And we owe due deference to the district court because they're the ones, they're on the lines, they have this information that are aware of federal and state sentencing practices, that are in the best position to make the determination. But the application note itself talks about the fact that this artificial measure, i.e. consolidated, can under-represent criminal history so that you may want to upwardly depart. So the application note recognized that there was this manufactured concept of consolidation and that it's not going to reflect the fact that those three crimes that they have and sentenced the same day should really be just limited to those, those few points. So it didn't, didn't the guidelines take into account that an upward departure might be warranted so that there are other ways of taking into account the seriousness? I see a point, but I think what that commentary that referring to is the district court noted is if there is a formal order of consolidation, then you might find yourself in that circumstance to which the commentary speaks. And in fact, the Joseph Court, which is the case from the 7th Circuit that Mr. Wood relies upon, basically came to the same conclusion. The quoted portion of Wood, excuse me, of Joseph, cited by Wood says, if there's a formal order of consolidation, it could be an offense for, you know, there's something about smoky to bear on there and it could be completely unrelated. And that's when that commentary kicks in. But if the under-pensivating law of something is consolidated by virtue of the procedure that happened here, why was the court correct in requiring a formal order of consolidation when they were consolidated as a matter of state law? I think so. I think so. Keep in mind that what happened in this case was not a holding or even an offer by Mr. Wood this is how it happens throughout the state. This was eerie county Pennsylvania based on the experience of four years of the testifying lawyer. Is it your position that there was, certainly there was no formal order of consolidation? Is it your position that under Pennsylvania law it was not, it doesn't deserve the term consolidation or it does and that we shouldn't follow Pennsylvania law in this regard. For purposes of federal sentencing law, Pennsylvania's just definition of consolidation cannot be the driver because you're going to end up with different criminal history scores for virtually every defendant from every county. All right. And county or state? County because Mr. Moore testified this is how it happens in eerie county. Is it your view that under consolidated Pennsylvania law that there was consolidation in the state court cases or not? The district court found as a matter of fact based on Mr. Wood's testimony that these cases were consolidated. The party stipulated and the judge Michael agreed however there was no formal order of consolidation. The defendant's argument was I have the page from the appendix is page 209. The district court asked Tom Patten to turn it below. There was no formal order of consolidation enter here. There's no dispute about that correct. Mr. Patten says correct. It's your position I take it that notwithstanding the absence of a formal consolidation order, there was in some cases use the term functional consolidation is that right. And he responds no with regard to I think the first level analysis is if you find a repensal of any law that these cases were actually consolidated, that's the end of the inquiry. The district court agreed with you to the extent you've got to look at what happened under Pennsylvania law. But for federal sentencing purposes you need to go further because we're in a system of real offense sentencing that wants to look at what actually happened with the particular defendant to accurately reflect his criminal history. I don't see how that then means you need an order of consolidation. That to me is a non-sequitur. If instead of this notice the judge had signed on the dotted line consolidated you know ever J. Then there's no then this concept about sentencing goes out the window. In the dog commentary accounts for that by saying when there's a form you know when there's been a consolidation. Yeah it doesn't say when there's a problem with that's true. That's true. That's true. That's a key found as a matter of law and he did that there's a consolidation under Pennsylvania law. I'm just having problem figuring out why I'm more aware of this. I think it's about an actually consolidated for trial. He found that as a matter of fact in the district court has said these are factual determinations that an appellate court must apply due to a difference to and allow a district court who's on the front who knows exactly what's going on with these procedures can make that determination without the appellate court sitting there and second guessing those determinations at each turn. But in the end he required he looked at the substance of what was happening here rather than the what was going on in the nature of consolidation others. He looked at the similarity if you will and relatedness correct. He did but he also recognized the fact that although these were sentencing on the same day the defendant received separate sentences for each of them. He was a defense. So yes did he look at whether they occurred the events occurred in the same day and all the same victim those types of things but he also gave credence to the fact that the sentences were separate. So he applied a functional consolidation analysis? He did and as I reviewed the record I can't find any clear error with any of those determinations. Well this court may agree and think that it would have come to a different determination that's not enough under Anderson the best in our city to say that the district court was wrong. When there's two two diversion views it's not enough to say they're wrong. Is it clear under prior law assuming that we're still dealing with the prior guideline? Is it clear that it's permissible for the federal trial court to override a determination of what is consolidation under state law to apply a functional analysis and to come out differently as it did in this case? Well I think so when it's based on an issue of fact I mean the testimony was given by the defendant as to what happened in this case and the district court found as a matter of fact that that's what happened. I just want to say the seventh circuit in the Staubaum case said that we really look at state law to decide whether something has been consolidated correct? Should we depart from that? I'm not familiar with that case I may have cited it in my brief but off the top of my head I think that's what it says I'll take your word for it. Well we're trying to figure out when state law consideration should be overruled or when federal consideration should take over in this matter. And I realize that if that's what the seventh circuit said I think that the overlying concern needs to be that you're in a federal court talking about federal sentencing and if we're going to have a rule that it turns on what happens in each county you're going to have an evidentiary hearing in each one of these cases. Obviously not now because there's a new amendment but that's what's going to be required for any case that comes up on appeal between 2005 and 2000 with the guy might look at that. We do that all the time don't we? We look at you know what is a felony under Pennsylvania law purposes of an immigration definition that will and it's going to change but there is no federal law consolidation is there? No federal laws have what's consolidated we have to look somewhere right but I think there's a developed body of federal law what consolidation means for purposes of this guideline and those would be the cases the parties have relied on that common law of what what functional consolidation means. Because there is no statute or guideline that even talks about functional consolidation is something the courts have developed. Is it clear that if we're under the new guideline is it clear that the government that we should vacate the sentence? That's an interesting question I recognize that you asked Ms. Girlot the same question and my answer would be no for a couple of reasons one is is that and this is not an issue briefed by the parties but Mr. Wood never objected to his sense as being unreasonable before the district court or never raised that issue on appeal we didn't address that issue but I think what the Supreme Court is telling us in its recent decisions is that that is what we need to be considered considering on appeal is whether or not a sentence is reasonable there may be cases in which a guideline error requires a new sentencing but I believe on this record this case is not one of them and I recognize we didn't briefed I'd be happy to answer the question. How do we make how do we make that kind of a reasonable determination if the district court never considered it? Because in this case Mr. Wood's guideline criminal history category did not derive his sentence the district court took that as one factor which is what the Supreme Court is telling district courts they must do and it's taken as one factor and looked at every other factor in 3553a to determine what Mr. Wood's sentence should be and that's exactly what happened here. Well that's a little bit different from the question I asked that's a so that we're starting all over again here. What is the new guideline saying? The new guideline says that it should be counted. I knew if you asked me to recite it completely I couldn't. If they're same charging document or sent so on the same day. So the defendant's position would prevail under the new guideline if we were starting from scratch. I think for all practical purposes it probably would. It would remain to be seen whether the courts would like to take it further and look behind that and see what it says but I think as you look at the guideline and the reason why they amended it is the sentencing commissions trying to get away from all litigation about what these individual things mean and kind of cadet in say that the courts you guys got a little crazy with this whole related thing and same way. Actually I think computations are what his range should be and actually I'm not even in agreement with what Miss girl I put in her brief because I think she missed a point but based on my calculations you have to remember that the crime of violence points not there because we lost that when we didn't appeal it. So is based at that level and say the stain and his criminal history category down had you want to put his point to have you want to be six or the category of three and my calculations is under the amendment 709 it would be six with the category of three and that range is 37 to 46 months. Right. Where as he was sentenced based upon 46 to 57 months. Actually I think the range that he was used by the district court was his points were 12 his criminal history category was five and the range was 57 to 71 months. There wasn't enough work departure. All right so it's 57 to 71 but now it would be 37 to 46 and you're saying don't you think under a gall we would need to proceed from the right spot and go through the 3553 analysis. I think the district court should review that if we were to determine the visa have been consolidated. Well having read go a couple of times for this particular point I couldn't find anything with complete clarity that the said the Supreme Court would never find harmless or plain air first step one problem and in fact. But we can have to go in the Jimenez decision to panel this court published a premium said the general rule may always maybe the remand is required but there are many cases in which there could be a harmless or plain air analysis applied. In our position would be based on statement of reasons in this case and the fact that Mr. Wood is never claimed but his sense his ultimate sense is unreasonable that this would qualify as a reasonable sentence. Thank you. Thank you very much. Thank you. The guideline range under which the defendant was sentenced was 57 to 71 months 12 points criminal history. I think the confusion is that the PSR started with criminal history category for with regard to the emphasis on a formal order as a matter of simple fairness. I think that is simply cannot prevail because it's asking for something that just doesn't exist or occur in penciling a practice as Mr. Moore testified if you give the notice and then the cases are eventually which occurred in two of the three here there was notice on the charging document and then a combined plea leads to a combined sentence. It's just not done where there are more questions. What's the definition of combined sentence? Is that combined for sentence? That's the term I've been using but that's not a term of art in the guideline. No, no, no, but I'm trying to figure out what happened here since these were these were consecutive. These were different sentences. They were not made concurrent. They were not made concurrent but they were sentenced on the same day at the same time. I understand that and I'm still having trouble with your definition of consolidation here. I'm just trying to find out. My definition is the definition under Pennsylvania state law based on the practices, procedures of Erie County and also my opponent said that it varies from county to county to a certain extent that's true. But there was also a lot of testimony about the Pennsylvania rules of procedure which indicate that when they are consolidated for sentencing they are together and that is said forth in the brief. Again, formal consolidation or functional consolidation. Functional consolidation. And should it make a difference if Erie County has a different practice than other counties? I think in a sense that what it means to apply law of all the counties of Pennsylvania. I think in the sense of whatever happens, you can't ask for something that's not there if they just don't do it. I think it's unfair to say that the defendant suffers because he happens to be convicted in a county where they don't do formal orders or in a state where the laws don't require it for cases to be consolidated. And if I may say... That seems to argue for a federal overlay on this particular problem. And I think that's probably what the amendment was in part a response to and the reason for the amendment indicates that there was disagreement, there was litigation, there was a circuit conflict. And I think that supports my position that the amendment is clarifying and that there was confusion that needed to be cleared up. So there was really no need for substantive change and that's not what happened. There was a clarification. Good. But the case has been very well argued. Why don't we get some additional briefing on the new guideline and whether it was substantive or clarifying. You both have made excellent arguments here today. And while there probably are going to be too many of these cases coming up, there will be a few I guess. But it could be significant for the legal principle as to retroactivity in these kinds of circumstances. So you want the additional briefing simply on whether it's substantive or clarifying. Yeah, but you can add if you want to add something, if you want to expand your arguments, that's perfectly fine too. We just make them letter-brace no more than 10 pages. And two weeks enough time for that. We're seated. Do you have any other questions? Is post-mark sufficient or...? Oh, sure. Absolutely. We're not going to turn it back. If you don't have it here. Good. It's very well argued. We thank both counsel. We'll take the matter under a judgment. The next case is HUD