which is simply a simple way of saying that when difference fact units are covered the same subject matter they must all be considered together the definition of what an order of deportation is appears in the definitions section which is one of a forty seven big day and says nothing about the changing of status or revoking any prior permission to reenter under a prior act it simply says that an order of deportation is an order concluding the alien is  deportation proceedings another statute which governs the same subject matter is eight u s c twelve fifty six which is the way and alien who is in this country has obtained status to stay here under twelve those people in and in the incarceration where they might have had a status that has never been changed our trouble with the panel decision your honor is that it just the broom just switch too much and certain topics or certain subject matter may be dealt with by a magistrate without anything but what we're concerned with here is the other other clause that makes the catch all and whether a change  will stablished rules the district court did not establish rules for assignment of these cases to magistrates section three which you mentioned is an additional limitation on the jurisdiction powers of the  to thank you chief judge schroeder and me and please the court counsel good morning my name is michael rucker i'm an attorney in the helots section of the criminal division of the department of justice and i'm here on behalf of the united states you honour's congress has authorized and the constitution permits article three district court judges to entrust their magistrate adjuncts with the responsibility for ministering the rule levon plea colloquy in a felony case with the defendant consent now i'd like to begin by addressing some of the issues relating to the statutory question that is the scope of the additional duties clause and then if i may turn to the constitutional issue and the related question about the novo review at the outset we fully c think that a decision that would clear the air of who didn't receive this practice would be beneficial if that's the issue that i'd like to turn to is to address and comment on some of those concerns on the statutory question now the first concern identified by the panel incorrect on that i would defer as mr baucus confirms that the transfer was prepared only for the appellate proceedings now again the first concern identified by the panel in this case was that allowing magistrates to perform the function of not given the trial authority to the magistrates and we take the government's taking that position since the government's decision in the supreme court but it doesn't follow that plea colloquy is our are outside the bounds of the magistrate's authority because there are some important differences between the two types of proceedings now at the outset we recognize and we and i think everybody would recognize that a plea proceeding is an important stage of a criminal proceeding it's a solemn act that's being done by the defendant and it reflects the severity he's admitting  statutory requirements are met absolutely roger and that sort of bears on the second distinction i was going to proffer which is that the judges responsibility at a plea colloquy is largely constrained and guided by rule eleven itself where is a judge a trial as your honor noted in the panel decision exercise a substantial discretion to a lot of broad range of issues and i will turn to the point which i think your honor is alluding to about the factual basis in a moment but i want to just conclude  and the procedures and the structures that are in place we don't think that that is really a concern that's going to manifest itself and let me explain why allowing a competent duly authorized and qualified magistrate judge to make a threshold determination of whether to say that a magistrate judge on monday could could make a probable cause filing but then on tuesday couldn't find that there's a factual basis for the plea that's exactly one of the points where we don't think there is a justification for drawing a line in that location we think that magistrates are fully urge the court to do so yes because as we tried to point out of our brief i think that the panel decision has created some degree of confusion over what the responsibilities are in the future that is to say in the absence of an objection does the panel decision mean presents it and we would urge the court certainly you have discretion that we would urge the court to say that even though judge mackey may have done it here he did it as an exercise of grace if you will he wasn't under legal compulsion because not of the statute nor article three obligated to the very same effect about either the transcript or the tape recording so i ran that my way and i think it is yes your honor opinion by judge kennedy so yes i do think that is the current state of the law and i do think that as a practical matter and as we tried to point out in our brief that is the situation that is confronting the district court judges there has been experimental some of reservation by those judges as to exactly as you want to point out it might just be simpler and easier for them to do the colloquy themselves and i think it would be truly unfortunate i think to have a decision where what the what the court holds is that this is a permissible practice it's legal under the statute and it's permissible under article three yet in practical consequence the district court judges are reluctant to avail to object and bring it to the district court's attention but even in the absence of an objection the district court is for all practical purposes it's going to have to make the ruhleben a finding in connection with sentencing because the court's going to have to review the pre sentence report and  made by a party to the good record it killed reviewable on appeal to this court or not i believe it would be what one cabbie i do want to point out is that in the court well knows especially in these fast track cases there are very often and very frequently appeal out right away it's right to raise that issue on appeal and the supreme court considered the validity of that rule and held that it was a proper exercise of supervisory authority and furthermore the court held that as with any rule of supervisory authority it may not conflict with the statute or the constitution and what the court went on to say was that the rule did not conflict with congress intent in acting six thirty six because again under the view expressed by congress the noble review is only triggered by the fi objection and furthermore the court went on to consider the article three question of whether the that supervisory rule which would cut the district court out of the process and even cut the court of appeals out of the process of review whether that would violate article three and the supreme court held it would not recommendation yes ari what happens after that if there is no request for date number of what is the norm i think we can use this case as a model of what happened is there was no objection judge mcnamee then received the are an ark and he entered an order upon that and just by way of particular facts of carets it was a referral to the magistrate to conduct for deer there was no objection and it was noted in the review conducted by the district court if the supreme court upheld the delegation and it was precisely for the reasons that we've just said that cases stand for in our view none of the circuits they've all use the word reviewable or subject to review we don't believe i will acknowledge there is as with the panel decision in this case i believe the decision of it may have been the any circuit in toward the one of the i confess i don't recall if that's what the decision said your honor i guess i would point the court strenuously to thomas versus aren't where the supreme court again reviewed the legislative history the language of the statute and was emphatic in suggesting that six thirty six does not yet we think that exactly that it's availability is the key because the district courts don't have any legal obligation and because of the corresponding arms of imposing of the review requirement in every case it's availability that is again from the article three perspective and as a matter of legislative intent just them they were and that's exactly what happened here and the district has tools at its disposal to rule thirty to even the most common mechanism to deal with this issue if and when it should happen to arise and ultimately you that point we have to trust the district but the defense counsel to step in and file an appropriate objection and then at that point we have to trust the district court judges that they're going to resolve the issue as judge mcnamee did here in a thoughtful and objective manner and i think if you proceed from that premise and what the panel said if you can and was that we need to give effect to the world pronouncement because we have to protect the defendant's reasonable expectations now with all due respect to the pedal and you can in your honor we think that the case was wrongly decided and should be them found that the motion to withdraw the guilty plea in this case was a unique aspect and was not actually covered by the appeal waiver so that's not to be found as that that limited issue you could raise whether there was an abuse of discretion in denying the motion to withdraw the plague so what the government said in its brief was yes you can raise the motion to withdraw the plea but you can it doesn't really apply and you have no right to raise any issues about delegation because of the appeal waiver so as i can in some cases the court is sort of limited if you can into that particular scenario although again the breadth and reach of buchanan i think is a little bit up in the air but even if the court is troubled by the second rationale certainly the first rationale this unilateral rewriting  the panel the government again way to confirm their waiver and this is the first we're hearing appeal ability in response to your question your honor normally a case on a fast track does not even go to the district court it's given an m number