for i think barnes is important because i lites the differences between when we should find waiver and when we shouldn't and so barnes says correctly that waiver must be construed liberally in favor of the defendant and it looks in demonstrates where we have in flores a focus on i would call it passive actions by a defendant that result in waiver in and barns where the court correctly focuses on active decisions and determinations by a defendant as part of the sentencing strategy to result in waiver in flores the passive activity results in a waiver and in our view shouldn't and in barns the lack of active afterwards by a defendant to focus on something where we have appointed litigation strategy at sentencing that is the correct route to look at for when there is waiver and when there isn't and so i think that they're considered there continues to be a big disconnect between the circuits already on the waiver when we find it when we don't and maybe it's continuing to be applied in sort of discovered claim status which perhaps supervised us i'll tell you how how do you read the fact that  was circulated under our internal rule forty to the full court right and so is it you know is it is it not fair for the court to read flores's that as the new you know the new direction if you will i totally understand you've been very clear and articulate that you know that's not the way to go in your view the but after floor as isn't that the direction we should heed to if it is judge the and for as to be an unfortunate departure from settled waiver authority and i think it's inconsistent with that benchmark that we haven't barnes and supreme court authority about liberally controlling weyburn defendants favor so i would say st of all for as wrongly decided but i to lose on that and that's fine then i think that we need to start saying overruling barnes and overruling and so it's implicit in floor is that it is i think that it would have been wise for flora's to account for that other circuit precedent and it sort of rounds them up loosely and says we know that we've not spoken with a clear voice essentially right and that's what flores says flores is really not doing an adequate job of reconciling what it is when we have waiver and when we don't i find barnes to be much more persuasive and literally to say what circumstances do we have that established waiver and those that we don't and so barnes is two thousand and eighteen floors is two thousand and nineteen and i don't know that the direction of the court has changed so much within that period of time it would seem that authorship is the principal fact and if it was something that four as it cited barns i guess i would feel constrained to lie and i continue to read circuit authority on this supreme court authority try to find out where waiver is and i can find that mostly by saying what type of claim are you advancing on your theory and that's not a great way to go about this in my view but i recognize that i am in a hole in that judge scott or so there's flores there's chaytor there's farms and there's other authority and i hear you're i mean you're in your positions crystal clear i get it so if i may move then i mean i just cite that so if we have waiver we have got then i would say davis problem under vagueness we've got waiver has the effect of wall you go back to prison if you violate this condition and so under davis we had say a vague was no law at all except for supervised release then it's good stick so you know off to the poker and i don't think again that's a fair thing to do for a criminal defendant you need to be put on notice and the notice has to be adequate and that's not when there's things like jurisdiction risk to others community service access to personal information i would say check the box they'd jade's bagan think so if those things don't tell somebody what they're supposed to do you have a problem under davis that they'd condition is no condition at all is the because we've got a substantive heir and it's hard to show subs to been reasonable in this but we've got procedural and substantive error here with regard to their meaning conditions let's start with the sex offender to this sex offender sion is supposed to be reserved for sex offenders so special to execute the discretionary condition number twenty three is the nd of two search conditions that are imposed in this case so the one is the rank and file search condition on reasonable suspicion no problem go ahead and apply that one but we've got then the stepped up africa have the nd condition in my view that's two conditions for one purpose and that's one condition then so if we are to restrict the limitations that are supposed to be put in these circumstances on a person's right to those that are especially necessary the one condition does the trick when we are now into sex offender conditions that are being imposed on people or not sex offenders that's a big problem under farmer and i would say also under the statute eighteen u s c three thousand five hundred and eighty three d two and three are both problems here because this is greater than necessary deprivation somebodies rights and liberties and also this is inconsistent with what the sentencing commission says because the commission says impose this condition for sex offenders under five the one thirty seven see my clients not one you're talking about twenty three now and i take i got it that discretion is a condition so we think that is also a problem and then we're winding their way down here to their remaining conditions which concern excessive alcohol use and so we would say that excessive alcohol use is trying to long as you define what excessive means and some people can drink more than others and the judge can limit what your consumption would be i find it arbitrary to say that excessive means the limit of where you c operate a vehicle subject to impairment when it's not a vehicle that's an issue for your operation and things if you're above point eight in your house i don't get that connection but at least it's knowable and you would have some statement from the court in your district court did say that the point eight is the definition for excessive use of alcohol if you're by that threshold your violation edition but the problem is under al brain johnson and those cases hudson th oral pronouncement controls yet the judgment form if you look at appendix page forty two doesn't have the appropriate box jack to show what the definition is and so we need at least to conform the written judgment to the oral pronouncement and that's a very simple reason to be man demand would be appropriate here i would say if we're going to go through the trouble to have the man to fix that condition that it would be appropriate also to correct the other conditions tell the guy what the jurisdiction is to do the other things that we're supposed to be doing so the person is clear notice these are not insubstantial rights again people go back to prison if there's a revocation under eighteen u s c three thousand five hundred and eighty three eat three and really we are littering judgments with conditions and if you have out for conditions one of them that says commit no additional crimes we would probably shorten this process up make this much more clear and this is a difference between probation supervised release again people who are on probation and are released early from prison walls that are released early from prison where people get probation or act conditional liberty people a supervised release serve the tiredly of their sentence and then come out and get this thing it's like cheap probation or parole for the g thank you and good morning and please the court i'm going to me have the united states so the judgment of the district court should be affirmed because the defendant waived review of all the conditions of supervised release challenge here except for that search condition he was given notice of the conditions because they were included in the p s r which was filed four months before sentencing he failed to challenge any of those conditions either in his sentencing memorandum or during the sentencing hearing where he was presented with the opportunity to objects to that his attorney was asked directly if there was any objection he said no he did not object to the search condition which is evidence that he did object to the search condition which is evidence that that waiver was a knowing waiver of all the rest of the conditions as far as far as which was raised by co goes this was a targeted strategy on behalf of counsel to not object to the majority of those conditions specifically indicated in his sentencing memo that the prison time was not necessary because he would be subjected to supervised release conditions and probation conditions which would be enough of a deterrent to future conduct  so i'd like to turn to the search condition which was not in fact waived the search condition although there is a note that it should be applied to sex offenders this court has allowed that condition in other cases including drug cases and fraud cases and this particular condition under these particular fa narrowly tailored to these particular facts you know the defendant was i'm sorry the court was motivated by the defendant's hit in you know the hidden aspects of his fraud so even at sentencing the defendant is calling power of attorney he has over his disabled brother a power of attorney when in fact it was a fraudulent power of attorney his brother stated to the pretrial or i'm sorry the probation officer that he hadn't seen his brother in twenty years so you know the court is just giving probation the trolls it needs to actually make sure that the defendant is complying with those conditions you know the probation officer the search must be in fact done by a probation officer the probation officer needs reasonable suspicion that the defendant or mr dodds is violating a condition of his supervised twenty three dollars search condition which allows just almost an unfettered search of the defendant's house for you know evidence of a violation of this of those conditions  said if this court does wish for the other conditions to be amended the government doesn't take a position whether that's done through an amendment or a limited  search conditions that was a spec expressively disallowed in farm or the inconsistent with this court's precedent to allow here now you have a search condition that can take care of all the concerns of the government elaborated on here if the government hasn't waived its argument on that because we think it's a waiver of waiver for the reasons we presented in the brief but the condition shouldn't be imposed in any case i'm somebody who's not a sex offender and my client is we have the other search condition which i haven't heard anything from the government to say why that condition isn't adequate in another itself to protect all of the government and i read the papers correctly everybody depriving you six of funders of them different you know it seems that a matter of just looking for one or defining what one is and you might get one but that's a different matter and then of course there can and finally i