the court must assure itself that the defendant is aware of and understands the risks involved in the context of a plea bargain such a determination is usually made at the police hearing it which the court can fully explain the scots acquaintance by informing the defendant obviously there is no decision of this court that upholds a plea waiver where the defendant was not informed at the plea hearing about the waiver asked if they understood it and assented that they had understood that so the failure of that to be done in this case and the government obviously had the chance to tell the magistrate judge who took the plea that it was not mentioned nor was it mentioned that the sentencing affected the sentencing the district court said you can appeal this sentence would your rule mean therefore that every time you peel waivers not mentioned at the plea hearing that it's automatic reversal no i think could be made to that the sentencing hearing the judge could say the sentencing hearing now you waived your plea you understand that and why would that matter at this is the sentencing hearing too late for that well i was going to i'm sorry i meant to say if the defendant that the defendant could respond to two ways i think could say oh no i didn't have any understanding of that it which point i think yes it would not be given effect or the venue could say then yes i know i did that it which point it would be given effect but i think we're it's totally on mentioned both that the police and the sentencing and fact that the sentencing was told the opposite that he could appeal so i think that yes where it's never explored it would be inconsistent with the and to say that it can be given effect and there is no case of this court where it has been given effect where was not explained to the defendant at the police here we have a case where the defendant also did not attempt to withdraw  none of the conditions of supervised release were mentioned in the oral sentence which is the sentencing and yet they were added on to the written judgment of defendant it seems to be the cold concept of an appeal waiver is you're given an opportunity at the district court to argue your points the district court hears your points and rules on them and you accept that ruling without by and by waving your right to appeal but when you've never had a chance to argue the points that that deaths in a sense i mean that's where where the thing where the harm occurred in other words he wasn't by not moving to withdraw your plea it seems you're saying he wasn't harmed by the failure to explicitly say you have waived your right to appeal where no no i think the harm is the harm was not at the sentencing actually the harm was that the inclusion of the written judgment of terms that were never mentioned at the sentencing back on the appeal waiver if i could the rule as you know says a variance from the requirements of this rules harmless error if it does not affect substantial rights and a number of courts as you also know have looked into wealth of the appeal waiver wasn't mentioned in the plea colloquy will look for other evidence of whether the appeal waiver was nonetheless knowing intelligent and voluntary in that other evidence could include the written agreement the rest of the colloquy which here the the judge said have you gone over everything carefully he said yes he discussed it with your lawyer yes doesn't that show even though there was a variance as the rule says from the requirements that it was knowing intelligent voluntary i guess two things first of all he wasn't asked of the understood it or if he was waving a fee agreed to waive any of those right with his lawyer perry questions about it yes he was asked that right but he wasn't asked you understand the terms the judge the judge asked him about on your question do you have any do you have any questions about it was a question about your understanding  think any court is affirmed on such a record don't let me put it that way but i don't think that gets to the fundamental other argument which is that the whole purpose of how a waiver is not the whole purpose but the underlying  i think the underlying basis is that you're given a chance to argue your points to the district court and you take the district court may rule one way or the other and you've agreed to accept that but in a case like this where the argument is that the written judgment  contains terms that were never mentioned at the sentencing and therefore you never have blurring the two issues i think i mean i'm trying to separate the appeal waiver from the error that occurred in the sentence if you and i don't think you can when the claim i think i think that's the first argument yes absolutely and in and good during this court said in the government you know has a chance to correct any error the rule have and make sure that the appellate waiver but i think it when i say opportunity what i mean is there was no opportunity to say these are improper conditions of supervised release or they shouldn't be imposed that's what i meant by opportunity he had no opportunity to explain to the district court any objections to the terms that appeared  appeal waivers valid are you still arguing that you can and it doesn't cover this yes yes it did it can't cover this claim because the defendant never had the opportunity to so i him a b a matter of semantics let me put it that way in my mind that would be invalid but it could be you could use the word valid but it can't cover this situation me and i understand that the court has set out three circumstances but that those were never said to be exclusive and here you have a situation where at sentencing when i say no opportunity the fact that none of these conditions were ever mentioned is sentencing the defendant had no opportunity to address any on that basis it's only the two financial conditions that of which he had i believe they were mentioned in the pre sentence report but they weren't but the conditions that appear in the written judgment were likely i say likely because we haven't seen or will likely contained in the confidential recommendation and judges that do disclose that they're always contained in their written recommend the recommendation i  conditions on pretrial release and i don't well have committed another crime don't use illegal drugs just go those are yes and i do not challenge the right you know that and nor did i say that they weren't next in that the understands the rest that then then the court went on to said in the context of an appellate waiver that's done at the generally done at the police state so i do completely agree that it's supposed to be done in the rule of evan holocaust and that fact alone is sufficient  to invalidate the waiver but i also think when you have a claim that you were never given a chance to object to in the district court let me put it that way the opportunity was not to because there was no opportunity to object in the district court to any of conditions that just shows that there was an error in your view in the sentencing and the problem back to the primary problem is that the if you waver seems to cover that so the question for me because i think you have a good argument on the merits on the special conditions but the argument for me is the issue for me is whether the the appeal waivers valid and you keep saying that he was nasty i understood it but he was said you can plead not guilty and have a jury trial do you understand that understand the defense you're giving up the right do you understand that the defendant yes or you're giving up all the rights you have a trial when they go through the judge goes through a number of you're giving up all those rights yes or after we finish today there won't be much left to do except for judge so when we consider my recommendation they plead guilty and proceed to sensing you understand that this are now the peel waivers of course included the appeal waiver song i don't think so for these reasons he was asked a number of specific rights so when you say general rights he was asked about the waiver of jury trial the waiver of cross examination things like that and he was asked if he understood those specific rights and he was asked if you discussed the matter with mr jeffers not the not the not the plea agreement ends conspicuously absent from all the other specific were addressed in the colloquy was the right to appeal the waiver of the right to appeal that's true and that's why we're here i'm a discussing this is that that should have been done and it was not done and that  yes i did sir right in the end did you understand it in your knowingly is miss is significantly missing from that it was just destiny read it well then it says do you understand service signing that you agree that this is the agreement that it's terms may be enforced in your case yes i understand sir i know at the end again the wording of that is you understand this is the terms not you understand that you're giving up any of these rights i mean when the court sitting in it has to be knowing it i understand that and the other thing i do want to say is you're right it says sentencing but its discourse has defined sentencing as the oral pronouncement of sentencing so there's certainly an argument made to be made that that when the cover what happened here i would say that's right i mean we may be in semantics again but yes i would say that that's a good description yes of the as my original question a different way if he had seen the sentencing report the recommendations if they had jibe orally and in written form what would happen to rule of levon issue it would be no different frankly i think it would it would have it would have given the defendant would have had at least notice of what notice from the recommendation of what the conditions were proposed but that would not satisfy the fact that they were never mentioned at the oral sentence and so i think but i would expect that the given that it was myself i just i would expect i would have expected myself to have these recommendations that say wait a minute judges of some of these conditions should not be imposed some of them  others and everything but there was no again no opportunity if i'm using that word correctly to do that because the recommendation wasn't disclose one thing i think it as i've saw on things no one has asked you is about  eighteen u s c thirty five eighty three eighty two that is he could move from modification not now he's got a survey year of supervised release but he's free to do that he is free to do that but this court of said if the of if the in the written judgment there's a provision that was not pronounced if your sentence we vacated that's that's the rule i'm so you're correct but the it doesn't he shouldn't have to do that when the when  first of all they weren't mats in the v or a sentence and second of all the waiver was never mentioned a defendant can he do that yes but the but that's but the law is that it has to be done at the oral sentence and in a defendant shouldn't have to do that to correct the error because we're on direct appeal and and can raise that on direct appeal so i don't i'm the stand that argument but that's not sufficient i'm i understand what the statues provided what the sentencing guidelines and title eighteen provide but a district judge to ask him to flyspeck all these conditions about well what do you mean about working diligently for my family that is something that i'm supposed to presume they act in good faith that is those details are things that the probation office is supposed to deal with pointed out have been changed significantly since these were imposed to take account of most of those things that i've mentioned actually they they actually define working regularly squad specifically in the new guidelines that were not used the new guidelines if the correct conditions had been imposed i think a lot of my objections might not have been there because they actually define what work regularly means and they actually  define they put in a lot of scienter requirements about associating with people involved in criminal activity they define all kinds of other things that i've talked about supporting dependents and they are all these things so if those the again if the but then your argument is strongest i thought as to the special conditions this special conditions which were absolutely never meant so that's what i mean that's our sector strong is clearly invalid as there had been a general reference to standard conditions but no reference to these other special conditions i agree or disagree i guess i agree that the special conditions were never mentioned at all and therefore there was no this is he said i will post standard condition and he didn't even say conditions he says standard conditions without ever mentioning what standard conditions they wore so i view that  mentioned in the presents but that doesn't that can't cure the court's statement and love that and i think it seems like they were mentioned and in love they were actually imposed of the defendant had a chance to to object to some and then they were different in the written judgment and the court censor said it's that's an automatic rule to that if if a condition is not mentioned that the oral sentence and yet appears on the written judgment  he's still in custody i think six months is a number of judges whole say six three or six months after someone is released from custody they hold a status conference to see how the person is doing right i'm pretty sure that's what that reference was to in the fifteen percent but was that was that the fifteen percent cut refers to good time which is actually also incorrect it's not fifteen percent it's less than that the way the bureau prisons calculates that the statute says fifty up to fifty four anyhow i won't get into that but when is he due to get out he does he got a stay to stay out until his took his son the collards i think he went in in him because he could get up to six months and a half or he could be out theoretically the end of the sheer problem most likely early right at the beginning of next year ok thank you very much thank you very much court loop jones for the united states this appeal should be dismissed because it falls within the scope of appellants knowing and voluntary appeal waiver and that's the standard here of whether the appeal waiver was knowing and voluntary here all of the evidence points in that direction the language of the plea agreement is clear as to the waiver the there's nothing about this appellant that suggests he would have had any difficulty comprehending that waiver he's college educated indeed his crimes in this case were complicated bank fraud and bribery of public official schemes he was assisted by excellent counsel who affirmed as appellant did that they had read the agreement and this is by their signature on the document that they had discussed it that they understood it and that appellant was agreeing to the terms voluntarily that is consistent with what happens at the plea coll where you agree there was an error indeed there was a violation of the eleven requirement that the that the magistrate judge specifically inquire about that appeal waiver but that in this case that's a that is a red appellant is not seeking the relief he would be entitled to based on a rule eleven analysis and that's telling because appellant wishes to keep the benefits of his bargain which were substantial included the appeal waiver there's there's nothing to suggest that if appellant was didn't want to waive his appeal rights that the government was willing to concede as much as they did in this case it's a good nothing to suggest that they wouldn't either but i don't think that that that speculation necessarily informs the overnight decision here as to whether it was no involuntary it's just hard to figure out what the purpose of the oral colloquy which is so important required by the rule is if the failure to give it is always going to be harmless even harms hair well i i don't think it's always right i don't think it's always going to be harmless and certainly i'll get it not to give you some examples well there are certainly cases where a court is reviewing and i won't give the site to specific one but any type of violation of rule eleven whether it's a go we're now let's go on the appeal look at a failure to mention the appeal waiver suma written plea agreement failure to mention the plea waiver in the colloquy my honor my read of your position is that's always going to be harmless that at least absent something unusual the fact that become aware of about the funding well i think that right if there were facts that suggested the waiver or the plea more generally were not knowing intelligent voluntary i mean that's where the court would look to the entire record that's what they do in the prejudice prong of the will have an analysis and that's what they do when they're evaluating the validity of  it's not a necessary precondition to to a plea agreement being enforced and there's no magic there's no magic combination or magic formula that absolutely as your office have a practice now of doing that i can't say specifically that our office has a checklist that every prosecutor brings to every plea colloquy although i submit that's a good a good practice but i know that the office takes pains in drafting the plea agreements and i would and in the main run of cases during plea colloquy as to ensure that there isn't a rule  in violation that might raise the possibility that the plea agreement wasn't sufficiently knowing intelligent voluntary and that the record didn't nests additionally display that such that a appellant or the bennett would have an opportunity to back out of the deal if they later regretted it or on appeal to try to do an end around of a of an agreement that they entered knowingly but it seems like the appeal were so important because the sentence could be completely botched and could be much higher than the defendant was reasonably anticipating and so inquiring into the knowledge of the defendant's knowledge of the appeal waiver woods really important certainly important but the appeal waiver here is not absolute appellant retain the right to appeal a sentence that was outside the guidelines or and end which is why you have in the d n a case where at sentencing i believe it was the district court made a statement about the defendant's right to appeal which t circuit court recognized was not an accurate given that the defendant had retained some appeal rights but largely waived his right to appeal his sentence assuming it was within the confines of the of the terms of that waiver because my point is it's pretty obvious by pleading guilty that you know you're giving up your right to trial that's science but you don't necessarily realize your sentence is going to be binding even if erroneous such that you kill it so it would seem especially important to inquire into that which you have you've acknowledged that song just underscoring the importance of the appeal waiver and i i want t know and i don't i think the key analytical framework here is that of course inquiry of the colloquy is is helpful and it's erroneous not to do it but that doesn't end the inquiry and i think in this case given the factors that we have before us and given frankly the fact that appellant is not seeking relief based on this error as as a norm as you applies and that the the torch should resolve the case based on a decision that a time has not alleged any error that is playing need an address the alleged errors although we don't concede those how about how complaining are applied to special condition those those special conditions are more difficult in terms of notice for us to argue than the standard conditions but recall that the present report mentions them during the sentencing hearing the judge district j asks the appellant if he's read the presents report which he confirms these conditions are not like the conditions in love or other cases where a court the district judge then says he's imposing the standard conditions or standard and correct and those there is a list of things that are standard and compas within standard conditions the special conditions were not so i don't know that the defendant would have been on notice to have jacked at that point on the report they apply essentially as effectively by operation in cases where there's a forfeiture standard conditions apply every time and then for those special conditions listed in the guidelines those are those apply in circumstances such as if you go forfeiture you're going to have these conditions if you have a violation of x type of offense you're going to have this condition courts went wrestling with you know standard with special conditions on appeal in the cases such as love are dealing with conditions outside of this quite routine imposition of whether standard or in this category of special conditions that appellant and appellate counsel frankly cannot be heard to complain they were of the work that they were surprised when this shows up on the written judgment even on even on no abuse of discretion standard however appellant raises no prejudice no raise no argument of prejudice resulting from well to answer your first question i don't know what is proper would be because i don't think there is any prejudice to i think the reason you don't write but hypothetically perhaps if the sentencing condition was not in line with the requirements of thirty five eighty three it was completely untethered from his crimes if it was perhaps in a case like this a restriction on his use of the internet or some other imposition of a condition that restricted his liberty to a more significant degree here the basis and the reasons for these conditions are self evident and completely insane with not only his offenses but the purposes of supervised release and i want to respond to your your second question but it's escaping me jackson weathers booker none of these cases are akin to the circumstances here jackson was a case where appellant challenged the d that's one eight the reasons for an upward departure and there was a debate about the importance of the statement of reasons which allegedly conflicted the weathers case was also a substantive case about the term of the course aeration specifically whether a term ran consecutively concurrently and the court acknowledged that oral sentence controls but even in that case said the written judgment is not simply a ministerial act with no legal importan the written judgment can in many circumstances including including cases regarding supervisor please explain ambiguity s in the sentence as long as there's not a direct conflict we don't have that type of conflict here where the court said the sentence of the concurrent but the written judgment says  court confirming that the plea was so that's a red herring by the government because this court has granted the relief of invalidating the appellate waiver or allowing the appeal to proceed what the government really said in answer to judge kavanaugh year is yes it's automatic all we have in this case is the plea agreement and nothing else and maybe they added on the condition that if the defendant is educated but as judge rogers pointed out educating a financial doesn't mean educated in the larger whatever tell it way for me so they really are advocating for an automatic rule despite the fact that this court has at least four times said that an appellate waiver can't be upheld they mentioned also counsel having counsel the judge would never accept a plea to begin with and there would be an ineffectiveness and so it's an automatic rule that as long as you have a lawyer who meets the ineffectiveness test i don't see that that adds anything let me put it that way wouldn't  about these conditions of them but they're all discretionary so without being mentioned this at the sentencing oral sentencing the defendant had no idea which conditions the district judge was thinking of imposing they said it was they and they said the reasons for these conditions are all self evident well let me give you one of the simplest ones he can't leave the district it says he cannot leave the judicial district it doesn't say which district first of all but second i'll say it's virginia he can even drive to d without the permission of the probation officer but don't the new policy statements clear that they do but that's not the ones that were imposed here well i know but i never meant to ask the government this he's not a supervised release yet i can't maryland to d c in light of the interpretation given by the new policy statement that's not at all clear to me well then well then you can be back up here again i didn't say well i don't hope not  anything right that they claimed it was an oral yes you're right they claimed it was an oral waiver but what i'm saying is a card he does join the cases where the government says there was a waiver of appeal and the discord said there