constitutional or statutory question about who you know and should judge as an act or you know what duties can non article three judge perform in the circumstances given place the ability to refer such things to the magistrate intent circuit that's correct so the committee on that happened had references from our recommendations  about whether or not they should define dispositive the committee did in fact punt on that issue the fact that they plan to however doesn't mean that all the sudden we would think of a change of  needed to know to residence argument already knew previously and that it didn't meet the parameters for a motion for reconsideration so i think that i'm not sure you can hang your hat on that the district court even if we didn't preserve it the district court went ahead and ruled on the merits because the district court really focused on this isn't new so to be fair to response to what is this di second order separated memorandum in opinion or did in fact undertake a substantive analysis of cool fifty nine and what it considered to be this court's prior precedent so the first that a big this is maybe not appropriate under a motion for reconsideration but then went ahead and courts do undertake a review of trial words when it involves the court's jurisdiction and they do that without having her argument below and they do it even with consent so even it corrects the defendant gave consent but what the  supreme court it will say this is still a paramount importance and if we don't look at cases where consent was given to a magistrate we will never review them because either the defendant did not give consent and were never talking about it or they probably because again otherwise we never we never have reviewed those issues so anything may indicate that we we have to take an hour i mean we have the discretion right if it wasn't preserved to you have to take it  undertake review to figure out does a magistrate have authority to do it as happened in this particular case can i ask you going back just a bit deeper is i i want to make sure that i understand specifically your argument my understanding is that you are not questioning under the federal magistrate sacked six thirty six b three i think that the that that taking a guilty you're arguing that this is contrary to the wall that it is contrary to rule fifty nine but it my correct that you are not questioning the constitutionality if consistent with the laws of the united states fifty nine that's your whole argument correct that's a yes all right so in rule fifty nine what congress said is that a a district judge may refer a litany of dispositive matters to a magistrate judge wright correct for me mark quarry reported recommendation it said nothing one way or the other it was permissive referred if if the district judge refer these matters to a magistrate judge for reporting recommendations it doesn't say anything one way or the other about whether or with the consent of the parties a district judge may do you about that we have to look at our precedents determining for example under bar whether it's playing in pool pollution they're the adoption of this rule here on behalf of the united states the district court did not abuse its discretion in denying the government's motion to reconsider because it was based on an argument that the government could have but did not raise at the time of the initial briefing on mr garcia's motion to withdraw the district court it also did not air and denying the initial motion to withdraw mr garcia argued only that the constitution and the federal magistrate's act prohibit a magistrate from accepting a guilty plea but that argument is squarely foreclosed both by this court's decision in chip pony which produced pre dates rule fifty nine but also this court's published opinion and salaskar r c m which post dates the adoption of or the government specifically presented exactly the same argument to the district judge and the district judge after saying that it was untimely presented specifically rejected the argument that you an argument for that they are going to you've raised only a motion for reconsideration that's in vernor and the court went on to say that it is only appropriate for the court to reach the merits the government is a stop from raising a different argument on appeal only if the court below adopted the argument that the government advanced and the court did not adopt the argument that the government advanced here and that we have not waived our fourth  court course because we raised it in our brief and said that it was the defendant's burden to show plain error that affected his substantial rights and the defendant didn't even attempt to meet that burden and he can't meet that burden because he not only for that in this argument by failing to raise it in his motion to withdraw his guilty plea but also because he waived any objections to any will fifty nine violations in two ways first he waived that right by agreeing in the that he had a right to have a district judge accept his guilty plea and that if you wish to proceed in front of a district judge he could go ahead and do that and he did not exercise that right instead he affirmatively waived any right to object to that proceed things that he agreed to he secondly waived any rule fifty nine violations by failing to object within the fourteen day period rule fifty nine that this is assuming that rule fifty nine applies to these proceedings it's i think that's a stretch the head that you have fourteen days to see to withdraw your guilty plea or to object to the proceedings and i mean that they seem to me to be dealing with  assuming that will fifty nine does apply whether it's rule fifty nine a or rule fifty nine b there is a fourteen day period that you have two objects and if you do not object within fourteen days you have waived any right to object assuming you believe that rule fifty nine applied you could construe the entry on the docket where the magistrate judge said that he was accepting the field week as a report recommendation if that were required it's we're not taking the position that it's required or not required it's just that whatever was required the defendant only had fourteen days to object but i also note that the defendant again by agreeing to have the magistrate judge accept his guilty plea waive any a right to withdraw for any or no reason under will levin at the time she a pony was decided the right to withdraw guilty plea was set forth in rule thirty two and it said that you have a right to withdraw only for a fair and just reason and that this or acceptance of the guilty plea and he would be able to assert that in your emotion to withdraw for a fair and just reason and of course that there was no error and there will have been proceedings here and the defendant has raised no arguments that there is a fair and just no one ever grades the fifty nine or at least you can't tell from the indian that there was any consideration of whether the passage of all fifty nine sundown should change our precedent that's is rather it is a change in that to the extent that it is a change in law it's a change in law that predates alice garcia and of course the fact that a defendant litigant has come up with a new argument that was not raised in a prior qualls which is a more recent case unpublished decision address in the same issue but that was not raised by the defendant there in that as to i still don't think that means that this court is free to depart from sadness garcia at least with respect to the order well i think the biggest flaw in that argument is that rule fifty nine does not specifically say that a defendant can't waive the procedures of ro fifty nine and consents to other procedures it's just a default and so and it is it is common for defendants to or it's not unusual certainly for defendants or for the government to waive procedures set forth in the rules of criminal procedure for example the rules of criminal procedure set forth at the rights to a jury trial and specifically say that right is waive a ball and they set forth the standard for venue but of course the venue is also with a ball so the rules of criminal procedure  of all and here to the extent that his argument is that it is not in accordance with law and therefore in violation of the federal magistrate act because it violated a law well it there is no violation of long because he waved any objections to other than the procedures that went forth and so that's the problem there's no there's no violation of the nine violation here because of his consent to the procedures and his failure to all fifty nine just changes the landscape and it makes cases like see a colony of solace garcia simply not binding precedent as it relates to this case now because it was raised below that it is a different landscape so we would ask you to find