five terms the supreme court of the united states has upheld that and warned against the prophet characterization of issues as jurisdictional apparently unaware of that issues but that those there are independent concerns in pending to the parties concerns of federalism comedy and finality of judgments that require the courts to look at those issues independently on its  and regardless of whether there is way which waiver or forfeiture of this is not a case because any of those independent concerns there's no reason for this court to step in the hall the government's facts out of the fire is that we think that i guess if that's that's correct that government waived not only the jurisdictional argument which they've never raised but they've also waived that the argument that this was a condition an unconditional plea well that's arguing then that the government has waived any objections to the court exercising hearing the case at this point but everything else in the plea agreement still remains where it was yes ok now if that's true one do we have jurisdiction to hear this we've talked about that too was the plea my few we have to decide with the players knowing voluntary and it's not everything else falls away well i would you can't you can't say i don't think analytically let's assume it is or not and then reach these other issues which would only have to reach that analytically to make this flow no not if we accept the argument that the government has waived the right to challenge  involuntary because what you're trying to say is i believe that it was conditional and you preserve the right and if you're going to enforce that then we have to say it's going involuntary since i'm sure sure i think we have to deal with that first or second  i'm unclear about how you get to this conditional plea argument i think all of the members of the court have read the call equiv between the judge and mr her kobo and the judge just to correct down all of the things that a judge needs to three two hundred forget surface of record beginning at wind ten where it says the defendant is waiving certain constitutional rights but he understands that he retains the right to be assisted through the understand your interpretive argument that he vansickle statement at sentencing that you have a right to challenge to appeal this court's determination and most importantly in light of the government's condit government's conduct is completely at odds with the idea that this is a conditional week unless the government just loves briefing fourth amendment issues for the fun of it it's completely contrary to say we thought that this was a bargain for conditional plea but i was following your argument on the language and the language you're characterizing in the context of it's involuntary but it's not involuntary and knowing if the language is construed whe you suggest it should be which is he wasn't waving the probable cause issue in that case why are we discussing that in the rubric of knowing involuntary rather now you're making a contractual argument that he never did give up the right to appeal and if we construe the contract of the plea agreement that way then we get to the jurisdiction are you arguing counsel like this that the whole plea agreement is of no force or effect because it's involuntary are you trying to slice it up and say that parts of it are valid and the rest is not val think our position is that the provision for the preservation of the issue on appeal is sufficiently clear that it is an effective reserving the right to challenge the motions that are not currently paying that have already been ruled upon were there any motions pending and yes there were there were there were three motions filed pretrial motion the production information motion to compel grand jury testimony and there is only one written order denying motion and that was the motion to suppress evidence you  the government the government way you objection to the crew existing the venue constitutional argument that's what they've ways so that means then as i understand it you afternoon my name is joe barton and i represent the united states and this hearing today and i think actually represented the united states from the day this case was initiated we're here today because might think if i were the defendant and i were literate which often is not entirely the case with the defendants but that i actually could appeal these things so why is this not a voluntary leave me you know maybe he didn't understand what he was be determined and that is at the change of sleep and we look at the plea agreement and we look at the exchange that takes place in court to discern whether or not the defendant said i plead guilty judge only on condition that so i think the  heard and the tertiary question the third question then would be the merits of any issue and i think what what is what we're trying to sort out at least by speaking for myself i'm trying to sort out  to review ability i'm not sure if i understand the distinction you're trying to make your honor what i jurisdiction since we don't even have the opportunity to come into court the whole thing is just withdrawn and then you start from square one ok that's what you gotta do i suspect you're not going to do that so it's over no i've got great powers of persuasion however you want to whatever category you want to put into it they're gone now is that what you need to be arguing in your brief or just or not in my first  appeal guy think that gets a little dicier but it's hard for me to see how there was a least some question about whether he preserved his right to appeal and if that's the case how can how can that plea agreement be knowing involuntary if that's the pivotal issue well first of all i'm going to preserve it again i think the defendant has to raise that issue they have to raise in front of you know just just i understand your guidance on that and we just preserve in my mind so lever of the waiver and so on introducing this by saying i am a great admirer of the d c circuit and i always follow all the opinions of the d c circuit on all matters the case of the united states versus what i see as the issue and that question involving is whether the police knowing voluntary and intelligent and certainly and it seems to me in a case where we have knowledge of some thing it goes to now it knowing voluntary and intelligent nature that plane which we don't have here but yeah i think so i think we get to that point in life and we couldn't do it if your position is that the language of new agreement is the waverin steal notwithstanding what you think is an unconditional plea agreement filed an appeal in this court and you immediately recognized that you have a perfectly enforceable unconditional plea agreement in the court but the pending issue what's the supposes that is an interesting issue on the fourth amendment and that the justice department's considered opinion this would present a prime vehicle for litigating that particular question can the government in that circumstance  and i think the best way to answer your finality question that you had way back when is a final judgment is this part of the review by statute telling twenty eight section twelve ninety one says this court can review final judgments everybody's very familiar with that and then if we the legal sense of review ability and maybe i'm using the right terms now to answer your earlier question but in terms of review ability because it hasn't it hasn't been a guilty plea makes it i understand your rule eleven argument i understand that argument well ok i don't think that they're necessarily separable i think they need to be read together they're both jurisdictional based and one is actually a statutory basis the other is the constitution in response to george fletcher is question where did we raise this issue about the knowingness voluntariness the plea and our opening grief on page twenty seven supplemental open grief page twenty seven and then it's repeated page fifteen of the supplemental reply brief heard you answer judge dismiss question citing the really you are challenging the whole agreeing that you were just challenging part of the agreement are you when you say it's not knowing and voluntary and you say you preserve it are you today preserv arguing that the entire agreement is not knowing and voluntary or you saying certain parts of it are they are not enforceable you are saying that the ambiguous language that we've pointed to repeatedly is you answer my question is that i understood you to say that agreement is construed in your favor but your first line of argument it was a conditional in artfully drafte the parties acted completely contrary to an understanding that this was an unconditional plea but the government spends thirty five pages of this opening brief because it loves the fourth the plea colloquy if you will with the judge whatever you think of the plea agreement and i think i have some sense of that the judge ask to the charge of possession of firearms by a prohibited person that is an illegal person who is a fairly an illegal in the country how do you police the defendant guilty the court has anyone forced you to enter this plea no is the plea entirely voluntary yes you plead guilty because you are guilty yes then over on page eight now by pleading guilty you're giving up a number of rights first of all you are admitting that the charge is true yes now he was pointed out must be read in light of the key is this was not a straight up please this is not the first time he's coming before the court and he's what writing on a blank slate he is pleading pursuant to a plea agreement that sets forth the rights of the