appellant when that judgment was final docketed and the appeal time expired the judge could not impose any additional time without a finding of additional facts those facts were alleged in october of two thousand and three and they are number one that the defendant illegally re entered that's a question of fact whether he did or didn't that he was found that's basically testimony on the part of the border patrol agent that he found this defendant and he has the right person and so forth and there's a third campbell was a three and one he had admitted they re entry in another context in another case there was a new charge against him he did not admit it in the supervised release case he did admit it and the new charge against him which was also a same facts but he did not admit it and in this case and had he if those facts are to be used in this case the district judge or the magistrate judge should have advised him  cannot be used in this case because he was not knowing and intelligent waiver of the rights under this case the supervised release of these are two separate cases one is from one nine hundred ninety eight one is from two thousand and three let me ask you i wasn't aware of that or i didn't read it that way it's very broad it says whenever additional facts are necessary the sixth amendment right is conferred upon the respondent and he has the right to ask for a jury trial we must bear in mind of course that a promise fact that you would recommend minimum sentence which was forty six months which you did in utah any additional punishment would be part of the same sentence so it should have recommended no more than forty six months  the it's before the court on plane error we should note that is fundamental because the sixth amendment right is being asserted here that it is the case law under blakely and booker is quite clear it's plain at least so that's your standard review and i'd like to reserve a few minutes for a rebuttal i thank you counsel please the court jackie ireland on behalf of the united states this is a case where the district court in utah gave the defendant actual notice of the terms of a supervised release which he later knowingly admitted to violating in the district court in arizona and the in the lower court so plain error analysis doesn't apply the government does not believe that there is any case law that states in the ninth circuit that booker would apply to revocation of the defense supervised release the eight eleventh and first circuits have all squarely addressed this issue and have all held that defendants do not deserve the right to have a jury trial at a revocation stage even in light of booker also on page seven sixty four book preponderance of the evidence whereas we must prove by beyond a reasonable doubt standard guilt at trial so we don't believe that the defendant is entitled to a jury trial at the revocation stage the work case coleman condition that he not illegally rancher but also gave the defendant actual notice of standard condition number one quote while on supervised release he shall not engage in any acts that constitute the commission of a state or federal or local crime and quote and then the judge later goes on to give the defendant notice of the special condition quote one special condition is that he shall not reenter the united states again illegally without the specific consent or the attorney general the united states and that if he should reenter during the period of supervised release he shall contact the probation office in the district where he reactors within seventy two hours and quote i think the question was whether or not the concept of supervised release w  the low end recommendation sense of the plea agreement is silent as to whether or not the parties intended for this promise or the stipulation to live on forever however even if it did live on to revocation assume that the government would be found to recommend the original sentencing range is simply not logical that range is not available under the guidelines of the advisory guidelines of supervision at least they conclusion your honour's the record is clear that the defendant was given actual notice of the terms of his supervised release both the standard condition and the special condition he was not entitled to a jury trial on this issue because revocation  be other than forty six to fifty seven months for his original sentence in utah it did not say that there's any distinction between eight more months in phoenix to be added to the original forty six months back in utah when we talk about minimum six months well it just means the government should recommend the forty six months now judge campbell frankly made where it revoked him anyway and impose the same sentence but what the defendant was entitled to was a government recommendation that the judge not do that in your body may have done it anyway i mean realistically it's very possible but still what the defendants entitle to is the benefit of this plea agreement and just on our take a breath the requirement under statutes and under that case holds that the guideline recommendations were advisory prior to booker and booker didn't change anything because they always were just recommendations and chapter seven there's a distinction between chapters one to six and seven so i didn't change anything act case is not applicable here united states versus work in the first circuit talks about her all revocation probate probation revocation it doesn't talk about supervised release parole shortens the term and that was