because you're a few minutes early i hope you're ready to go this panel is sitting in jackson mississippi one of the few you are all three of us over in mississippi hearing these cases mr garcia is asking this court to vacate the supervised release conditions concerning drug treatment including the drug treatment condition and the payment condition the reason he asking for this court to vacate those conditions is that the there is no notice from the district court that it was going to adopt the drug treatment condition or the payment condition furthermore the payment condition propose that mr garcia be imprisoned for debt in other words this case is all about sandbagging to my st point in district court i did not your honor i'm not asking to make any representations and perhaps your friend on screen also did but she's made that there are unknowns here and two with we don't just say all this is is void necessarily how do we find out whether we just try to find out in some procedure whether he did know about it and not he gets to be resent well i suppose there could be a limited remain and in order to see if the record can be supplemented keep going with it every want to say i'm trying to figure out if the flaw is whether he knew not that he didn't know but whether he knew and there are ways to find out the like i said i suppose the possibility for a limited re man to see if we can get to the bottom of this but as the record stands i mean there's just simply no yes and his lawyer said he had no objection to it right right we just don't know on this record also to build on that point did i'm look at that record on appeal to a five but by providing this court with the transcripts and with the record on appeal there's just simply i mean if you look at the docket sheet the docket she says that he was sentenced on  just say the burden is on him to show that there was an error sometimes it's in the jury verdict sometimes with the co and he has not shown it in him you know not have been shown he loses what we have sho payment condition and that how do we know that when i thought that's what we did know well well there's an absence of any notice in the record well the counsel that what about the dialogue d between the court and mr garcia's counsel where they're clearly representing the court calls it the judgment that the conditions contained in this judgment as well as the mandatory and special conditions stated i  mean if the court had said and called it an order would that have been an adequate pronouncement under diggles in other words it would have been the order setting forth the special conditions like yes that that would have been better i think that the biasing about that and surprised me i wouldn't have either i expect no less what we do with that is judge always question to you my my other colleagues to why is that we very simple send back as opposed to and it may well be as opposed to just the record in support your argument was he may well have been told all of this in that dialogue or that that confirmed that he had seen all this as that dialogue with the judge was getting to if the record does not show you the way you may have been on the record does not show he was told of the kind of conditions yes to be told or away as opposed to the stand conditions and other matters i mean this is an important e as opposed to the defense counsel's responsibility to show what he was told and not what it is mr garcia's position that it is the district court's responsibility to make sure that there it doesn't appear that the district court actually gave notice of this drug treatment condition because after all the district court did give notice that mr garcia was going to be in the readout program the residential drug abuse program and this court can take judicial notice the fact that that is an intensive program and it wouldn't make sense to have someone do the read our program in prison for nine months the special program and then have to do effectively the same thing all over again when he's released from prison and i think that really goes to the district court's  the other thing that i want to highlight is the fact that this imprisonment for debt is just unacceptable under the law under under the statute that there was got when he when he gets released from prison well it's not certain that he will definitely be earning money at that time i mean it's not certain that he won't be either and that that sort of the broader that that that certainly is a good point but i think that another consideration is what judge posner mentioned in the sequel decision in the in the th circuit that you shouldn't the district court judge should anticipate the possibility that maybe he cannot pay for his trunk his treatment and you know her house or do that here but i think that he would he would have prospects for employment once he got out right but i think the district court should have gone one step further and said that mr garcia didn't need to pay unless it was feasible in other words say for instance you know of course there is a possibility but there's also that he may have the employment to be able to pay back the money but there's also the possibility he wouldn't be able to pay it back and i think that the district court should've qualified this payment  it's the government's position that there is no ambiguity at all in his record you must be looking at different occurred but go ahead on the district court provided a document in title order setting additional terms of supervised release the document is song and by the defendant when did that is your ethel in speaking from experience practicing in front of this judge i did not handle this case at that level but the court provides it at the outset of the hearing though heard it is not in the record your honor you can see that clearly in the record there is the transcript on page two of five that your honour's pointed seeing this have gone over it with your client asked the defendant if he understood the conditions and he asked if there were any objections to those conditions if the lawyer had any concern or doubt or uncertainty as to what he was being asked to answer that's when he needs to raise the issue the judge this is an important question on going forward for your office and all the other offices in this circuit on diggles and it helpful and i'm asking you not to go outside your role in whatever your position is in this case it does seem to me that we guard as a usual practice we had to have a record would be a fair argument of what was done knew that and u s attorneys knew in defense counsel knew that you need to put on the record what all the individual knew before pleading guilty if the judge is not going to orally pronounce it from the transcript and would be helpful and what you're saying to us after the fact and we're going to go out and sound like a very practical way to proceed let me let me try to respond to that just south way so st off just to clarify the issue is not what did whatever the judge actually said at a human what diggle said this is and the way the governor reads it is that as long as the defendant has notice and the opportunity to object to the conditions then that's sufficient and the judge can adopt some written document as opposed to mechanically reading those conditions into the record at the hearing diggle when it went further than that indeed very into the biggles opinion it talks about how the court is not mandating any particular procedure as long as the sit ins injunction notifies the defendant of the conditions in allows an opportunity to object there will be no conflict with the judgment let's those conditions because even talked about the practice that occurred in this case and that's in a footnote seven of the court's diddles opinion and it talks about how the practice of adopting written recommendations gives the defendant multiple opportunities to object they can object to a p s r if the conditions aren't listed regardless accepting that's the general way it's done in the far better practice to have something in the record where we can check the block and say goes complied with you that we can't tell from this record the date of was complied with respectfully your honor we disagree standard conditions that are contained in the form judgments issued by the judicial commission in any he says have you gone over those conditions with your client yes do you understand the defendant for me and lee says he does and then he's asked if there are any objections to them and if they were ready to infusion or concern as to what those conditions were that's what a lawyer can raise the question just one what are we talking about this point i don't believe there's any confusion place you send it back to provide the district court the opportunity to make clear on the record that he isn't posing these particular special conditions a supervised release and he's already included in there that need to be he can raise the question of his imprisonment for debt at that particular point in time and in preparing for argument and i can supplement in a twenty a j letter but there is certainly a case law from this district in the restitution context that  implicit in a condition order and someone to pay restitution is the ability to pay and so implicit in this condition is mr garcia see his ability to pay the particular money and so all right thank you your honors i appreciate it thank you oh here from if this case is remain and it the defendant mr garcia definitely needs to be there because let's say for instance that that the court did intend to impose a drug treatment condition after his release from previous prison that doesn't square with the residential drug abuse program there was also recommended while he's in prison i mean he's getting a double resolve these issues and those that do you really need a new sentencing he guess again because it doesn't make sense to have the read app program recommended and to have this drug treatment after he's released from prison to but it didn't make sense if it didn't make sense now didn't make sense of the time and the premise of my question is it was all in front of coun mixtures right i just think i mean again i just want to harp back on the fact that there was just no notice and i think that if there had been clear notice in the record the maybe there wouldn't have been this confusion about a double dose of drug treatment or cancel the thing else note your honor thank you very much for your attention today thank you both  us understand this case and i do feel i was a bit short with mr bunch i didn't mean to i don't know why i got that way my colleagues will call me down but anyway you both are political no problem your honor thank you