in section c the sentencing was defined as it's oral amount spent this circuit in the a geary case which the government's having to gave story very important reasons that that was the appropriate decision as opposed to after a written judgment the three reasons  are that if a sentence is finalized at the time of the written judgment it gives an opportunity for changes that the defendant and the government may not have the opportunity to address the defendant is not present at that time and that's a critical sixth amendment right the second i'm sorry yet so  understanding is that mister believes that the sentence was final when judge tiger said it was final is that right  ok so why why wouldn't it be final in july when he said on the record this is the sentence and then aloud or information about where he should designate mr fia which has nothing to do with the actual sentence and as you know this your court judges can make all sorts of recommendations to request put the sentencing hearing over and that's how he defined it on page two twenty five of the excerpts are two twenty six he said i'm going to put this sentencing hearing  so that will have the benefit in this period between now and july and the sentenced the further continued sensing hearing to have the information from the heart transplant cardiologist d campbell he mentioned her by name and we will have the opportunity to get information from the jail where mr fay out was being held to see what his particular medical needs are those might be important additional pieces of information in this case mr fayose medical needs were at the heart of the sentencing decision and for judge tiger to say and he was the one i understand that that's not how many months prison that he imposed but the question is in defining when the oral announcement is fine does it mean that  judge himself in continuing that case to get more information whether it's about designation or whether it's about the sense of self and learned information or is given the tiger said well and actually this also if we were to have another hearing in a week or so we would give you the op the advantage of having mr fay i won custody at santa rita and dr campbell or you could be in consultation with the medical staff there and see if there's any further information that you would like you would want to provide to the bureau of prisons so in saying that i don't think placement but if as was the case at the second sentencing hearing he received information that undermine the very basis of his sentence i understand this argument i'm cases say that it's not and i understand that it is separate however at the sentencing hearing which was continued when the judge received additional information the question is whether or not this should be considered and given him the opportunity as the record in the luna a caustic case in the tenth circuit and happens after the completion both of any order of probation any order imposing a prison term any recommendation to the bureau of prisons as to where he should be placed listening to the issue here in front of the court that i'm raising is whether or not judge tiger should have been given the opportunity didn't lose jurisdiction to modify or to alter or to change his  so what is it that you if if you had the chance what is it that you want a new sentencing here you know that but what do you intend to ask for in a new sentencing hearing when i ask i will ask again for what i ask for with me he would be but he would have an opportunity through his him to get gratian lawyer to seek release for similar medical reasons and and to have his full hearing he's a lawful u s resident and he could then have a hearing with regard to ok i think i answered that and say thank you thank you good morning may it please the court my name is susan gray and i represent the united states the district court lecture a stiction to re sentence which my opponent has now admitted is what she was asking for but even if it hadn't to go to  ellis is that the district court even if it had considered this did not have the authority in a separate civil immigration proceeding to give her the relief she seeks which is the ability to challenge his deportation outside of custody the district court at the time of sentencing knew that he faces she wants that opportunity come sooner she wants that yes and she can ask for it and as as she mentioned she can ask do that through the immigration proceedings and one of the things that i think it's important to remember that the district court even if it could siddur this had expressly rejected at the initial sentencing hearing  full sentence the idea that this defendant was appropriate candidate for time served and the reason he did that is because after the initial very serious offense he had proven himself incapable states that it's sentencing is defined as in this rule sentencing means that oral announcements of the sentence that would be my authority your honor that when it was orally announced and it was completed there were no outstanding terms of sentence this is not like luna cost or where there had not been an allocution where there had not been opportunity to make objections all of those had concluded and the court specifically the sense of imprisonment the sentence of supervise sentence pronounced sentence and the defendant was laughing at the court at that point the court said wait a minute during within the same hearing and the distinction the court drew between a subsequent situation where there might be a break in the proceedings which in a cost to recognize is that here in a choa there was no break it all happened within the same series sentencing hearing the difference here is that there was a break a sentencing had been completely announced moreover the court specifically put it over simply to reserve further information not as to sentencing but as to designation and in fact i would submit your honor that the quote that the fe you gave you illustrates that it was actually being put over for information to be provided for the group to the bureau of prisons in fact at the conclusion of the sentencing hearing and counsel isn't it true that  as part of the judgment and commitment or which is a standard order it's used throughout the federal system for district court judges is that there is a section in there that has a designation portion and the judge in the judgment and commitment or designate make a recommendation as to the designation if that information is not available to the judge judge tiger in july then you can't fill out the judgment in commitment order however that is not what controls as to whether the sentence has been imposed correct your honor under honor mentioned it is the dissent counsel what about the appellate issue you're i the government believes that the waiver does apply because it specifically the ability to waive it to challenge not only the sentence but any warders of the court decision during that the plea agreement also contains a specific explanation that he's guilty plea will of may have fact his immigration status so there's no contention that this wasn't knowing in voluntary and the only way the court could set that aside is if there was a finding that there had been presented false information this the only information presented at the second designation hearing was basically an attempt to bolster mitigation arguments that the court had already rejected but what had changed was the situation i facilities and it was in fact it did not contradict anything it did not even address immigration private contract facilities number two defense counsel admitted at that designation hearing that the magazine articles been you know seven or eight months before the initial sentencing and number three and the fact that he was going to go into ice custody was known in noted by the p s r it was noted by the defense counsel in fact she brought he brought it up at the time of the sentencing hearing everyone knew that everyone knew that he was a new zealand citizen a legal permanent resident and that that was looming out there ok with the court's permission i'd like to ask that  but the difference there in a think it's a very important distinction is that it was a pause applying the break in the proceeding analysis the court found there hadn't been a break in the proceeding and luna cost address this and in fact here the district court was it if the district court had done what the defense asked they would have run afoul of luna cost as a ridge original ruling in fact the judge in luna casa got into trouble because there had been a break in the proceedings and that it was that were there were three different sentencing hearings your honor if you'll recall there was the initial one the second one where the court put it over to address where before allocution an objection and to to wait until the sentencing guidelines change and then the third one that got the district designation hearing it would have done exactly what the tenth circuit said it couldn't do that that the district court here was complying with the applicable not only tenth circuit but the law and this circuit which says when there is a break in the proceedings and the sentence is final at that initial proceeding the district court has jurisdiction on that basis i would ask that a corner a very limited except for extremely limited circumstances thank you thank you announcement of judgment final lease the law is changing in two weeks after the original sentencing hearing to eliminate supervised release in illegal reentry cases the judge said yes ok fine we'll put it over not only did the judge eliminate the supervised release condition of his previously imposed orally and out sentence he also changed the number of months that the defendant was he sends to the bureau of prisons he lowered that number have about a third thought some time later but without the presence of counsel the defendant or the governor had he in the written judgment imposed his first thirty six months sentence and in the written judgment that's what the court the tenth circuit said he had no jurisdiction to do however and most importantly for this case at the second hearing which was put over for further addressing sentencing issues the oral announcement had not been completed and that's what the court said the court used the word draconian i looked up the word draconian i just know it from common usage but it's actually a legal term that's talks about extremeness and sentencing and what the lunar caustic court was talking about was exactly what is being addressed in my appeal here in this appeal which it is but counsel why why do you believe that we can even be here and that there isn't an appellate waiver that was always had threats issues of the appropriate is does have jurisdiction whether there's a waiver of the set of the right to appeal the sentence which is what was waived here clearly at that's not what this appeal is about this is about whether the court had jurisdiction whether it did in fact not complete based on important information and and i'll just conclude by saying the very law for most of the court se came into question at this second sentencing hearing this from defined by the district court judge has a sentencing hearing at three hundred therefore i think it did not th thank you thank you