good morning your honor when i found it please the court my name is joanna christiansen and i represent the appellant extra fisher in this case since i filed the opening brief in this case several things have changed regarding the issues i raise so at this point i think it's my duty to lay out the path that we have are meeting before us of course the st issue has been disclosed by another case and then we move on to the nd issue and the main case of course will talk four rules and when there is a failure to object that is forfeiture not waiver but i believe that mr fisher's case falls outside of florida's because the factors this court looked at to find waiver do not exist and mr fisher is case specifically there was no intentional relinquishment of his right he didn't challenge any of the conditions of supervisor there was no evidence and strategy and not challenging  and he did not weigh reading in fact the district court did not inquire if he personally had read the conditions and did not inquire if you personally agreed with the pre sentence report aside from the factual finding which on the court basically does if not read that the court puts on the record in a way that is not always done right conditions right and we're not seeing that as much anymore though the phrase reading of all most of the time that the court this court considered flores so i'm distinguishing in this case the most compelling issue that we have left is whether there is a compelling reason for this court not to find waiver overbroad particularly in the manner in which it was reportedly worth reading about psychoactive yes i collected substances and of course there are essentially two conditions one the judge says at sentencing and them one that's actually printed in the report and i get it but when you we certainly do have that and we know that the oral sentence controls and so on but doesn't the the written sentence if it does anything narrow or clarify the oral condition it says what we mean it gives a list you know express you going to use etc word is known by its neighbors whichever maxim you like  but if it narrows as opposed to broadens why is he harmed by it i'm not entirely sure it narrows if it was listed simply as the examples of bath salts synthetic marijuana  to become intoxicated i stated earlier she means like huffing glue right you know i assume she does but you know people can awful also have gasoline and any freon and paint and markers and whatever else people can  unclear from the record why the court did not read that portion of it and then how it got into the judgment there are various ways the judgments are prepared i know the district court herself does not  judgment but it is that makes it fake and that's the argument that we have the other portion of that is that it's not related to this offense he admits using controlled substances and alcohol and those are banned by other conditions in his case so there's no evidence linking his addiction ever to these kinds of substances and it is just further fodder for the probation officer to use as a revocation when in reality his problem is addiction that would cause the offense he robbed from misuse of oxycontin because he was addicted to opioids the rd the conditions not consistent with the sentencing guideline policy statement which is part of the and eighty three dollars that it must be consistent again the judgment must be corrected anyway and that's another compelling reason because of the error in the terms of supervised release in addition to the difference between the oral  is how or what the what the remedy is and that it brings me to the th compelling reason which of course is a slender reed i understand the st step act is pretty clear i'm not challenging pearson at this point but allowing this case to go back to for recent saying what allow the district court to exercise the discretion she said she wished she had not that she wasn't going to impose fifty seven years it was up to her really the only person at this point he thinks mr fischer should serve fifty seven years not always been the remedy for this court but it has been the remedy in the past when re sentencing can broaden and perhaps change the punishment of the defendant that's the compelling reason that flores left open frankly there it's a hook right you know there's a problem with this with with both the number of counts for which supervised release was imposed and also with the failure of the oral and written sentence on the  psychoactive substances to say the same thing so that opens up the judgment and you're saying we should just take that hark i'm having trouble seeing why that should shake our confidence  quote unquote the sentencing package that the district court you know of course it's a very tough example of line drawing right he's only about four months and change away from the effective date of the st step act correct drew and mr fisher missed that line and it is a hook it is what a defense attorney with a client who serving what will be the rest of his life in prison uses as a hail mary in this type of case but when you look at the the sentence itself if this weren't a mandatory sentence absolutely we'd be raising the substantive recent illness of the sons of fifty seven years i think that as far as you're talking about the package and why we should question that that this condition should unbundle the entire parish is the district court words herself i think that she laments the fact that she has to impose this sentence i think as any judge would be imposing fifty seven years alone for this offense or a set of offenses but she says if the larch changes and you have good conduct she gives she dangles a carrot for him and if you have good conduct i would reconsider that and i think that is may please the court counsel house on behalf of the united states of the five issues presented to this court three of those are controlled by seven circuit press them in favor of the government one of those is a clerical error that can be remedied by rule thirty six dollars in the district court it can be but does it have to be mean sometimes when we have failures of the oral and the written sentence to conform we simply send it back to the just record there's a good reason for doing that which is to keep control of the judgment in the court that entered that judgment cation we've been changed things ourselves sometimes you put the burden of people on people to raise other things but within our set of choices is certainly the ability to send this back for the just report to fix a your in our degree that the court does have that discretion but it's unnecessary in this case it's going to really sit and wait a week we can see two things that are wrong with this st of all the addition of this list of things that might be psychoactive which frankly even when i read that i began to think of all sorts of things that are psychoactive substances you know how opinion peppers if you've ever supervised release on the counts that she orally announced before that has to be fixed or on a government contend with respect to the supervisor lisa condition it's clearly been waived under florida's along with the sure it don't see anything that strategic there either and you know you've got to take the good with the bad let's conform the written judgment to the oral one ever that's good for him maybe it's bad for him respect for the government contend justice flores flores had a condition as far as  point in in the allocution the defendant she talked about how she want to get skills for a job just as here we have the allocution of defendant talking about his addictions to various controlled substances and so why not have the oral condition you're on the code should be written judgment needs to be fixed to say that we agree on and that can be easily remedied via rule thirty six i know you were back where we started it can be done that way i don't disagree with you but i don't think it has to be done that way and then that takes us to the question whether this case is a candidate for a more broad pre sentencing the government has this sort of casual remark you know life is hard  different from the written stuff here i believe it's just a clerical error i think your caller yes as far as the number of supervised release terms i think it was clear at sensing which which counts the judge referred to when that was translated inadvertence frankly you know she reads off the the things maybe she's looking up and down in summarizing you know i don't think there's any question the court reporter accurately transcribed what was said in the courtroom and the governor doesn't conten bet the government agrees that the the oral announcement by the judge is the correct sentence in this case but just when it came to the judgment for whatever reason it was transcribed incorrectly and should be fixed the government does agree with that well you get back to why would you transcribe it correctly who transcribed corey border your honor to be my understanding whoever prepares the judgment for you don't know that's correct your honor i'm not aware of how the district court judge handles particular judgments that are written  strategic reasons that the defendant not object to that condition i can't imagine what they are you are believe the government believes that you know in his allocution he's talking about the addiction that he has what he already has this he he's not saying etc means anything to him well kerry really want to open up more possibilities for his probation officer to write him up on a revocation governed by what reason w leniency i've been told by assistant u s attorneys that people are zied out by the time of that stage of the sentencing that they hear fifty seven years and then that numbers just resoundingly in their head  and sumps condition of supervised release it's going to kick in when he's eighty two years old it's not what he's really focusing on i just don't think strategy plays any role in this just in we're on the government believes you know we can't jump into the head of the defendant but there would be a strategic reasons you know you like to say that when there's a plausible strategic reason we acknowledge that you know sometimes you're at an earlier stage and perhaps you're preserving acceptance of responsibility discounts are something that's not available in this case because this case is completely driven by mandatory sentencing provisions and acted by congress there are we believe that as far as  condition ready in the supervisor at least term when you look at that with the full package as this court stated the discretionary sense in this case was one day it's hard to believe that the addition or subtraction modification of this particular supervised release condition would have any change in the custodial sentence it's not going to change the custodial sentence because it can't that's right so sitting back on a full remey in the government doesn't believe it's appropriate when you look had a few comments i do have some insight into why mistake happened i mean i think it is clerical but i do think in some districts the probation officer i have heard and this is hearsay on my part actually submit the conditions and then they're cut and paste into the judgment i believe that's probably done by a large clerk or the judges deputy whoever does that in general but this goes back to in my view probation officers who are that right and and there are other conditions that are also making a real surgeons now that plane error and waiver is becoming more of an issue and i'm arguing some of those other cases but it is probation officers pushing that envelope and bringing those issues back i see and out of time i if i could add one comment i think when we're talking about strategy it's one thing to talk about the defendant strategy but actually strategy as defense counsel strategy and whether is defense counsel strategy in waiting that mr fisher had no strategy other than essentially to beg for his life and admit that he was an addict and that's why he committed the crimes defense counsel had no strategy because defense counsel knew what he was what the sentence was going to be in essence and if he had gotten a guideline sentence rather than one day does it really matter after he gets fifty seven years so there's no reason to not object to conditions so i urge t