defendant's absence and whether it was truly voluntary and what what were the serious questions in this case in this case your honor mr nel is head a well documented history of serious substance abuse problems prior to his arrest in september of two thousand and thirteen he had been using methamphetamine as he told the probation officer three times a day for a period of more than four years beginning in two thousand and nine he was thirteen to determine whether further additional conditions were necessary whether further additional treacherous testing conditions were necessary what kind of what kind of record did he was represented by counsel correct that's correct your honor and was that the same lawyer that complete a record as he could have he did preserve the issue by objecting on constitutional grounds and due process grounds to the hearing and that was because there was a failure to console regarding the plea agreement right now i believe he simply was not is diligent in i think ascertaining the circumstances regarding his his client's not appearance and probably not as aware that in the ru myself in the in the shoes of the trial judge and you know your it's a bit of a scavenger hunt i supposed to for that for the judge to infer from you know drug ellis is not appearance at his fail revocation he assume assume that the judge said i think i think he's not here i think i'm the better law is oc bonnie and i'm going to follow proceedings for email allow counsel i guess to develop a a better record is that what you want the rule to be that's correct because i don't think on this record anybody can say you could make a determination one way or the other about circumstances why the volunteer by the why that there was an absolute in should we should we rely on you know in an adversary setting allow defense counsel to make that make that argument and i certainly think your honor in an ideal circumstance that would be appropriate  and i do think mr geller quite candidly was deficient in not doing that here but he does not say anything about the district courts being triggered to do such inquiry only because counsel asked the district court to do so  seven circuit rule and i was fine as i understand it requires at least some minimal inquiry even in absence of counsel suggesting it and as we just discussed there were a palpable indications in the record that mr ellis had some serious problems that may have triggered an involuntary absence from both his bail revocation hearing and his sentencing hearing but was it your position that as long as mr analysis on the lam voluntarily  provided that a governmental investigation of the underlying circumstances and i think as it was not there how can they investigate it and what do they know how do they know what his current mental circumstances are what is on the lam they would be able to determine for example whether he had checked into local hospitals whether he was in some kind of substance abuse treatment facility it wouldn't need to be as extensive as the international investigation that took place in a body but there were at least need to be more of an understand the concern about the rule but given the state or lack there of a rule in our circuit at the time what more could the district judge have done under your proposal than to simply suspend everything  it's entirely possible that this man may not have been found for years and you're i think suggesting that until he's found and so you can have a further investigation of his then current mental status you can't go forward with such  and here the district court may very well after a minimal government mental investigation have determined that mr nellis cannot be located any health treatment facility and he is not required i'll give you some more time and it i s that required given the fact that he previously appeared he signed he agreed to be there it was a finding that it was voluntary when he did that he knew he supposed to be intense telephonically he just didn't follow what he said he was going to do and then i would have before i go is this circumstance here on an egg knowledge that his decision at least to begin using methamphetamine to relapse into his drug addiction was to certain extent voluntary but it did happen after he signed the acknowledgment knowing that the sentencing hearing had been continued to november twenty fourth the twenty fourteen so there was an intervening circumstance be a poor choice of his but but it was one that could have rendered his his failure to appear on november for what he decided before that your position you know it's certainly if he made a conscious choice to do that that would that would certainly have an effect on the district court's voluntarily voluntariness finding i guess is true in many circumstances discovered after the preparation of the p s r it it's new on the day of sentencing or is ms cabral made a proffer to the district court regarding those facts that she did mention though that mr arnault was hidden it had not been confronted with those additional bags and she quite professionally acknowledged that of mr knowles were to appear that he would have an opportunity to to dispute those facts regarding the additional narcotics that the government believed mr knowles was engaged in distributing thank you very well will give you a little extra time very much  proper united states district court made a finding here based on the record before it but the defendant that's got it and absent it in self from the proceedings and based upon that factual finding which was not clearly erroneous this your court acted well within the scope of its discretion when it went forward and sentenced mr cornelius in a sense the fact before the district court showed that he had appeared on several occasions he was there for the bond hearing where he agreed and he signed his bond under knowledge in that he understood that he needed to be present at all future court proceedings he was in fact clear what was in the record your honor and what is counsel refers to is in the p s r at page eleven there's a reference that mr or neil has told the probation officer at the time of the pre sentence interview that he had been using methamphetamine three times a day on a daily basis for four years before his arrest all there than that statement there that is the the evidence in the record that mr ornelas suffers from a serious drug addiction i think that it's there's other information in a record that shows otherwise when he was initially at his initial bond hearing page eight of the absurd excerpts of record the ma judge at the very first bond hearing you know made the comment there's no evidence of any drug or alcohol abuse and that's why he didn't initially impose a drug testing conditional as a condition upon we were back in  there short time later after the defendant told the probation officer of the pretrial services officer and it's at page fifteen of the excerpts of record that seven months earlier he had used marijuana and so up until the time of the person's report that was the evidence and the record regarding the defendant's drug how many times did he successfully attend a judicial proceeding i apologize i don't have the exact number but i would say it was probably at least six times the case he was indicted in september of two thousand and thirteen and he did not enter a guilty plea and still september of two thousand  an experienced and capable defense and he he's before the district court i've had numerous cases with him he's an experienced attorney and he didn't come forward with we filed our us was voluntarily facts combined once that was discovered he left what role does the government notice in advance to the defense counsel that you intended to proceed with the sentencing in a sense here what role should that play if any in our determination i think in so far as it's suggested that the district court had a duty to conduct this searching inquiry even the seventh circuit in that bonnie said that duty is been committed to a mental hospital that would have been information he would have been able to obtain and want to other thing i want to note is that there are no cases that are cited by the defense even suggesting that even if the facts are that he was back on methamphetamine that the valar that that use of methamphetamine that someone's use of an intoxicant like methamphetamine or alcohol those there's no case law to suggest that in and of itself would have rendered his absence involuntary and there's also the suggestion that he had been diagnosed with p t s d i have not seen any case law on defense certainly didn't cite any that would support the proposition that that we would you go i don't think that the ambani plausible doubt standard is really any different from this court standard in marotta which was look if there are facts in the record it is it is the burden is upon the defendant whereas i do want to just briefly address the waiver issue the appellate waiver this defendant entered into a plea agreement that contained a waiver of the palace markets and certainly the rule is that if the defendant howe's a constitutional issue or the sentence is unlawful they can nonetheless appeal the sentence certainly was not unlawful he was charged with the distribution of the bet i mean the maximum sentence constitutional issue when you look at our body which is the primary case relied upon by the defense in this case it's a rule forty three case it barely mentions any constitution in the defense brief there's a couple different places page twenty three and twenty four mentioning the words to process there's no there's no cases cited and so the united states believes at the outset that the appellate waiver here was valid and so the court doesn't even need to reach the issue i think his argument is a fairly narrow one i think he's arguing only that that the record should the judge should have made some inquiries in the field do it and your position i gather is that nothing on this provides that the absence is a voluntary one so essentially what we're dealing with coextensive considerations here that the constitutional boundary and the rule forty three boundary are the exactly the same so there's no doubt that mr geller preserved the constitutional issue did you raise the constitutional issue in where you're required to do so i did your honor in the opening brief i did explicitly raise the procedurally mandated inquiries and even to the extent that the district court made a voluntary in this finding it did not jump through the mandated by any hoops assuming this court decides to adopt that the cases are you just a minute