cases as well but beyond that the main thing we would like the court to understand and convey to the court is attacked the reason why there is jurisdiction to hear this appeal is that is explained in the amended in our position is that clearly under flew for and the analysis of thirty seven forty two and eleven to one stay there is jurisdiction once the court has jurisdiction to hear the appeal i think the next question would be was there an appeal waiver in these cases faced in in retaining the constitution ality of the federal sentencing guidelines pointed out how important last two to still have the right to appeal to sentences for reasonableness whether they were within see it talks about that clique envy either to a specific sentence or sentencing range and under thirty seven forty two see it talks about appealing only at the limitations only unappealing or specific calculation of after a quantity and that is prejudicial to this defendant in this case the calculations the admissions and the indictment both include a quantity of less than to give it has agreed to distribute five there was a clerk will name that essentially boils down to five grams according to defense counsel and there was another incident where he ha based on this evidence  exactly what he guy and he does not appeal that instead he challenges to the conditions of supervision and i'd like to address won the treatment drug task that he was ordered  perform at the discretion of probation clearly under united states versus stevens that is error the real question is whether it is plain error in the sense that we can now show that mr torres is presently prejudice by the imposition of this condition and i would respectfully suggest that if the court looks at this in terms of how can an individual who is currently incarcerated filing a direct appeal from the imposition of this sentence show creditors now defending could ever show prejudice because no defendant could ever really reach out in the future and you know what a probation officer would or would not do so if the requirement of prejudice used is to require a defender to show a present imposition of a condition of probation in the that will be implemented in the future no one could ever satisfy that i have to do something more than just speculation well i think really it's more of  know if i can the court asked the question again if the question was but you'd have to show something more than speculation i would say now you can show speculation we can only show speculation what we can condition is an error of law well i know but suppose it's never going to come up for example mr tories by this record looks like he's going to be deported as soon as his prison term is over he won't be able to come back legally and if he comes back illegally he's waving his rights why isn't this so speculative that we don't get to well certainly i think or may not impose if this were being deported you'd have a good and good argument is the deportation problem this bothers i recognize that but i would if i would respectfully argue that a defendant who is not going to be deported doesn't know whether probation will ever require any drugs past were not used it's always a speculative situation the real question is whether the court wants to impose a rule that requires probationers to spile of secondly it interrupts the flow of probation because then you have appeals going on why somebody is on probation and then ask you another question to get your point your argument is that this is plain or obvious there because that was the stevens the correct but the sentence was imposed on august twelfth cool for stevens was later correct in that time we've been following the same law for twenty years two years earlier we  certainly even if he's deported he could certainly return to the united states albeit illegally and be on probation this decision when the when the sentence was handed down stevens was cited and stevens was a case involving the defendant who had more than three wasn't that he might have were the three was after the fourth drug test the language in the statute which provides a test fifteen days after release and two additional tests the court doesn't add anything else then it's the return and there's no evidence at this point of the probation court actually lays out that there are three tests that are going to take place in this matter now if the court decides that a later date separate from testing which is not subject to this appeal the court can certainly modify mr torres's  playing at the time of appellate consideration i don't understand it all so i wondered whether or not whether or not you could distinguish johnson's words well today the district court's not doing that but has she kept in this language has it set forth in the standard condition and stevens had been decided before that the court could not test more than three times and i would argue that it's still not have much of a legitimate employment on the record shows he worked for some of that may work for them it will work for a nursery at one point he was a butcher in mexico and at one point he worked in the flea market i would argue that his job was selling drugs and the quantity of drugs  he doesn't have stable employment and he's living the high life or living a life that does not support that means the core should look into it and the fun and there's a pop significant possibility based on the fact he was a drug addict based on the fact he's already the appropriate stuff he had a range or a specific number and we believe that is reasonable and what we do is we presented to the judge which sang your honor we believe this is reasonable and we are trying to persuade believes that that range for that specific sentence is reasonable if she says yes then the parties agree to be bound by a number within that range they come forward and say that any number within that and we think that makes sense because that's the parties are coming forward in asking they're asking the court to put the status in guidelines aside to focus on what they are offering to the court if they offer specific sentence the court considers that i if the district court has if it's a specific number and i've agreed to a specific number then the question is whether or not it's agreed that that number is one of a five agreed to raise now the district court is going to be exercising some discretionary judgement in that where reasonable most considerations could apply and if the range is broad enough and has enough in fact i'm not sure why the there shouldn't be some cab the name of the district blatantly and reasonable determination of the range are you saying that the effect of agreeing to the range waves any appeal then of exercise of that discretion within the r alvarado did is come forward of the court and said all things being considered this is the amount of time i can live with it i can live with any number within this range i hope to get a number of the pot but if you satisfy me within this range i agree that the i agree that this is this is reasonable even if you don't even if you don't like the color of my hair and that's the only reason  yet and he says i don't want to take that risk i'm willing to go within this and one note i've actually had is that they've both enter their plea agreements after booker was decided they both knew that the sentencing the difficulty the government is having is eighteen months ago thirteen months ago you walk into a courtroom and say this is a reasonable sentence says me within this reasonable range and to date it all these months later you come back and say you know