sentence in violation mr brown's fifth amendment rights due process there's a long established case law about the reliance on such evidence making for an invalid sentencing proceeding and that's what we have here you've cited those cases in the brief and in particular we are concerned with as it relates to this issue the judge's reliance on the conclusion that there are nine administrative conditions that are required whenever there's imposition of supervised release of course the statute doesn't  mistreated conditions you don't find those at thirty five sixty three b you don't find them referenced in thirty five eighty three d and you don't find them in the guidelines what do you make mr horowitz and want to read to make if anything in your view of the fact that you know th these are requirements want to be led to believe that you cannot challenge these things they are in fact mandatory so that is the first problem that is tainting the government's waiver argument that you got this information that is explicitly in the court four right or what have you sure except the p s are said that they were mandatory i'm not certain the counsel took any additional steps the court treated them as mandatory counsel would be like but he would be the odd man out nab you as matter of fact  post thompson two thousand and fifteen in february we cited the twenty eight j letter where the judges who the southern district got together and said these are all requirements of supervised release so the judges themselves post thompson rebranded conditions that were once standard conditions of invalid i think it's above no moment and there's not a valid garcia sugiura analysis such the government can rely on it to demonstrate waiver either judge got or so i think these reasons we shouldn't rely on the government's waiver argument plus it's inconsistent with supreme court another case law that says waiver supposed to be annoying and voluntary relinquishment of no right and i don't see that here or that this was anything other than amiss by everybody and it's been indulged by the judge thr probation office by saying the conditions are requirements when they are in fact so there are no further questions on waiver a move to the merits of mostly hinted at them already the statute doesn't have these nine conditions thompson doesn't have these nine conditions of the government says that these are verbatim from this court's case law and cites thompson thompson discusses for supervised release conditions that it calls administrative and says that no explanation be given for them that's a far cry from saying these are requirements in every case for their supervised release and i'm not great at math but i know that four is a different number than nine so that's another problem with that assertion in time that the government makes in relation to comps and so for these reasons we think that the government has excuse me the government cannot prevail in this waiver argument and the district court has indeed relied on incorrect information that is at the expense of my client's fifth amendment due process protections resulted in the imposition of an incorrect sentence by relying on incorrect cases is a seventh circuit case that talks about the improper delegation of the supervised release condition and it says that essentially a unlawful condition satisfies clean air because it puts the defendant at risk of real incarceration to thirty five eighty three eighty three through revocation and re imprisonment under the preponderance of evidence standard so those or plain error factors i think are established here in this case shorty looked at one factor we have nine hundred not one condition we have not so certainly the substantial rights are more at issue here or they've been affected more dramatically here to the power with that said the second issue in the case is that the judge procedurally erred by inadequately explaining the extent of the downward variance he felt cabin by the career offender range and he did not consider mitigating factors such as mr brown's age as well as the judge  by over emphasizing a particular thirty five fifty three a factor that is deterrence so if i may begin with the extent of the downward variance the judge said that if mr brown were in the clear offender he wouldn't give him ten years so the judge seemed to regard ten years as sort of a floor an informal one perhaps i don't know but corner says and kimbrel course that judges free to disregard the career offender provisions or any provisions actually under control if they are not adequately established through the commission's institutional position that the research it doesn't set are in the clear under it's particularly discussed in the corner case just from this particular point you're you're raising mr holmes what's our didn't have an opportunity to contest that i think that it should be denotable but even if it is playing air judge it would be again an incorrect view of the law that he thought cap and the judge felt happened by the limited discretion that he thought was a hand to the c offender provision so i think that under either standard of review we'd be able under this record to establish a basis for relief but i will say specifically he did argue about age his health is mentioned we know about polk and presley cases the talk about argument not calculating your taking into account rather the impact of the as you mentioned or manner he did he did mention career federer but the other factors aren't accounted for and so i think that is showing in the record that they want to count now is a well known thing we don't need a sentence of this type but also the government by not discussing the over emphasis on a mitigating factor excuse me rather not discussing overemphasis on a thirty five fifty three a factor that's important here to stop the government talk a lot about rape and now we want to talk about waiver because under wrap king number because there are those are seven circuit and second circuit cases this is a ballot analysis and the to the present investigation reports description of administrative supervised release conditions the record shows that mr brown was given more than enough notice had ample opportunity to bring this p s r d action in the district court below the record further tells us that mr brown analyzed this now disputed p s r provision with this counsel that he understood this provision and that he chose not to object to it instead mr brown affirmatively agreed to be bound by all of the supervised release conditions that are described in this now contested provision that was challenge for the very first time on appeal that is a waiver under discourse and this argument is not properly before this court but even if waiver did not apply in this case mr brown still cannot establish plain error and prejudice on this issue starting with plane air the district court's imposition of administrative supervised release conditions in this case is certainly not a plane air and on this point it's very important to be very precise and clear about what exactly mr brown argued in his opening brief on this case mr brown did not did not argue in that brief and specifically on pages twelve thirteen at that brief continuous section he did not argue that only some of these administrative supervisor these conditions properly qualified as administrative conditions he did not attack the explanations or justification for these conditions nor to challenge the substance of these conditions in his opening brief in this case mr brown argued only that the p s r incorrectly stated and that the district court therefore incorrectly believed that administrative supervised release conditions were mandated by law that's the arguments before this court today assuming waiver does not apply and we look to that are he meant the record all to millie tells us otherwise we know from the record that this p s or provision was pulled directly and almost verbatim from this court's very own decision in united states versus thomson specifically at page three hundred seventy eight of this court's decision in united states versus thompson and in that very same  court could not have been clear and hold in that administrative supervised release conditions are ultimately optional under the law both this court's decision in thomson and the p s r in this case clearly list and clearly categorize administrative supervised  conditions as separate and distinct from those mandatory supervised release conditions that are actually mandated by the law so it's clear that there is no plain error in this case runners but even if there were there is certainly no prejudice here mr brown has not and cannot show that but for his alleged error in this case the district court would have rejected even one of these administrative supervised release conditions mr brown cannot show prejudice and this court should reject his argument for that reason alone this cour also reject mr brown's second argument on appeal in this case that the district court somehow misunderstood it sends an authority once again mr brown has not and cannot show plane air on this issue voters this is this is the issue that most concerns me i'll tell you on the in sentencing transcript here there's no there's no question at the end of the day he got a below guideline sentence no doubt about it but the district court says just emphatically i can state for the record if he were not a career offender i'm would not sentence him to ten years and then similarly three sentences later if you were not a career offender it would be something less would have been lower had mr brown not received a prior controlled substance offense conviction resulting in an increase in guideline range of up to one hundred sixty one months of incarceration and that's i think that's the argument you have to make it's just not what the transcript says that the transcript says i can state for the record that if he were not a career offender it has to be a reference to the guidelines determination it's the only possible reference that is i would not sentence him to ten years so what i worry about is that is that he felt that district court somehow felt you know tethered to it in a way that it was that he could not exercise discretion to go i don't know where but somewhere below one twenty so i think you could ultimately read that in one of two ways ron you can read that in the way that mr brown suggest in this case that the district court in this case felt tethered to the sentencing guideline range but you can certainly read that in a way that but for the just report determination that this was a prior controlled substance conviction but for the increase in the guidelines that was up to one hundred sixty one months of incarceration you can see from the thrust of the transcript in this case rather that the district court was concerned about unwarranted sins and if mr brown was not a career offender it certainly should have been lower according to the district court because that would have resulted in an unwarranted since in disparity with those similarly situated so if we can read it in one or two ways you of a couple weeks ago he's now retired but he's been doing this for quite some dinner and i certainly understand even prior to this since you've gotten i believe that's correct your honor certainly understands that the guidelines are advisory certainly understands this court's decision and united states versus corner which made that expressly clear which was cited in the sentencing memorandums and this case so i think that the judge's understanding of the sins and guidelines was clear when you look at the full transcript and the full record in this case this court should also reject mr br third argument don't want to appeal mr brown also waive this argument that the district court somehow failed to mention a mitigating factor and can mitigating factor this is or this is waived because the district court properly followed this court suggested procedure and united states versus garcia sapporo at the outset of the sentencing the in this case the district court put mr brown on express notice that if mr brown wanted additional sentencing exploitation in this case based on the section thirty five fifty three a factors  need to ask for otherwise the district court would assume the sufficiency of it since you explanation and then at the end of the sins in analysis by the district court in this case this report directly asked if mr brown wanted it bad additional sentencing explanation of those section thirty five fifty three factors and it was a bad moment your honour's that mr brown through his counsel expressly refused to request the very additional explanation that he now demands for the first time on appeal that is a waiver under this court's own precedent specifically in united states versus donnelly and united states versus fingal and also of course in united states versus versus a girl that argument has been waived and it's not properly before this court fourth and finally runners this quarter affirm this and suppose by the district court below because it was substantially reasonable and still is the district court properly analyze the section thirty five victory a factor probably weighed those factors and reached the reasonable below guidelines since in this case it's for that reason your honors and for all other reasons mentioned today that we respectfully request your spec blank the tenure for judges we can't adopt rule that the longest tenure means that you are always correct and so i don't think that we can import much from judge reagan's time on the bench to suggest that he couldn't make a mistake so i understand that judges make true but you know the things that are on the books for thirty years the judges don't know so the whole supervised release challenges is a good example of the law was what it was arrested about sensing we are entering judgment so i'll talk for a moment about that the government says that we can't evidence government says woman all we have is the judge's statement i can't get better evidence than that this is about the judge giving his reasons so we don't need to look through the record accidents any further with matters then judge gainey as you're suggesting is what the judge rport and here the reasonable reading is not one the government gives we should look just what the language is judge got to read it once not twice covering the necessary language i don't think that the government gave an adequate explanation for an