application of the guidelines and failed to consider the eighteen u s c section thirty five fifty three a sentencing factors these errors if left uncorrected will seriously affect the integrity and fairness and public reputation of judicial proceedings and would best result in a manifest in justice counsel are you going to address the waiver i am i would be happy to judge it occurred to me that that would likely be your is that those cases concern that manifest injustice which results when a district court imposes an illegal sentence mr daly doesn't argue that his sentence was illegal and illegal sentence of course is basically a sentence that is above the statutory maximum and therefore within guidelines sentence is almost invariably below that maximum and therefore the end this decision and many others did decisions have indicated that a sentence below the maximum is not in a court can decline to enforce an appellate waiver because it would result in a manifest in justice one of them is if the sentence in the district court was based on impermissible reasons such as race we don't argue that in this case one is that the negotiation for the appellate waiver was based upon ineffective assistance of counsel we don't argue that in this case the fourth basis which is the reason that mr daly argues that this court should decline to enforce the waiver is that the waiver is otherwise invalid or unlawful specifically because enforcement of the waiver in this case given the unique facts of this in talking about itself condition i am it mostly judge yes i think issue fo which deals with the overall reasonable to of the sentence discusses a couple of other bases that we offered to the port for a nine guideline sentence but essentially the misapplication of the guidelines is the court's failure to address at all the five h one point four departure if you read the sentencing transcript you won't see the court say the words departure or five h one point four or the raise extraordinary physical impairment or the phrase seriously infirm defendant or even denied the district court simply did not address the request for departure under five each one point four at all and this court's co case united states against copland which is forgive me five hundred f third eight thirteen it's circuit twenty of seven specifically sets out the post booker calculation sentencing court has to go through and specifically the court must first calculate the advisory guidelines range and then it must decide whether a traditional guidelines departure is appropriate based on parts h or k  v h one point four and then and only then has he district court actually arrived at a final advisory guideline range at which point it must consider the mandatory eighteen u s c section thirty five fifty three eight tears which of course include the necessity for a defendant to have medical treatment that can be effectively administered or given in the bureau of prisons there was no evidence presented at the  sentencing that the bureau of prisons was able to treat mr daly's illness i told the court in my sentencing memorandum that the drugs that had been projected by the stanford cancer  clinic mr daly had pleaded on july fifth he went to the stanford cancer clinic on july twenty seventh for his initial evaluation and assessment he returned to the stanford clinic on november ninth for follow up  mr daly provided to the court and it's most close to sentencing it that documents that he provided were exhibit a which is in two of our appendix i think it starts at one o eight a that is the progress note or the note that the stanford cancer clinic the actors provided to mr daly after his initial assessment on july twenty seventh three weeks after he pleaded guilty they at that time that is that particularly type of cancer is a chronic illness treatment aims therefore at management of the disease not at sure at this moment unfortunately we don't have a cure the other problem with  that it is an orphan disease which is to say a maybe one percent of the people in the united states ever contract it it therefore doesn't receive a lot of r and d dollars for chemotherapy or other types of tree has s  for over a year and each time we have requested an additional extension of that voluntary surrender for treatment we have appended exhibits that bring the court up to date upon what is what treatment has been provided what treatment is  foreseen what drugs are involved what procedures are involved there's no evidence that any of that is available in the bureau of prisons judge and there is evidence from his treating physicians that if this treatment is stopped and he no longer receive treatment it is likely that this disease will be fatal to him there are four of five each one point for departure especially given the specific language and each one point four which says in the instance of a seriously and or  infirm defendant who can be treated on home detention in the community as efficiently as he would be in the bureau of prisons and at less cost and that's an appropriate time for an f i v h one point four to departure all  mr daly's treatment has been covered by his private insurance and indeed the national lymphoma society has agreed to pick up any overage there will be no cost to anyone and certainly not to the taxpayers your robinson decision has held that an iranian decision that somebody does not even if it's implicit which it would have to be in this case the court did make this explicit determination but in iran his determination that someone lacks an extraordinary physical impairment iranian decision that the port lacks the authority to depart that's the mistake that was made in this court if uncorrected it will be a manifest in justice that gives the court the the authority to decline to enforce the appellate waiver and it given his current physical condition which you dress that argument i will your honor the government does not contend that the defendant does not have a serious medical condition which has was entered into by the defendant the illness did not affect the defendant's ability to comprehend and understand the waiver and to voluntary and knowingly enter into that the illness is not a a grounds which this court has recognized as a basis for a non enforcement of that waiver i recognize and that have you come across any cases that have recognized  considered that specifically your honor i have found that there have been instances where courts even in this court where the court has held that where there has been a request under five h one point four for a downward departure that the court has considered the seriousness of the illness and in some cases has granted a downward departure and in some cases have not but i have not found cases where the court has chosen to not enforce a waiver on the basis of a of a serious illness i would suggest to the court that the grounds which the court to this court to  is not illegal there has been no missed application of the guidelines in this case and even were it so this court in a number of cases which i have cited indicate that a miscarriage i'm sorry that a miscalculation of the guidelines simply is not a basis for determining that there is that the in the waiver should not be enforced and that that constitutes a miscarriage of justice i think the and she has suggested i think implicitly today they explicitly and her brief that that should be the standard that this court should use the government would suggest that that is that standard should not be the one  the court should continue with those that it is recognized today there are problems with the unfair and the standard and the government's view and that is that it's a very elastic standard it permits a a party a defendant we believe that the enforcement of this waiver is much more important then its application in this particular case waivers are important to the defendants and that they had the opportunity to use that as a means for obtaining concessions from the government it's important to the government because the government seeks by those waivers to find some finality in the cases that it and also to the court in that we are not faced with having a number of sentences being brought to the attention of the court when the parties have already agreed that there will not be a waivers i am sorry i'm sorry didn't mean to interrupt but in the items that have been supplemented the record since the founding of the appeal related to the defendants physical condition is or information in there that would indicate that the court could reconsider or should reconsider its determination that his illness was a serious there is information in that supplementation judge that would of prison cannot provide the care at the time that that argument was made at the sentencing it was based on the fact that there were some drugs that according to mrs law was was not available in the  listened very attentively as the record reflects and ahead an interchange with the defendant concerning the the condition so that i think that the court was aware of it that it is true that the court in setting out its reasons for the sentence and its conclusions did not make specific reference to five h one point one but then in the context of dealing with the other thirty five fifty three factors addressed the various matters that it had considered and as the court is aware the court meet the district court need not refer to all of the thirty five fifty three matters but as long as the court has provided for this court's review sufficient evidence so that the court here can determine that there was a recent reasoned judgment that reason analysis that led to the sentence  basis for departure under the advisory sentencing guidelines and further when the court announced its a sentence and judgment it indicated that it was doing so under the advisory sentencing guidelines so i think that that appellate waivers have never been intended to provide a safe harbor for sentencing courts to ignore the sentencing guidelines with impunity in this case the district court interrupted my argument on mr daly's behalf about the cost of this treatment that he would require that cost artists is it when he said well we're not going to address those problems in the sentencing hearing so if you want to make further argue concern that i have is that the cost the efficiency and the cost go directly to five h one point fours explicit language that departure guidelines says in the in in the case  seriously infirm defendant who can be as efficiently and less expensively treated in the community home detention might be a better alternative than prison and that's exactly what mr daly is asking for  mr daly's never backed away from his plea he's never necessarily arguing the length of the sentence it is exactly what you said judge it is the manner in which the sentence is to be executed which causes him concern to the guidelines define seriously and for they don't judge although i have to say given the nature of this condition that all of the doctors who have treated it have said it can be managed if it's treated if it's not treated the lesions proliferate there was a period of about three weeks last spring when the doctors tried to give mr daly a break from one of the chemo drugs they tried to let him get back on his feet and then started at a lower dose and the lesions literally inconvenience the government didn't call witnesses or indicate that it wanted to call witnesses we didn't call witnesses and our argument in front of the district court on re sentencing would be extremely specific district court is well aware of all of the issues which i think could very well have informed its compassionate agreement to allow him to continue to have his treatment i don't know that either the courts now said that but certainly the court is very well aware of the serious nature of this disease and the need for continued care which  misapplied the guidelines and remains for further sentencing proceedings there's nothing that i'm aware of that says that just your court can't simply amend its sentence given the record that has been allowed to accumulate now and make instead of twenty seven months in the bureau of prisons for example twenty seven months of home confinement that simple change could make the difference in this man's life items around how do you respond honestly on down to the governments argue that from the government standpoint it's been very important to the government to enforce these waivers that are pretty entered into or i guess the thrust of your argument is given the unique factual situation whatever the general rule is it does in the part of this case i think  well exactly and i think conversed late i don't see that this is going to be a presidential situation simply because of the rarity of the disease in all the years i've been in this practice i've never frankly heard of it before  and again it's an orphan disease which is the problem with not only the scarcity of treatment but the enormous expense of treatment on the tar gretton oral chemotherapy that chemotherapy that he takes two hundred forty capsules a month one hundred this law thank you very much for your attention and question or thanks both counsel for your argument to the court this morning in the briefing you have provided us we will take the case