which were waived their first position is that existence of a collateral attack waiver in the plea agreement even though they never asserted it presents some sort of jurisdictional bar i mean if the court were so inclined the court could actually clear up some of the loose language that's been used by court with regard to this particular waiver but and so i think that i agree with you that the government is we have some arguments but my problem was your client well actually i do think that the court has the authority to direct the bureau of prisons to reinstitute the program because congress has requested that that program be authorized enabled activated by well yes actually i do think that you can because congress did indeed indicate that the president wanted the program to exist and indeed this is not similar to lincoln versus probably on a lot of programs to exist but the only appropriate enough but in terms of the sentencing benefit if you weren't strong client to declare the bureau of prisons actions unlawful and reinstitute the program which i would like to see done if you're not willing to do that she certainly can get a sensing benefit  in terms of a sentence immediately to go into a community confinement to spend the remainder of her time she still at f b i director bill to this day i checked yesterday she could go into home confinement which is what would have happened if she was admitted or able to participate in the program before he had been on lawfully terminated she could have a reduced term of supervised release there are a number of acquittal and sentencing benefits that she's entitled to in this for reasons yes and the reasons for that would be for the court to rule on several of the other grounds i including the retroactive impermissible application of this new rule to her after she'd already entered a guilty plea been sentenced received a strong judicial recommendation for participation in the boot camp and the courts cases are very clear and the supreme court's cases that different well actually and several of the cases including the cases involving the community confinement center that courts have found in these courts are the aca boney and monaghan versus when and ferguson versus ashcroft that these because the bureau of prisons issued program statements they indeed acted in terms of making a law that they were if we accept your argument then every program of this sort of ratcheted forward for the future whether or not congress wants to fund it whether or not the bureau of prisons wants to continue that there's no such thing as terminating our altering or going back to some other program well that's a pretty drastic holding that you're asking well actually no i'm not asking the court to deviate from any of the hol that the court hasn't already made in terms of the drug treatment programs that because they bear prisons in those cases and i'm talking about the boeing versus hurried court versus crabtree paulson versus daniels in those cases there were programs statements that defined eligible individuals and those programs statements were helped to create settled expectations that individuals indeed what they were impermissibly retroactively applied to these people i'm not asking for something any extension of a doctrine that does not already exist and also that their presence has an easy way to do this fairly and properly there's the administrative procedure act has notice and comment provisions they exist for a reason to provide fair notice to have public participation that did not occur here i mean there's let's just hypothesize that the program continued the judge recommended that the individual is trained over to the bureau of prisons and they we look at her characteristics and decide not to place where they are now we certainly couldn't fault then is it correct the judge does not have the authority to finally determine what kind of placement an individual gets so she really couldn't give a hand and complete expectation that she was going to go into this kind of a program but under the court's cases regarding retroactivity no one is required to have a complete and total assurance that they're going into the program and we were versus graham and lindsay versus now this said that all you need is to have the ability to apply for that particular sentencing benefit if there is no need that it be a vested right at all and the elimination on the supreme court in a cardi explicitly addressed the elimination of discretion on the part of the agency is an injury that a person suffers she had the expectation that the bureau of prisons was going to exercise discretion as the statute says that they lopez has been designated to boot camp they spoke to the designating officer this morning dan mccarthy and she has been designated to get boot camp unfortunately the next boot camp is full so she can't get  thirty nine free trial services the court and of your prisons all seem to believe that she could go right in because of the taking up of the fifteen percent that time credit and her service of the two months the court gives a warning that well  the morning your honor just may please the court my name is mary ann and i'm representing the united states in this case what this case comes down to is whether a district court can correctly apply the law and assess jurisdiction regardless of the parties omissions the answer is clearly yes this court has repeatedly held that district courts have an independent duty to assess jurisdiction the district court is not bound  forced to take a case to adjudicate in or the district court did its duty here correctly and conscientiously and that decision should be affirmed we don't have to go beyond the district court honor the government did forfeit it by not raising it below happened why are we even talking about it because your honor hernandez we campbell and other cases show that the district courts is not forced by the anyway even though the government didn't ask them to it is a species of jurisdiction and in fact this court of federal courts have an independent duty to assess jurisdiction and not just subject matter jurisdiction for example other six threshold bars on and i can go into them but i'm also happy to address the merits and how on the merits the claim cannot stand however i would note that the district court in this case didn't get a chance to address the issue on the merits so it shouldn't be addressed here on appeal it should be anything addressed by the just record in the first instance but again there are four other judges to conclusive jurisdiction to difficult to be fixed are you telling us to read to be very clear the merits should not be reached because of the dual jurisdictional defects of the district court noted that the cases filed in the wrong districts against the wrong party there's also a standing defect the of collateral tack is a very important issue that should have been raised below the the the end of the jurisdictional defect with regard to where it was filed should have been raised below however in this case the district court was more conscientious  the parties and noted it and cannot be faulted for doing its job correctly and sees its effects that perhaps the government didn't raise and that's the basic point this case the petitioner sentence is more than thirty months that's very important because at the time that the camp was cancelled in january two thousand and five it is on disputed that as a matter of does not have standing to raise a claim that doesn't belong to a right that doesn't belong to him or her the cases where for example the right does belong to the defendant but it's just an l it's a discretionary grant of something that those are in opposite because they're the defendants are eligible to apply here at the time of cancellation the defendant was simply not even eligible so she doesn't have a concrete interest at stake in this moreover  hypothetical possibility that she might meet all the six other eligibility requisites and enter boot camp and then complete book camp which is an extremely rigorous program and then qualify for some sort of sentence benefit that's compounding conjecture upon conjecture upon conjecture that's hypothetical and that's insufficient to support standing i also wanted to note there's another very important thing related to the sentence length that's just that should be noted here the bureau of prisons may place prisoners for serving sentences of less than thirty months in a camp program so there is no congressional enactment that speaks to people in up after the collateral tac waiver this court has repeatedly ruled that where a waiver is knowing and voluntary and the claims are encompassed by that waiver then they would overreach the court's jurisdiction to entertain claims in violation of the waiver here the district court found for the defendants waiver of collateral attack was no only involuntary clearly heard twenty two forty one claims are collateral attack is a collateral tack to the it's a can to effects the case or controversy aspects of jurisdiction because she has no live claim she has no positive action to bring so there is no case for controversy she's relinquished them and that's why i think you see the wording  disagreed with her position said that waivers and played remits are contractual there is not a jurisdictional bar to a waiver in a plea agreement and it doesn't i mean to do with a case or controversy or extinguishing any right in terms of standing court erred under taylor versus maddox in resolving this issue in favor of the government in addition the very existence of the statute that compels the very presence to exercise discretion gives her of its own regulations program statements and the things that have promulgated as a matter of role making that people indeed rely upon same thing with the asylum and the two twelve see relief in st cyr the agencies must exercise that's discretion that people have a right to request that the agency exercise discretion and that's what she did here thank you thank you