bonneau woke up in prison every morning even though the court had ordered that sentencing and the judgment and commitment order stated that he shall be at home during authority to say that the last the last ten months of the mandatory two year sentence the last ten months of the of the sentence of a twenty four month sentence cannot be in home confinement under th however the government agreed to it the judge imposed it there was no objection and there was no appeal so the question becomes during that time when the only basis for his incarceration said that he was supposed to be at home by unilaterally violating the order of the judge the executive branch violated the basic rule of law it's an illegal sentence he was during that two hundred and forty four dollars days at some point it got back to the district judge is that correct look was on a motion for plenary injunction or there was a pro se desperate pro se hippias corpus and that is the same issue that is before the court now during those two hundred and forty four dollars days was he unlawfully confined when the judicial branch had never corrected the error and this court in bergman has held that the only sentence will is the actual world pronouncement in the presence of the defendant outside the presence of the defendant the executive branch unilaterally decided he cannot spend his time in home confinement if there was a problem with that judgment commitment order the only person who can fix that is the judge the executive branch has no authority to unilaterally change and exact a judgment and that's through this case involves three of the most fundamental pillars of our criminal justice system only the judge has the authority to take a citizen's liberty only the judge has you authority to impose a judgment and with if there's an is that he's being held contrary to law yes absolutely so the contrary to law pronk stems from what the district court judge ordered as part as it sends no what was entree to law was that the executive branch well the well was violating what the judicial branch said without obtaining the judicial correction see the your focus is  p's decision not to abide by the district court judge's order yes the jet the only basis for the executive branch the pure prisons to hold him is that judgment commitment order whether it's violates the statute or not they cannot require prison when it says home without going back to the judge and making a determination whether that what the law is it's  quintessential judicial function to impose sentence you cannot hand that over they facto to the executive branch without violating the separation of powers and here we not only have the violation of the judicial function we also have the executive branch it's a unitary department of justice the process the pure prison says oh we can't help what the prosecutor agreed to ten months of home confinement and the prosecutor says oh i can't do anything about how the bureau of prisons is executing the sense but they're the same executive branch they're the same department of justice and you can't in fairness and without violating the separation of powers have that executive branch take those inconsistent positions without violating the equitable principles of waiver and a stoppel and here we have all of this happening with a client with a prisoner pro se he's already substantially served his sentence and then he realizes they are not allowing the oh it's this i'm supposed to be at home for these two hundred and forty four dollars days these over really want to say what's the what's the relief now that you're seeking the  the relief none of the relief can be formulated until the st term and was he being held in violation of law and he was nobody has ever made that determination that's what this court needs to do as the preliminary to any effective relief for m sentence in violation of law had his basic trial rights waived on a bait and switch basis he's told one thing and then he's sitting there no counsel no procedures or what would you have us do i would reverse the order the denial of papers corpus via and make a declaration to the declaratory judgment that yes he's rights were violated played by the system the rule of law was violated in your case and there's no and you have nothing to say about it you're saying to him yes we recognise there was an error that occurred and that itself is part of the remedy  declaratory judgment but there's a range of things that a judge could do in this circumstance and i would suggest that it be an abuse of discretion not to provide some meaningly for meaningful form of relief but the st thing that we have to do and the predicate for everything here is a determination of whether he was held during those two hundred and forty four dollars days where he's in prison every day that the judge has told him he's supposed to be at home there's got to be a remedy lender at some point in the proceeding maybe this was in connection with the pro se matters that were brought to the judge district judge's attention but didn't the judge at some point say well it was just a recommendation ten minutes no i think what he said was he ordered it i mean the record says what it says he said it shall be served day for day in the oral pronouncement he says it shall be served the last ten months in the judgment commitment order so regardless of recommendation he did that's not what he did that later on though in one of those per se proceedings didn't he say something to that effect maybe i'm wrong i think i know the parties talking about it and i don't think that he said that it was used i think he was articulating that it was treated as a recommendation i please the court jared hagar on behalf of the united states your honor is the sentence in this case was twenty four months in prison and the b o p lawfully executed and administered that sentence to be ok he didn't deem the sentence unlawful and it didn't defacto amend the sentence the quote unquote sentence is equal to its length of time not the place where it served and how do we know that well congress tells us and section th asking it says that any order recommendation or request by the judicial branch i'll have no binding effect on the executive branch congress matters and that's what makes the separation of powers argument for ten percent or six months of the sentence and again the sentence in this case was twenty four months you know there was and you're right the judgement the defendant the written judgment i'm reading from the written judgment not his in court s e judgment the defendant is hereby committed to the custody of the federal bureau of prisons to be in prison for a term of twenty four months you're right but the next sentence says the defendant shall serve the last ten remaining months of confinement in home confinement what was that all about that's a non binding order show it's an order for sure but it's non binding and we know that because congress has already anticipated the situation there's no need for the bureau of prisons to go back to the judicial branch when this legislative branch is already addressed the situation that makes the argument about judicial amendment of certain congress aready anticipated this case when a judge orders or recommends or request home confinement and in that case it's non binding on the bureau of prisons they do not at surplusage and so we think that the  the u s attorneys didn't think that there was anything illegal about this that's right and we did not appeal and i want to correct more than that you know we do see appeals from the government when the government believes a district court has imposed in the illegals and it's a non mandatory appeal we're not required to appeal in this case it's important to recognize that the excerpts of record page one hundred and fifteen that contains the plea colloquy and the government didn't agree to ten months of home confinement the government agreed to a twenty four month sentence and secondarily the government agreed to vacate a supervised release violation now that allowed mr but no to receive eight months of three prior custody credit against this sentence so to argue that somehow the equity still in mr bono's favor ignores that reality the two things the government agreed to in this case a twenty four month sentence and of a kate a supervised release violation sentence on one of his three or four prior federal felonies which allowed eight months of prior custody credit against the sentence so the u s attorney here when the sentence was handed down didn't think that it was necessary to say judge you might clarify that that's just a recommendation not mandatory order what the record reflects is that there was no objection to that recommendation or that order that is non binding again that's for the bureau of prisons to decide as the plenary author already for place of confinement and that's from the a case which is a unanimous supreme court precedent that says plenary oth already subject to statutory constraints there is no statutory constraint here to be a hook for why this hey be a petition or why custody was unlawful in this case one wonders what happened and the district court has recognized that the excerpts of record twenty eight dollars if either the bureau of prisons went back to the district court or if there was an objection to the sentencing court recognizes the statutory constraint on the bureau of prisons he's denied a twenty to fifty five motion for ineffective assistance because there's no prejudice and no harm in this case had the district court known either from an objection by the prosecutors or because the bureau of prisons goes back to the judge and says we can't do this judge mosman has said he would have struck in the home confinement order because there's no binding authority for that so what else is unique you know if you go down in the judgment the next line there's a checkbox and it says the court makes the following recommendations to the bure prison and it's just me and one of the recommendations is the defendant shall be pleased at your you know the judge didn't do that you know it's clear that he's saying here these are recommendations above the line sure seems to be saying my judgment is that he's ordered released and we don't quibble with that the prior sentence is an order of home confinement the secondary sentence is a recommendation as to s c i shared those that order and that recommendation if you look at the text the purpose and the effect of section three thousand six hundred and twenty one dollars be it says any order recommendation or request shall not be binding on the bureau of prisons so it is non binding surplusage the district court is free to make that order it doesn't make it unlawful it doesn't make it non appealable as in the cintron fernandez case what it does do is  it's non binding it's a recommendation it's a suggestion it doesn't control what the bureau of prisons does in all cases the bureau of prisons has to follow what congress says about home confinement prisoners have no right to prevail east custody and home great deal he had two years when he was facing twelve he got eight extra months because the government agreed to vacate the supervised release violation judge mosman is no stranger to mr but now he's got by the federal  yeah he's facing another supervised release violation but the moon this question is important and i would encourage the court to consider reigning in muja heat which is run amuck there are two important distinctions here between muja he'd run old and  non trivial realistic possibility of a release of a reduction of supervised release because you've over served your sentence in this case the sentence was two years in mr but no did not over serve that sense he didn't spend eight extra months  prison when he should have been on supervised release and that's the st distinction the nd we appreciate the twenty a j letter citing to alan this possibility has to be non trivial the existence of supervised release is not by itself ano take this case out of mootness we're talking about an exception to mootness based on two thousand two hundred and forty one which requires custody now that exception needs to be constrained to the case of over confinement in terms of extending your length of stat and it needs to be non trivial and i think this court should take notice of mr judge mosman statement on the record that there is no worse candidate for reduction of supervised release that the community is put at risk when this defendant is not on supervised just  required to impose one year supervised release it was not i'm not sure your honor could see that it could even pose no supervised release he could reduce supervised release but that was not the benefit of this plea bargain the plea bargain is not in the excerpts of record and i submit that's because it does not mr bono's assertion that the government agreed to this sentence but this court can take judicial notice of docket entries forty two and forty three of the criminal case that seventeen c r three hundred and ninety eight and those clearly to make three points your honor st on this this case is directly within you or he'd line of cases but not only that it is worse because here we have a situation where he was served a harsher sentence than the judge ordered and it all goes back to the judgment rather than surely the your prison program nd regarding the plea agreement of course there was one we know that three things one is the pre meeting on the seven days before it went to three of the exit of record where they discuss on the record talking about the ten months nd and the actual proceedings what could possibly be happening except for that the government is agreeing to the ten months and rd i think i found the passage that you just pius was referring to which is the on page eleven of the opening brief which is you may have well have gotten the government to make as part of your plea agreement turns out to be a sentence that's not can't be imposed under the statute and in another place it's doable they're talking about the government did in the plea agreement the last point i want to make your honor is this case goes right to the heart of the separation of powers when the judicial branch says shall the government cannot unilaterally decide oh i'm going to ignore that that