and we don't think that he waived his right to appeal for a couple of reasons in the first reason is if you look at the waiver that's contained in the plea agreement it's at the conviction of sentence of  waived appealing the conviction he's not doing that here or the sentence of imprisonment that was imposed by the court sixteen years he's not doing that here and i understand report and   issues he had about his confinement mr grilli has no such administrative remedies because of the bureau of prisons rule that excludes people who get a gun enhanced meant from receiving a year off of their sentence that was adopted a few years ago everyone who practices criminal defense in the federal system knows that you don't get credit if you successfully complete the program and that goes to the second point is that mr lee has a liberty interest in the court considering our issue to me didn't you that wasn't the issue did then he has a due process right to have this issue here and by this court and when you look at the all of the other decisions to talk about waiving right to appeal in almost every one of  them the defendants are appellants as it were were trying to get a break on their sentence they wanted a lower sentence for whatever reason the judge didn't consider certain factors judge didn't consider the motion for downward departure the judge didn't agreed to certain guideline factors including weight rolling the offense obstruction of justice and cetera but the one thing that he wouldn't agree to in this is clear throughout those things that he would not agree that he either waiving his right to appeal judge any finding that the weapons enhanced men applied and that was the central issue at the sentencing hearing as you know the government called benjamin whitney and jeffrey york to testify about guns and there really wasn't a whole lot of information that tied the guns to anything that really did with regard to drugs york said they like to go out and target shoot the confinement and how he would be treated in classified in the bureau of prisons but it didn't affect the service of the sentence so if that's the right way to put it has no such right because of the euro prisons role that exclude people who are from not from the program itself but from getting credit for that up to a year off and a year of a person's life yet well let me explain the weapons and cancer in itself does not mean that the person is excluded from participant participating in the residential drug treatment program which is five hundred hour program what it does is it excludes those who successfully complete the program from getting any time off of their sentence and other then as i understand it other than good time there is very few opportunities to have your sentence reduced and you can see in the  yeah you get up to twelve months if you successfully completed if you get where you get any time off is up to this it is within the discretion of v o p but you are eligible for up to a year off if you complete the program successfully in this particular issue and you can see from the judgment that judge murtha recommended two things he recommended that the bureau of prisons are allowed him to participate and he also recommended that he get time off and you can see from the transcript that he knew judge murtha knew why we were objecting to the inclusion of what we believe to be you know accurate information in the recent report if you read jeffrey york's testimony it's ludicrous he says i went to a particular gun shop and bought a particular handgun gave it to grow you never saw it again but we had documents to show that when mr york was arrested that same gun that he purchased at that store that he claimed he never saw again was se bolt action rifle is the one he he he purchased for didn't add up and we think that the court should all remand the case for part of what part of which is a term of incarceration and the district court has to necessarily land on a specific period of time in this case assisted by the parties negotiation judge murtha agreed that the sixteen year sentence was reasonable was reasonable even though it was a substantial variance from the guideline range of three hundred sixty to life but it was nonetheless reasonable after the p s r was issued and after mr directly objected to possession and firing of guns during the course of the conspiracy that he's convicted of the with regard to judge lay's question as to distinguishing between our overall oh and this case troubles as we progressed through the years dealing with very very soon courts decide oh yeah but there are certain things that you're talking about stuff that can't be known by the defendant the time the waves things that will happen after we're not going to say that for example the sentence was affected by race by us or something like that that comes in waves there were more and more decisions that the waiver does not preclude him to pass his sentence or most of a lot of it in solitary confinement for maximum security when there's absolutely no reason for a form you know want him he could could get the case of arab bellowing the case abou syria this court has twice on heard the waiver where in the case of arab bello there was no dispute but that the p s r was wrong and the sentencing court just didn't get to fix it the waiver language in that case was almost identical to the waiver language we have in this case and this court can force the waiver inducer at the judge didn't just didn't resolve the disputes in the p r and and so it's an analogous situation i can certainly imagine a p s r that is so derogatory so defamatory so and so wrong and that was not subject to process before the district court that this court could on a very principled basis decide not to enforce the waiver labor i guess we're going to end in the range of hypotheticals your honor and and at this point because that's clearly not the case of we have been in front of the panel today but when he executed that plea agreement he acknowledged that he would you agreed not to appeal or otherwise challenge the sentence imposed even if it was based on a guideline analysis different than that which had been anticipated by him and his counsel and the parties drug so the court obviously as a matter of law has to calculate the guidelines and the presence of the dangerous weapon enhancement forces the issue for the court to analyze what's in the and what's in the sentencing record with regard to the presence of the dangerous weapon and so in that regard the guideline analysis and the context content of the p s r merge into the same into the same question and when only decided to agree to not agree and promised not to appeal an adverse guideline calculation that he wasn't that he didn't like that necessarily took into consideration the prospect of a on the two of them engaging in these tactical or based upon the waiver i think you should dismiss the appeal we have our point to be in the brief that suggests the court wouldn't have jurisdiction i'm not i don't intend to take up any of the panel's time pursuing that argument today but if you are if your honour's just decide not to dismiss the appeal certainly the evidence is compelling that he possessed guns in the same residence where he sold drugs and he not only did he possessed the  guns gauged and practiced seemed to avoid law enforcement and that would clearly fall within the appropriate application of the of the dangerous weapons and handsome and the dangerous weapons enhanced meant informs the treatment of the bureau of prisons and the case i believe your honor is referring to in the concern of the panel was whether the sentence it was a term of probation that the district court fanshen out of could and the probation that this court did in that case out of concern for a sentence based upon an impermissible in constitutional status that is the status of indigency ultimately reaching the merits in a firm in the district court but got around the waiver out of concern for a potentially unconstitutional basis for the for the sentence certainly there is no suggestion that anything in this process rises to the level of an unconstitutional consideration  other questions which i'd be happy to try and answer we asked the court affirmed your judgment judgment thank you very much