and our last case today is the united states against bridgewater bridgewater is currently serving a term of imprisonment in the bureau of prisons out a facility that has had a serious that of coping nineteen outbreaks and he has several serious health conditions including a type two diabetes high blood pressure as my obesity that have all been identified by the c d c as disposing one to severe illness including that if he were to contract nineteen mr bridgewater did file a compassionate release motion in the district court arguing  circumstances constituted extraordinary and time telling reasons warranting a student's reduction under eighteen u s c three thousand five hundred and eighty two the district court denied his compassionate release motion arguing or finding that he had waived his right file the motion in his plea agreement the district court also denied the motion on the merits so ms hill i want to just ask you actually you know you emphasize a lot the waiver issue but given the fact that the district court  reached the merits i'm not sure how far that gets you i mean my question on the on the waiver is whether a compassionate release actually involves a change  in any aspect of the conviction or the sentence i'm looking at cement memoranda that the attorney general has put out and some other coverage where where he describes compassionate release which typically means you move the location of your imprisonment from the prison to home confinement and there's actually an indication that people who have been so moved in connection with covert nineteen may get moved back into the prison again once the pandemic is declared to be over so it's really just like moving you from prison a to prison b to courts have no authority over that anyway that's all up to the bureau of prisons so i wonder  to what extent this is a good match you know these these waivers of say twenty to fifty five or appeals or other sorts of things are they a good match for compassionate release and i may misunderstand what your question is and i am i'm wondering is countering just this way for cover something that really effectively just changes your place of incarceration  analogy to moving you from you know a medium security prison to you know a low security prison and i'm wondering if are you describing the tell the bureau of prisons where to put somebody they can recommend a facility they can do that but in a waiver is this if you're talking about something that's beyond the power of the court the  way that language of the waiver is not purporting to include things that the court can't affect if it's a ten year sentences or one hundred and twenty month sentence it's one hundred and twenty month sentence where it gets served whether it's partly on home confinement whether it's in a lower back medium security prison all sorts of other things are up to of course subject to statutory restrictions up to the b o p so as i just wondered i mean my my big question in my mind was does this waiver language even address compassionate release home confinement programs but then my other point he was suppose it doesn't you still lost on the merits in the district court yes and and and i apologize i had not considered the point that you had brought up there before so i was i'm not prepared to address that and that isn't  before i think that the strongest point that i had raised on the briefs that i would like to address is the point that we had addressed in the breeze with the congressional intent and the public policy argument on the congressional are on the contractual principle that the supreme court has in brooklyn savings bank versus a meal said that one cannot waiver right that would work the legislative policy which was designed to affection way i think here finding that compassionate release can be waived would be contrary to that principle is the shelley since it was congress a specific intent in the st step act to take the compassionate release gate keeping role away from the department of justice it makes pacific findings that the department of justice was an effort at administering the compassionate release program and that's why it gave this ability to defendants to file its own motions you know the i mean the department of justice was a minister in this program but there were findings that only a very few inmates were actually being released under the program and that it was administered so poorly that inmates were dying while paperwork was being process so i think based on those compassionate release waivers and plea agreements actively letting the department of justice come back and take that pop power away or take that power back effectively when congress pacifically said no we don't want the department of justice in control of th rights such as under the fair labor standards right yes i don't see any such language or even legislative history of those who and i think that's correct but i think there's also been other cases in other courts where there's not been specifically where the congress specifically has said that this right then we have a ball and i think that's what the supreme court has enforce the four you waiver in a plea agreement on public policy grounds where congress did not specifically say that for you could not be waived so i that would be something similar to that and there's been other interests i mean if you were to look at in a state case where just as an example we have the florida supreme court case a friend b bowers that i had cited to in the brief where just the florida supreme court had refused to enforce a contractual provision where it had found that the florida legislature had emphasized the public need to address the medical malpractise insurance crisis and it had not specifically said in the sorry could be could not be waived in and it is true i think the government's argument is that infinite regularly weigh statutory constitutional arguments and but i do think the nature of this is different th action motions that have been before this court before such as the retroactive guideline amendments just by the nature intended to do with them through the st step  and section very privately to see judge woods question went to the implementation i think of the carers act and there is a procedure now for by which mr bridgewater also implementation of the care expect what the defendant is is moving under is not any decision that was rendered under the terrorism act he filed a petition or a motion in court and that's all the relief that he can sink in the district court and so our position is this comes under the expressed terms of the waiver in this case we agreed that we would forego what's in your mandatory minimum here is what is what do you do with the change of circumstances in this context and what we have is that it is a defendant who says i agree i i that i am not going to seek a modification of my my s cases from the circuit that say that exactly that the fact that an unanticipated circumstance arises that may have made your deal not as attractive as it looked at st blush does not allow counsel then the whole thing falls then of course that would really expose a defendant to the ten year mandatory minimum to do other things that the government could have done really just reset the clock if that ineffectiveness were found strickland on the basis of what the advice was at the time the plea was entered and it goes back to your question nobody foresaw and democrats going to come a year later and it would have been in effect or in this say well you know why you need to go ahead and take the extra ten years because a pandemic might get in the year and there were so the really you know the in the release under the st step back would be available correct that is correct but i think that that can trump anything the yes i think the opening cause of the of the st next step act broken savings bank doesn't apply to this plea agreement criminal plea agreement contacts because it involves a statute where there is a and over intent not to allow a private cause of action or said criminal defendants cannot enter into waivers of these particular rights they all involve the same things where there is a public policy a public good at stake like this speedy trial or insta not waive the provi the speedy trial or the government can't waive the provisions of the speech trial act because there's a public interest embodied in the statute the government can't wait for you because there's a public interest and a defendant can't wait for you because there's a public after reviewing the court's order i think there is concern that the court mistakenly considered mr maidment the mistakes in the marriage for you i have am of the opinion that the district court considered the compassionate release motion that the district or that the filed in the st instance instead of the nd compassionate release motion i would note that on page nine of the board orders he referred to an allegation that the appellant made only in the st compassionate release motion and she ignored  many of the allegations that were made in the nd compassionate release motion and it really leads me to the opinion that she mistakenly referred to the st compassionate release motion whenever she was ruling on the nd compassionate release motion in any event it's clear that she lives relied on iranians information and nord arguments that were raised in the nd compassionate release motion so if we even if we do get past that plea agreement argument and get to the merits i think that we do get past the merits