reaching the merits even despite the waiver the district court said that mr damon had not proved in extraordinary or changed circumstances that would support granting the motion for early termination well your honor then talks about the fact that the duration of a term of imprisonment or a duration or condition to supervise release would be a commotion a challenge that would be a motion that would be waiver mr damon's motion for early termination of supervised release falls outside the scope of the waiver because he's not challenging the sentence imposed with a nd so let's talk about this in two thousand six supervised release was part of his sentence correct you're not contesting that it is still part of his sentence in two thousand that's correct but today are still part of his sentence so what you want to do i think is want to say that the waiver is limited to challenges to the imposition of the sentence yes because that now when in that would have been in position but here the waiver says it bars challenges to the sentence imposed and where the supervised release was part of the sentence that was imposed so it's barred by the waiver so the you have to waive a problem give a waiver of the right to bring this motion in the district st place you to waiver the right to appeal this issue up to us if this is part of the sentence that was imposed then aren't you going to court well if it does not challenge a sentence imposed because mr damon is not asking did not as a district court and would not ask this court to change the the five year term of supervise release we're not asking for the judgment of conviction to be changed we're not asking the court to reduce the amount of time that was twelve excuse him from completing the sentence imposed that five year time a supervised release based on his political moment of the required conditions which are that he successfully served one year and showed himself imposed on him how is terminating it not i get your logic to the purpose behind this is different from punished but he's favor in law on jose that the waiver of a right to appeal ascendance means what imposed at the sentencing and memorialized in the judgment of conviction which does not help loves it but it does not encompass the later modification with the nd most of the cases that you cite you support are ones where the government challenge something and there i get you completely the defendant can oppose the government's attempt to change this a on more but you've got this st circuit judge or an order signed by the clerk of the court that's not even in the federal appendix that is actually on your side is there anything else that supports a defendant's challenging the effect and we can look at the reasoning it says i mean it's directly on point isn't it well says that the it yes that the cat cora this is a challenge to the duration of the term of supervisor really it's not what you know why is it ok if you've lain looks at exactly the argument you're making here and says no supervise release was set at the time of the sentencing that's that a piece of the sentence in its entirety and you don't like the duration of that anymore but guess what the duration as well as the conditions were part of the adopted the logic of the law on cho's case which says that sentencing modification is a different sentencing it's a different phase than what the original sentencing proceeding is you have the original sentencing proceeding where the sentences imposed and sat in the judgment of conviction and when you have later conditions or later facts or a separate statutory provision that provides the defendant with the ability to modif  or terminate that there that logic just mean that duration is always up for grabs by that reasoning there's no stopping point right you could always always say something might change and therefore i'm free to appeal well your hon the this could be fixed if the government who as the drafter of the plea agreement specified that you cannot appeal the sentence imposed nor can you motion for or later seek to modify the terms of your  or to terminate early as your argument a contractual one because obviously by that logic you could have been fixed by your board to name for this express privilege as well i mean you could have asked for the government to extend this and perhaps they would have said yes so is argument grounded in contract and a big deal would be grounded in some legal principle that you want us to define well it's one or alternatively the other what ideally we would like this court to decide that the post sentencing modification of terminations and c s is something that is separate and distinct from the imposition of the sentence how do we get just how do we get there how do we know what's what's the permitted the court to not only impose five years of supervised release but then later terminate it early but if that is not a basis that the court is going to go down or finds compelling then certainly under contractual rules any ambiguity in a plea agreement is construed in favor of the defendant the government is the one who grasp that there's the ambiguity based the language says you're not going to challenge the sentence of the sentence correct but in telling my client that your sentence imposed is one hundred and forty four months and five years of supervised release i would never have taken the language of this plea agreement but i'm not the one who goes he did it but what would look at the language of this plea agreement and say that means that when the law changes and three thousand five hundred and eighty two allows you to move for reduction of your sentence you're barred from doing that by this appeal if those is your argument that  the waiver doesn't apply because this was a less than knowing and voluntary waiver when it was entered into no we don't argue that we argue that it's outside the  waiver of appellate collateral rights was limited to challenges arising out of the results sensing proceedings and did not include subsequent modifications that sense it sounds like what you're saying is a sort of a who knew like how could we have it how could we possibly understood this well if we understand that sentence imposed means the sentencing phase and that modification is a separate phase then how would you know but regardless of that if if there is some concern about a loophole or the defendant's doing and run around an appellate waiver that's on the government to change that and to specify it not for us to negotiate away our rights but for the government to say this looks like a mandatory five year term even if the weaver didn't apply to the district or even have authority to reduce its mandatory so the only published opinion on this is spin  around the mandatory quality that congress imposed well st there's no how flip between statutes the two of them can work together impose five years terminate after one year and permits and when conditions are met but it also doesn't seem to answer the question the question is if you read it that way it's true you could read it that way but if you do read it that way don't you completely gut the mandatory character the five years that congress in terms as plain as you can get said it wanted defendants like your client to have your congress that this guy get five years before you say is five years that we can walk in the door tomorrow and say and now reduce doesn't that fly in the face of congressional intent in other words to read and to go the way you suggest seems to be and not appropriate spin they'll pre dates the amendment were congress added notwithstanding section th and eighty three so it didn't address this mandatory scheme and additionally congress in addition to saying mandatory five years also said if you satisfy every five hundred and eighty three and serve a year it's not a day later it's not that they get out of prison it's serving a year and the interests of justice and they're also really valid policy considerations if if the court decided that five years is five years what happens to the defendants in  are seeking compassionate relief or who have some terminal illness or inability to comply with supervision it removes any parent or incentive to defendants on supervised release to comply and rehabilitate  very strong again has to do with modification this court said modification is quote another avenue to challenge their sentences wilson court the plea agreement that case was very similar to this one in that case the the the agreement  barred the right to appeal or collaterally challenge his conviction or sentence and this court again said if that was something that was imposed at sentencing as opposed to a later modification by the government which could be challenged if it was imposed at sentencing then that is barred it's an a challenge the sentence imposed we normally think about how the court made a certain judgment about how much was needed for richard boucher and deterrence and these other purposes and we wouldn't have to say that that court was have repeatedly said that in this context and again i don't think the government needs to list every single motion i can if i went through them all there would be a whole long list and then tomorrow we would be getting another different kind of motion it's including but not limited to any appeal any motion an talk to me we haven't really desegregated yet there's there's this waiver of the right to file this motion in the district court and then there's the appeal up to office does that appeal operate the same way to seventy different ready it covers a position a supervised release so do we need to read these two statutes is in conflict or can we harmonize them such that you know the imposition of the have to impose the five year term but that still leaves some modify later i think the answer is no you and i think it's like you said it's a mandatory minimum and when we think of mandatory minimums we think of something that needs to actually be served i think there are a lot of district judges who would be very happy to hear that the mandatory minimum only requires it be imposed and then the next day they could change it to make it less it's a mandatory minimum sentence i think that's the st answer to that question which is when we think of mandatory minimums we think they have to be served and the nd thing i would point to and i wish i'd made this clear in my brief is if mandatory and then say that all of them can simply be terminated after one year under thirty five busy it doesn't make a whole lot of sense all speak to already colleagues argument that to lay down a hard and fast rule that you touched honestly i don't know how things work out in the reentry court except that i do know that the government the probation department the district court the defendant everyone is agreeing to something and i don't know how they technically work that out i also don't know compassionate release area whether you could griggs ample lower in minatory minimum sentence based on compassionate release i looked into that and didn't find and i do know that however that if you look at the code and look at the federal rules where congress wants a provision to a loud the so i would just like to address st of all counsel pointed to williams and saying that we've decided that this can't it has to be what it is but williams noted without deciding that motions then the court is also saying that these post sentencing modification motions are different than what happened there are changed circumstances there are conditions prerequisite allow a court to respond to it the fed's application that a mandatory minimum not ignored but set to the side for some reason it knows how reducing a sentence based on a change in the guidelines so was on congress to say you can not it's not enough for congress in other places so you can the word mandatory