far as to say it's not something article three judges should consider in fact the sentencing commission has already recognized that a judge in fact has the authority to consider the cost of incarceration and determine the sentence under sections five each one point one  five each one point four these guidelines explain that home confinement might be appropriate in certain situations because it is less costly than incarceration so the sense commission is already recognize it is something that bring it to supplant what counsel brought it to the attention of the court and raise that as an arc in time sense at the time of sentencing your honor and i believe that sufficient orders are visual investigation of the you know if i were to say to the court i'm convicted i have a very nice  tapio was given a condition of supervised release that require that he report her instructions to his probation officer within seventy two hours should he react to united states after being deported this condition must also be read in the law i guess by reentering after the for case what is right for us to consider now what i think that that actually is looking at what we're challenging someone incorrectly we're not attempting to challenge some that testimonial well it's testimony when reading conjunction with standard condition for the conditions that he must report her instructions to the probation officer standard condition for says that you must probation officer has to speak does he have to speak well i think when you look at the language report for instructions i don't think that means someone can simply set foot in a probation officer and take a seat i think the face of this is the face of the statute requiring him to say anything  or or somebody now has a question of identity that's all he has to do is walk in and say i'm joe blow well yes i mean his mere presence he is his i identify himself in your presence in the united states which of course the probation when it says you must report for instructions you must resign in conjunction with the standard condition which says you must answer all inquiries and follow all instructions of the probation officer probation officer there under the fact this case now again well that's true at a home and stay home and he's made it known that he may return to mexico we're just citing a hypothetical case he may come back well but again and if that's returning to the rightness your honor every case in this circuit has said of the right then when it's not right now well he'll be able to challenge the results of the can that your honor i don't believe he'd be able to challenge the condition itself and this is a situation for example with the search committee a condition condition itself because that was not presented here because that's not the path of the case talk so if he doesn't have the opportunity to argue the condition now she never really will have the opportunity to challenge that specific condition obviously this is never going to come off he'll reports and i'm presumably if you get permission he's one of the order to record it immediately to a probation officer or some government official who will essentially take custody of him the entire time he's here and then walk him to the border and then send him back to mexico under the conditions he has to self reports should he equally re answer the united states condition that says he may not see returns united states has a i won't that's certainly the lie are absolutely absolutely the problem is you know if he does come back and if he does break the law he still has  relate to the rightness issue and i would like to begin by addressing that that being the issue that this court indicated in its recent order that it wish to hear particularly about that argument this morning the government's position as you know is that the defendants challenge to the condition of a supervised release that he reports is not right for a determination at this time by this court the reason it's not right is as the court indicated or suggested in its comments to defense counsel the injury or threat of injury on which the claim is premised is conjectural and hypothetical at this time rather than being real or immediate and i would take issue with defense counsel's comments a moment ago that this is a facial challenge to the condition in his briefs it's clearly an applause as applied challenge to the condition there's no here that the condition is not reasonably related to the offense of can to the conviction or is improper for any other reason or that defendant cannot comply with the condition the claim is that if he complies he should be immunized for complying with it so in that sense this is not a categorical objection to the condition i would say that although it's the toughest question yes and i have read what's the between a facial challenge and an as applied challenge came up in two cases cited by defendant is ian and davis where the court said yes as a general matter we can review the condition of release that the challenge conditions of supervised release but to the implementation that is not right and the court again held off on deciding what is precisely being challenged i believe in the briefs here it's not a facial challenge the court could say  general matter the condition is an appropriate condition as a categorical matter it is a pro and appropriate condition it's related to the offense of conviction that is something that the court could educate at this time but the specific question raised by defense counsel in this briefs is whether or not there's a fifth amendment violation which will only occur under fifth amendment jurisprudence once questions are posed the privilege is in and then an appropriate indication of the privilege instance honored through seeking of some sort of sanction that is not that is a purely hypothetical situation here there are many many occurrences which must take deported he must then return to the united states illegally and within the three year period of his supervision he must then invoke his privilege and then the government must seek sanctions on the basis of that those are all contingencies which make any question of whether or not there is a fifth amendment or a rights amendment challenge here absolutely theoretical hypothetical and not  education in this case more over yet as defendant has suggested he were to return to the united states and knock let's take the example of him not reporting and therefore the government or to seek a sanction based on this condition he could challenge the condition at that supervised release revocation proceeding at that time when the facts would have been developed if he does repor again with counsel suggests that there are the the infirmity with the condition arises out of conjunction between that condition and another condition report requiring him to answer questions well in that instance he could shout is a thirteen twenty six prosecution is initiated or supervised release proceeding is initiated after he returns he can challenge the statements at that time the factual record would be developed the injury would become crete's it would be an appropriate time to challenge the supervised release condition at that time so for all those reasons we don't think that the condition i right for adjudication now on the narrates as set forth in the brief and unless the court has questions it is clear i believe through a very long line of authority that the  if the court doesn't have further questions on that i will turn to the custodial portion of the sentence which was also raised thank you it's a very narrow challenge there's no question that the procedures were improper that the guideline sentence what the guidelines were improperly calculated the challenge here there are two challenges the first is assessment of the various factors that the district court engaged in was improper that the court the district court gave too much weight to defendants criminal history and insufficient weight to what was presented as defendants the drug addiction component or motivation for the underlying crimes the court clearly considered all of those factors that make clear that had reviewed  carefully thought out all of the issues in the case and came up with an assessment of the appropriate sentence that is what a court is required to do just because the court doesn't agree with the evaluation of the factors that  doesn't make the decision on reasonable and it's and with due respect this court has already determined that it is for this district court to determine the appropriate sentence in many whether this court said in the portion of the opinion that whether three in the portion of the opinion addressing reasonable ness of the sentence under volcker this court said we probably wouldn't have come up with the sentence that the district court came up with the district court in that instance gave a probationary sentence to a defendant whose guideline range was twenty one to twenty seven months based on having embezzled approximately half a million dollars from the united states court said we wouldn't have come up with that sentence but that's not our mistake did not consider cost of prosecution as a cost to the i'm sorry cost to the taxpayer of the sentence and that that was in the state in the proceedings or the procedures for the sentence i would take exception to that for the following reasons first it is a fairly reading of the record that the defendant ways that argument when the defendant agreed with the got with the court the court said i'm not sure this is an appropriate of imprisonment the court said i have been this was an excellent argument by defense counsel now the things have been brought to my attention that i wouldn't have otherwise considered so i believe it's a fair reading that  not to have considered it and that's because even under booker you know our new sentencing regime which has opened up so many more factors for consideration by the district court although the doors  wide they haven't been gotten rid of completely and there are some limits on what the court may consider and those limits are defined by thirty five fifty three and and in the sentencing statutes clear that cost of imprisonment are a factor in addition to the thirty five fifty three a factors so i would suggest that that indicates that cost of prosecution a cost of incarceration are not an appropriate factor i would also suggest in response to defense counsel's argument that costs of incarceration are therapy at because they could suggest that home defendant was given a condition that he had to take all the medications prescribed like a traffic medications prescribed he had not been prescribed any medications and the government argued that it wasn't clear that he himself to rest in order to make life a challenge to a statute he claims deters the exercise of his constitutional rights and i think in essence that's what's taking place here he is challenging his constitutional rights and he