tried cases a part of it is a fun man to try cases before does a great job unfortunately in this particular case he imposed a condition of supervised release that the appellant the defendant at that time the apollo here and not consume marijuana case as the courts very well aware most of our drug cases we have defendants that are drug addicts they use drugs however this particular case mr bell was a shot was a businessman in fact he had legitimate businesses he did a lot of work with the city of oakland and with county alameda county and in order to supplement his business he seized on at that time about ten more years ago the a lucrative letson medicinal marijuana to missouri and to other places it was business opportunity it wasn't a drug issue judge whipple looks at this young let me follow up because don't we also have cases that express concern about cross addiction type situations and when that perhaps make this appropriate absolutely your honor i do not disagree with that at all and the reason that's kind of the reason why i led in with the it was a business opportunity this was not a man who was addicted shall we say to marijuana he did use it the same as i would use the last a good cabernet at the end of the interesting day prepared to celebrate we need to relapse so he did use marijuana he used it recreationally and he did not use it to the extent that he abused it i'm not disagreeing with with the concept and judge whipple's very eloquent colloquialisms on you know the first bottle of booze and then the second and the third you're in trouble i mean it's we've all heard it many times and and there is a lot of truth to that i mean judge whipple's down there in lebanon down south west missouri and he has a circuit judge as a district as a circuit judge and state dealing with those issues and certainly as he saw from the bench here as we've outlined those are problems in this particular case the judge even pointed out on the record mr bell well i understand that this is not your problem that's not an issue out however in order to keep you to help you out i've given you this this admonition or this term of supervised release your honor the the law i think is very clear that the court cannot impose those a sentence that is not supported by the eighteen u s c three five five three factors there is no support there's no support for telling mr belton cannot use alcohol he cannot go to the stablish with the serves alcohol you make a great good point judge that yes and and it's common sense tells us that if we if we have an addiction and we're using something that that is addictive the whole whole deal of addiction means that we use it to experiment with back to it and as we get older it's just kind of not worth the effort but alcohol in a good scotch little wine you know and it's relaxing it's legal however a bottle or two bottles old classic joke about you know did i really wear the lamp shade on my head last night that's the problem that judge whipple was trying to address i've knowledge that judges however i believe in this particular case this i think this is could be called a one off case shall we say wimple own the record i believe destroyed the factual basis for imposing that condition and as a result i think we get down out i think that he was using marijuana i believe that that was more of a historical issue with the man and i believe that he was truthful when he spoke with the asar writer that he used i believe that the appeal waiver is designed i want to go in kind of into to why isn't there it's designed to assist the government and the public or in defense counsel from the issue of filing here is the problem i see with this case from the other side and from the ct side how do you how do you say ok we're going to review this and say that this imposition of a supervised release factor is  you can you can sustain the appellant's appeal remained the case to remove that provision of is supervised release without opening the door to a floodga because in this particular case we have on the record a finding by this district court that the defendant that that this provision was not supported by the facts of mr bell but that in scope my understanding is the appeal waiver said that he can appeal a sentence other than one set out in the binding plea agreement right that's correct so there was no binding plea agreement about this special condition of supervised release was there there wasn't and so that's a doesn't that put it outside the scope no i think the other day and language is clear within the plea agreement what that means and what that means is that you agree to terms that were agreed to as part of the binding plea agreement that was that it would be a fifteen month sentence and that there would be three years of supervised release imposed and that other than term shows up in several different parts of the plea agreement each time it's clearly referring  to the sentence those two binding terms and so it's a sentence that would since that would fall under that clause would be a sentence that was something different than fifteen months or different three years of supervised release that's what the other than means different than those two agreed upon terms as part of this binding plea agreement and also doesn't that create an ambiguity and if so why shouldn't that be construed against the government what does it create any ambiguity you're on i think it's really quite clear reading the document in context of six paragraph ten paragraph nine that is very clear what other then means other than fifteen months other than three years but also why not construe against the government the plea agreement itself has a interpretation paragraph that principle of construction i don't really see any separation of power issue that the government's one of the parties is not the government telling the court how to construe the contract and it also says are not to be automatically construed so that sort of leaves an out for a and it construction after careful consideration construction against the government i think there is no room for the court to do that but i don't think that in this case it rises to that level because it's very quite clear it's very clear what what the term means me the term is saying if there's a sentence different than fifteen months or three years of supervised release that you can appeal anything else would fall under the normal terms of this of this appellate waiver and i think you know that's also made clear in the sense that this waiver explicitly covers this issue the waiver says supervisor least is not an illegal sentence as that is that waiver understands it is that waiver it understand in this kid course case while understand illegal sentence to be a sentence that sort of outside of the legal authority of the court outside the statutory authority of a court such as a sentence imposed for a term of years longer than the statute allows this term of this condition is a legal condition this court in several cases has affirmed this condition of supervise release so it's not the case that it is a term that is outside cases power to do that the plea agreement doesn't specifically mention conditions of supervisor release doesn't it talks about that there will be conditions  of there will be a term a supervisor but in terms of the waiver it doesn't talk about it does not that's correct your honor so you want to lump supervised release conditions into the time sentence that's correct and then we have cases that decide that one way or the other that say that that makes it sentence makes it clear that that includes a supervised release conditions are not similar appellate waivers i don't think the court has ever looked at that in that just very precise term but similar appellate waivers have been found to apply is and i believe him and i'm not sure which one has which ones list out the people waivers and which ones don't i believe also the bill yacht case does the same with your time quickly expiring maybe might address the merits just in case you don't win on that you have salute your own this will imposing the condition was not an abuse of discretion there was more than ample facts in the record for the district court to see this as a substance abuse issue and under conditions under under facts very similar to ones where this court has affirmed that condition of release date based on what the district court said why isn't this more of a just an application of  that parties did not have objections to the p s r and no objections were made during the sentencing the district court granted allocution he heard arguments of the parties and imposed his sentence and it was only after all of that was done that  mr johnson then makes an objection to his term of supervised release so it wasn't as if this term was you know teed up for the parties it's not like that the parties had had briefed it or or get it specifically to the court rather the court is catching at the end of a sentencing hearing in objection and made you know made his comments in that context so i think for to surely in that context this is a situation was court can do what it has done in other cases and go to the wider record and see are there facts to support it because i think it condition that meets meets the goals of thirty five eighty three and particularly the mr johnson says that he doesn't have an abuse issue just that he was a recreational user well i think the facts are there that objection to the assertion that it was medical used in the state of care california well that's a factor that the district court has to consider that that's different than illicit use in another state where you cannot get it for that purpose not in lam for five years when he was found he was back growing marijuana again did did did they go everman object to that portion of the pre sentence report that said it was for medical use portion of the persons report says that he reported it was for medical use but was not able to go to provide a prescription so would the government have to if the government didn't object to that would that be then taken as true from what i've accomplished as of the district court that it was medical use  decided maybe he didn't choose to return that call he moved in with his girlfriend and he remained in active business in oakland he was dealing with the county with and with the city on his business contracts and daily contact with government hiding and trying to avoid what arrest your honor the two things like to point out again yes the page fifty a paragraph fifty nine of the preset report does talk about that that thirteen through fifteen of the transcript judge whipple did say in talking about imposing these conditions supervised release he said now there is no he said you know you i put that in there as a precaution and then he says as to i'm sorry the curfew he said they're out on the prowl they get into trouble they get drinking and that causes problems and then he said now there's no indication you do that but i'm going to leave it on there because i'm not even going to give you the chance to be tempted by it all right and then later he says now mr bell this will probably come back to haunt me and