statute under which she was convicted under the commerce clause i'd like to focus my arguments this morning on the commerce clause violation of a purely issue was extensively discussed in the brief and any argument by the government that the statute  hell that they would examine the issue so i believe that as precedent it is finding on this court under the law of the circuit doctoring the authority cited by the there are several cases that rely on that case as well but that case did not actually was not that it was not briefed of argued before the court it was addressed because of the dissent so it's i understand that it's binding on this court and incidentally the position that we take with respect to that issue with respect to the application of the suppose that plenary powers of congress under the territory clause with respect to puerto rico is entirely think i mean i think that that's a decision for the court i don't think that that would necessarily be useful because the case decided by the supreme court will not necessarily be conclusive as to the issue on this case it it but if it did have happened to adopt the position wholesale he would be relevant to this case certainly would be it would be decisive in this case but i think that there's no telling whether the supreme court will or whether it will decide the case on more narrow grounds so i think that this court should decide this case based on its own precedent this course has this court has ample experience dealing with the court or rico issue and as i say the thinking you're honest president has never been overruled by this court moving on to the commerce clause issue the statute in this case out morris conduct which occurs wholly within the commonwealth of puerto rico which is entirely local in its kakkar extension and in fact in mr morrison the supreme court used four factors to determine whether the conduct regulated fares substantially affected interstate commerce none of those factors support the exercise of commerce clause power here the first factor in morrison was whether the statute regulates economic or commercial activity here the conduct that is regulated is transportation of an individual that is not economic  this were a and as applied challenge this is a facial challenge to the statute the statute does not require that the transportation be carried out in a car or in a highway or on a highway which receive federal funding or it could be a bus it could be walking it could be on a motorcycle it could be anything any kind of transportation it does not require in any aspect of the statute the use of instrumentality or a channel of interstate commerce that is not required by the statute this is a facial challenge to the statute the second factor considered more is and was whether the statute contains an express jurisdictional element and i think this is a very important factor to consider in this case there is no jurisdictional element in th statute in virtually no other cases i have been able to examine on the commerce clause in the first circuit the circuit where the court upheld a statute against the commerce clause challenge there was a jurisdictional element so that factor is not is not dispositive of the issue it is certainly very relevant because a jurisdictional element allows the court to enter into the facts of the case and decide on a case by case basis whether or not in that case interstate commerce was affected here there isn't jurisdictional element so the court doesn't isn't evil to enter into those details of the actual case  this case this statute is very old it's over one hundred years old and at the time the congress clearly premised its its regulation of interim jurisdiction all transportation thought there are no legislative findings just to quickly bridge the fourth factor is whether the link between the regulated activity and the substantial effect on interstate commerce is closer to ten you did the government has offered no link here thank you your hon const the defendant's arguments as to the waiver claim as this court has repeatedly held and conditional guilty plea constitutes a waiver of any and all independent non jurisdictional lapses and this y left open the possibility of the challenge could have been waived or forfeited and we were for this court to footnote four of the opinion which states we think not address on reference to the waiver issue we need not address this issue or decide whether this case falls within griffith because regardless of the waiver appellant to snog prevail on the merits therefore the court indeed now it has long been held that subject jurisdiction can never be forfeited or waived so it's clear that the court indeed left open the issue of whether he could the claim in that case implicated subject matter jurisdiction otherwise there would have been no question on the w and do not constitute binding precedent on this court but in any event i did i'd just like to get to some of the underlying policy issues it seems to me that her guilty plea i'm not certain i see any limitation to her or her principle and it would strike me that would be of major concern to know what percentage of those have waivers of appeal i would imagine a waiver of appeal is the subject of bargaining between the two sides so if you could provide are pleaded out and many of them the ones that have a plea agreement they have a standard waiver of appeal provision but in this case though it's not only the waiver of a few provision it's the of appeals it was her choice to do that and she knew that that's sad when she waived so all the arguments and she does not argue that her unconditional guilty plea was a knowing or on or involuntary  that would be a waived argument and then thought she had tried out her constitutional argument before the district court before she chose yes yes front gate and the court rule neither the party center of the court what if there was nothing in the record to suggest that either the parties or the court even saw the issue and yet there was still an unconditional  guilty plea with that then subject this to plain error you know our cases say it constitutes a waiver but i'm not sure they've really analyze that question if everybody were operating under this false assumption that there was there is no exception except the very limited exceptional whether it's it involves subject matter jurisdiction and the cases that we discussed in our group or in our brief two cases blackledge and manna one which is weakness there but this court has recognized the miscarriage of justice exception in the context of waivers of appeal as part of the teacher test but no such exception has been recognised in the contest of  body very quickly or ours if i have an opportunity it's a relevant to point out that even the commonwealth of puerto rico in a case that is currently before the supreme court such as by the calm of puerto rico does not state rather the territorial clause applies under the terms of the compact so regardless of puerto rico's the urea as to why the territorial clause of pars they're consistent is literally and i'm quoting a claim that is statute is unconstitutional or that the court like jurisdiction may be raised for the first time on appeal a claim that a statute is unconstitutional may be raised for the first time on  to a statute which is different from any constitutional challenge that we're not challenging here fourth amendment violation or a confession this is that the statute itself lacks eight fundamental basis  know i believe i believe that's not correct i believe that the the challenge to the statute is what undermined undermines the jurisdiction of the supreme court not it's not just any  i would be happy if the court thinks it's now or just with more if you just want to know if you thought there were any limiting principle at all in terms of the time that it could be where the you know what it's going to do to the finale the rules well i am not sure but i think before the judgement is final and firm would be it would be reasonable to still allow a constitutional challenge to the actual statute to the underlying statute which provided the basis for the conviction could a defendant enter into a contract with the government that even though it might have such a claim it would not waste the claimant would would a contract that said that an agreement that said that the finding i believe if it's not weevil it's not waive all so you wouldn't apply contract principles like we usually do when we have plea agreements well it's not wafl i think i believe it's not waive all i don't i cannot envision a situation in which a if it's not all defined and could could renounce the right to bring it up later on i might be wrong i haven't gotten back that far yet that is not the situation in this case if this were not the issue in th case something else were being raised do we have an independent obligation as the poet court to look into this question if one of us has some idea that maybe there's a question about it i believe that if this this is a j has stated that those are two separate exaction exceptions one is the jurisdictional rule and one is the black manna exception and this case falls into either of those two i just want you for your time and thank you both