we've makes clear because the judge orders zero months since there is no authority to issue home detention as a condition of release for that sentence well the problem here is the concern is if we remain and there is a chance that i remain him he will get a longer prison term than he now has which i imagine he would not want to have happen we are very clear on that and sentencing in the idea would be what that he is we just need to clarify that if he's going to impose this condition a surprise receipt has to be as a condition on the of five year supervised release that was withdraw it or was it possible to read colloquy as you just think that the judge was affectively suggesting that if you don't take this i may give you more years is six months in prison or twelve months home detention as supervised release for a zero month sentence and that's not permissible so in that sense what he says i'll take it well if you're going to say i get six months in prison i guess i'll good morning your orders and may please the court michael rocker from the department of justice on behalf of the united states as the court's questions have put their finger on the fact that there are two separate weavers that we have asserted in this case i'd like to address both of them but if i ma just bear with your questions i think you put your finger on the issue about the supervised release i understood and agreed with everything that you stated to my post in council this morning the one point one i want to part is this conditions of supervised release are not impose per count basis they're not specific to the couch they're not like a sentence of imprisonment or a term of imprisonment they're just conditions if you look at the judgment itself interest list the conditions at the back so i understood the premise of your honor's question and i would agree with any term of supervised release on count three because you had no far right and then it would be a question whether the district court now realizing that this conditional supervisor lease would not be imposed on the  if the district court was informed you cannot impose right this home detention of zero months else but that's i'm sorry i'm too young sorry would you still impose this condition right and i think where we where we respectfully depart is i don't think the court said it was imposing the home detention on the specific count i didn't say it was what i said is if we informed the court that you may not write impose it on that count the records in big us as to whether the district court would impose  well i guess i don't read the records being ambiguous i think the district court's overarching intent was to minimize the amount of time that mr lopez destroying had to spend in jail what would be the only thing that the only thing that could mean since you can see yes you cannot brief was really recognizing that the record was not as clear as one would hope that that's what the district court i'll stand by the words that we said in our brief i'm not going to retract and then i will do you say no you think the record is clear that they just acquit was imposing it i think that the court was plenty think we should give the district court the benefit of the doubt and assume that uses months of imposing this condition but you can't do that well you could look at it as a no error type case or you can look at it as a harmless error type case and we think that because the court had statutory authority to given the twelve months on the other count i'm not calgary correct ok yes and as far as judge to weigh as far as your question there's a separate waiver which occurred when the defense counsel so let me step back the pre sentence report recommended home detention there was no written objection file at the sentencing hearing the district court began with the preliminaries and then it started to impose sentence at that point defense counsel interjected and said we oppose we have ject to the home detention condition and the judge said i'll hear your objections but i want to finish pronouncing sentence the court then went through and pronounced sentence at that point the court asked defense counsel what is what objections would you like to make defense counsel then said i object to the home detention condition because it requires continued monitoring of my client at that point the district court said yeah but i'm doing this for your client's benefit i want him to have medical care in the comfort of his own home there was an extensive back and forth that spanned three pages peters twenty four twenty eight of the sentencing transcript and at the end it got to the discussions that you're i was quoting to my opposing counsel this morning where defense counsel said not once but twice we will take it ok and then after that the district or the what you concede is true and what he had initially raised it you can't add supervisory son to no time right it seems odd to treat that as a waiver i don't think he made any of those objections and that wasn't his complaint i mean he understood what the district court was there are i agree i do think that the court under twenty twenty eight u s c twenty one of six the court has discretion to fashion a mandate that's from portions of the harm i think the only harm to the extent there is harm at all is in imposing the supervised release condition as we've discussed so we would yes thank you