our final case for today is united states against downey mr m made please the court my name is brian mullins i represent conny downey on his appeal of two of the conditions of his supervised release we are arguing that two of those conditions amount to greater deprivations of liberty th is necessary to achieve the purposes of sentencing and therefore violate section thirty five eighty three the first can start with waiver before you get into the conditions because the government argues that after the  aspect of the analysis also prior cases have held that simply not strategic reason is just one of those things that helps us infer you know whether there is inten encourage judges to put these questions out in a very clear and focused way and the lawyer doesn't raise any things so so so it's a problem well it hasn't been found to be a problem in other cases in the james james case a similar statement was made to the district court's question were there any objections to fenceless counsel said no  and that was found not to be waiver it wasn't that an open ended question i thought the question here was focused on supervised release terms in particular it was focused on  conditions as a whole it wasn't focus on any specific connection you know one to three i understand that and doesn't need to know it doesn't need to but i think that would be for their argument in favor of waiver if if there were questions as to each condition or if each condition were read aloud i don't believe each condition was read aloud it was just incorporated into frequently ways that though do you think that's not waive the bill out of defense don't want to go through some lengthy reading and it's wasteful yeah it's a way of will but that wasn't what happened here i don't believe and it is again that would be further evidence that waiver had occurred and that didn't occur here the general rule is that waiver is disfavored and should be construed liberally in favor of the defendant so i think this is probably fair to call a close call but where the rule is that waiver rules are construed in favor of the defendant there doesn't appear to be a strategic basis for not raising the objection and the response was no by defense counsel i think the tie goes to the defendant in that case and oh we explicitly indicated that limited selection of the location to one that was reasonable would dress the potential for abuse so i think the especially on a plane or standard because  and we would have at least forfeiture even if we didn't have waiver so there is if higher bar we do concede forfeiture and our problem with the language is that it gives full discretion to the probation office that mr downey in particular as i understand it you know wasn't planning on working didn't he say he was going to sit in his room and watch he's not going to have a workplace that could be just rapid by a probation officer visit that seems of the realm of fantasy to me the workplace issue is probably less likely but the possibility that he will be required to travel to his probation office we believe is likely and i think in his case in particular is relevant and imposes that that burden that undue burden on him because he will likely that what so what goes into it being a reasonable location surely how far it is from where he is or its success ability by public transportation doesn't that go into the reasonable needs calculation it would go into the calculation now here mr that's we're not objecting to a condition where the probation office meets mr downey the objection is that giving the probation office complete discretion might allow the probation officer require him to travel to the probation office itself which could be an undue burden for mr downey now if that wouldn't arise and he had a problem with it certainly he could go back to the district court and ask or to reconsider those conditions but he might risk violating our condition of a supervisor release and starting that whole process so what we're asking the court to do is to remain and to just clarify that condition and and the language that we have suggested the one zero four two a weight issue i'm going to talk to your opponent out that mandatory condition provide to the limit of one hundred for the years you provide nothing in that is qualified as to whether that testing is done in drug treatment program or natural reading we don't have an objection to that condition we don't believe it's necessarily the natural reading we agree with the court's interpretation but i think another possible reading would be that it does allow after the united states i'd like to begin with the condition involving defendants meeting with his probation officer at a reasonable location this court has already up held that language in our more and as the court said suggested this exact language and henry the reasonable location modifier there for the district court cannot play in the air by imposing that condition if there are no questions on that i'd like to speak to the issue of the drug treatment condition so the drug treatment condition  apparently there's an ambiguity there and i understood from your brief that it's the government's position that these two conditions taken together don't cumulate they  repeat that one hundred four tests per years the ceiling so to put week not four per week obviously would have to be that many but it can't go beyond that many so since there's at least some over just articulated it is one hundred four no matter whether they're for treatment or for supervision or for monitoring or for whatever purpose it just can't be more than one hundred four how do we approach that cap and they imposed the identical cap it's not two hundred it's not one hundred four for treatment one hundred four for monitoring that's correct ok that's correct that you would one reiterates the other that this is where the max and in the event that a probation officer was even going i don't think you'd have to wait to one hundred fifty i think if you got to a point where a probation officer was even on the schedule of going over one hundred for the defendant would have recourse to return to the district court during the time of the supervis procedures wasteful i don't think that necessarily agree that it is unclear i think the appellant as they stood up here said that the playing interpretation as the government contends is these are both meant to  kaput you are correct that there could be ambiguity where someone could read it that way if the court were to find that the court wouldn't necessarily have to remand it that is something that this court could modify on its own sense of sadness of stand trial portion of the supervised release condition that would if there was if there was not say a blood or hair sample testing then in that case that would still be kept under the the mandatory condition which requires which limits up to one hundred for a periodic generally to drug test things i mean that's the you know i am asking your honour's absolutely correct that there are different wording and what i'm saying is that because isn't even provided in the discretionary condition which is limited to urine testing that it would only conceivably be tracked to the mandatory condition and therefore again if you were on track for over one hundred for blood and hair samples you'll be going you would be going above the cap of of the mandatory condition six which is which is inclusive of all types of tests to judge programs making a good point you know you could you could be having blood urine tests so the hundred year in tests come under nine fifty blood tests come under six why is that not possible because i don't believe that they come under in the individual our  say what kind yes your honor but i think when the defendant sits down and submits to a drug test there is no indication at that point that you're doing this because of mandatory conditions six or because of discretionary conditions nine the drug test is concerted drug tests and again since the two have have caps that that essentially reference each other identical caps i think it's just interpreted again and there is a presumption that probation officers will interpret these conditions in a reasonable manner i believe that it's interpreted at that time as counting towards the one hundred four cap of mandatory conditions  of predated henry and that at that point it was found to be the the court upheld are more and i know that subsequent to henry and apologize and in another case  this court i'm sorry that's why i'm going back in the case of carson which was in two thousand and sixteen this court acknowledged that henry was in fact proposing that that it was proposing a reasonable modifier to it so whether or not the form was in government contends of both these conditions were reasonable it also contends that the defendant way up to any argument that they were unreasonable i hear the defendant actively abandoned objection and we believe that that we can infer that that is consistent with the defendant strategy in this case to argue that the defendant needed treatment not incarceration that was a recurring theme throughout the entire sentencing of this defendant and the fact that the conditions that we're talking about here which relate to  release conditions at sensing when given ample notice through the p s r which in this case was several weeks ahead of the sentencing that that can constitute a waiver if there are no further questions in conclusion for all the reasons set forth today and in the brief the government w s the full minute i think the government conceding that the conditions with respect to the number of drug tests that are ambiguous i think that requires at least a partial because these conditions do have the force of criminal penalties given that somebody can be incarcerated for violating the conditions so i think that concession that they are big u s does require a partial remained to clarify those conditions and just returning to waiver we cited these cases in our brief but just to repeat there are similar objects or similar comments were made the court asked are there any objections response was just a general no to the guideline enhancement that was unsealed and that would that was a case from two thousand and sixteen where was found not to be waived criminal history that was gil also case from twenty sixteen and then restitution case from twenty seven seem so where there is no intentional relinquishment words at least it's not clear from the record and there's no strategic basis