good morning again stuart on behalf of ted right now i'd like to start with the governments issue and contention that this is already come before this court and therefore were foreclosed in one sense that's true the issue was brought before this court was briefed and was ruled upon that as that and i think it's pronounced which the government sided points out we were in a different procedural posture on the direct appeal and that was the rather than a direct credit issue but let's let's assume for a moment it is a direct credit issue it's wishful not foreclose now because now we have done what the genie court told us to do which is administrative we go through  we've now got it on a writ and in fact the last sentence of cheney says that that's exactly what we're supposed to do so i would suggest we have followed the court's advice in that case and we're now properly here with this if you the other interesting thing about eugene is the very last footnote says we of course expression of opinion on whether cheney's house arrest qualifies as full of tension within the meaning of the section and perhaps the reno versus cory answered that question some years later nusual factual situation as well he was actually doing six months on the symptoms of a related gun case of house arrest then got indicted and so he had two periods of house arrest that they were beginning right  period was three trial but it was pre sentence because he had already done six months from the other related case so i would suggest the factually this case is different and not only that  notice liberty issue you have never a ranged anywhere that i can tell that that mr moran known at fact didn't know this another whereas you're not alleging that it wasn't knowing involuntary as a constitutional matter having a hard time seeing what role may have been as a prophylactic role which has been specifically enacted essentially to avoid having to make knowing involuntary determinations here we don't have that will so we have to make the knowing  that it's much like rule eleven when you have this very important constitutional right here i would argue this is the same sort of situation and yes there is no rule levon tantamount to it here but there should be he's  inside to on a recount of congress and yet when meanwhile there isn't one and the question is where's the constitutional violation of due process violation your honor the fact that he needs to have that notice and it's got to be a comprehension checked why would if you look at what happened mr marino but he requested this he requested house arrest and they did and he helped craft the conditions in our live with the one sister outside the county or whatever and all of that sister but i mean all of this was something that he could help and i say he maybe through his attorney but he'd this is something he requested something that he helped craft it's not like the judge imposed this and said i'm going to impose this on you you have no choice in the matter and i obviously i agree i was the one that drafted most of however we are in a different area than reno versus great we've got a convicted defendant now we've got somebody that knows but what difference does that make what difference of the fact he's not convicted make because he's in u s c section thirty five eighty three says that if he is in custody because of the conviction on this case then it should be he should get credit for that and that's the difference between people who are free trial because they never know whether they're going to get convicted or go to jail or not convicted he was still pretrial at that point and that's a big difference here with that but it's not a different i mean as i understand or why does the fact he's convicted make a difference i mean there's a there's a statute it's been interpreted by the supreme court and now you want to say no that's imposed some othe because what i did or didn't tell him is never going to be on the record on this is a twenty two fifty five and what i'm suggesting is the district court has a duty much like rule eleven to tell the defendant look mr defendant you may or may not get credit for that action if you know one of which it was already decided on the grounds it was already decided in a direct appeal or the grounds were apparent on the ground direct appeal second there are no protected liberty interest of the petitioner here petition in the sense that there is nothing in the record showing that he would have chosen anything else the only thing in this record is that he was in jail and he wanted to be out of jail no matter what and he proposed and  every one of these conditions so that he could be out of jail the notice issue in this case is very simple you know versus corey came out five years before this case the defendant through his attorney w that any release on bail is now amount to credit for time served the notice was there through his attorney now whether or not the court needs to do it there are a lot of things that for the judge to have to give them notice it was clear law at that time that he was not to get any credit for being on bail and as well as the fact that getting to the heart of what we're talking about is whether there's due process it's somewhat absurd to say that this person is getting anything worse than jail if they were getting anything worse than or equal to jail they want to be asking for this kind of how much i mean there is not necessarily a pretty interesting to notice but it's a liberty interest in the sense that he's going to be in confinement longer i don't believe you're correct your honor i would point to the language basically that the second circuit used and i think they're wrong on that point actually it doesn't make sense to me what they're saying because he is in fact total time in and you know now i'm sorry life longer well and i think what they said is this is an any law any holding any ruling any rules proposed or actually entered into or an active by congress that requires any such notice and the supreme court had this case and what i guess the difference is th he would have chosen otherwise that he would have said oh i'd rather strongly stands and certainly it was clear when he was remanded and that's what his sentence likely would be based on the guidelines and so forth he didn't need to ask to get on