felon or to be engaged in or planning to engage in criminal activity unless granted permission to do so by the probation officer now we have no problem with the idea that people on supervised release should not be communicating or otherwise interacting with people who are committing crimes that makes eminent sense but you take that further and i should say that's the reason the district judge gave for imposing the condition was that they didn't want the the speeds to be  is all right you've been sentenced go serve your time take any top program and and become a productive member of society that that's what we want you to do but then if in the  sentence will be fake and emery managed putting their below the guidelines sentence is a risk i mention this because with some very small changes in wording  the dispute conditions of supervisors release can probably be reimposed and i'm wondering wondering what they're hoping to gain from this appeal you are both  germane enrico speed you have been informed that there is a risk that this appeal and look obviously our office has a lot of these appeals and we get asked this question quite often we understand the risk and we don't do this without discussing it with our clients and discussing with them the potential benefits and the potential risks and look i think it's pretty obvious that what we're hoping for on remain and it will get a full remain and we're going to ask for a lower but you know i'm not going to play cat and mouse with the portal that's what we're going to try and do i think the risk of it will get a higher sentence and look all of our clients got higher sentence on remand in these situations a couple weeks ago in front of judge bruce so i mean i know it's a risk but in this particular case as judge bruce went out of his way to say that this is the sentence he would impose regardless of what the sentencing guidelines were and i think it would be very difficult to support imposing a higher frustrated with this personally because it's it's a long way off and things a lot of things can change and therefore when you put these sort of conditions and stretch them out we've had a lot of discussion of this and  know you had one the other day where somebody was printed just came out horrible thing about child abuse and he had a force eighty five years and he was complaining about supervised release  it's difficult from a defense attorney standpoint to use when you're challenging these conditions that in this case these two gentlemen are going to be under these conditions for eight years and it's really difficult to have it here like well why are you making a big deal about this you know if it's not such a big deal why is why did the governor why is the judge keep imposing these conditions and why does the government keep fighting so hard to keep them moving so they must want to do something with them well this is the problem with supervised release and then we will look at it later on when it's getting close to where he's going to be get out but we don't do that but we don't your honor it as a practitioner if we don't if we don't raise them now we face all kinds of waiver are we already are facing way apartments but we face those waiver argand's if you go back to the district court to try and in modify and my experience has been the district courts are real anxious to modify the terms of supervisor  necessary as opposed to the limited leave conditions to time and i had and i mean that respectfully with regard to your argument i appreciate what you said but isn't there that flexibility would just submit to you that that gives the probation officer way too much power because the majority the vast majority of the back and forth between the probation officer and the person being supervised the judge never hears of so  recent cases involving conditions of supervised release the court hasn't taken those generic statements is waiting for but instead is treated them as forfeitures and the lawyers actions are much more in line with neglect as opposed to intentional decisions to waive rights i think it would be a stretch to say they were waived and this is not the same situation adequately address the defendant's main arguments an indication that that's a subjective question that can be answered by by the lawyer because the lawyers are going to know what the main arguments  occasion are and whether the court does address them i mean to broadly ask a lawyer anything else and then call them to waive or if they say no i think would be hoping or is to possible standard in figuring out the appeal issues on the fly without a transcript that an opportunity to reflect and my personal belief is that this is for future not transcript earlier in the hearing the judge asked him specifically will these conditions are in the p s r and the reasons are in the p s r do you have a problem with any of these conditions so they've read the p s r they've read the reasons and the lawyer said no we don't care about supervised release to care about the sentence he's going to get they had an opportunity to raise this and i agree with you your honor that lawyers have to do things on the fly and that makes  somewhat if that's true but then we go to plane air even if it's not waiver which we think it is but we would go to plane air and there is some tension in this court's case law as to whether supervised release conditions even when ironically imposed he said even iranians think imposed supervised release conditions may not rise to plane air because they can be modified that any time and that's true for these conditions they can be modified at any time and we just don't think that's pla near one thing with regard to the associating with a felon mr pett that this court's already said you know language that the district courts can say and they'll be affirmed this is the same language that this court set an arm for would to remove the ambiguity created for everyday operant objects that could in theory you know be used to stain your sweat your honor i don't believe it undermines our position of believe it enhances because both and walk in an armor this court recognized that centrally any object can be used as a dangerous weapon it's the defendant's use no one would say that a chair is a dangerous weapon until it's picked up and hurled at someone and then it becomes firearm ammunition destructive device or other dangerous weapon which would suggest that there's a commonality of items that are in both wot and in armor this court recognized that yes that commission should say items that are intended to be used to harm other people but that doesn't render the term dangerous weapon to be unconstitutionally vague and i believe the same rationale should apply in this case if i may about the it's going to remain i think if that warning any captives has any force this is going case to exercise that morning and because the defendants had full opportunity to raise all of these concerns before the district court they didn't do so and instead do it for the first time here and the conditions on top became be modified at any point which we believe means there is another remedy even if i'm wrong about waiver and wrong about playing the play and at the at the trial for defense counsel because we have high incidence of pleas versus trial you usually are after two decades that there's isn't there where you should be some dialogue with the district court of that being flexible asking for an initial modification or some conditions about it i mean as opposed to just did other than the dangerous yeah i don't and i'm not speaking specifically to this case now although we've got to look to this case goods our response surely we've got to and we've certainly critical forward in speaking to others but if we're condition which is adopted in whole or in part by a district judge and using whatever guidelines and hopefully where we're advancing here isn't the arena to they're committing a crime if they have firearms or any ition then under federal law the fire which destructive device in the hope of a real focus of the dangerous weapon issue is you know you don't want them using condition analysis right at the trial we i can at least speak for the office that i work at it is we are attempting to litigate some of these issue