is is waiver whether this claim was weights and nd whether the air was in fact planning let me start with labor as we all know waiver is the intentional relinquishment of a known right and i think the transcript points pretty clearly to the fact that file counsel was on aware that the statute provided for anything other than a five year term supervised release and sar to pickle can use option of waivers as knowingly waiving something  present more importantly that the government advances the strategic rationale for why counsel might have done this but part of the strategy would have to involve a lawyer knowingly misleading and lying to a court about what the law in other words if we are to imagine this was strategic we have to conclude the trial counsel knew that the law didn't clarifying the difference between a negligent affirmation and a negligent omission here and a negligent affirmations which is what happened here true she didn't the defense counsel didn't know she was making an error and repeatedly telling the district judge that there was a five year mandatory minimum on the supervised release term here  we'll call that a forfeiture and review for plan but when there's an affirmative adoption of a position and advancing a position that's based think that you know when you look back at the cases for example like how do you find us when we have something that happens in the district or where neither the judge the probation office the prosecutor court why why doesn't one understand that no one right has the right to argue for a lower sentence there's always a right to argue for something if you decide to and going to give up on this you have intentionally surrendered the right to argue for something what bugs me about your position is that on your position there is no such thing as waiver waiver matters only when there would otherwise be a reversible error and your contention is whenever there is reversible error there cancer then a waiver and therefore the whole doctrine of waiver evaporates and that seems pretty extreme you know i don't think that's my position my position is that when when you were you would there be a legal air or otherwise reversible and a waiver if if for example the defendant or the judge had the discretion to impose and in any term of supervised release and then  quintessential wave while your your argument is that people can waive something if they are mistaken about it and the defense lawyer in that case would say well you know i'm just a bad  i thought that was the law when i proposed it but it wasn't so there's no waiver well here's here's my distinction because defense counsel cannot make regulus arguments we can make arguments that are actually against the law and when we believe that a statute makes it impossible for a judge to do what we want the judge to do it would be unethical for us to say judge ignore the statute you know that for example you take your typical drug case good defense lawyer in this case could easily stand up and say you know i'm i really wish that you imposed a sentence of less than five years of supervised release i'm going to make the best argument i can that the law allows you to do that and the defense lawyer can do that in fact a defense lawyer should do that there's nothing unethical about that especially in a case like this where the argument would have been are well let's just say we don't do that well i so i certainly understand that and again i would just admit that when we're talking about and tional relinquishment well right we're not describing the situations here where appropriate the probation officer proposes the wrong standard and nobody noticed is the error and everybody then asks on the air without realizing it  think there is a difference between doing something without knowing that you're committing an error and knowing that there are alternative courses and choosing not to take one i think that's still an essential difference but certainly everybody missed this and defense counsel did the best that she could under her misapprehension which is you make the most of the facts that you can't change so that the record is what it is i certainly don't dispute any of that importation of the definition of waiver of the cut usually contexts such as you know waving your right to a lawyer waiving the right to testify it's at trial this whole idea that a waiver is have to get to your question sykes you know the basic thing and this is what the court emphasised for us was that criminal defendants must make informed and intelligent decisions if we're going to talk about wa s and i think the record here reflects that nobody was informed about what what the actual standard was everybody was operating under and misapprehension now theoretically you could say well they were informed that it was possible that these statutes might come into play and so by not challenging it before and you make a decision not not to address that but i think in the circumstances of this case ultimately mr canfield is the one who's is