involving downward departure which ordinarily would be pretty difficult business and i think that's borne out in this case where we contend that the district record not only in the sentencing transcript but also in in the written order however in a situation that is presented by mr jackson's case a downward and so it may be sometimes it may be and sometimes it may not be so why would you think that the judge is saying a departure is never appropriate under the circumstances which would be inconsistent with the guideline language rather than it's not appropriate in the facts of this case well i guess it's based on the  reasoning of the court to the extent it can be teased out of the record the court was concerned about an issue of double counting which  is under the application note for the i think your honor is referring to that that is always going to be present and well yes but it's always going to be present if you follow the kind of calculation that the government did in this case but the judge actually made a different calculation which has the effect of eliminating the double counting so why would once that's the case if you look at what result was found by the by the court that swings the door open to the downward departure that would then be appropriate under  course that it's a good departure that's not the issue for us it's a question of what the district court meant but it might it might help to understand what was the argument made to the judge that this was an  anomalous result that there was something out of the ordinary or in congress about the calculation guideline calculation that she made such that this kind of departure would be appropriate in this case in this is just sullivan judge scofield asked if anybody wanted to put anything on the record concerning whether you believe this is anomalous so she understood what the what the ballgame was about and if nobody inappropriateness which i i still maintain is a more of a structural issue than a one just just limited to this case because her her findings about the  double counting as i indicated that's going to apply in every single case and if she finds it's inappropriate here it's going to be inappropriate in every case and to ask about the waiver  i mean there was a plea agreement there is a range and there's an express discussion at the guilty plea the consequence of the pleading guilty are that you don't get to appeal a sentence within this range  how is that not knowing involuntary intelligent way either well i appreciate it's a good question they have there is an appeal waiver is in the plea agreement it's our position that asks jackson if he understands that his his ability to pursue an appeal might be constricted i think that was the word that was used but in terms of does not seem to have had has happened i'm looking at page fifty three of the record and i had i think based on he indicated that he read the agreement yes yes he did read the agreement that it's that it's a knowing waiver it's there's just not enough has air so even though there is an appeal waiver and the sentence here would fall within that waiver it's our contention if the waiver just is not  proper disposition is to dismiss the appeal in tarc insofar as it relates to the sentence of incarceration and affirm as to whatever the other issues on the supervised release is that what you're you're condemning we should collaterally attack the judgment of conviction or suspend and that might be imposed including fines and periods of supervised release and the defendant and the caveat that he understood in addition to that he was asked if he had reviewed the agreement with his attorney and he understood the agreement and as to both of those he also indicated he was aware and had reviewed this attorney ok thank you and even putting aside the discussion at the plea as to i think it's clear from the government's perspective that this is a knowing voluntary waiver but the defendant never challenge whether the waiver was knowing and voluntary below  because of that any issue with the with this appeal waiver would be subject to play in error view and here the defendant cannot establish his or any sort of claim error because he's not indicated he would have withdrawn his plea if there had been more thorough allocute allocution on the appeal waiver in fact here he's only here attacking the sentence he's not attacking the plea and to move on to the argument that the decision to depart i'll move on to the argument that the decision to depart is not reviewable though defense counsel complained that the district court was they get sentencing to whether or not she could depart but we would submit that on whether she had the authority to art she could not have been more clear she expressed lee stated during the sentencing proceeding that while i have the authority to depart i declined and that's a seventy six dollars of the record so i think on that point it's very clear that the judge understood that she had the authority to depart and any departure would have been on warranted here and like her calculation of the guidelines the departure in the plea agreement was to account for the fact that the defendant had been previously sent for two cases related to the often contact those cases were also counted as criminal history judge schofield did not use those offenses calculating the guidelines and that resulted in a lower offense level calculation of one other question about the supervised release condition that the defendant objects to the plea waiver at least as it was i'm not looking right now at the agreement itself but what the magistrate judge said to the defendant is that this would constrict his ability to appeal as to periods of supervised release it didn't talk about the language specifically refer is a sentence like in the guidelines range it is not just by what term of supervised release well even either way the objection that he has is not to the length of the period of supervised release but is to a condition now i recognize that this condition in fact no longer applies based on the standing water of the southern district but the question is does the government really have any objection to our if we agree with you on all the other points and where to affirm the conviction does the government any objection if the court modifies the actual judgment to strike that condition that no longer is transferred and if it's somebody who is not familiar with the rules of the southern district looks at this judgment it says he's subject to a condition that in fact he's not subject to so would it be appropriate for us just to fix that future if we do this but at least in this case the defendant has explicitly requested that i take it you have no objection on the facts of this case correct ok thank you will eleven last time that at the risk of overdoing the issue it the waiver requirement still has to be shown to be knowing and voluntary and competently entered and without any questions being put to mr jackson at at the plea allocution regarding the appeal waiver i just don't know particular provision or not but nobody asked him if he understood what it there are or what what the consequences of the appeal waiver would be to him so it just doesn't too when she indicated her understanding of her authority to depart this is on page seventy six of the record i still maintain that her her view of the downward departure in the  both with respect to data double counting and to anomalous results was not well formed that i i think it may be a situation where it similar to what was done in another case i the case was remanded to to fill out the record a little better that that may have been that was that was deemed appropriate in that case it may be appropriate in this case as well and leave