assuming for a minute that there is no appeal waiver problem if your right on your rogers claim and i think the government on the merits assumes that you are that there's an inconsistent judgment here then we would  trying to suggest what form the re sentencing takes but the relief in rogers was the sentence is gone this person has no longer been sentenced absolutely we agree and there remain and then i think i would have the opportunity to explain to the court why those financial for not necessary an appropriate right would have the benefit of allowing the defendant to object at the oil sentencing exactly her  may be the government didn't raise it in hargrave been here in response to that anders brief the government said we're not going to file a brief at this time unless the court order says to do so but we reserve the right that i didn't say i wasn't following hargrave i'm saying this case is different from hargrave i understand her anger so we don't think necessarily that these issues would fall outside of the this case and a separate condition for example the one where it were arguably the district court delegated its authority to enter a condition which respected the financial restrictions of her place on your client so in the former  it would seem to me that that there's a waiver a valid waiver then were have forfeited the right to object to those because they were otherwise valid conditions entered you regularly and the latter though it seems to be you have a better argument that if the district court went beyond its authority to delegate its power to impose punishment but that can't be way so what about that distinction though i think so i'm sorry you're at are you talking about  that i don't know that it matters i guess what i'm asking is whether a district court who has the authority to impose conditions and but does so in an in an irregular fashion whether that in this case that to support apparently delegated that authority to a probation officer and so i think there's a distinction to be made between that condition and the others were simply that the district court simply entered those conditions without giving your quite an rodgers that's not exactly your argument underwriters you're human is these conditions were literally never impose they are not part of his sentence he's not challenging his sentence he's not challenging the irregular imposition of certain conditions as part of his sentence he literally has not been sentenced to those conditions absolutely that is my argument so we we contend that those conditions are just void and must be stricken now if if this court goes ahead and that the government grants and that again that's not what in rogers the court sent it back and just said you've got to start again on sentencing you may choose to now sentence to those things you wrote down in the judgement or you may choose not to leave we won't guess which way you're going to try to rectify this inconsistency you just need to sentence again and i don't disagree with you on that just or so but getting back to your question argument about the court not having judicial authority on this delegating to the probation officer in till after even raise it in your opening brief so why isn't why didn't you waive it so that's authority what about our president in u s versus miller where we've held the courts may use non judicial officers such as probation officers to support judicial functions as long as a judicial officer exercises ultimate responsibility absolutely your honor and this is the problem here is that the condition as written doesn't make it clear that is merely giving the probation officer ministerial already in fact it's it's it's not clear from the conditions that nestor singletary has the ability to encourage credit charges or open a new line of credit it seems to hold decision making authority to the probation officer allen point out that beginning and chopped off the end it makes it unclear i would also point out that really there doesn't seem to be any need homewrecker in this case to impose this condition at all and i didn't sort of draw this out in the briefings but likes pointed out you know the the only restitution that was ordered in this case was nine one hundred and eighty five dollars that mr singletary stole from the old time barbecue but that amount was seized by the police immediately after he was arrested and has been completely satisfied in this case so i would also just point out i don't i think it on reno and the district court may very well reconsider this decision or actually it never decided to impose these conditions we think but support to apply here because i don't think the government has timely asserted its motion to dismiss it and i just have one follow up so it and this goes back to judge here's this question because i am trying to figure out how this is supposed to work so if the government files a motion to dismiss but then after our excellent court staff does in ender's review if if additional issues are identified is the government to have to file another motion to dismiss to explain why those issues also are within the scope of the appeal waiver with might it not make sense to allow the government to just do one so  supplemental briefing on a potentially meritorious issue it would be an issue that would necessarily think that it would be an issue that this war court would necessarily think might fall outside of the appeal waiver and so  regard and it's wrong certainly changed our practices where there's an issue right covered by the motion that would be covered by we see if there's an issue race is not over so i understand your argument makes a lot of sense and i understand it and i understand why you would take care of any waiver issue like we would be hard to say that you waived the right to rely on the  waiver given the letter and the sequence of events but how do we mesh this with our new rule twenty seven s with the new rule on timeliness which is that the motion to dismiss has to be filed within the time allowed for the filing of the response brief can you just walk me through that you would read that so that it means that i don't want to put words in your mouth so how is it timely under twenty seven  resources well you know the problem though is the fault of not the best use of the court's resources to have a issue identified by the court as having some merit or require briefing by the appellant and then have the government come back and say oops never mind changed my position and just so in case you only do this in cases where the anger is brief only raises issues that are outside the scope of the appeal waiver issue and the the rogers issue when it comes to the appellate waiver and so i'd like to get to hit the rogers issue st i think the question here is  to challenge his sentence even though he waived challenges to his sentence we have never considered a case or a defendant comes in and says i'm not challenging my sentence i'm fine with my sentence i would like you to take out that extraneous language  judgment because it might confuse someone into thinking i had been sentenced to those conditions as well and the only case i could find that considered something like this was in the th circuit where they said that's not covered by your appeal waiver you're not challenging your se the defense counsel it talks about the fact that changes them on other things like that are covered under waivers the nd thing i will say is that this this practice you know has  delegate probation officer to decide whether or not the defendant works so it orders the defendant to work but it allows the probation office to make an exception and they can make an exception as to it they said the imposition of the sentence is the decision to send it needs to be super fast on this on this issue you want the court wants the defendant to get permission before he  ultimately has the authority to withhold approval of any lot of credit or checking account you don't think that equates to the probation officer having the party to decide the nature and extent of the defendant's punishment and therefore is an improper delegation that's correct your honor actually there is this is this case is not our in our in our  they the defendant from using the computer to access the internet even at work without approval of the probation and so it was all it was very similar different kind of issue but very similar in how it was for and don't want there the approval that we're going to delegate to the probation office and i think the fact that the defendants are allowed to go back and request changes to their supervised rel rule thirty two point one or you know bring these things back to the attention of the court does provide some woman but i think it's a reasonable amount of  responsible counsel secretary so i'm i'm i'm sharing what you're saying and i do i understand what you're talking about in terms of sort of the functionality of the system but i suppose another way of looking at it might be that the way we lead the way it's set up now almost makes it too easy for courts to just impose like a whole raft of conditions of how thinking about the married carefully  just you know let the probation officer figure it out and this case does give me some concern about that because it is hard for me to see why this credit card charge condition was imposed on this guy i mean under the guidelines that's for people who have installment plans for their restitution or their fines and they fallen out of compliance with the plan that's when the sentencing commission think that's appropriate so i have some concern here that you know he had the defendant actually been sentenced to this convict to this condition it would have been without a lot of thought and it would have been made easier by the fact that and i really don't mean to just respect to the judges who i know how busy they are and how hard these jobs are but it  you know it's almost i could imagine a circumstance under which like i would just leave that to the probation officer but that's not who is supposed to be sentencing people well your honor i think that that is actually a really good point and i think one so that the court does explain it so the court does make sure that you know that that it's imposed the specific to the case and so on and so i think that line of his heels with the concerns of racing now from now but i would say that a court needs the flexibility to give the probation officer that relating to manage day to day things that a court can take into see if there's anything in here that i missed which i definitely did and so i think it would behoove the government to go ahead if it intends to assert this affirmative defense waiver it needs to go ahead and let the court no doubt i think that would with this particular one as it's currently worded is that it just gives the probation officer all authority over a very small you know in hoses very significant restrictions on the defendant's financial liberty and it gives the probation officer the ultimate authority decide if the guy's ever going to get to you know tank up you know his at the at the gas station and use his credit cards or you know to tank up or or any things that we do think  position the micromanaging every financial transaction for the defendant but it does need to be clear under what conditions the phonetic can do these things  remind me of a point that when i was thinking about this case and you suggested that the government should in every case follow a motion to dismiss i or prequalification as where the government has as has not public review the court found an issue where the discussion and briefing and then the government elected not to stand on the waiver and proceed to the merits of those arguments so it's a it's a double edged sword i guess because if they follow a motion to dismiss in every case it's going to sing with the court that this if the government had initially moved to dismiss this case and offices that counsel had only reviewed for issues that well outside the appellate waiver it's possible that the court you know might have missed this and we wouldn't have the great discussion  that you will stay well as they say thank you very much for your arguments the court will take a recess and judges let's take a break before the conference and we'll come back in about five minutes that work