with regard to the first issue before you get to that was there an appeal waiver in this case yes your honor there was and i i don't think it was you but it wasn't dressed until the reply brief right in don't we have case law that says that you have to address as to why the appeal waiver does not apply in your opening grief if that is our law he's thinking about so our position as to that is that that that we can overcome the if you waiver because it was clearly an applicable and as much as the district court applied it to level one handsome and that was not stipulated to by the parties when they entered into the plea agreement that so with regard to the first issue this case presents this court with the opportunity to decide for the first time on plenary review whether congress exceeded its article one powers in an act in that is because the supreme court's intervening the situation in class makes clear that a post please challenge to the constitutionality of the statute if conviction is not barred by a unconditional  this case is like class in two very important ways first mr vegas did not express lee or implicitly waive their right to grant constitutional challenge on the statute when he executed the plea agreement and second the issues much of the n d l e a a exceed congress's article one powers under article one congress has the power to define and punish piracies and felonies committed on the high seas as well as offenses against the laws of the nation but drug if the felonies provision extends beyond that to foreigners on foreign vessels the clause does not bring that uniformity or disability to the defendant since they would be subject to laws in any nation and that is precisely what happened here under the due process clause and our position as to that is that that involves an entirely different provision of the constitution with the separate inquiry and so the fact that the court found no problem under  due process challenge doesn't control or inform or article one challenge which is completely distinguishable from those cases so as i was saying when  drafted it was clear that congress wanted to stay within the bounds of international law and part of the evidence that we have asked that is that it cited the united states or the season of the united nations convention of the law of the sea right on under international law our position is that the definition of what a stateless fossil is is much narrower than the m d l yeah it is a vessel that has no nationality or the tries to employ a subterfuge it is not really a form over substance what is they have to explicitly and directly address it initially in the opening brief and that what it does need to change is actually the standard used by this court here it has to be clear and gross injustice involved and its governments contention there is no such clear and gross injustice apply in this case if we are using that standard it changes entirely the standard of what is to be applied for the determination of this case now one of the contentions is that have applied in this case because it was a title forty six type of offense and under thirty five fifty three f and one the statute safety valve would not have applied for the defendant so he's actually benefiting from our plea agreement in this case by with the sentence had a receipt because it would have required a statutory mandatory minimum of one hundred twenty months if you look at the police supplement provided by the government or in that case i if you apply if the safety valve applies now if you look under thirty five fifty three half the only way comply is if it's a title twenty one drug offense and here he was charged with the title forty six offense so therefore how can you claim a clear gross injustice if you received actually lowered since then he should have actually been entitled to excuse me so in addition in relation to the merits of the claims this would be then under that standard the due process claim as well as congress exceeding its authority is our position is that then under a new singer pena's there the court found no plane error in the application of eight cause ten the power to not exceed its authority under the felony section of that statute the high seas clause section now with regard to due process otherwise and that the m d o e a a that congress exceeded its authority under the felonies clause and what they have found is either under territorial or under universal or a combination of protective  principles of international law they're entitled to do it and for the safety of the country and everything else now what happens is also if looking at this case defended and made it it was a stateless vessel so that changed the whole planners have everything to for due process violation claims and things like that stateless vessels are and are actually subject to the authority inquiry so i assume that for you it's a legal question his his agreement to certain facts might not prevent him from now arguing that as a legal matter it's not so i as for a legal aspect i don't think you can just determine it strictly on a legal basis you think it's a mixed question i think it's an x factor and legal type of argument and it's q which end of the spectrum do you think it falls on you i think factors that could waive are not waived in this case and here he said he would waive the issue of whether you know the collateral reasons or are whatever and so with specific factors that he was going to wave so therefore it was limited in ours we have a product type of waiver and an argument because even in a long line of cases in this court starting on sundays the court held that that is not a question that is taken to the jury so it doesn't go to factual guilt it is the we believe of purely twenty four c and i think that the citizen is instructive here in that whether the crime is a crime of violence to begin with goes to it is a legal question i believe that was the admission there so on those grounds i would submit that the class is similar to this case in that class does apply so the difficulty that i have with that is that it seems to me zation i believe that a similar concern was before the the the supreme court in class and they even though there is that risk that all these defendants would bring challenges to the statute