concurring.
I concur in the result reached by the majority, but write separately because I conclude that Morgan has not waived his right to appeal the two specialized release conditions at issue in this case; that said, in my opinion his constitutional claims are not ripe for judicial review. Consequently, I would not reach the merits. See Reno v. Catholic Soc. Servs., Inc., 509 U.S. 43, 57 n. 18,113 S.Ct. 2485, 125 L.Ed.2d 38 (1993) (‘We have noted that ripeness doctrine is drawn both from Article III limitations on judicial power and from prudential reasons for refusing to exercise jurisdiction.”); Steel Co. v. Citizens for a Better Env., 523 U.S. 83, 94, 118 S.Ct. 1003, 140 L.Ed.2d 210 (1998) (“ Without jurisdiction the court cannot proceed at all in any cause. Jurisdiction is power to declare the law, and when it ceases to exist, the only function remaining to the court is that of announcing the fact and dismissing the cause.’ ” (quoting Ex parte McCardle, 7 Wall. 506, 74 U.S. 506, 514, 19 L.Ed. 264 (1868))).
Because a valid waiver of appeal deprives this court of jurisdiction, see United States v. Rubio, 231 F.3d 709, 711 (10th Cir.2000), I agree with the analysis set forth in Part I.A of the majority opinion, except that I would conclude that Morgan’s waiver does not apply to the claims raised in this case. Morgan’s plea agreement included a waiver of the right to appeal a sentence imposed within the statutory maximum or applicable guideline range. (R. Doc. 21 at 5.) The specialized conditions of supervised release at issue in this case were first announced and imposed at sentencing and are not specifically enumerated in the Sentencing Guidelines. Morgan is not challenging the length of his term of imprisonment or supervised release, but rather challenges the constitutionality of judicially created special conditions of supervised release unknown to him at the time he entered the plea agreement.
In determining whether a party’s claims are ripe we consider the hardship to the parties and the fitness of the issues for judicial review. Abbott Labs. v. Gardner, 387 U.S. 136, 148-49, 87 S.Ct. 1507, 18 L.Ed.2d 681 (1967), overruled on other grounds by Califano v. Sanders, 430 U.S. 99, 105, 97 S.Ct. 980, 51 L.Ed.2d 192 (1977). The hardship at issue in this case is the potential loss of conditional liberty; however, the issues are not fit for judicial review because resolving them requires reliance on hypothetical facts.
Unlike the issues involved in United States v. White, Morgan’s claims are not *889“legal ones that we can easily resolve without reference to concrete facts.” 244 F.3d 1199, 1203 (10th Cir.2001). For example, to analyze Morgan’s Fifth Amendment claim this court would need to know that Morgan asserted his Fifth Amendment privilege and the specific action taken against him as a result of that assertion. See, e.g., Minnesota v. Murphy, 465 U.S. 420, 427-28, 104 S.Ct. 1136, 79 L.Ed.2d 409 (1984). If there was no assertion of the Fifth Amendment privilege, this court would need to consider the applicability of the exceptions to the requirement that an individual assert the Fifth Amendment privilege. Id. at 429-40. Without these relevant facts, it is not possible to analyze Morgan’s Fifth Amendment claim. I therefore agree with the majority’s statement that “[i]f at some time in the future, the court revokes Morgan’s supervised release ‘as a penalty for his legitimate exercise of his Fifth Amendment privilege, he remains free to challenge that action at the time it occurs. That eventuality, however, has not yet occurred (and may never occur).’ ” (Maj. Op. at 887 (quoting United States v. Davis, 242 F.3d 49, 52 (1st Cir. 2001)).)
Similarly, in analyzing Morgan’s Fourth Amendment claim this court would initially need to know whether Morgan submitted to the requested physiological testing. If he does not submit to the testing, this court would then need to determine whether Morgan had standing to sue. See Luce-ro v. Gunter, 17 F.3d 1347, 1349 (10th Cir.1994). In making this determination, the court would consider the consequences, if any, that flowed from his failure to submit to the testing. At this point it remains to be seen whether Morgan will be required to submit to a plethysmograph and whether he will be reprimanded for failure to submit to the testing. (See Maj. Op. at 888 (“[0]ur unwillingness to find a constitutional violation is further heightened by the fact that, at this point, it is entirely speculative and hypothetical that Morgan will ever be required to submit to a pleth-ysmograph.”).) Furthermore, Morgan has not argued that the conditions of supervised release at issue are vague such that the only way he can learn of their reach is “when he facets] a revocation proceeding.” White, 244 F.3d at 1203.
I conclude that the constitutional claims raised in this appeal are not ripe for judicial review.