widmer posed a threat to children the court did acknowledge that mr whitmer had never can have never committed a conduct effects upon any child but the court said that those facts do not negate the crime in this case the court said that the condition of supervised release is a consequence of the crime and the court confirms that when mr when mr rimmer is released their female whether there are other members of his family but in particular we objected to the fact that this would prevent mr widmer from exercising his fundamental premise rights with respect to his daughter and the district court said a probation officer exception to the condition of supervised release rather big exception to that probation well your honor that the thing is is that the fact that the probation officer might allow mr widmer at some point to exercise his parental rights that doesn't negate the fact that the that the condition itself is unconstitutional and furthermore if you make mr widmer this is not an indefinite situation children including his daughter you're under the condition of supervised release as there is to be no contact that's the rule unless approved by the probation as approved by the probation officer and the fact that the court did not find that there was any threat to his child or to any children demonstrates that there is no compelling need for this condition and even if you delegate mr wade murs liberty to the discretion of a that the fact that with individual characteristics did not negate the fact of the crime didn't matter meant that you know he was still going to impose the condition the fact the court said that the  condition was a consequence of the crime and the condition said that the crimes by definition included a sexual interest in children and that's to i have a statement that's totally unsupported by the record the record here images and perpetuates the risk of dissemination of amateurs and then i thought there was something and there wasn't something in the record that he actually a master based to these images has done so a child but i think that that would appear to be what the district judge was trying to prevent your honor i think you raised three facts and i'm going to try to remember what they are but first it's true that the court focused on the nature of the images that's but the nature of the those images are inherent in any of these crimes there's nothing special about the images that mr widmer viewed that's different from any other defend it and that's why when we applied this local rule that it doesn't distinguish between sex offenses for sex offenders and the stick the courts expert dr adler said that the nature of these images does not correlate  district court did not find that mr wood mr rimmer would not be able to change his behavior in fact both experts said that mr widmer posed a very low risk every citizen and that all of his and all of his particular characteristics the fact of the work that he put in before he went was incarcerated the fact that the testing showed that he did not have a sexual interest in children and even your honor the fact that he masturbated to the prosecutor didn't argue that mr whitmer was going to molest children he didn't even argue that he was up and posed a risk of harm to children the prosecutor argued similar to me to what you're saying your honor is that because did not find facts to establish that there's a compelling need for this condition of supervised release of the two questions the first question is would we be here if it said that he any when he's with his daughter he needs another adult there that's the first question the second question is would we be  if this weren't a blanket policy of that particular district court if if the judge decided on a case by case basis whether the defendant needed this restriction your honor taking the last one first we absolutely would not be here if there was an individualized determination of facts based on with murs characteristics based on his history based on his conduct that the condition would  that the condition would be reasonably related to protection of the public and to rehabilitation the facts do not support even that reasonable relationship of that conduct of the facts in this case and the condition  m so i mean i'm not sure i see the indication one way or the other as to whether he would be a risk and if you can't make that determination why leave  discretion of the service and discretion to the judge on this on this point your honor regardless of the fact that the expert testimony was not disputed the fact that the district court did not find which is within his discretion the district court did not find that mr widmer was going to harm children there was not that finding was not there even though the court i remain and specifically said we need to know the specific if the question was if there was a part in the condition that said he could see his daughter under certain circumstances would we still be here and your honor absolutely we would still be here because the facts number one don't even show a compelling need to infringe upon his parental rights but number two i even under the regular test that doesn't deal with fundamental rights the facts don't establish that this condition is reasonably related to reverse characteristics to his to any type of rehabilitation or to reset if it's a big if let's assume he wouldn't touch or maybe take a picture why would it be reasonable to say that he has to be supervised in till she said an age where she can you know figure out some things will your honor there are no facts in the record indicating that he that he took any pictures out what he did was he was on line and he viewed images and and he did not take pictures of children there are no facts indicating that he's going to take pictures of children especially his daughter inappropriate pictures i soon to mean of his daughter those facts simply do not exist and without facts that support this condition of supervised release i mean there is simply an abuse of discretion in opposing it just because of the local rule this that the defendant presents a low to moderate risk to reoffend the next sentence i think is more important however without appropriate supervision boundaries that limit his access to potential victims and specific sex offender treatment to address the sexual offending mr with will likely sexually act out in the future that's in the p s r i mean from doctor at the actual offender treatment he's going to get sexual offender treatment one of dr adams recommendation paragraph ninety eight in the p s r says he should not have contact with minor children including his own daughter unless this is approved by the probation officer and the person managing his treatment plan further discussion about this in the p s r identity i believe it's page for a probation officer explained in response to some of defendant's objections that a lot of these special conditions that were designed for sex offenders work as a package and so  the eastern district of tennessee they construct what they call a sex offender safety plan in cooperation between the probation office and to the treatment provider and together they determine which things are appropriate to facilitate defendant rehabilitation and protect the public i think that's part of the reason the district has a blanket order that everybody gets which basically means that the judges the judges aren't going to look at each individual offender and see which of these conditions is appropriate they're just going to say ok probation department you figure it out i dispute your conclusion that it's a blanket order it is true that the local rules suggest all of these conditions for sex offenders but what the district  this case is what is happening in cases they're modifying conditions when the case was reminded five conditions are contested are those the court modified to deleted one removed it the courts are looking at these individual these as a presumption that they request all the conditions for anyone they believe to be a sex offender but the district courts are looking at these individually as to each defendant particularly as specific ones are challenged as they may be appropriate for a particular defendant so while this guy was never touched a kid why should he not be able to have supervised visitation with his daughter why should it be up to what why should that not be presumptive and until it showed we were talking about a situation where it supervised the child would be protected that's actually not the language of the condition here on the condition here involves there's the image and it actually doesn't it doesn't it doesn't involve the words no contact and it doesn't talk about unsupervised contact it says define it shall not associate and or be alone which i kind of plays into the supervision part but he can't he can't associate with them without this prior written approval but it's not it's not approval from the probation officer as to a supervisor its approval as to a particular minor so in the last you know in these cases where it involves a family member obviously that is a fundamental right and the district court suggested that during the hearing that he suspects that the probation officer is going to contact you know association and being alone with his daughter but the district court wanted to look at into part of this sex offender safety plan that's related to his treatment plan but the boy boy should say something like and be permitted and then the probation department comes in and gets the judge to agree that it shouldn't be permitted court could structure it that a modification would have to be required obviously can't delegate the power to probation to impose a new condition  can delegate to power delegate the power to release defendant from a condition when certain other conditions are satisfied but this i submit that that the reasoning the court's using here is very similar to the reasoning this court espoused in the shops case that was another defendant who's convicted of receiving child pornography and this court said and i quote the district court had good reason to fear the defendant might sexual assault children why what evidence in that case some of the images he possessed she had fewer images than the defendant in this case those images depicted adults having sex with children and it was that was the defendant's own child involved in  the defendant had three young children at the time and this court ultimately found that that part wasn't affected because they would be adults by the time he completed his term of imprisonment he received a much longer sentence in prison based on certain other factors that were there for convictions or even investigations for any misconduct against children yet he had thought he had it a prior domestic stop conviction and an aggravated assault operation that's correct the subject of  daughter visiting or in prison chromebook at all i don't believe there was any reference to her visiting him in prison there where there was mention that he was sending her letters or and that they were talking by phone i believe that may have been in defendant's own allocution that while he's in prison he is having some contact with his daughter who this point is i believe three years old ok with that result that he's allowed to continue doing that obviously his conditions of supervised release don't take effect until he leaves pri didn't agree this makes it much more complicated because the court didn't say that's fine or that's problematic part of the reason though i think that we don't have any indication of he didn't do anything appropriate inappropriate to his daughter or we don't know whether he will or won't is in part because of when his daughter was born she was born in this case after the offense conduct and before his conviction so there is this short window of time where he gets to be a father before he goes to jail for this conviction so no we don't know exactly what his risk is we have defense counsel absolutely right we have absolutely no evidence that he has harmed a child or that he will harm a child but as this court has previously recognized we don't have to give people a free pass until they commit misconduct that's part of the reason we have supervised release but why should that be the least restrictive burden on his constitutional right and w least restrictive burden b if he doesn't require supervision at all if probation authorizes contact with his daughter then the supervision requirement is entirely out of the way but when you say must be supervised unless the probation department says otherwise are certainly many ways we could write these conditions but that's the essence of discretion it can properly be exercised in many ways the peers differently to different not if there is a constitutional rights i'm not saying that you have a right to do whatever you want with your child certainly if you commit a crime and and and your access can properly be limited but i have a problem with the idea that it is a blanket prohibition a constitutional right that is far more extensive than it appears necessary and if this court concludes that the part of that condition that affects his daughter because it affects obviously the fundamental constitutional right is improper this court could sever that portion of it and leave the remainder of the condition in effect you know that he can't have he can't associate or be alone with the buy some new shirts and you get all or no because my experience is that kids hang out of malls so can your family how does he know my reading of that is that yes he can obviously this is that the language in its special edition number seven says that he's not to visit frequent or remain about any place primarily associated with children under the age of eighteen so i think that exactly chuck e cheese would be a perfect example but the mall generally yes there are children in the mall but the mall generally is a business you know place for shopping of people of all ages and so although children are present i would think that parts ok court's also explained that the what this is associate means is to keep company with it doesn't cover incidental contact walking past a kid in the mall that's not a problem those kinds of incidental contacts are not prohibited by the special edition it doesn't actually use the language no contact that uses that phrase of associate which this court defined in shots this is as this court knows since this since the case is here for the second time  was remanded it went to a different district court at this point two different district judges have concluded that this condition including as it applies to defendant's daughter is appropriate and i would submit that that determination was not an abuse of discretion i recognize the first district judge didn't put his reasons on the record that's the reason we went back but that decision is not an abuse of discretion and i'd ask you just affirm that condition as a basis for the questions asking that this court find there is no evidence to support this condition of supervised release this court the first time the case was before it said that the record lacks an obvious ra this court is not like in other cases where the court has looked at the record and picked out facts and said well you know it's obvious what the reasoning is here this court said that there was no record evidence and that's why it gave the district judge an the panel i mean you know there's there's no appearance willing to parrot what the court relied on right and the court this time again made generalizations based on the type of crime and not based on that the court did not say that mr widmer posed a threat to children and and the government concedes we don't know whether he will offend against a child or whether we won't defend against a child i disagree because the evidence in the record noted that it applies to his minor child but that's unfortunately a consequence of the crime and this is on page seven ninety nine page id number and the court says the word associate and that we had argued that the word associate was so big that it would prevent mr widmer from even sending a birthday card to his child well and the judge said well we acknowledge your argument but want the word associate meaning compass more conduct than the defendant would like it's not vague and the judge just said it's clear and it informs the defendant he's not to have contact with children under the age of eighteen and we know that includes his daughter and we also know that it's true that his daughter was born while he was on pretrial release he cared exception can not save the unconstitutionality of this condition and the fact that i'm sorry your honor just was talking about the safety valve and you skip saying and constitutional honor the government was talking about facts that were in the pre sentence report that they they say support this idea that he is a risk of offending i'm saying that the district court did not rely on those facts didn't put that in his explanation of reasons for imposing this condition and you know your honor the fact that a person that there may be this perception that there's a sexual interest in children is very different than the idea that a person is going to actually offend against a child there's a huge escalation in conduct that has to occur in between a person just having a sexual interest which mr rich the record shows mr but even if you think he does there's a huge gap that needs to be bridge between that and saying that he's going to take that leap and offend against a child and the district court did not provide any facts that even built a