case the district court committed an abuse of discretion in imposing certain supervised release conditions those being conditions relating to contact with children in a work residence for general setting and also an abus discretion in imposing conditions relating requiring sex offender counseling the district court also committed plain error your honour's when it delegated the authority to determine whether mr mercado would have to undergo sex offender treatment to probation and if your honors i don't mind i'd like to address that delegation issue first maybe ask to question the good leader am i correct that you are not claiming that there was any delegation problem by by the other probe by the other conditions the the non contact at work etc conditions subject to their relaxation by the probation that's exactly right your honor and part of the reason for that is i think the case law generally holds clear that it's for the court to set limits and then the probation officer is generally allowed to loosen those limits but part of the delegation error in this case is that the district court actually said sex offender counseling is not required but it was generally up to probation so that it would be probations decision this administrative officers decision whether to make this that the fourth plane era prong is satisfied here in other words is is it basically going to going to tarnish the the  overrule relax my decision in the second place isn't that a bit of a stretch i don't i don't think so at all your honor and i would refer your honor to the panel decision in pitt dhea it was dealing with limitation on the number of drug tests and whether the district court judge in that case had set a specific limitation the panel in that case was reviewing for abuse of discretion in that way and a panel found that delegating something like the means with a manner of a condition that case the number of drug test was not something that was so did not strike the court is so fundamentally unfair i think the court i'm confused constantly are with pinion input deal was vacated it was withdrawn that is of no force you're right the on bank court decided in the that a delegation argument concerning the means and manner of aware of that what that on bank decision says but what well that on bank decision does clarify however is that the number of the specific number the means in matter of the execution of the special condition is not the kind of thing that strikes that fundamental fairness but it makes a specific comparison to other sorts of delegations which would be fundamentally unfair and it gives the specific example in that case  i believe from the york opinion of for example given to a probation officer the decision of whether and there's an emphasis in that this and bank decision on the word whether whether a defendant would have  polygraph testing similarly in the alan case your honour's the court made the distinction between those kinds of means and manner issues in a mental health setting if the court is only delegated where and how often a defendant would have to do mental health counseling that's not a delegation or what if the court was delegated the entire decision and the test the court adopted in allen was it good defendant is required to participate in mental health intervention only of directed to do so by the probation officer then this special condition constitutes an impermissible delegation of judicial authority so my answer to justice souter's initial question about this fourth prong is that i think this court's jurisprudence in both patea and allen made it clear that in there was a delegation error it did not meet the planer or standard but it did not meet that standard because it was not so shocking and not such a strong  delegation of judicial authority in this court the courts article three and statutory authority to impose sentencing and this i'm still struggling to understand how you distinguish  did not order that sex offender treatment was to be conducted in the district court merely neglected to set a cap on the number of those tests and this case we have nothing like that and what the what the co held was that this this the neglects to set a cap was not so significant despite the fact that it was delegation error it was not so significant to reach the plain error standard because it  was merely a detail it was not a significant pino watchable decision which the padilla case said is significant pina logical decision such as whether a defendant will have to undergo polygraph testing that's the kind of thing that is significant and does strike at fundamental fairness so the weather question is the one that this court has held does it in person miscible delegation and in addition it does strike at that fundamental fairness in the perception of the judiciary if the if the public is is of the opinion that probation officers get to impose these significant decisions that strikes at the very authority of the court now the government in that in this case at the district court the condition was imposed and then it was objected to and the court clarified that it was not required that it would be full entirely up to the decision of probation whether this counseling know i and i understand that so so so it seems to me that that this argument if i carry it to its logical extreme is is is really setting the defendant off for a f case as i read the transcript judge smith almost certainly then would impose a condition in the eating the testing and how does that how does that help the defendant i disagree and i think as to the third prong there is a reasonable probability that he would not mandate the test based on what based on the fact your honor that when the defendant objected the judge specifically said it's not required and characterized it as essentially a prophylactic authority that the probation can have in the future in case it's necessary throws a response to the question yes if that response had not been a possible response what do you think he would have done i don't in the same boat with with the with judge sonia if if if he is aware all would be aware is a result of the the disposition of this case that is perfectly ok to say you got to do it but they can relax my order obviously the prudent thing for him to do if he has any concern about this particular issue is to say you got to do it well they can let you off if they wanted that that that's a possibility but i would suggest that that's not a reasonable probability in this case for one thing the defendant is still pressing the abuse of discretion argument as to the sex offender counseling just based on the characteristics of this particular defendant and this particular case and that's that's in my brief and you're saying the judge wouldn't do this because he might lose on a different claim absolutely not your honor i but i'm saying i'm still pressing the issue today on the abuse of discretion question on to this reasonable probability and i would if i could just have a minute to address that sure what you're honors what the district court in this case essentially did was say section offender counseling is not required in this case at the day of sentencing based on the record before the court at sentencing looking at this offender's characteristics and no sex offenses or child victimization offenses for over a decade  the sentencing judge at that time said this sort of condition is not the sort of counseling is not required so i think there is a reasonable possibility if the judge knew at that time that he was not permitted to delegate that sort of decision to probation at that time he would not have imposed the counseling because as of that date the judge felt it was not required probation it had a later date felt that sex offender counseling was necessary they have the means to come before the court and asked to do that and i would suggest to this court that where there isn't in permissible in permissible delegation which this is it's better upholds the authority of the court to require probation to come back to the co when there's a change of what's required rather then impermissibly delegating and then requiring the defendant if he's agreed to later to come back and try to clean that up but you must think you're hon good morning donald lockhart for the government as to prong four there is nothing fundamentally unfair about allowing the probation office to make the first cut assessment about whether a defendant should be required to undergo sex offense treatment in fact some people just on pure pure policy grounds might easily conclude that it's the wiser course of action because it's the probation officer who is most familiar with the defendant upon that defendant's release from prison it's the probation officer who has an opportunity to talk with the defendant and perhaps people in the bureau of prisons who also have sex offender treatment for the inmates  because in the pedia on bond decision you get the suggestion that delegation problems really are problems only when the delegation in question offends a particular statute remembering them but when does santana case which gave rise to the drug testing delegation rule which the patea on bond court lied you had a particular statute which have to be careful about the allen decision because what the allen decision implies is that it would be unlawful to delegate psychiatric testing condition however the actual basis for the hol and alan was that there was no delegation there because only administrative details concerning that counseling had been delegated so it's not even clear that allen expresses  on the threshold point of whether you can delegate psychiatric counseling conditions but more importantly in the meanwhile we have the video on bond decision which host states alan and  which seems to limit the melinda's centeno holding to say that delegation issues are not problematic for broad constitutional reasons they're problematic when as in the case of drug testing congress has said that a judge can't do the delegation in question in all the other situations that we've been talking about outside of drug testing psychiatric counseling sex therapy and drug treatment for that matter those are areas where there is no statute which prohibits  delegation and so unless there is some sort of constitutional source which prohibits the delegation it's not least plain from our perspective that there is a delegation problem at all problem four of the broader question is would it offend sort of our sense of justice to allow the probation officer to make this initial threshold decision about whether sex offender treatment is required and we say no in fact on policy grounds many people would think this is actually a wiser way to handle the situation but beyond that the defense is trying to draw for purposes wrong for the distinction between drug testing and sex offender therapy and as we understand the argument it's that somehow sex offender there be encroachers more on the liberty of the defendant perhaps that's the argument but that from our standpoint doesn't seem to be the case you can have a situation where for example a probation officer has delegated authority to decide the number of drug tests in violation of melinda's santana  the dia now let's say that probation officer imposes one test per week for the entire five years the defendant supervised release that from our standpoint is a much more onerous situation th for example officer saying well in the first few months of your freedom you have to attend several sex offender there at the sessions so the notion that sort of one condition of supervised release is more onerous or more  situation there's potential that the defendant will later be found to have violated his supervised release conditions and have his supervised release revoke and spend more time in prison so if you're trying to see differences between these two sets of conditions for purposes of prong four it's hard to see what those would be but problem three present an additional an independent barrier there hasn't been much discussion about converse fully it if anything it would seem as has been alluded to that if the judge in this case had been forced to make a decision right at sentencing fish or cut bait you know yeah your native sex offender treatment the judge would have erred on the side of caution and impose that condition after all the judge in articulating the special conditions of supervised release imposed this as as a condition it was only one  preferred to delegate to the probation that's not quite how it shook out that the judge actually initially ordered ordered sex offender treatment and it was only after the defense objected that the judge said well you know the probation officer has discretion not to require it so we take the sequence of events to mean that the judge is sort of  would be that there would be some form of sex offender treatment unless the probation office decided after the defendants released from prison and consideration of the facts that exist at that time that that it wasn't  merited and that's that's an important point when you put a judge in a position to sort of forecast in the future and look at the facts after the defendant's been research released from prison it puts the judge in a difficult situation this is why in some sense it makes so much more sense to have probation officers making the analysis upon the defendants released from prison there's certainly nothing improper for any way that makes it unfair to have to have it done that way and when you think about it you know why should we have judges sort of appearing into the future perhaps four five six seven eight years down the line after the defending gets released from prison to to predict whether that defendant having been incarcerated for x number of years is somebody who really needs or doesn't need that there be so  from our standpoint clear that the problem with delegation is it's not some sort of a broad constitutional problem it's that you have a statute in that case the drug testing statute thirty five eighty three d which specifically forbids congress specifically forbids the delegation in question says that a judge has to decide the number of drug tests we really really the on bank opinion and is saying that that is the the video on bach decision seems to limit the whole sort of delegation analysis if you will to examine the we whether congress is actually forbidden the delegation question other words but blank decision specifically rejected the notion that the drug testing delegation will have some independent sort of constitutional platform that goes beyond the narrow statutory said on that point has substantive meaning on the threshold question of what is an unlawful delegation and what we derive from the on bank opinion is that it's unlawful only when congress some