good morning and welcome to the th circuit before we begin judge friedman and i would like to welcome and to thank judge gilman who's here helping us this week from the district of massachusetts welcome and thank you thank you wel we look forward to your argument when you're ready parsimony principle that the sentence be sufficient but no greater than necessary nevertheless on remand before dist different district judge the government argued that the court should reimpose the identical three to the judge having been the trial judge he was in the best position to determine what the appropriate sentence was and so based on that he was simply going to follow it and again and over the course of  so you know one of the things that he said was yes will judge tomorrow decision was critical information and we certainly don't dispute that the court could consider what judge the admiral had said at the prior sensing the problem is recast what this court had actually ruled when it said that the prior sense of violate the parsimony principle and actually suggested that the court may have got it wrong and that there may have been a transcription error that was the basis for this court's decision so it totally attempted to minimize what this prior court's ruling was and asked the court to completely ignore the fact that there was a violation the parsimony principle and addition of course this court because it was already reminding for the principle error and the rule thirty two error chose not to address several other sensing errors that we had raised which also form the basis for judge general's now discredited decision such as the fact that mr brown going to trial forced these victims to have to testify so essentially blaming mr brown for going to trial and took that held that against them  decided to characterize his requests for a sensible of the guidelines as a departure and sold brown's have to justify why departure was necessary even though of course departure was not what was required so there were many problems with judge ambrose decision so we sense that since the guideline range was three hundred and sixty to life that the court needed to impose a sentence in that range of essentially and last mr brown could establish why that was not appropriate but that's of course multiple cases that it's just one factor amongst all of the other factors that the court is required to consider and yet the government argued no reason to depart below the guidelines so the government put the departure language into the court said and the court said you know you're asking for a ten year reduction below the guidelines it was then corrected no we're asking for a fifteen year sentence and said oh so you're asking for a fifty percent reduction below the guidelines  again the court seemed to i don't understand what's wrong with that i mean the judge mendez calculated the guideline sentence that the parties agreed with the guideline was and doesn't that indicate that he's using it as the starting point not the presumptive well we believe that all of his other comments indicate that he treated that as the presumptive sentence that should be applied except in unusual extraordinary circumstance don't know how you're getting there though it's i mean he said i think the sentence if there are sixteen months is appropriate in this case under all the circumstances and he talks about balancing the mitigating factors and the defendant's life history i mean he's talking about the right things he does talk about the sentence but we say at the guideline sentence but he has to calculate the guidelines certainly not suggesting that he was opposed actually the guidelines yes he was supposed to calculate the guidelines but then he supposed to take into consideration all of the other factors and including the factors the mitigating factors that the probation office for one had art had presented at the original sentencing hearing you know the probation office said we've looked at all these factors we've compared this case to all of the other cases involving this crime in the eastern district of california and we don't believe that a three hundred and sixty month sentence is appropriate but the judge doesn't have to agree with that does not have to repeat that certainly not but it's certainly among all of the different factors that the court has to weigh and it's supposed to weigh them somewhat equally he he did acknowledge the mitigating factors in arriving at the sentence on the record clear that when a defendant makes reference to essentially a departure claim or a claim outside the guidelines and it's not a frivolous argument and here certainly for it was argument that the court is obligated to in fact indicate why it shows the sense it wanted to it did impose as opposed to the other possible senses that the defense had asked for and in this case the probation  officer i'd also like to grief lino regardless of the remaining for completely sensing there's also significant problems with a couple of the supervised release conditions that were imposed here the court imposed a complete computer and internet than separate to the commission but that's that's correct now in the cost this court said the fact that it will leave that open doesn't matter  because we don't know if the probation officer would ever grant permission and here in the in the present report the probation officer actually said that a ban on all computer use is appropriate here so it seemed to me that this issue was on plain error of you but i know you have a footnote that says it shouldn't be because the judge didn't serve to remind everyone about what the supervisor or his conditions are going to be can you explain that argument and you have any case support for the idea that that would get you out of plane air  i don't have case support your honor other other than the common sense i mean the fact is the court did the court did not actually i read any of these conditions the court simply that it was there any surprise i mean it was there any reason to think that the conditions were going to be the same as before it i don't know your honor i mean again there was the present reports the pre sentence report was written nine or ten years earlier so it was a long time between the original sen when these conditions were initially imposed and when they were then reimposed and maybe there was sort of an objection could you tell us what conditions are being i mean it seems like you have an obligation to make some sort of objection that i don't disagree your honor yes perhaps defense counsel should have actually made objection at least to say perhaps we should continue it so we can look at these conditions yes no that's certainly true regardless though in the cost the cost was a plane or a case as well the cost said look when it comes to internet  use internet is so essential in city society it should be an extraordinary circumstance where we would limit internet use here the conditions beyond internet use it's been an all computer use whatsoever but i understand your argument to be more of a well child argument that heightened procedures were required before imposing this condition well certainly because it's it raises significant st amendment concerns that scrutiny should apply but regardless of whether you have the heightened scrutiny or regular scrutiny the fact is it is a greater deprivation of liberty than is necessary a more tailored condition could have been imposed to deal with the specific concerns that the court the probation officer had with respect to posting on websites it could have simply limited are i have with regard to conditions six this is an absolute ban on internet use but as this court found in the cost in certain circumstances such bans are permissible so as as occurred in t when sexual abuse of a minor is involved and when internet use was integral to the crime as it was here as you know mr moss posted i'm sorry mr brown posted regularly saying i've posted you you all got that out of your posts again this was part and parcel to his crime and so in the facts of this case we recognize the severity of the significance of this condition but in the facts of this case given his integral use of the internet in this crime given the sexual abuse of the children it is there's some obligation on the part of the district judge to explain that there's a special circumstance justifying the ban no your honor i think in light of the court's finding and the cost i think that that that the ban in of itself is permissible and tailoring of an absolute ban in this case so it's actually not an absolute and it's somewhat more narrowly tailored to that so i sat on you in i think page forty seven of your brief that you might have been conceding that it's really just be a ban on internet related computer use and not all says the financial not possess use of computer any device that has access to any online computer services so as the court has done in the past i think wins on as an example reardon is an example when there is when there are so when there is language in the condition itself or other related conditions that focuses on the internet i think it can be interpreted to mean internet sorry i think i mis stated my question there is also the monitoring issue and i thought maybe you were saying the monitoring would just be entered yes yes and that's condition eight so  with regard to condition eight yes we are asking that the court interpret that condition to be limited to only internet use and as the court didn't quins on which i think is a really a very comparable case to the situation that is a broad condition that mentions mentions monitoring broadly but in light of conditions six which is which we think is an appropriate lawful and clear condition that monitoring can be interpreted to mean only internet use  and that is our that is why do you think that's so clear that like undernourished had that say when something is so clearly want to discriminate we can just do it ourselves in that situation or do you think we need to remain on that i think head is actually very helpful for us and i think it is that i think that because it draws a very clear line and this is a this is clear enough especially in light of conditions six that we are talking about asking the court to consider this only with regard to internet use otherwise it would be too broad i think the other with regard to the monitoring condition itself also this court is as recognized that as technology advances what that monitoring actually looks like at the time when mr brown is released may be very different and so we don't need specificity in the actual condition and that really can't you would be fair to give it now when we expect a release years from now and so i think that in a state of monitoring if it's interpreted that way is a reasonable condition that can be narrowly tailored in light of in light of condition six and the courts i think clear intent for the record to focus on internet used because that was what was part and parcel to the crime but the way that condition six phrased it's a computer that has access to now i'm not much of a computer expert and i gather that once it was desired is that you don't actually use the internet but a computer that has the capacity to connect to it is you can't you can't use their that what that says yes that's what that says or does that mean lady is it possible for someone who has a computer that complies with the condition that nonetheless allows them to do how is that info and just to build on that how is that it's almost on and not almost it's on and forcible this is why we need condition a year out of the modern condition two to be able to enforce condition six these two conditions go hand in hand i'm trying to condition six means meaning does that mean is there such a thing as a computer that complies with the condition six that allows him to do e mail is there i'm sorry i sense that is there such a thing as a computer that complies with the conditions six that allows him to do email on the computer that if the probation officer were to permit lawful use then yes he could use e mail if he was you know i'm not talking with respect to commission by the poor boy probation officer because that's that's a way of getting around the prohibition just to take the prohibition as a prohibition is it possible for him to have a computer that does email no not under the condition it is an absolute ban if you mail it is the internet yes that would be well that's my question and i'm not a computer person but my guess is that if the computer complies with intrinsics he can't do email and i think you just said that you have you know if you if it connects if it goes through if it goes through an online e mail server then that would be connected to the internet as a producer of your condition it is your honor and under these circumstances as stated in the cost that severe condition is appropriate because of the sexual abuse the minors and because of his use of the internet y this route or if if the goal is to limit internet use because that was part and parcel of the crime i do is a it's a fair question that you ask but and the way that the conditions were if you were to use an internet based email and that would can be permitted by the probation officer so we do think even though an absolute ban of connecting to the internet which would include the example you've given is permissible in this case on these facts judge say and that's critical here and that's critical and so there are a number of things that that i would like to point out st and foremost we recognize that we may have made in an artful statement in asking for deference but that statement was corrected on the record later at your twenty three the government said your honor you're free to do whatever you feel is appropriate here the defense said the same thing the district judge quote you're entitled to make your own independent judgment and of course a district judge will do that and that's exactly what he did here after considering facts the judge general did not have including a written statement a oral statement read a chance to look at her consider her demeanor and hear what she had to say about her mental emotional state and what brown did to her he had a chance to consider the defense post conviction conduct which was detailed in it in the papers and he was able to so the defense lack of contrition and as that affected the letter that defendant sent to the court he general and then with regard to what he said he explained his reasoning and made for balancing statements st to balance the other sentences against the nature of the crimes noting that those crimes were horrific he said that he was of the same ilk as judge damra which means they're in agreement not that he's following him blindly or rubber stamping him he said i am of the same ilk i'm in agreement reasonable minds independent reasonable minds can differ and they can agree as they did here he also balance criminal history with the nature of the crime noting of a need to protect the public from brown and commenting on a as oral testimony at the recent and saying he said that he brown brown seemed to have some kind of manson like influence over women and that comment stuck with him and finally he also looked at unwanted disparate spirits in the cases and compared those to the guidelines finding again that that was the number of victims  actually the violence and the type of nature of the offense that really drove him he asked he actually said i looked at the pictures they turn your stomach it shocks the conscience and he indicated that in this case that if it was lucky it is going to agree to a thirty all aspects of the sense in this case thank you for your time thank you know we took you up to the end would you put two minutes on the clock leas internet related activity because if you look at all of the conditions together it's very clear the court intended the condition only to apply to internet related activity that's not what we have here in fact the conditions here are very clear that there's a complete internet then and in fact based on what the probation officer said in the present report on paragraph one hundred and twenty the condition should include no computer access whatsoever so not merely internet access but no computer access at all so the  st condition is is only limit its internet were saints beyond just internet access the court the conditions in fact completely limit all computer access whatsoever and so while banning internet access is certainly a greater deprivation of liberty than necessary all computer access banning all computer access is even worse than that there's absolutely no reason to say that this individual can not use a computer computers are absolutely essential and to say that because this case this was a pimping case let's be clear so this is not your typical sexual molestation of children case this is a pending case that involved a sixteen and seventeen year old sixteen and seventeen were prostitutes they were prostitutes before they met mr brown they were prostitutes after they stopped working for mr brown this is not the same can type of situation that this court has dealt with in which internet bans have been dealt with in the past so we think this is a completely different ball game that a computer but it's just not appropriate here and with that i think over ok thank you thank you very much thank both sides for their arguments united states versus brown now submitted