i am going to focus on the two conditions of supervised release mr wire will be focusing on the length of supervised release for her client we would like to reserve combined five minutes for  conditions eight in ten in this case violate not only eighteen united states code section thirty five eighty five d by depriving more liberty than is reasonably necessary they also violate due process by providing an adequate notice of the requirements of the defendants and improperly delegating policy decisions on article three sentencing authority to a probation officer under one condition and under the other to a probation officer in a sex offender treatment provider in the case of the other this result in an arbitrary and an ad hoc enforcement of these conditions and unduly inhibits the exercise of the defendant's first amendment  rights the standard of review in this case i believe is deno as this is a constitutional issue i'm going to first talk about condition eight in line with the i believe it's new york e please excuse me if i pronounced that incorrectly and then the recent decision of this court in casi condition it must be remanded because it read restricts the defendant's access to depictions of adult sexually explicit conduct whether or not it may have first amendment value because it uses a statutory definition that applies only to children under eighteen united states code section twenty two fifty six the district court tried to assist with any ambiguity by adding inserting the language quote primarily designed to arouse sexual desire close quote from the defendant's perspective this does not help this this in han ambiguity of this condition because it further violates the due process rights of mr merge berger and his co defendants because they have no idea what material or what conduct will or will not get them into trouble these the expectations of the probation officers may change or the expectations that are expected of the defendants may change depending on the subject of thoughts of differing probation officers it may lead to a situation where for example if mr merchant record during his lifetime supervision gets a new probation officer his second or third probation officer may have a very different view about what is primarily designed to arouse sexual  desire the same is true for the different co defendants in this case because obviously they'll have different probation officers who me apply this condition differently which is untenable and i think i have the right passage from nerk in front of me  and what the panel there said is that they remanded the case back to the district court with the construction of the condition of supervised release which was to provide the materials or sexually explicit conduct involving children which is not part of this appeal and then a quote to any materials with depictions of sexually explicit conduct involving adults defined as explicit excuse me explicit sexually stimulating depictions of adult sexual conduct that are deemed inappropriate by probation officer and and i apologize i have only my notes for the condition in this case so i don't get this exactly right but the restriction was i think something like access to materials depicting sexually explicit conduct as defined in title eighteen united states code twenty two fifty six two a if taken as a whole something like you know to stimulate sexual desire unless otherwise improved by the probation officer in my question for us those seem pretty close to me so what is exactly that the district court in this case needed to do that it didn't do to come within o erkki well judge i think that that's highlighted by the cahsee decision which was recently remanded based on the almost exact same language that is here in this case and that was remanded in i believe it was april of this year justice pius i believe you were on the panel that reversed that case minuteness and it was different indeed it was the only difference with that opinion was the insertion of the language primarily designed to arouse sexual desire so that's the only addition that our condition has that the cahsee decision did not and it's our position that that insertion of that language create creates further ambiguity rather than assisting with the ambiguity  in changing this language to satisfy your concerns that there's a big you well judge i'm not sure how to answer that it's been the position of the fed that the head federal defender in montana that that the federal defenders office will not comment on what language should be used if you talk about materials that you think your client should have access to that he might not get access to if his probation officer applies the standard that is set out as a condition of supervised release my question for you would be wouldn't the same materials potentially be unavailable to him if the probation officer applied the standard that was crafted in i'd have to say that answer so i just want to hit on condition ten before i take all of mr meyers time ok i just believe that the issue that is of most concern in condition ten would be that it that it restricts computer access rather than internet access that captures conduct that that is completely innocent and that has no nexus to the purpose of supervised release or of sentencing the quins on cases or is six forty three f third twelve sixty six from the ninth circuit says that well reasonable conditions can be placed on it looking at looking at well here's the best let me just give you a quote top of the doesn't the position say that you can't you can't possess or use a computer or other device with access to any online computer service yes and i believe the most out the prior approv that that doesn't suggest that you couldn't use a computer that didn't have access to online computer service right that's your that's that signs that that was your concern that's too broad because it it it restricts computer access rather than internet access correct well for only worried about computer and internet access without a computer at least at this point in our technology is not useful right but so you have to have a computer as an to interpret the to read the internet so if you're just interested in having them have access to a computer without internet access i don't see that this provision i don't see this provision is a problem for you know that's not at all my concern ok cern is him not being able to have access to the internet ok i think you don't want internet access yes i'm sorry if i if i misstated my have any device that can hook to the internet so perhaps that's why i'm going to be able think that he could have a cell phone but but it would be a complete ban if his probation officer said no you don't get to do that and so i think the more appropriate thing here would be that's true even if you make emotional i think that's my question also and that is the district court is you know whether it likes it or not it has to forecast into the future a couple of decades and really it's hard to imagine what that world looks like and if it turns out that the probation officer applies this condition in a way that does infringe upon the defendant's rights can't the defendant then raise that issue with the district court and say so in others we're not we're not worried about of the district court for having to forecast these things i think if we deal with it on the front end though we wouldn't have the problem of having to come back on the back and my suggestion would be to allow him to allow monitoring which is a lesser deprivation of liberty especially given our internet driven to society rather than just say you can't do it unless your probation officer says so i think it would be more prudent to say you can do so subject to monitoring because that's a less restrictive condition  i just wanted to address your honor's concern briefly with respect to the first supervised condition i think that mr gustafson's issue was that the use of the statutory definition of sexually explicit conduct should only apply to children and there should be a separate separate provision addressing the definition of sexually explicit conduct involving adults that the the difference is that this district court stated depicting sexually explicit conduct as defined within the statute if the materials taken as a whole are primarily designed to arouse sexual desire and i think that that phrase to muddy the waters as opposed to the mandate from that circuit inertly about what what does that mean taken as a whole a desires that's something that is a percentage of that material or is it something that we can't decide until after the scene and then don't you think that this provision probably permits more material into the hands of the defendant than the nerk e condition in erkki it says explicit sexually stimulating depictions of adult sexual conduct but there are many artistic works of in many different media that might contain such  erkki none of them would come in so i would agree with you that there's a subjective element in the test that was in the condition that was applied to your client but it's hard for me to see how that works any kind of insta injury constitutional or prepared to address now is that we mr augustus and believes that district court committed procedural error when it made repeated references to the fact that there was no psychosexual evaluation presented to the court for its determination reasons were there were clearly relied on and meant by the district court in that that was inappropriate there is no obligation for the defendant to present to the district court any kind of medical expert opinion the defendant may present other information regarding a risk to reef and including pointing to the criminal history or the age of the defendant and the government may do the same thing there is other materials to the court and that was presented she didn't want to i thought the district court judge of that he wasn't you know he made reference to the fact that there wasn't one but that was not the basis of his is the decision to impose a lifetime yes just as if he did make that statement however i think it's clear from the record in the statement in his statement of reasons that that the fact that there wasn't one did cause him actual concern that there was a risk to rethink and and as such there the judge was pointing the supervised release after he's demonstrated you know whatever complied with the probation officers requires work with the sex offender people and in prison he's going to get treatment then yes you're all this stuff that's going to happen in the next sixteen or twenty years yes sure and he certainly is entitle to utilize that statute to bring the issue before the district this record again to solve those however this issue is properly before your honor's to address as not give an appropriate consideration to the fact of no psychosexual evaluation do you disagree that there is no doubt that there was adequate evidence in the record on an abuse of discretion standard for the district court of imposed this condition do you disagree or honor and i believe that one of the references that district court made was to the content of the of the nature of the images of mr gustafson's personal collection but the district court again violated mr jackson's rights to due process by failing to explain in any way how the nature of the content of those images has anything to do with the risk to refund you their ten or fifteen early life time later thank you gustafson and what was the last argument with regards to the due process the alleged two prophets violation not imposing lifetime supervised release there is a continued reference to these repeated references to the fact that this that there was no psycho sexual evaluation i respectfully submit there were not repeated references we have cited in our briefs the exact reference from the court and the court  reference very short and swiftly said i realize i don't have one of these evaluations typically they help me but i'm not going to hold out against the defendant in this particular case and so when you look at what the standard is under the vonder worst for case in the ninth circuit it does not meet that standard it doesn't there's no way that the inference that the judge imposed a lifetime supervisor released by still on anything that was false or unreliable and if they get past that then they also have to show that it demonstratively made the basis for the sentence demonstrably made the basis for the sentence and here it just it absolutely did not the court made specific findings as to why he was sadistic images of children he had posted terrible sadistic violent images his his primary collection involved spy cams and web skate webcams he was on tour everything in the records supports his finding on why he based and impose a lifetime supervised release that had nothing to with the quick reference to his lack of psycho sexual evaluation and so because of that your honor we would argue that you don't even get to the sentencing disparity that has also been argued in the briefs with regards to the conditions of supervised release that mr march berger and mr gustafson has have both brought up the first one being the sexually explicit materials so one thing that i think that has happened somewhat in the briefs and had had and was argued a little bit in the district court has to do with the nurse key decision and that is when you read what the court was talking about in the nurse key decision the reason that it was remanded for and more tailored sexually explicit condition was because it said there is no specific showing weiner case access to non pornographic depictions of adults must be restricted in order to serve the proof the purpose of supervised release so in both of these cases we're not talking about non pornographic images of adults that's first and foremost because when they were referencing just the definition you were starting to to get into just nude photos of adults and the court here was trying to specifically taylor the provision so that it was very narrow so that it really did only get to the images that were when taken as a whole were derived to be sexually explicit that's what the court was trying to ban the second part of it is that in both of these cases i'm like narky the court made a specific finding as to why adult pornography and adult sexually explicit images should be banned that was missing in their king and i know that it has been the cost the decision has been referenced but that is different that was actually my case and the reason that what was argued in the cahsee decision is again there was no specific finding as to why it related to adults and so that came up it was that mr cossey had been sent a while before it was a revocation we didn't make a really solid record in terms of his adult why we needed to restrict him from adult pornography that's not the case that was before the before the court here the court here had a specific reason for  wanted to ban both adult and child sexually explicit images and it was aware of narky and it came up with a condition that we believe is more narrowly tailored than what the than what mr  requesting and certainly what is offered up in with regards to the internet restriction that we think that the ninth circuit  controls on that we have given the court cases it's clear that this particular internet restriction is reasonably related to the sentencing goals the same thing with the monitoring we've given the courts the sites to rearden as well as to quins not on that says you don't have to say exactly how because it's not going to apply fifteen or twenty years from now anyway so we're going to let that make sense make sense in the future because technology is going to change there was i believe mr gustafson cited to a right the ri case out in the ninth circuit that is completely different because in riley they were disavowing a blanket bro prohibiting of computer use that's not what was done in this particular case the last thing that's been presented to the court house to do  mr march for has argued the in the improper delegation and it in his reply brief he also brings up this improper delegation to the treatment provider and i would argue that that is not at all what the court was doing in referencing the sexual the sexual offense treatment provider i think that when you look at conditions that third parties are frequently referenced whether or not their chemical dependency providers or mental health counseling providers or law enforcement officers with regards to remaining law abiding but that has nothing to do with the court delegating its supervisory authorities and with regards to  the improper delegation to the probation officer allegation that's been made we've argued the set forth the cases that say that we don't think that it is an improper delegation but the one case that i would like to  rly bring to the course attention or attention is the bronson case which was a coconspirator and it's referenced in the in our statement of related cases mr bronson this court handed down memorandum decision where it specifically addressed that this was not an improper delegation and there are so there is language in there that specifically talks about how alternately the court will determine whether or not mr bronson has violated his supervised release when it's properly supported by petition it goes through all the reasons why this is an improper delegation thank your honor thank you  thank you council in response regarding the condition eight in march burgers anyway i'm not sure what it is in mr gustafson's that the government has just stated that there is a specific showing regarding why adult pornography should not be allowed in mr marsh workers case and that is not correct there was no psychosexual evaluation in mr march or mr merged workers record there was no specific findings whatsoever about mr merge berger or whether he should be looking at adult pornography in fact the only reference was made talking about other people's psychosexual evaluations the stevens decision states that where the court makes a determination of whether a defendant must abide by a condition of how or how many times and whether a condition applies and the defendant will be subjected to that condition it's permissible to delegate in that situation when all that's left to the probation officer is the when and the where in this case the whether the how and the how many are all left up to the probation officer so that's an improper delegation and i'll leave missed where the rest if you don't have any other questions for me thank you y the repeated references that the district court made to lack of psycho sexual evaluation occurs in excerpts of record pages fifty four and fifty five as well as the statements of reasons that was submitted to your honor's under seal  pornography that's the last issue i would like to address it's that the length of time that mr gustafson had admitted he collected child pornography was since early two thousand and there had been another  records were similar and as a result that demonstrates some sentencing disparities among the defendants i think the rest of thing is adequate explain the briefs and lesser for the questions thank you thank you