our fifth case is united states against canfield the government has conceded that the condition that mr canfield has to give notice of that any potential risks that he poses to third parties is unconstitutional evade under this court's clear statutes and but we do so do hope that you find that that is unconstitutionally vague because the probation office is currently in forcing that condition against mr canfield he's been released from his revocation sentence and is back in the community and probation is making him give notification to various different people with regard to the drug testing  condition that we challenge under the original conditions of supervisor supervision mr canfield was allowed to drink just not to excess the judge did not require him to engage in repeated  drug testing he did not have to do any drug treatment the decision to impose a drug testing in treatment condition in this case was based on the violation report stating that in may have twenty seventeen mr canfield told his probation officer that on one occasion a couple of years prior to get smoked marijuana mr canfield is now required to call into the probation office every day to see if he gets assigned a color yester call into the probation office every day if his color gets announced on this recording system he has to drive forty miles one way to a location in charleston illinois where probation has a contract to collect the urine samples he lives in a very small town paris i don't know why and so just to give the urine samples yes to drive about an hour round trip would submit to you that there just was not sufficient evidence in this record to support the requirement that mr canfield have to participate in drug treatment excuse me even drug test and i will say that he is not all the problem is that the use of marijuana was forbidden by the terms of use supervised release so your client has conceded violating the terms of the supervised release in a particular way and instead of imprisoning him for that violation the district orders just require drug testing to say that the district judge can do nothing at all for a conceited violation of the terms of supervised release seems well in prison before i finally met my automations not this one well but he did the judge in considering the sentence reads the entire violation report and probation puts in everything not just the think the can the violations that are alleged petition so all of that formed a basis in so mr canfield has been punished and are just submit that there is a person saying on one occasion i smoked marijuana several years ago i would submit is not sufficient to impose drug regularly regular drug testing and drug treatment new see it every day he doesn't have to give a sample every day your honor what he has to do is call in every day if he doesn't call it's personality isn't there at least from the district court standpoint if the did it judge a step or look into the record isn't there facts in the record that would similarly indicate that mr canfield has an addictive personality and wouldn't wouldn't that kind of theoretically provide some basis at least in the record for the imposition of this condition in other words that would not trading one addict advice for another yeah i don't i think that if there were you could say there's evidence that he looked at the child you know his original offense involved looking at child pornography and that he had a diagnosis on that in paul that the defendant had three prior dui convictions and so that was not just that he had an addictive personality just he had three dui convictions and i just i'm not aware of anything that would suggest even if you have an addiction to child pornography that you have an addiction problem marijuana and if you did have an addiction problem the marijuana i would think that you would have used more than once in the five years you were on supervised  regard to the condition of no access to any material described in eighteen us code section twenty two fifty six well that i just want to take you back to that point that i thought that there was something in the record that where of mr canfield said that quote unquote porn was running my life that isn't that indication that he had he was addicted to porn certainly mr yeah that he was looking at porn a lot  i but i'm not aware of any i've never read anything or heard anything of somebody substituting marijuana smoking for a child porn addiction the ban on all sexually explicit materials that the judge imposed is incredibly broad and it's not just what i would say people would normally say it is adult pornography hardcore watching you know actual intercourse this is any twenty two fifty six as it's any real or simulated sexual intercourse and it's literally converse in a movie  has a sex scene in it because they are in simulating actually engaging in sex it any book that has a scene that talks about you know a sexual intercourse between the people would violate this condition what if we got rid of the word simulated from it would help and you know i'm sure and i tried to think you know the question's going to be what do we do i mean my first thing is getting rid of simulated but i think would certainly help limiting it to visual depictions certainly help i think limited just to the internet would be the would be as far as it would need to go because it's not it's very difficult these days to get your hands on child pornography other than on the internet it was even in the old days when you used to get postal cases of the stuff mailed in it wasn't easy to get even harder now because it's that it's accessibility on the internet so i think if you would just limit it to the condition fifteen which was don't go on the internet and and look at it i think would be better because there it would be deal with the  breath problem and it also you know obviously if you look at any sexually explicit conduct of minors that is a new law violation which also violates the first condition of supervised release which is don't commit a new crime so the idea that you'd be looking at images of minors and gaging in sexually explicit conduct is covered with the condition that you're not committing a crime i see my time's up thank you honors thank you philips i think your honor may please the court philip somebody half the united states and like to touch a few will questions that your honor asked about how often he could come in there's a restriction in the actual condition that the drug testing happen no more than six times per month so while he has to call in daily he will only up to get called in up to six times judge lee you ask why wasn't there something in the record the record forty one dash three on page six is where he specifically quote says i have problems with self control and then goes on to talk what your honor was referring to which is i was giving up my life to pornography i think with regard to the condition regarding marijuana mr patten argues that smoking marijuana once is not sufficient while that may be true on its own that's not the facts here he did smoke one time that the critical factor is that he smoked while on supervised release while subject to a condition that specifically says he shouldn't do it if it's sufficient to send him back to prison for that i have a hard time seeing how it's not sufficient to put the drug testing on him for that especially when the judge found that using drugs could affect his rehabilitation in terms of not committing crimes i want to focus more with regard to the question of the overall than this court has stated that an overall ban is permissible if the court makes the right findings well doesn't that give you a problem where the court make the findings require a shanda up a point to two places first is the court in record forty eight in page forty one when it refers to paragraph fourteen says it does seem to me that child and adult pornography are intertwined and that has to be read in context with the other his justification for the conditions which was his feeling that this constant access to adult pornography or to canfield is there any other place where he made a finding about can feel you're on the right after he makes the state the condition he states his justification and i think you have to read that justification which is doing this because essentially i want this to help you get through through your sex offender treatment can only be read in the context of everything else to be because it's interfering with the i didn't say that right you your argument would would boil down to every time the judge imposes a condition on access to porn he must have implicitly made the findings reported by ship and then shannon would be a f they would be a farce if in every case we merely relied on but i think in this case what is the findings is that the whole context of that conversation was because of the constant references to how it was impacting his i mean it and there is a concrete evidence of that from statements from his treatment provider i mean he in his reply brief here he says that if the district court wanted the input of a treatment provider it should call it in but we had input from the treatment provider it was in the violation report over and over the statements from the from the treatment provider and we submitted separately in i think is a record forty one for a letter in fact from the treatment provider and there was no no one questioned the violate the facts in violation of port that those were stated and so i understand the district court never said i am now making factual findings but i think the record read as a whole as it should be suggests that the court was concerned with two things right the first was that it was intertwined and if the court makes that finding this court reviews that are clear error and that certainly was not clear error he searched for things like triple x which is would be a common search term but it the same in the same description you talk about searching for p t s he searched for teen which could be legal and could be illegal and he spoke in that paragraph fourteen that the judge or for refer to it talks about mr canfield admission that he has a preference for twelve to fourteen year old that he had materials of various ages and i think when you read all that together i mean if we're ever going to allow courts to to make this bar it must be when they think that the chewing materials legal and illegal are intertwined and that they affect the supervisor really so i mean it his all of the other facts in this case the records that suggest that there was no that finding and the he talked about he started downloading child pornography you know very early downloaded both daily and critically he put both adult pornography and child pornography into the same  slide shows he admitted to that himself and the record the record has all that he has can also suggested that aren't we good enough with the internet then and i want to respond to that real quickly too he in his house was found to have d v d s containing both adult material and then one that was called teen girl masturbating where it was estimated anywhere from an illegal age to nineteen and noons the leaven the twelve year olds though i mean just on the facts alone here that condition just simply to the internet would be insufficient and i grant i think he granted that the internet on its own that condition is sufficient i did want to touch briefly and i think and i regret gratefully that the briefs are not don't go into a lot of depth about the delegation question here and i did want to touch on that i think that if you look at delegation the question of article three delegation talks about the delegation of judicial function and here he sets the most extreme condition you shall not possess this and allows probation to walk back on that's i yes we we've seen such a condition before a limitation on internet searches and we said the district judge is not a problem of article three but disregard you shouldn't put this kind of power to approve or disapprove seeing things in the hands of a petty bureaucrat i don't see any reflection of the district court on that principle well your honor the district court i mean it was obviously objected to in the district courts adjusted well can tie put it in the discretion i gree there's not much development of the court's analysis of that did the court say boo about it the courts say why he thought he could delegate to a petty bureaucrat but normally we say that we are we are perfectly happy to accept consider decisions made by the district judges if they've given reasons for why they think the decision is a sensible one and i don't see in this record any finding or any statement by the district judge about why he thinks it is sensible to give this discretion to some unnamed treatment provider i can't i agree with you the record does not suggest i will say implicitly in these cases that judges often don't feel like they have the expertise to really manage dreamliner and of course that may reflect on the wisdom of the basic condition you're on i think the condition here if it is why it's very supported by the record and why i think otherwise look but it's perfectly easy to say you can't access any adult porn as  x but if your treatment provider has good reasons why you should be able to come on back to me right judges can do that you can modify these conditions at any time the judge didn't give any reason for why the power is put in the hands of the treatment provider now i suppose i could imagine good reasons but that none was given and there's no reason to think the judge was even thinking about this ye somebody else can make exceptions to that so out a me i'll give you the very basic ones there's a travel ban that says you will not leave the district on less you're allowed to write so there's a there's a right to travel oh i say see them o that there's the probably the most critical and here is you shall not have contact with any minors essentially unless that person is approved by the by the probation and i certainly don't making things more problematic anyway thank you very much i think