psychiatric or psychological treatment or care is required to keep someone from being sexually dangerous the statute sets forth a process that should follow and that's at forty to forty eight first the regimen should be for strides s originate from medical professionals or treatment providers for him or the d t it should be then certified to report by the director of the kid still he or the warden as appropriate and it should be found by the court to be appropriate this is all set forth in the th circuit's well reasoned decision in the united states against craig which explains that the text is clear and that no other statute authorizes any additional conditions of release to be placed on d facing is whether your motion or the government's motion for d release should be approved in other words you filed a motion on behalf of  petitioners to be released without conditions and the government filed a motion to be released with conditions which were attached to the motion of the conditions where lengthy and they were  n prescribed procedure that was certified to by the warden and that is attached to the government's motion you agreed that if conditions were to be oppose d those would be appropriate so the whole issue presented to the district court was whether release should be conditioned or not condition but there was no challenge to any provision of the conditions those were developed  at butner and were certified to by the warden and the judge found them appropriate but that was not an issue presented to the court aren't we really faced with a single issue here now  whether this man should have been released on conditions as proposed by the government and certified to by the warden or whether he should be released without conditions as petitioned by you here are we believe our challenge is fairly encompassed in our requests for unconditional release but indeed this court is bound to determine the legal standard to apply to those conditions that were imposed and in this case we don't believe that the district court had any statutory authority to impose anything beyond a treatment regimen and conjugate was in a post what was imposed beyond the conditions proposed by the government the government proposed a lengthy list of conditions which were developed by the staff at butner and certified to by the warden and as far as i can tell maybe i'm wrong on this those conditions were not changed by the court were they the only condition that was added warden and and advanced by the government i'd like to clarify on of the origin of those conditions ajay eight hundred and fifty nine because the government represents that these were pretty developed by the warden and the probation office and doesn't make any mention of treatment providers and in fact when dr smithson in barnett were asked at the hearing they each had reviewed the conditions but neither said that they had been involved in creating those conditions we cited in our reply brief two cases williams and simpson that have nearly identical conditions to those that were proposed for mr sze and in fact the government never represented that this was in fact a regiment a purse cried regimen of psychological prescribe regimen of medical psychiatric and and psychological care or treatment that different that has been prepared for mr sze is appropriate and that he would be conditionally released and in the previous  paragraph he suggests that this is as of this list as a result of the treatment he received a biden or i you know for us to open all this up when none of this was challenged below  these were conditions and not only that didn't you approve these actual conditions in your response conditionally your honor said if conditions were attached they were appropriate then you say that below the lawyer in the district court will ask for unconditional release and if conditional releases all the court would approve agree to conditional release but i don't know how they grieved that they greed to the conditions to the conditions proposed by the government yes but that was an alternative argument after their argument that mr sze should in fact be unconditionally released when that preciseness acts precisely my point in the district court your position was he'd be released unconditionally if he's going to be released conditionally you agreed that the conditions were appropriate now that ended that discussion in the district court there was no challenge to any condition except as you pointed out the one added and so i find that it's a little bit of sandbagging going on in the sense that all of a sudden on appeal you'd read the petition you read the condition you say oh some of them are i can't figure out why they're wrong well i must say i can find out why they're relevant if we're if that's what if that's our course but these conditions are imposed very carefully it takes medical people to understand why you have to do this you have to do that as you read the conditions you can tell that so i i'm i'm still questioning what's the issue before us i thought the issue before us is whether he should be released without conditions i think at worst your honor if this court were to believe that we did not preserve this argument below that this court would not decline to review but it would in fact review for plain error and we believe here that the error you can't do that you know this isn't a not a question of raising it this is a question of actually agreeing to them this is a this  stronger you agree to these conditions below they were appropriate and they were not challenged except that you wanted to add one and the court added you know i believe that this court is bound to follow the statute and if ask question is i'm not sure i'm following it fully but i'm trying to understand it seems as though from his perspective what your situation is that you are saying no conditions but in the alternative  if you rule against me on that then i wouldn't have a problem with them the conditions of oh maybe there may be further argument but that's those are two separate things but if i'm going to stand in it i guess i'll read it was that the award is providers and then there's an a stage at which that the warden certifies them as appropriate and then the district court has an independent obligation also to determine the police are appropriate here yes to let you know it oh you know these cases are always difficult because it puts the coat and a warm none of us experts on this at all i mean he doesn't know what regimen should be used other than his experience of the warden i'm pretty sure that we don't know which is why these cases are really difficult i thought the issue here was a question that arose from well is this guy still suffering from a mental condition a mental illness of some he has a history that nobody can to fear i mean if you look at all history alone but quite close pretty clear it's not on history the last four years he's been doing something else and that so then it turns on not whether or not you put conditions on it and they call it regiment a kid is is really a question of izzie suffering from a mental illness that would require this to happen is that more or less were in my view met in  what we do you also make that argument your honor and that's we completely agree that neither mr sze does not suffer from a serious mental illness today and he also as a result would not be sexually dangerous if released boilerplate conditions do we have any way of knowing that looking at the records on your honor that's exactly one of our concerns and at page fourteen of our reply brief we specifically cite to two cases united states against williams and government counsel asked dr smithson if the treatment team was involved in creating the conditions that were proposed to the court and she said yes and that they were previously involved in proposing conditions to use for a particular person which suggested to me that there was some involvement by the treatment team in a generalized set of conditions but that there was no effort certainly by dr smith's and to prescribe specific conditions that would be tailored to mr sze and i think that's reflected in some of the nature of some of the conditions as well that there's a requirement that he provide detailed financial records that's a j a three hundred and eighty five dollars there's sort of a nonsensical combination of conditions including a curfew g p s monitoring and a driving log that's at joint appendix three hundred and eighty four dollars there's also severe restrictions on computer and internet access when there was no evidence of sexual misconduct by mr sze connected to a computer that's a joint appendix three hundred and eighty eight and so one of our concerns is that there was no individual ised analysis as to mr sze and this is why we raised the macmiller case in our reply brief that this court has previously said that standard conditions for classes of offenders are not appropriate  and we believe even though the statutory scheme is different that the district court's obligation to find that conditions are appropriate is similarly reviewed as its obligation in the supervised release context to make sure that they're reasonably related and do not involve a greater deprivation of liberty than it's necessary with respect to judge when to mr she his current dangerousness and his current serious mental illness this court's decisions in spring or cap or l and  attempted he has been incarcerated for about six years and he was in treatment for four and a half of those after the district courts after he agreed to commitment so during the entire six years there was in terms of trying to understand if it yeah i guess from my perspective you do it with a commonsense application that could give you a different result but i state we might be constrained by the law i mean we're talking about someone who's been diagnosed as a p to feel which is u but he's not a community so how do we how do we deal with it i mean i understand and i guess for the case law it pretty much tells us just point we've got to deal with it that's the way i see it i think that's right your honor and this court confirmed it wouldn't that if if history were be the the only guide then anyone who had ever been committed would never be unconditionally released but kaberle confirms that this is a decision that's made as of the time of the hearing and hearing there was no evidence preoccupation which we do see in other cases we see other individuals who despite the fact that they are in prison are engaging in behaviors the demonstrate that an ongoing serious you say no evidence of sexual preoccupation you mean at the time  out and springer also confirmed that the nd prong the mental illness prong is current and forward looking and even if the medical literature requires a diagnosis for example by history  dangerous they don't go to the very particular inquiry in these cases which is whether he would have serious difficulty refraining from sexually violent conduct or child molestation if released my question is does this so that he will close back against rules and maybe not comply with i don't think i don't think so your honor i think there are so limited he never actually received a disciplinary infraction for any of these transgressions they were issues that came up  treatment and this court in antonio helpfully described the fact that someone who is in a mental health or an addiction type treatment program is not going to be perfect and for them to be able to you know have a safe space in which to make mistakes that aren't sort of you know determinate if it's really important and they should not be paralyzed we just or you know over the top way for those transgressions especially when dr smithson acknowledge that mr sze has learned from those experiences that when he was put in a brief treatment time out that he responded well to that and understood that he was being held to a higher standard as someone who was in sex offender treatment so i think his response to that is you know repercussions that came from those transgressions is informative and indicates that as the district judge mentioned at the end of the hearing you know i take you at your word and i found it persuasive that you would do well weather conditions were imposed or not and i think i  know and so since two thousand and thirteen up until the time of the hearing he was in custody right that's correct so the only time that he's been in the community most recently  they found that he did not handle things well he had pernod graffiti he approached this boy paid him one hundred dollars to commit a sex act a sixteen year old yeah  the last time he was in the community we have this situation where the same have been done ok in custody but when he was on the community that some problems aro and so the question would naturally arise and based on dr barnett comments that if he's released now into the community we can't be totally sure and of course are pretty serious things he can always as the district judge pointed out he can always ask for removal of the conditions or changes of conditions but this is a heavy record  made an enormous effort and during the last five years i think they recognize the enormous effort that's why everybody is supporting his release i think the only question is whether he has to still be under some conditions and what is our standard at the district court said that i conclude that the conditions need to be imposed as opposed to a release without conditions is is that a factual finding or a legal finding i believe that's a legal finding your honor and this court can review for abuse of discretion we also think that the court needs to clarify the legal standard because i don't believe that the district court was making a finding that this is a necessary regimen of treatment our care i'd also like to clarify that  shape was not perfect when he was incarcerated previously to this period and this is not a case like charbonneau where it's someone who can be perfect and then really has a better plan to go more to the point the judge judge the matter so compelling out not a disagreement where he goes with it the problem is is that the standard is then it is at the time of the hearing it didn't give an exception of while you were out new community which you know i probably would disagree with if it did oh i'm saying his common sense thing is if there is i think it's undisputed this this individual was a pedophile he was diagnosed that in the community he is repeatedly out there doing the same they fight to make a prediction on my own wants to the doctors that doctors are testifying in the hope of what what was what is that specific evidence at the time of the hearing that says he is seriously mentally ill sure your honor so mental illness yes however he noted that it is a d s m five diagnosis and i'm not aware of any case where there is then any level of structure as to what rises to the level and what does not ri points to that in two thousand and thirteen he's out in the community or did he base it on these intervening six or seven years and how he's being what's going on i'm trying to understand that it he's doing and he's continuing to justify his behavior and continuing to use this kind of impulsive and criminal thinking that's consistent with his prior behavior and i think that that demonstrates through the course of the record that he does continue to himself and his good wives plan at joint appendix one hundred and thirty five it spans several pages and what this ringback says is his plan for release to the community and he himself in several places notes that he needs to stay away from young boys because of his well above the average risk category that he has suffers a p t o feel of discord or and there are currently no mitigating factors and she lists the packers which will reduce this risk and so it seems to me that disorder not otherwise specified which is also important because as recently as two thousand and thirteen we know that mr sze attempted to re offend against a sixteen year old boy and that would fall into that parent philip disorder not otherwise specif appropriate and the reason for that is that she has reviewed all of his information all of that history all that treatment mission and he continues to believe that he needs criteria or pro he has as indicated in the testimony hearing and these are questions mine that he had to say it's got to six which was above average what is the numerical scale here i believe  very concerning risk factors i think dr melnick yeah i don't mean to cut you off but thank you that you have been answered that question let's go on to the conditions here just in case that becomes an issue in this case  who provided treatment specifically to mr sze and the commitment in treatment program notes that she was involved in developing these and i think she was taken out of context in some of the references by opposing counsel she was asked whether or not she developed any plans for other individuals which she said she had just to show that she has experience in this area but she was very in ball in developing the plans for mr sze as noted going to appendix these three kerry let me let me not  have to go to an employer and say you know just say he was working in the back room in a nursery putting flowers together you know never comes in contact with any children and none does that mean he has to tell who's the head of the nursery that he's a honor this is the risks pacific to you from his condition translated into the position so if there is no risk that would translate into the job meaning that he's not going to come into contact with any children he's not going to be crossing state lines he's not going to be working at a school or close by a school or a park then there is no there is no need under this specific condition thank you and what i'd also add in reference to your arse question about the boilerplate conditions i believe it was in council referenced several other cases where there are similar conditions however what i meant to know is that both united states versus sense and united states versus what the cases referenced they actually had conditional release plans  came after mr sze and what i offer that to show that mr shays conditions were very specific to mr sze and if we were to walk through each of the conditions and some of the conditions that were noted by counsel so just keeping the driving l ways dealing with that when they're properly checked to do but what what about the the rationale macmiller that you know if you're going to restrict some of these life so much and for good reason you need to tell them probation a judge tells the depended what could happen you're informing on tip to help modify their behavior well isn't that the same sort of thing that pertains here of the court needs to give some sort of explanation he'll think that the court needs to give an explanation here for a few reasons and st him foremost because it's not required by statute so what forty to forty eight he requires the court do is find whether the conditions proposed by the director of the facility are adequate and appropriate and i think the specific word used by the statute is appropriate and so what the court did here is find that those conditions were appropriate i know that some of the sentencing important difference what i'd also note is while the court didn't specifically explain the reason for every single condition in this case if we look to the court's adoption of the government's findings of fact in conclusions of law as well as the statements me thank you so let's just say his counsel had objected to the conditions what would be your position then now the board said no we agreed to all of these make sense except twenty five just doesn't make sense that you have to go of medical psychiatric and psychological care and that could have been offered specifically here but i think as your honour's noted during the st argument that wasn't the case here neither before the hearing when the conditions of release were proposed by the government during the hearing nor after the hearing did mr shays or is counsel object to the imposition of these specific conditions and in fact what mr sze did was ask the court to add another condition and what aware of all the other conditions that were included in his release and didn't object to any of them didn't take that opportunity to ask the court to dial that back or to change them or to change the language he asked the court to add another one and the government police that this shows that he did consent to these conditions and to now raise this issue on appeal i would offer is inappropriate and your honor i think i see that my time has run so i'd like to briefly take a moment to conclude and ask that this court find that the district court did not commit your error in finding that mr sze failed to meet you by a preponderance of the evidence that you've no longer sexually dangerous and suitable for release without condition footnote for on page one hundred and thirty eight and that's where this court confirms that a diagnosis is only the starting point for the court to consider the truth thrust of the forty two or four thousand seven hundred and eighty six inquiry whether on a case by case basis the respondents underlying condition constitutes a serious functional impairment and so that's how you could have someone who might apply the medical diagnosis of pedophilia have ophelia or another mental disorder but not find that it rises to the level of a serious mental illness as required by the statute that's united states against cap or l dr mallin nick said that he does not meet the criteria under problem two that's a j to forty nine to fifty dr plod said no at j barnett sort of complicates her diagnosis or her current diagnosis of pedophila disorder when she says you know mr sze has reported being a very sexually preoccupied individual but there wasn't really any evidence of that at all there was no indication he was having sex with other  engaging in sexual conversations there wasn't an indication of sexual preoccupation there so i think that that definitely decreased or improved with treatment i also wanted to address judge kean in your question about the static ninety nine dr  talk about this in their testimony and in their reports but as the name indicates that's a static indicator and it's number does not change over time and so once someone is a six they will be a six always and forever and so that's not really a good indicator standing alone of a current of a person's current serious mental illness or of their sexual their serious difficulty refraining from sexually violent conduct or child molestation in the it but now does it go up and down i know the word status it has its meaning but how do you get it to go up or down that's right your honor it is static and it stays the same there are some age related indicators that can cause  dr plod both address it in their reports and in their testimony and i will say that's why there's always questioning about dynamic risk factors on top of the static score and that's where dr melnick and dr plod get into the protective factors so i'm looking specifically at d eight to eighty eight he goes through the the major protective factors the st is his age that he was sixty four at the time of hearing and that there's an age cohort associated with almost no re offending  number two he talks about how mr shays self committed and he talks about how that's a rare phenomenon and that in the last four and a half years he has done treatment that's a significant period of time he's not been terminated from treatment he's advanced a phase four he details all of this and he also talks about his family support and his financial resources which are two protective factors that most detainees in mr she is this issue and do not enjoy and and those are in the dollars to ninety dollars they also talk about the fact that he's not a disciplinary issue this is again dr plod he said i think the biggest thing is something about coffee and dr pepper which i don't see is really relevant to a sexual risk evaluation  so i think it's important for this court not just to take these static indicators or historical markers in isolation but rather to look at its decision and wooden at six o seven we quoted this at page twenty four of our opening brief to accept the government's argument would effectively mean that an offender diagnosed a pedophile a disorder could never be released as the government could always prove future impulse control problems by pointing to past failures to exercise control and that cannot be true because the adam walsh act provides an avenue of unconditional release for the appropriate detainees and we believe that mr sze is exactly one of those people so again we would ask the district court to ask this court to reverse the