revisiting a determination made by this court whether that determination was made expressly or by necessary implication here this court has vacated this condition once henri mandy district court reimpose the condition on the basis of miss ramos's conviction for possession of more than fifty pounds of marijuana let me ask you that her sentence was twelve months right yes so she out on supervision now she is out on supervision but did she authorize this appeal she did well i just wondered because it seems to me that giving in and patient and drug test if it is clear that she never used drugs is it's not much of  a urine sample right it is a urine sample it is subject to observed collection which means that a probation officer watches the supervisor he provides a sample of this supreme court in a case called skinner i believe from one thousand nine hundred nine did a whole collection of urine for a test is a search under the fourth amendment i understand bad but i'm just saying this is this doesn't shock my conscience on the face of it you may persuade me that that it's reversible but if it's a pretty small issue well certainly the standard is not that shocks the conscience and there's no i understand  me the panel was did we vacate that condition excised that condition really and for consideration of the other but they didn't do that the court didn't do that and it seems to me that if you read the body of opinion the basis for remaining was very or to give reasons right so three things actually show that when this court vacated it necessarily decided that this conviction was an insufficient basis for the condition so that the record  otherwise affirm the judge the sin and the judgment imposes it's we didn't do that here right the court did not the court could have done that it did not do that here but it's not necessary that the court have done though if we don't this is the thing if we what all this implies to me is simply that the public defender clearly saw that this remained was for the purpose of asking the judge to articulate the basis for this condition and yeah if you also thought that there important objection except in a situation like this the district court is always going to be aware of the court's order and the necessity now it's not because me you're saying this comes up all the time in these kinds of for a man's where the issue when the case comes back to us is was the court acting within the scope of the re mand which is the same thing as law of the case so why doesn't defense counsel say that's not within the scope of the remained certainly agree that would have been better but it would also point the court to cases holding that where plain error might otherwise apply how does this happen in the public defender's office last time i was here a month ago and we had at least two cases of plain error on from the southern district of review and where it would have been pretty obvious and easy for defense counsel to have made the proper objection so if this recent using was done by court well why did you agree to that that big that's that's what the district court asked us to do we did not judge why do you agree to that that's a horrible thing well and you know in situations like this when she's out on release so it's not as if they're transporting or from a you know hundreds of miles away in the prison and if the objection is you can't do it on the same record you're going to have to have new evidence you're hearing if you'd said that the judge you would have had a telephonic hearing or at least you would get evidence over the phone i'm not sure that it work but it seems like there had to be some sort of objection to it the judge on notice that no you are not permitted to impose this condition on the existing record i understand the court's concern i would just point the court to cases defense attorney was contesting the fact of the conviction was due to attorney did not do and then the but again at the whole point is up here i mean one of your two major points is i mean the other question about invasiveness is is is a really interesting question but if you're focusing on law of the case i mean you had your chance to make that argument and i don't i don't care with the say it to nova or not that was so obvious and would have so may have been it might have been overruled but at least it was one of the most formidable arguments so you could've made it and i hear the court's concern on that so i think i would take that opportunity to move on to the second issue which is an independent basis for vacating this condition which is that it was an abuse of the dish reports discretion that objection was clearly made to the district court there's there's no question of the standard of review there is for abuse of discretion  a special condition has to comply with three statutory requirements and has to be reasonably related to one of these statutory sentencing back to the relevant to supervised release in thirty five fifty three and it cannot be more invasive cannot impose a greater deprivation of liberty that is necessary and it has to be consistent with policy statements by the sentencing just sitting condition this condition here violated all three requirements it's not reasonably related to the sentencing factors because there is no evidence that misrata has used drugs more recently than twenty five years ago specifically relied on her two thousand and twelve conviction for marijuana possession but the star's description of that offense which is at page one seventy seven of the record provides that what occurred was a police officer found forty four pounds of marijuana on the on the property  at the house that miss rama shared with her husband there's no fox relating to that offense that indicate this ramos was engaged in any personal use of drugs on the offense it's any conclusion that and is like that and necessarily involves use of drugs would be purely speculative it's of course equally possible that she was involved in this kind of illicit business with her husband that does not necessarily mean that she was using drugs and of course the amount that was found is presumed to be a trafficking amount not a personal use amounts the only other evidence relating to drug use is a statement that ms ramos made to the probation officer that she had smoked marijuana as a teenager but had not used drugs in twenty five years there has been no indication that that was not credible and whether that was up that was that there was any additional drug use after that time with with out some evidence that she has used drugs in the recent past the condition is not related to the  you don't get there by saying overly burdensome or invasion of privacy even if that's true that that is a that's an alternative argument we have also made arguments that it has to comply with all a condition must apply with all three subject line apartments for condition that it's related to the doctors but it does not impose a great operation of liberty and that is consistent with policy statements so if it fails either the first to implement it wouldn't even be necessary to address the policy states i do want to briefly address probation officer can determine that miss ramos has the ability to pay and then she wouldn't have to pay for the testimony and how many tests would she undergo in a three year period how many ties under the special conditions right we don't know because the probation office it's us completely to up to the d n i has she had a single one yet but she has it's not in the record that she has had to and she's only been on supervised release for five months to write is a three year sentence right and how much  charge i don't believe she's had to pay up to now but the probation officer did determine in her p s r that she might have the ability to pay a fine and if any of her financial circumstances changed during that sentence the probation officer could telephone or well i know that she's been doing video for a long long time but telephone it seems to me is step way below video and video is a step way below formal appearance but that's phone from i believe she was in the house where she was in a halfway house up so basically we're having a conference call essentially yes it was unbelievable that is very i mean that is very very troubling procedural i'm very surprised that nobody's raised that because obviously when you're sitting there in court if you're going in and preparing for something an oral hearing before the judge you've got your little list of things that you wan cover when you're doing it by telephone you conceivably have a situation a much greater in formality where things tend to get lost and nobody's focusing as well because you're all trying to listen to the device while you're you know staring around an empty room i mean it's just appalling to me that the biggest as a confrontation matter you can't confront her with your counsel if you're the defendant w you you might add a real interesting argument if you brought that up on appeal but that's moved to hear from the government you've got rebuttal time and maybe other questions elicited based on the remey and did not compel a specific judgment to not give any specific language the district court as to which conditions should be deleted or which conditions should be  it was very generic consistent with this court's holding in salazar where if the record is unclear the court should be kate and remain and for reconsideration of the special conditions and in this case as judge owen noted the the united states reasoned in a green to make a deny me and both conditions was for a lack of explanation but it's important to point out your honour's that the united states did this as a matter of judicial economy the special condition of the nighttime restriction absolutely needed to be re me and it was incorrect and it seemed prudent to give the district court the opportunity as specially in their plane the error of you to consider for the first time with its basis for imposing need drug testing as well just as a matter of judicial economy to do so with respect to the liberty of the government put on  well the basis for the remaining was the lack of explanation and the court was very very clear at page one sixty three and one sixty six of the record that the reason for the imposition of the drug testing was due to the twenty twelve prior conviction in the record for possession of fifty pounds of marijuana the evidence was in the record the port just needed to state it and that's exactly what with the district court did only me and said a conventional fine number who are in five and impose requirements that are distinct from the and challenge standard conditions so that's not the same thing actually i believe modern era what we are what the government argued in modern era was that because under thirty five eighty three d drug testing is statutorily mandated for all defendants there didn't need to be any explanation for the special conditions for drug testing because they were corollaries of one another and this court rejected that and said because it's listed as a special condition the court must give deference to the thirty five fifty three eight factors and explain those and additionally because the special condition imposes a fee that's different and in this case it's reasonably related to at least two of the thirty five fifty three a factors under salazar only what is necessary but here we have deterrent mandated drug testing in thirty five or eighty three d is wrong under what circumstances it's it's listed sasa tural e across the board as a mandated requirement thirty five eighty three for what kind of because the gravel are so you don't do a special condition unless the court has reason to believe that the defendant is an abuser of narcotics or other controlled controlled substances or alcohol ok well in answer to that though in america though at the first page of that opinion this court looked to see whether they had a drug abuse problem or whether there was drug related offenses that's at the very first page of that if you want to be fourteen years old  under salazar it doesn't have to be an exact identical fit with history in characteristics that can be under any of of the related thirty five fifty three a factors and as they sat in deterren this court to look to see whether she was on supervised release for a drug trafficking of fads or of a drug possession events while she committed yet another offense for alien transporting therefore as i stated in the the first page of that opinion the court look to see whether there was drug use and also whether there were any prior convictions for drug offenses which is what we have in this case and what i understand thirty five very three d and of course you know we read these periodical in you to forget where you proved but the court show order as an explicit condition of supervised release of the defendant refrain from unlawful use and submit to a drug test within fifteen days of release and at least two periodic drug tests there after print as determined by the court for use of a controlled substance maybe a million rated or suspended as provided in thirty five sixty three  four so i suppose the probation officer could take this special term and say well you know in light of the facts here i'm only going to make or do the one fifteen day one and you know one at least two periodic drug tests right but you asking me whether this was in improper delegation no i am not asking you whether it is an improper delegation because the delegation says that the probation officer determines that the times and the amount it's probably a number of drug tests the probation officer does do that and also what i'm saying is a probation officer because he has that ability which i do not regard as an improper delegation because he can determine that he could say well this looks like a thirty five eighty three days situation explicit condition i think though that in my near the court stated that there was that the distinction was that under the special condition if he had to be paid by the defendant that was the only distinction that's defendant is unable to pay financially secure moves to modify the conditions of supervised release is the square of the cordons if the court adjusts not adopted this as a super but as a special condition she'd twelve conviction not the twenty five years of of use of twenty five years in there she says you have a conviction twenty two a zero possession of marijuana for four pounds i mean that's what she says that that's the in any of all that you just discussed these of the part of the reasoning being the provisions of the guidelines etc etc were in the colloquy that went on as if you want to say an alternative a supplementary other bases for the imposition she says and already it several times you have a twenty two or from the action you get so the question is if it was going down you know why she got it to clean up all of this they don't seem to mean anybody brought to the judge's attention alternatively over here in the guidelines per the rest of it it's you know over this court agrees that the pay should be vacated only me and and the court did exactly the district court did exactly with this court order i'm going to state on the record this is my reason for the imposition at that point it was the federal public defender obligation to point out to the district court all these iterations that we're discussing here today because the district court needed to be apprised of the opportunity to respond  assuming that the mere existence of the twenty twelve conviction though stated second go around either just because a reason is either boylan sufficient clothes question of whether that possession alone without a nexus to drug use is sufficient for the condition but if independently hell are you here this is what i'm irritated with the government i'll be very frank about it why are you here she's going to get drug testing under the statute but no that's not good enough you want her tested and indeterminable number of times is it really worth the taxpayer's dollars and time of your time our time to hear this case because you want x number more drug test where she has not smoked marijuana since she was fourteen well the point is that really justify all the resources that have been brought to bear on this case our law clerks time the every all the people's time that's involved is that justifiable well i think that it's the statutorily mandated conditions yes and you've got that why isn't that good enough well because the issue that whole deal you know where the plane you're over here but the government's got some responsibility to it is over here plain as day in the statute here she was focusing on you got a twenty two hour conviction i said it before i'm saying now so she satisfied the mandate from us  to answer your question i just to you do you mind just rephrasing exactly ok out this has a package i think is a total waste of time the taxpayer dollars your time defense counsel's time the people in your office the people my walk work that are whoever's laugher did the memo in this case the three judges were sitting up here taking it for at least forty minutes of time to get how many more drug tests from this woman she's already can be drug tested under the statute do you really think that's a good supervisors condition and move on down the road because of the reason that we initially seventy needed to be vacated was for the night time restrictions so we wanted to give the port an opportunity and that's gone so now we're pressing over whether she gets she's going to get statutory drug testing now we're facing a richie gets additional drug testing that's all we're doing isn't it yes and there is that really worth all the time that this for this case isn't really worth it in this case where she has no history of drug use and she was fourteen seven it was very short ok and what were you in your office in houston oh i'm sorry your honor no i meant i meant it i did a brief you know i was in the trial attorney no i didn't i wasn't involved in that and i apologize now i was not but it's telephone and where was a prosecutor and i don't know i assume on the telephone is while i don't believe that is a very good course of action i think that and do you recall what is the rule that governs the defendants being presidents and trying to say is if it's indisputable see when she comes back up here that the statutory provisions allow for the drug testing etc and she can't get around it then it just i'm just simply asking you tell  and i agree with you the scope of our remain where she didn't give reasons i'm one hundred percent i don't think implicitly our panel disavowed the imposition of the turner think it was about reasons ok and so if that's true and i'm just speaking as one person if that's true if there is if there is an alternative basis to me coming back someday if us all about her test and all that what difference does it make if get our questions asked you know we read what's down there but to get the questions they ask and so you know we've sort of vented both ways in terms of not objections plane air or not and you know my government sound the government shows up on a white horse you know cuts that so while we had us but i mean i think we've got your argument your position and i'm not in any way representing that that's what we're going to do while you were standing there just want to know what the government's position would be about it we may do something totally different and i don't mean to represent anything other than getting it out on the open a fan or from the government you know what its view is on ok but i would say helpfully to me you know once upon a time i represented the government and i was founded duty you know sort of help the court out and to remind a court of things that you know the judge may be paying attention to and not just you know over here just like they are make an objection and we'll end up with dealing with some that pointed out to the mister just a couple of points first the special commission in this case does include requirements that are distinct from statutory we mandated standard condition the most obvious difference is the number of tests by statute there are three tests during supervised release that's the maximum that can be imposed there something of a court under the special condition the probation officer can set however many tests the probation officer determines should be set of the condition doesn't specify any criteria for determining when or how many tests there should be and certainly on three years of supervised release she could be subject to an indeterminate number of tests each toast if there is no justification my argument would still be that even if it is not and if the court disagrees it's an invasion of privacy it's still violates the other statutory requirements for special conditions including that special condition be consistent with the policy statement even if the court that i think is the most efficient resolution of this if it was there's no we often say affirmed we vacate the you know condition affirmed otherwise or words to that effect previous where the court did vacate for the for the purpose of correcting the judgment to strike the condition and i think that that would be appropriate here if i don't my position is it would not i don't see the purpose of an additional demand but i would prefer that to obviously to  rm it's because there's no justification for this individual to be subject to additional test every test i think she is subjected to is an additional invasion that is unwarranted under the additional condition that's inconsistent with the policies that in this and the statutes govern special conditions  and i believe the point about the statutory mandated conditions actually would support simply striking a special condition there's no the two thousand and twelve conviction is not a sufficient basis for the special condition there's no need for extra statutory mandated testing in place and simply remove the requirement that she be subject to additional thomas and that she potentially have to pay for additional tests if the court has no further questions i will