good morning mate please the court i'm sharon blackford and i represent the poet mr palmer in this case i would like to reserve four minutes for about all and i would like to begin by dressing three points this morning to find me first why the sentencing condition that mr palmer has appealed which the government calls condition for and i'd like to use that for convenience was not statutorily authorized under eighteen u s c section thirty five sixty three b five second why the appeal of this condition was not barred by mr bomber's appeal wafer and third how the sentencing materials recently provided by the government regarding mr palmer state court conviction support mr bomber's position that the appropriate employment condition in this case was one that did not include any restriction on contact with minors so if the court has no questions i'll turn to the first point well we we might have a few question and under what conditions would with this with this court ever be able to enforce an appeal waiver if somebody is going to claim that the sentence is illegal then that is that is that those are always the grounds for challenging a sentence whether it's whether we're claiming an abuse of discretion or something else this court never affirms a sentence and says we do so because we're going to be arbitrary and capricious frankly we always we always will reverse we're versus sentence on some kind of legal grounds which means that no appeal waiver can ever be enforced until we've actually looked at the merits well there's no use to have an appeal ever well in this case i would say that there was a prima facia illegal sentence one that's illegal on its face one well one would be illegal on its face would be one for example in which the sentence exceeded the statutory term that's the argument here yes well what was the what was the statutory penalty for this the statutory the penalty was that there be certain conditions well that's that's that's that's all negotiable statutory a statutory term would be a term of years that is the pennant the punt the penalty for this crime is a maximum of twenty years arguing about about terms and conditions that are not specified in the statute that are given to the district judge for with great discretion and if we can review these on the merits then there's no there's no use to ever having an appeal wafer well your honor i understand your argument and i would just turn it around and say when there is a statute that limits how you can restrict employment always a statute yes but the judge did not have unfettered discretion to impose absolutely any condition he wished of the list of what it is twenty three types of conditions that he could impose this is the only condition that had a limitation that had to be directly recently related to the crime of conviction and that meant that in this instance the judge did not have as unfettered discretion and so the point here is that if you don't hold the judges accountable to the plain language of the statutes then the judges can sentence with any risk any they can make up any conditions they want and there would be no way to appeal them on the basis of illegality i realize i'm not exactly answering your question completely directly i'm flipping it around to the opposite scenario but i think it's legitimate because that opposite scenario shows that if you don't enforce this then it opens the door to absolutely unfettered discretion with no limit no matter what the sentencing stats and you look at this term of condition that issue here just look at doesn't strike me as anything this is standout is illegal or improper or anything ok so let's actually even just look at it if you got is just it's again it's a condition that might be at that might be imposed in a lot of cases in a lot of cases that involve minors or sex but this one didn't this was about drug trafficking and drugs only the conditions were that he had an he had a naked sixteen year old and he was in his room at the time and that she may government wanted the district courts to have control over the issue of mr palmer's future contact with minors while on release then the government should not have given away the minors and sex trafficking portion of this case to the state court but really what happened is they did get that part of fiddled i think the prostitution clay but he may have been facilitating his drug sales through the use of the minors that he was also selling for sex i understand that's that's pending in king county no it's not pending anymore you run or actually employment of selling drugs i understand your honor and with the other twenty three conditions i think it is that connection would be perfectly legitimate and i couldn't stand here today but with the employment condition the connection has to be closer than that because nothing about minors or sex is constituting the effect the offense of distribution of cocaine base possession of it with intent and possession of a firearm you prove those elements and you don't have to prove anything about minors or sex this is a reasonably direct relationship to the offense and said to the conduct constituting the offense that's right conduct constituting those has nothing to do with sex or minors you don't have to prove there any evidence at all that the minor or sex evidence was there the judge said he was not going to consider the evidence of minors and sex because he did not because mr palmer didn't plead to it so judge that only specifically said on the record he wasn't going to consider anything about minors or sex and in fact the the government proposed many conditions relating to minors and sex and the judge said after mr combine or discussed it that the judge was not going to impose those because mr  didn't lead to anything relating to minors or sex and minors and sex had nothing to do with this case it was only the employment restriction that he decided to carve out and leave in and we don't you explain why he did not your honor i'm sure he understood mr combiners argument but listen carefully when it came it came out of the from the probation office right i'm sorry that was not a condition of the probation office recommended yes it was your honor and the probation office was aware that the that the prostitution charges had been have been separated at that point perform sexual acts for money witnesses also indicated that baumberger sold drugs from his hotel room and that girls could supplement their income by preparing and selling drugs for her yes your honor yes absolutely enough because it is not required to prove these crimes the constant you look at relevant conduct fix scope of relevant conduct is wider in the other that conduct facilitated surrounded enhanced his business but it didn't constitute the offenses of distribution of cocaine base or joint trafficking that's the argument that i have your honor i'd like to reserve the rest of my time  may have please the court i'm todd greenberg representing the united states i think the court started out with exactly the right inquiry and that is if the appellant here can reach substantive appellate review of this supervised release condition when couldn't a supervised release condition be reviewed on appeal not withstanding an appeal waiver and the answer that question is probably never it would be essentially what but what do we do what we do with miss black e very good point that then frees district judges to impose any conditions that they wish with out any possibility of review well there's two things we can do with that one is that an appellant can choose not to waive the rights to appeal because that is something that flows from an appeal waiver is that there is a dream and i mean that pretty much something that the government always requires these days not always require as we certainly weeds try to include them as much as possible to avoid you know appeal such as this but i think the you know better answer the question is to be ill to constitute an illegal sentence what this court has meant by that is a sentence that can never be lawfully impose the statutory maximum or some something like that in a certainly a supervised release condition might rise to that level but it doesn't in this case the defendant isn't even arguing that this type of condition can never be imposed we know it can be because there's a statute that allows for what the defendant here is arguing is that as applied in this case based on the facts of this case the district court abused its discretion in a play in imposing the condition and that is basically subset of appellate review of the supervised release condition that is precluded by an appeal waiver and particularly the one in this case would you articulate for us how you would write a rule this says that the a plea waiver not be construed to stop an appeal when there is a violation of something like a statutory maximum but that it will be enforced in a case where  but not others depending upon how how illegal the alleged condition is well i think this court has that rule in place in the case which is that which case in the bible or case which responsible for count for catching that and ensuring that problem that's correct and so if there was an error such as that you know like i was saying it a condition that could never be in the post that would just be unlawful in every case then under this court's precedent the court would have the ability to address that not withstanding an appellate waiver but again the appellant in this case is an argument that they are getting to the facts of the case in arguing an abuse of discretion based on those facts and that is exactly the type of thing that is precluded by showing us what you're test would be that it would have to be a a clear legal violation rather than a violation it gets into the facts of the case well that's what that's what this court's precedent requires that it be illegal sentence and the language that is used in that regard is that it exceeds the permissible statutory penalty  that i mean that's an extreme situation that and i think this court has intentionally crafted that this exception narrowly in order to enforce an honor appeal waivers in situations maximum for the fans or could there be other known legalities there is a second category of illegality that this court has defined and that is something that arises to the level of a constitutional violation and we again we don't have that here in this  court as recently as two thousand and fourteen in the case of lipmann v harris has acknowledged that neither this court nor the supreme court has ever found that there is a fundamental right to any particular type of employment so that also does not apply in a that acts that are strictly prohibited there are laws governing you know the types of conditions that must be imposed and therefore what can't be imposed so it has to be reasonably related to the sentencing factors and it can't be you know infringe on more liberty than otherwise would be necessary so that i mean those those laws are in place but as far as you know a a in you them cases where for instance in the wolf child case where the defendant was prohibited from interacting with his life partner and his defense his daughters as a condition of supervised release and that was deemed to be a constitutional violation in this court reversed their so there are there are going to be some conditions that are so extreme and so illegal they could never be imposed we're just not anywhere near that in this particular case when and because because of the reasons that this court has discussed this is a relatively routine supervised release condition it not only is based on the facts of the case regarding the drug dealing in the sixteen year old naked female that was found with the defendant at the locus of his drug dealing but it's it's a a very standard and frankly a limited restriction on employment i think another thing that is quite notable here is that the condition for has two sentences only the second sentence is being challenged and it's somewhat remarkable because the first sentence of the condition requires all of the defendant's employment to be approved by the probation office and it says the defendant's employment must be approved in advance all of he does not challenge that he didn't in the district court and he doesn't challenge that here on appeal so the second sentence which you know hones in on a small subset of potential employment that dealing with exposure to minors it's really it doesn't add much if anything in terms of the restriction on the defendant's liberty so again there's just no way this the evidence before the court is that exactly which the court has cited in the pre sentence report that he that he used these the women the girls frankly who were his prostitutes to also help sell his drugs the evidence was that of that well there was a lot of evidence of that but i guess what we're talking about what's in the record in the record yet is that it is that paragraph in the pre sentence report that says that it specifically says that the defendant did that this tree judge specifically said he was not going to rely on anything in the presence report relating dissenters well he that is that a clear error if the judge says to a person i am not going to rely on anything relating to sex and then the imposes i mean that does rely on on something relating to sex that meet you playing their test well that's not what happened here because we're talking we're not talking about the sex the aspect of the sex crimes we're talking about the drug crimes and that's what this defendant was convicted of so judge zilly i think you know properly parse that out he said i'm not going to consider evidence of the sex crimes but as to the drug trafficking the counts of conviction the defendant used those same victims as part of that offense the offense of conviction and that's perfectly appropriate for this court for the district court he didn't make a finding of that he did not articulate it in that manner and nor was he required to do so there was that there was no objection to this particular statement in pre sentence report was that no there was not but he did but he did note i'm looking at the transcript on page nine that the variety of facts that document prostitution sex traffic activities are interim woven factually with some of the other counts they are it was one course of conduct that the defendant engaged in along with an undercover agent he supplied drugs he and his brother sold the firearm to the agent and then also supplied the prostitute was really one course of conduct the court was right in that  i only have a few few seconds so i would like to make one point that this is an important condition if you are a lawyer it may not matter if you can't work at mcdonald's but mr palmer is not an educated professional when he gets out he probably will have to try to work at somewhere like mcdonald's or somewhere else that's going to bring him into contact with minors this condition actually will affect his life this condition was not imposed in state court when he was convicted of the associated crimes involving minors that were finally resolved there there was no imposition of any restriction regarding minors in state court you're not satisfied that he could go to the supervised release officer and  bombers disputing and the court said no the fact that the probation officer could approve it is insufficient this is actually too important to allow the unfettered discretion of the probation officer to do with the district court mr and that got to what he objected to the facts relating to sex and minors right with just a court found that they were entered into woven with the other with the other counts yet he also found that they were not proven well which was not proof that the sex and sentence mr palmer or for mr palmer to be convicted of the drug and firearms charges that specifically says that the contact that was that convicted mr bomber on the drug in sentencing charges was not the sex and minor decide that he can't work at mcdonald's or any other place he's likely to actually get legal work because it will probably bring him into contact with minors and that that is unlimited discretion was contained in th what it means is that the probation officer cannot say you may not work at mcdonald's because children are there the probation officer would have to come up with another reason say that this isn't just simply says wherever you work you've got to get approved the probation officer period if you find object to that is that the greater including all what all the lesser things that follow i don't believe it is because if the probation if this condition is correctly cleaned up and then the probation officer cites the fact that children are at mcdonald's mr obama can go to his attorney and he can contest that in court and he can have a hope of getting laid on the same thing you know i mean he could still go to the back to the court and say hey look judge i can get a job the problem is i don't listen you know job and i want you to modify this term a condition of a probation well i don't see any reason to do that later when it should have been done correctly and it just occurred well all right we'll let you go over your time thank you thank you very much matter samina thank you counsel