essentially conceded on appeal that the government mischaracterized the state of the evidence to the district court on page twenty three of the government's pretty if they characterize the record about why mr rock failed to continue in his communications with detective check as in big us that's here before this court and that's a candid admission that i think the government counsel's correctly made on appeal but it's a far cry from what the government on this camera show and and what caused that to be avoided right i don't think that that's the issue is that the district court didn't never addressed never sufficiently addressed the issue right so i mean you know a lot of guarding the procedural part of its sensing when the parties emphasize something you know one party emphasize something in mitigation which i think you know a common sense would be important to deciding where mr rushdie said this within the range which is whether it was going to be clear either way right and so we don't know right and then that's the problem may be just what it said look i don't care about this it's not material to my sentencing whether he was going to do this or not i can't the so i can't tell so it's not going to factor my sensing i think that would ha yeah he was already on the record that even if he was not seeking to have sex with a child he was someone else to rape her on video for his viewing pleasure while he him not having responded to an e mail but i thought you said what really is going on here is that you were trying to divide the world into contact non contact and this just doesn't fit that division even even if he agreed with you you still weren't going to be in a few are looking at images online situation so much more you don't cross that line another line in toronto in other respects but in terms of whether he would have picked up and traveled down to washington d c and you know the government must have had its reasons for so aggressively pursuing that arc right me because they thought they would it would it would lead to district court to impose the higher status that she basically imposed and so you know they had their reasons and but in doing so they so i mean you know he had back either backed out for some reason because i'm a very hard time and my and the government's argument was travel percent a but that they needed to get the bug for very intervention a child would have been said she'll be back friday and the undisputed facts are there was an agreement that he was going to owe the second half of that payment horrific images that  because they said and it's true that the defendant never travel to the district of columbia so this is specifically on the travel offense not the webcam not not what happened up in pennsylvania and it's true that the defendant ever traveled to disregard via the never definitive never followed through on that but there's a contact with and he wasn't going in the hands on time he was the government suggested very strongly and said directly that he was going to come here and molest this fictitious child that the detective was offering and there just the evidence your basis for that was not there and that's the whole something about it and this would be to say this doesn't matter i'm not considering this it's too speculative whatever or i'd consider it but but weak but i think for the purpose of this exercise among other things we need to know what the districts reasons were and we didn't really get those from have a district court judge say you know basically i mean let's take another context say i think all income tax offenders are very greedy people who are going to go out and do it again the pursuit of business extraordinarily high so i'm going to give your sense of the top of the ridge and if that turns out to be completely  of insofar the probation and the government are not asking for these for legal reasons and the legal reasons are out there the cessna's in terms of all the intervening lawsuits assessed as hot now going to dance by playing errors that says the state of law that i'm not sure this is all law although i think it's paying whether she thought it was an articulated objections of a collection of objections made at that point to contact with children that's the immediate precedent for her statement and for the attorney's statement about the objections generally but even if we give that she may think it was preserved for her purposes but she can preserve things for our purposes given our president and our rules we don't have any idea well it takes us the court of first view rather than review  basically asking the court to create a circuit split with the second circuit's decision the coroner and then also you know whether the other whether that that is is vague whether it makes any sense to apply in a case where you know the significant it does not have children and the government so we just patients for this is that like look everybody should know about this man's offense so they can make a decision about whether to you know for becoming a relationship with him knowing what he might do in the future that's far too i think was very clear about what her basis was for imposing this sentence and of careful review of the record reveals that there are five reasons that she gave for this sentence one was the severity of the crime and that is the predominant reason here this is it this is multiple crimes really that the court was concerned about one the young girl in the next room to the massive collection a over six hundred child pornography pornographic photos on the defendant's computer and and three the transmittal of porn child pornography from the defendant to the undercover those were the crimes that the court was worried about and the real victims involved in those crimes that's the second thing that she really focused on that there are real life victims here that the defendant was hurting and i think their point on the camera show or traveling to do you see argument is not that she didn't say what she said about those things but here is this mitigating factor here and that is that this by who had been hesitant about crossing lines in the first place was backing off push came to shove backed off was doing his best to execute and that's their version of the record you had him beating version of the record which was this is a case about things that would have gone still worse had we not intervene why didn't the district or have to grapple with that debate as to what for them was an important potential mitigating factor i think your honor she did grapple with it and if you look at her exchange with counsel on page eighteen of the transcript counsel specifically states that his client refused the repeated invitations to come down and she replies i would agree so she agrees that detective pal check is being aggressive but then she says in his own court without detective pal jack having anything to do with that mr rock was doing now whether he was successfully obtaining what he was going for is a different issue i have no idea whether he succeeded or not but he was doing and that's what that's what her concern is she doesn't even mention detective pal jack when it comes down to pronouncing the sentence she doesn't mention the undercover operation where she talks about is the real life the girl in the room next door who is being groomed by this defendant who has a dick suppose to himself well aroused to this young girl was placed a vibrating egg in her room for her to find to kind of test the waters that's what the judge is worried about here and she's worried about the real life children in the six hundred plus images which she says are very disturbing and she had reviewed those images that are surrounding the defendant's computer when she actually imposes the sentence she the only medication she references is going to knock some time off because of his risk in  disputing the facts about what was in the defendant's head when he failed to respond on you know june fifteenth to the detectives message and i find that he was thinking x or y reader doesn't require that all reader requires is that she is fully aware of the arguments and that she fully considers that evidence that supports it and the record is is replete with those discussions that she had with counsel where she did where she tests this issue in these arguments and that's what they are as judge sent tell pointed single one to the court so the court had the very facts before it that the government was arguing about and that defense was argued about and the court could read all of those it's very clear she was very familiar with what they had what transpired transpired between the detective and she just didn't think that that was significant here the more significant elements of this case are the defendant's own conduct with the girl next door with the pretty collection of rocker fee and with the trans of child pornography that's the court's primary concern and that is what she talks about at sentencing and that is why when defendant's counsel repeatedly brings up this argument about whether or not defend it was really going to you know go through with anything with detective polacheck she says yeah i agreed detective is very aggressive but i don't but it doesn't matter because it's his conduct i'm looking at that's the import of her statements and barely read by this court there's no error here because she challenges the court on that and there is an ongoing debate between the court and defense counsel and so by the end of this sentencing hearing the court makes very nuanced statements like it's hard to know about this crime and easy to do again and reci this area is very hard to predict so defense counsel was an excellent advocate for his client the court recognized that and then chose to say things that were more appropriate with what the court was thinking at that time and i think the other thing to note here is it's not just a rate of recidivism that the court is worried about it's the fact that this is a very serious crime and she says that repeatedly it's a very scary and serious crime so even if the recent memory is low it doesn't it's manner i think as judge kavanaugh states in his dissent and it's certainly a condition that if the defendant is concerned about what it means you can talk with his probation officer to see clarification that that in this case it would be one in which that the court need to strike down so they don't go into what was struck down by this circuit in the lane you know well i think the lane is a different case i understand the facts are different i'm asking is are the terms of the condition identical to what was held to be improper in circuit precedent i don't i don't know if i got it back condition was expressed or was discussed at length in may not have been a lengthy i don't but i but i need a holding and i've got to hold him but the for instance can you i need a definition not an example of a girlfriend or a boyfriend relationship would be a significant from a satellite you have a teenager ok and when she thinks the guy has a boyfriend and when that boyfriend thinks he's a boyfriend are not the same thing all well one of the workers well here it applies to the defendant so i think that that it's his own view of what is a significant romantic relationships his own view if it's if he's saying that's my girlfriend he's presenting someone as his girlfriend then he thinks that's a you know that's a significant romantic relationship and if she says no i'm not then is he in trouble has he violated his condition or not well it's it's what he holds that person to be and that's what he says i don't think were they specific condition you know to the extent that the court is concerned about vagueness it is the same conduct is covered elsewhere in the conditions that we don't need this one while that is something that he thinks we are not agreeing that you should check his this is number thirteen it's on page two thirty five of the record that defendants must notify third parties of the rest that are occasioned by their criminal record and permit their probation officer to make such of occasions so it is very similar to the you know that's actually a broader greater than necessary and so if you're telling me we didn't actually need it i'm having trouble understanding how you met the no greater than necessary standard i think the concern here is that if the defendant used his romantic relationship which no one questions was a significant romantic relationship one where he lived with this woman to prey on a child and the concern that that the court having to tell me that i get that i get that's a huge concern but i thought you just assured me that other conditions would already protect against that but don't have the same vague language while the concern is that here the court wanted the defendant to be required to inform and communicate with his probation officer about when he's in these relationships so the probation officer can make the necessary notification either under her version thirteen or under the special condition and that is why i believe the court put that in there and she goes at length to describe why when defendant objects to this condition why she thinks that's necessary and so it length i think you said well you used the relationship to harm this child but she doesn't explain what she means by the term significant romantic relationship and if the court is concerned with the vagueness of that it's could certainly remain for the court for the district court define for the defendant when it needs to make such a notification but certainly under the facts of this case that is a reasonable condition of probation a by the court's own discussion of why it was appropriate in i would define it as a relationship in which one is romantic with the other person and it goes beyond a cat caught on casual dating to the point where we're holding each other out as being in a relationship that really  told because i'm now a funny guy a parent and that is that the younger generation doesn't even use girlfriend boyfriend anymore they hook up and it's not even meant to be come with obligations it is just hanging out together in a more progressive way further progress away man hanging out with friends in a non contact with children no dollar i think the other issue is all relationships are going to put you in contact with people who are or who are known to the person you're dating or the person you're in this significant romantic relationship with your girlfriend you're going to know her family her think the use of the word significant is intended to take it from just any hug up any one date to where that there is a relationship that is significant i ask you something about this process here because there's talk in the papers your papers about the computer conditions all things is look will work this out later that's why i give the discussion i might just confess that i don't know exactly how this process works so if it's over many decades from now and mr rock it is within a year of release and computers have taken over the world and he wants to challenge the computer internet access limitation because of that point you really can't do anything in society without doing it through a computer is there a process where he's released to challenge  e real viable one a meaningful one where things sometimes happen to be there with the probation office or with the court or does he have to wait and go out and then just ask his officer to think senator what is there a formal process a more kind of recent numbers there's a lot of talk about what the probation office will figure out what to do if this internet access problem is too suffocating so that's why i was curious what opinion including from the this circuit have depend on where he's being supervised and this is not in the record you're right but that's my representation from probation is for instance this defendant was sentenced in d c but lived in pennsylvania that when he moved if you asked to move to pennsylvania which i think it's probably likely he'll receive well because we don't know if i feel moved to him home move back to pennsylvania these are the conditions that are in place if he wants to change the pritish position the conditions imposed by the district court here in d c he can move to modify if he moves to a different jurisdiction he has to accept th yes he can move to modify this court as soon as he's released or even before to say the conditions that our employees are not all right are not you can do it before well i think he can actually do it at any time i mean right and then it goes from the court process because in our decision in the leg  in other cases as well we said look we're holding these internet computer restrictions for now but the probation office not the court can modify the probation office has a flexibility to deal with them because you have to have the permission of immigration office to go online under this condition that's correct but if he doesn't if they if they're saying no imagine his probation officer is saying no all the time so what you have an effect is the categorical prohibition on internet access that we struck down and russell how does it challenge that i think he comes to the court and says this is unreasonable and i want the condition to be modified because the way it's not only the way it's written but the way  applied to me is unreasonable and the court can then we can remove the condition or seek to have a condition that's more liberal applied and so that the court remains at an advocate for the defendant years railway plea and ministre to vote to challenge the individual probation officer decision i don't know the answer to that your honor but i but i do know that as is evidenced by our footnote in this case that probation continues to update these conditions as they think is appropriate which i think is a good sign to this court that they are cognizant about changes in technology and as your honor referenced unlike the court is not intended to be an article of technology as well as what the court said there and it is it will be difficult to know what in twenty twenty four how any of these conditions will be applied and that is part of the difficulty of bringing this this posture of this case to this court at this time and asking the court to sit basically and kind of opine on things that may never come to be and frankly you no relationship condition the remaining conditions are all reviewed for plane air they're either upheld on plane or reviewed by this court or by other courts and with respect to the testing condition there is this kind of thing and what's the do you know and this is not in the record your honor because this wasn't fleshed out below from the other cases that we cite in our brief my understanding is that as part of the more holistic testing that this test is meant to see how the treatment is working and whether additional treatment may be needed and and there are again this is not in the record but probation represents there are now also newer tests that they are adding to the treatment like rapid eye movement tasks things of that nature so obviously you know the there yes well and frankly this particular condition is conditional so it as your honor points out it may never be imposed on this defendant there at all well assembled if you sent us first impression but that's not accurate constitutional grounds which is why it may be constitutional what and there was nothing in this case where the district court made any individualized finding them and you know the so called science behind this thing is highly questionable and it's an extra conditions and hang like a sort of damocles over someone's head and just say yeah well we're hoping they never do it we never have to confront this why don't you just say it's not valid now and if there's great testing in twenty or thirty years then the government can move to modify his condition and add that him i don't think that it's not valid for under the circumstances i think that the court in alania was saying that it that none of the conditions that are the additional conditions for pedophiles or sex offenders  were relevant in that case and that the court agreed with that and said and said you didn't make the explanation that the law requires and you have to go back and comply with the type of analysis that's required and we don't have any individualized discussion here either by the district court and i just focused on this and didn't because the defendant didn't object to it so that's under a plane air review the question is whether you know right now there's no start down by a is a child porn user distributor a person who is you know into pedophilia and so this is a case where it's more he's in the appropriate set of people for these additional supervised release conditions and the government's position is that it's there's no plain error because there as this court has said in its other cases there is no player on these released conditions where the circuits are split about whether or not something is an appropriate condition i'm going to catch all these things do you and do this thing he has not a right to counsel at this point he doesn't have you know for the indigent defendant doesn't have the ability to afford counsel is to make he's an incredibly power lation ship that is incredibly balance where you've got this person who can send you back to prison and has a tremendous amount of control of your life and the amount to worship that is present there on that defendant to just accept whatever his probation officer tells him i powerful and you know this process cannot work that you know every time the that he had he would have to it would take an incredibly resolute and i mean you know person and you see this in practice all the time it's very rare that he will come to way because probation officers will in many cases take the course that c is for them and never let these people use you know always insist on the most invasive procedures to determine risk and so as long as you know there's also if they violate them