individual ised assessment that explains why the restriction is appropriate it was supported by the statutory factors in this particular case here though the ditto only justification that the district court gave for a similar but even broader condition was to cite the stimulating material is reasonably necessary to serve the purpose of sentencing so the finding here is virtually identical to the finding that the court found lacking in martinez stories as a citation to defend his conviction of a sex offen only difference and it's not one that matters is that here d of the of the offense in martina's tori's was in the offense of conviction it was a it was a substantially contemporaneous conviction in another court for a sex offense it doesn't make any difference because either way it's part of the defense history and characteristics and is a valid consideration so the fact that you know martin and martinez stories is prior to his sex conviction with a very serious sexual assault on  ira under the age of fourteen aggravated sexual assault so it wasn't as if this was some small piece of his history another potential distinction although again not one that matters using  correct so that it was a conviction is a proceeding against him in wyoming that's right and the judge does reference those at the sentencing hearing but not in connection with the imposition of this condition that he did judge discussed that india in talking about the prison sentence he was going to impose when the judge turned to the conditions the only thing the judge said to justify all this sex offender related conditions was to cite the offense of conviction and in any event even if it could be read as somehow implicitly informing the judge's decision on the condition it's not an adequate justification because it doesn't tie to the statutory factors in the case why because of his criminal history is it reasonably necessary for the purposes of sentencing to restrict h and in our briefs too and i think both parties have kind of proceeded on the assumption that was a substantive challenge to a condition and i think that's correct in that the part of the decision that we discussed is in fact a substantive challenge not a procedural one but in the section just before does address a procedural challenge like this one it's not a challenge specifically to the sexually explicit material condition but to the sex offender conditions generally but presumably that includes sexually explicit material condition to that doesn't affect the outcome in this case because it was decided on the rd that part of anyway the procedural part was decided on the rd problem and there's two important factual distinction was psychosexual evaluation indicated that he was a voracious consumer of pornography apparently not limited to child pornography plus the condition there was much narrower it was like the one in martinez stories it was limited to are now graffiti only has to be a reasonable probability of prejudice which just means the court can't be confident that that the error is harmless no basis is really synonymous with insufficient evidence in this course repeatedly said that that's not the standard for prejudice for is a key passage in that case i'd like you to comment upon and it and it goes as follows i think you're probably familiar with where the condition of release implicates constitutional interests such as the right to possess sexually explicit materials involving more detail may be required if the reasons for the restriction are not matters of common knowledge what are we supposed to make that passage why why why isn't it a concern that mr cox has possession of sexual material after a conviction for child pornography and a prior  offense for child molestation is enough to meet a standard well we don't think it's enough to meet the standard but even if it is enough to meet the standard that we would that isn't sufficient pressure from it's here because the problem here is the judge didn't follow the proper it's not a matter of common knowledge and nd i think the the fact that this condition sweeps so much more broadly this is not just a pornography condition it covers any sexually stimulating material what that means is not clear but it would seem to cover pretty much any show on h for example it's not a pornography restriction and so even if a pornography restriction potentially could be acceptable on this record and judge could make the findings that is supported by the statutory factors this condition is not that it's much broader than that issue question about your understanding of the thirty plane air sure did you want to continue with that line judge matheson no go ahead  i thought the defendant the already claiming plain error has the burden absolutely in you that is placing the burden on the government to show it was unlikely that there'd be an opposite  result isn't it isn't the burden on your client to show given this record it's it's it's until it's unlikely that the judge could kind of what you said in the  but centrally look like and what we have here we don't think that the defendant has as satisfied burden of showing prejudice on the rd i think that's essentially what the court said i think to the extent that the no basis language informed the court's decision that that's that's putting too much of a burden on the defendant even if you know if you read that is that not meaning quite what it says and that if they were applying the reasonable probability test there's a difference as important differences between the two cases one of them is the breath of the commission the burrell really was just a pornography restriction and his sexual psychosexual evaluation showed that he had a consumes pornography apparently wasn't limited to child pornography maybe there were some concerns about that it doesn't matter that we don't have any cases making that distinction wouldn't you know better but it's kind of holistically if you're trying to say ok  that there's no precedent to show it was plainly wrong to impose that condition given the circumstances here no i think the was resolved soley on the rd prong so that there's not any plane this issues with respect to the boat or not this is a different case so so the way you're distinguishing barrel is on a basis that maybe early persuasive requires reversal even though the way in which it's distinguishable from gorilla has no support in any opinion of this court yes and that's because it's on the rd we don't need pla does i don't think it does i think when you're when you're talking about prejudice it's a case by case thing that estate any any distinction can make a difference there you don't need obvious distinctions except except for plaintiffs and then we need a case obviously there's a split in the out of circuit cases on on a similar condition why is this plane with the air you have air wise why because the condition here it's deviates from martinez tori's only to the extent that it's even broader in a greater intrusion so it's kind of in a forty or i sort of saying if aparna graphy restriction can't be justified by this type of finding clearly one that covers p any sexually stimulating terril as part of his supervised release conditions this is do you understand what that means i what does that mean is there any definition anywhere d for sexually stimulating materials yes your honor that is a rather interesting question that i think could resolve a whole nother issue could be of much larger repeal yet that is not the appeal that was brought forth it was not the substance of the condition itself talking when we check in our office beforehand it was is we're not talking about henry miller tropic of cancer books that was not the objection to the condition itself but whether or not but whether or not there is plainness in the ordering of the condition so as for that condition itself your honor i think that is a broad question that might be ripe for review at some point in time in front of this circuit but that is not what is brought before the court here today  just having a hard time i'm having a hard time understanding how we assess this plane air challenge if you can't even define what the condition me so i'm saying your honor and the respo that i believe would be if we look to the transcript itself in which the court discusses as clearly as it can and there what it does view as that sexually stimulating  mr coke shall not possess send or receive any pornographic sexually oriented or sexually stimulating visual auditory telephonic or electronic signs signals or sound from any source unless part of a treatment regimen necessarily disagree your honor that it involves a large amount of possible conduct this isn't the only case in which that condition just closed is that it is not your it is one i just don't think that has been litigated very much my assumption is that it is because it becomes an issue when someone is actually on a supervised release people are d individuals will be revoked when they are downloading something from the internet that is pornography if they have a playboy magazine something along those lines but i don't know of any situation in which somebody was revoked for watching and c i s and there was a scantily clad woman within that t v show even though that might be seen as sexually stimulating that is not an issue that has actually come up therefore no one has actually been harmed therefore that might be the reason it has not come before this court yet cleared to the defendant sentencing rather than what these conditions me and there are i am in the condition here again though it is broad stating that any point a graphic sexually stimulating visual auditory said music material it still gives i think it still gives them notice about what it is that sexually stimulating things themselves they should not be looking at and they should know from this that they should not watch h b o depending on the show some people say it's better err on the side of caution i think it's also important to look at i believe it was a martinez a taurus or it might have been urns it made the reference in the very beginning to the bear case and which statute or condition should be read to be construed cost to us and i believe that is an important thing as well here to your honor is that though this is rod it should be read constitutionally to allow for constitutional reading of it that yes half of the things on each below might be sexually explicit do not watch those otero's do not subscribe to h b o if there's a condition talk about it with your probation officer counsel can i just  interject we said in martinez tours that the conditions there implicates constitutional interests would you agree that this condition especially given its breath and obviously now its uncertainty also implicates constitutional however saying that you have a constitutional right to pornography is not said that there is no case law saying that there is no case law i've searched and westlaw extensively at the supreme that is the clear distinction or honor and i actually reviewed my old law school textbooks and notes as well that looking at those because not an issue we come up with a lot and i looked at the theater case and the conclusion there is that with free speech is such a broad area it's a large large area and probably just a leaf on part of the tree it's still part of that tree it touches upon that constitutional interest however the area you get into that is interesting with st members speech rights is what they classify as the low value category of speech the commercial speech which is what pornography is listed as and i think that is the reason why you see that distinction amongst these cases and malone that was a familial association council and also i've got to interject again i'm not sure you answered my my question does the condition here implicate constitutional interests i believe it i believe it does touch upon it might be messianic i'm sorry to say that but i think it touches upon those interests i don't see how you could say talking about pornography does not touch upon a st amendment issue and  tour once the court identified the condition implicated constitutional interests and looked at the proceedings in district court for imposition of the special condition and court ultim remanded to give the district or a chance to explain its justification now why wouldn't that apply here when the special condition is broader than the one in murkiness taurus couple reasons and thank you on this is the point i do really want to get to is martinez torres i think it is incredibly st to know in that that that case was decided on abuse of discretion and not playing just so you know it's all just just to move the ball or are you willing to concede step one plane here in this case i am not your honor and the reason being is because there is step one that requires that there is air that there be generalized findings supported by generalized finding yes that were well reasoned and the court provided the generalized findings that staying due to the nature of the conviction prior to that the court goes into there's three pages in which they talk about the defendant's history everything going into that and then it states because of these factors and due to the nature of the conviction special conditions are appropriate all that to get that general that  and i think that's on the difficult part your honor of where it's  the condition itself the broadness of the condition i think it's important to so ancillary to it because the question under plane air for this becomes were there reasons provided for it  and more detail findings might may be required but the court did give detail findings it is that generalized reason it stated there is the same as it is required in all cases abuse of discretion or plain air there needs to be generalized findings the court made that was that sufficient procedural substantive the united states believe that is intertwined regardless your honor is when we look at that together the court did provide that justification for because it gave that generalized reason it gave reasons beforehand and then going into that nd step the plainness of it as seen umbrella and any of the other cases no other case that has talked about these sexually explicit conditions ever required compelling circumstances this higher standard has never been required for these type of conditions those higher standards have only applied for things such as familiar relations or forced medications and and i think that is one of the most important things to come here is air i had to think about whether or not i was going to concede air and the united states does not believe that we should concede error because we do believe that basic finding was made but importantly is that it was not plain because looking at every single decision that has happened it is ruled that it is not plain air as long as some justification was given and it was given and that is distinguished in burrell of from martino's taurus the defense relies so heavily upon martinez torres which applies a different standard in different perella which is much more on point with those similar issues as well as mike we cannot forget about mike either which is also the plain air standard in which there were sufficient reasons given it is not clear and obvious and as the corps pointed out a nd ago the situation which a higher standard may be required it was not mandated it was not stated that your access to porn odyssey is a fundamental right therefore you need to make particularized finding specifically to this condition that say this specific thing that is not clear and obvious if anything it's still open to make it clear an obvious at the conditions weren't sufficient to justify keeping the defendant from listening to i'm more of an eighty's music fan your honor so i'm not sure of all constitutionally we should try to construe it constitutionally you didn't give us much of a little handle on how we could possibly do that here or send and i believe your honor  and i think the main justification for that are the fault of the net states and that is that was not the issue presented to the court the issue presented in the window but the explanation has to do with what the imposition of what the condition is you can't say this would be this is a sufficient explanation because it would keep him from reading pornography even when it's not obscene but you might need a lot more you're not allowed to read any books or watch t v i don't know that we need to have a president to make that clear and plain that the explanation given by the judge was insufficient for those requirements that has been ordered for a very long period of time and there have been no objections to the substance of those conditions so they have been construed it's possible that it has not become an