go to register as a sex offender for fifteen years as a separate stand alone component of his instant federal sentence because the district court lacked the authority to impose that order it is unlawful and this court should vacated the thing that the government misses about this case is that it's not about the punishment or it is rather about the punishment the district court was lawfully allowed to impose for the instant federal offense it's not about the whether or not mr acevedo has a future requirement to comply with civil regulatory scheme that is sore or not if you just look simply to the statutory punishment that is available for this offense the universe is actually quite small under section one thousand four hundred and seventy dollars the actual statute of conviction you can be punished from anywhere between zero to ten years under section th mandatory victim restitution act if there was any loss proximately caused by this offense the district court statutory authority to impose restitution there is no statutory authority in sor another or anywhere else to order compliance with sor not much less what was imposed here which is actual registration for fifteen years on a defendant as a basis for punishing him for the instant federal offense and we can look authorization when an individual is convicted of a rico offense or a drug offense under title twenty one dollars the that such it says that if those two predicates are there then the court may order defendant not to associate or communicate with a specified person if there is probable cause to believe that that association or communication is for the purpose of continuing a criminal enterprise so that's an example of congress giving defendants as to whom there is no supervised release your honor that's not there's not that there's not that's not an issue in this case so we're not in any way jalen ging the fact that mr us tomato has a future prospect of duty to read what's your problem well how is your client have an appealable issue here he know if he knows he has to register in the judgement says he has to register how has your client been adversely affected by that judgement judge shows are several ways that the client's been adversely affected by the judgement one he has a present obligation to comply with a court order and that court order could if in force in the future result in criminal contempt for cease in prison right now isn't he is your honor but this order doesn't begin to run until he's released from prison so he will be under a present obligation at the time that he is released from prison it is right but he you but you just conceded that he'll be under that obligation regardless in right indeed but this is this would be extra punishment above and beyond the it is not imminent it's that's only theoretical whatever punishment just to fight the premise a little bit spencer versus canada recognizes that when it comes to criminal convictions and sentences the defendant does have a present interest in even future consequences that are unlikely to  it well we've seen we've seen those a number of times but the point is the fact that he didn't get supervised release is not a detriment to him correct course but that's not what we're here arguing about judge jones i found over one hundred ender's briefs explaining why the imposition of supervised release on an alien defendant has the creates no non frivolous issue and that's exactly what i would have done in this case that the issue before this court is whether or not it was la for the judge to order an extraneous supervisor release or excuse me registration requirement when it did not order supervised release it would be a mandatory component of supervised release but there was no supervised release but let me get back to the other interest because beyond compliance with a court order which and i didn't get to finish with that but the collateral bar rule which is a ingrained rule in the criminal and civil law demands says that if we don't challenge this order now if there were criminal contempt proceedings in the future we would be precluded from challenging the validity of the order at those proceedings what is the difference between imposing this as a condition of the judgment and the fact that if he came back into the united states illegally and had not registered under sarna he would be subject to prosecution the difference is in the latter instance the executive would have the authority to decide whether or not to bring that prosecution it would not be a judicial function this creates a judicial layer on to that duty well of course it doesn't execute itself automatically we don't we don't go out and arrest these people but you can we can without the intervention of the u s attorney bringing a contempt charge that's not true that say the element on case that i cited in the brief clearly held that the district court has the authority to initiate criminal contempt proceedings on its own and maybe even higher or excuse me to talk about i mean that's getting into to the kind of theory and name me a case where court has ever and initiated criminal contempt on its own against a defendant that it doesn't know was illegally states united states versus dixon as in one thousand nine hundred and three case of the united states supreme court justice scalia writing for the majority held that the double jeopardy bar applies to criminal contempt proceedings that are based on an offense that is later bought by the united states attorney in that case dixon had violated a court order not to i believe it was he committed an assault while he was pretrial release and so the district court initiated criminal contempt proceedings he was found guilty under those criminal contempt proceedings without a jury and whenever he was an illegal alien whom the court didn't even know was in town right this was someone under supervised release who violated the conditions of supervised release presumably because a probation officer found out about it just to be clear it wasn't supervised release it was preacher of the tension the difference being that it would be punished  under supervision by some one official it is true that we are not only about with respect to the single interests of content we are talking about the future possibility that if he comes back he could be subject to two different types of criminal proceeding but you just said he can't because i would be double jeopardy and i would be inclined to agree with you if you're right that's another reason why the district court hadn't thought this particular order through because if the district court did initiate criminal contempt proceedings in it punish him for violating this order it would preclude or it could there would be an argument that it would preclude the united states attorney from punishing him for a sort of violation after that it would depend on which came st was the district court imposed as part of the judgment that having been convicted of this crime this person could not consent legally possess a weapon under nine hundred and twenty four dollars whatever it is would that be illegal too if it was not a condition of supervised release yes it would be because that would be a order for the defendant to comply with the law in the future and it would be no different just like the order that happened in this case and not knowing that ordered to pay a fine is something that has to be complied with in the future to in order to pay restitution has to be complied with in the future inside don't see where your argument guns the argument goes judge jones that the difference is is there statutory authority for a district court to order an individual to pay a fine there is no statutory authority for the district court to order mistress of a dove to pay his taxes or to maintain auto insurance these are all civil regulatory schemes that exist that individuals have to comply with and for which there could be criminal penalties for failure to comply but nobody would say that a district court could order as part of a criminal sentence for attempting to transfer of sin and even that the defendant pay his taxes in the future on pain of contempt and if you're not satisfied with the contempt the future possibility of contempt there are other interests here this court has made clear it's irrefutable in its opinions that a defendant has a present interest in ensuring that his judgment the official records of his has an interest in maintaining correct records and in this case it's not just correct it's lawful guilty as to transfer of obscene material to a minor in separate statutory requirement imposed and very simple regulatory structure judge jones we're talking about the punishment that may be imposed as part of a by a lation of a federal criminal law it is a necessary consequence of this particular violation that an individual must register in the future but it is not a piece of the punishment that may be imposed that's the different but that's all we're saying here i'm not attempting in any way to downplay the seriousness of mr acevedo's criminal conduct he got very lucky in this case that very lucky in his sentence to i agree with that judge jones if if he had if the government hadn't misplaced some of the evidence for the enticement charges he would have been looking at a ten year mandatory minimum and so we're not here making some grand argument about the this was unfair in any way all right the only thing we're saying is that this was not something that the district court at a lawful ability to impose and speak to the to their i mean mr rodriguez was the level of the objections officially put the court on notice of precisely the concern that your ticket lead here chief judge stewart i think that it was but i will say that it could have been a better objection it could have been more complete it could've been specifically identified the problem is is the attorney wasn't reacting to something that isn't lawfully i guess that doesn't really exist and so it is hard to kind of come up on the spot with an objection to an order that you've never encountered before but i will also like it then it was your honor it was a trial attorney in our office name really rodriguez believe again the objection was made to district court said i overrule the objection and it's clear from the district court's response the district court at least understood us to be arguing that this wasn't something that we believe the court could impose a set well the court said well if if he doesn't come back in the future then it won't be a problem and we agreed that that's true but that however even if it wasn't preserved the standard or a few would be to no vote because this is a claim that it's an unlawful sentence and so because in fact in the legal case that judge against and just issued on friday it's number court's clerks and so we do think that this was sufficiently preserved and  very for the united states good morning that pleased the court i would respectfully submit as i did in the brief the judge will hear i did precisely what he was supposed to do in this case under five d one point one according to scrooge from in soon and since under this court's opinion and show field in essence judge all there i did nothing other than what is already required in the sort of statute mr as judge jones sa is required to register as required to register in the jurisdiction of conviction in or he resides in the jurisdiction where is it student in this case since he is in prison he will be required to register prior release from prison and then in all likelihood he will be deported the reference in mr acevedo's brief to the sixteen year acquirement being excessive is a red herring under the clean slate dr and if an individual complies with several sets of requirements he can have the fifteen year warrant been strafing period reduced to ten years in this case that is a completely moot point potential for what is the consequence if any of this being in the judgment as opposed to a separate offense if the return feeling only just shows i would respectfully submi correct your honor and assuming that this was in the nature of civil as opposed to criminal intent he could purge the consumed by registering under someone else it would have nothing to do with a separate criminal prosecution under counsel admitted judge olvera entertained an argument for a downward variance to a year and a day he respectfully refused to agree with that area to impose that variance is sentenced a survey doe to the guideline maximum twenty seven months defense counsel remitted special assessment waive the fine and then said i'm going to impose fifteen years on a registration requirement since council thought about it for a nd inset out of an abundance of caution i'll object judge ovarian said if he keeps his word meaning if he follows his promise not to return to the united states as is required by law its members point and defense counsel agreed that's correct it would be a moot point if he does not return to the united states the requirement set out in the statement of reasons would be completely moot you know the same can be said of a re that's an act of vishal problem with the th yes or your honor yes or but the reason for my hesitation was i was always trying to mentally calculate the guidelines for the for the two violations i honestly don't know th is required to do under sort of the is required to register as a sex offender what's what in the model says that the judge can not add that to the judgment nothing that i'm aware of as the whole point fully say that if you if you violate sawing or you're going to jail for an additional two years or whatever then you you know you can't obviously can't do that but it's to me it's six some one half dozen of another whether the judge pronounces this in the judgment or in terms of supervised release and i'm not i don't see where the law prohibits the judge from doing from from doing it in the judgment honor and socially yes that's my argument there is no term of supervised release because he's of the portable alien but there's nothing that says the judge can include the requirement for stronger registration since the requirement release is part of the judgment of conviction the terms of supervised release are a term of months what does it do after it's something in lieu of additional imprisonment or in lieu of an additional fine you know it is part of the entire mix of the punishment but is meted out and therefore it seems to me if a judge were to put every bit of supervised release into the form into whatever the form is of the judgment of conviction it would make no practical difference and that's why i say it's clearly not prohibited unless they are unless i'm missing something in the law but if this is just a matter of which form in the judgment does it go into i don't see a difference where am i wrong in this instance i would respectfully agree are supervised release is designed guidance and assurance of no further illegal conduct it provides more rigid framework than simply being at large in the populace and in this case but for the it for the for the typical defendant  there still in the united states another supervisor at least and they have reporting requirements and a whole list of conditions that they're required to follow in this instance is a deportable aliens theoretically in the ordinary course of  scenario it is harmless as trial defense counsel's already agreed if he follows his promise digital vera and does not return it's a moot point but st and foremost there was no so help me think down in a different scenario different case but with the pronouncement here i mean what's with the consequence in other words in his precisely as you said in this case there would be no consequence in other cases well the only instance in which it would arise would be a deportable alien who did not receive a term of supervised release who  it is indeed in that and there there well if the court did impose supervised release in order to impose soreness on a would have been a conditional supervised release would it not invariably owner yes of course i think came back into the united states he still liable he could be thrown in in jail even quicker for a violation of supervised release with soreness and under this form of judgment that he's been given so it seems to me again if anything he's benefited by this situation not her harm eyes shortness or b i don't know your honor the longer answer would be i believe you're probably correct he would have been all appeals to me that he was the techie also not for the purpose of just you know i don't like i don't like something unless the person who is strike that part and has to vacate and remand three sentences so that the judge can impose supervised release with sauna if that is because this was this is a pretty grotesque situation and even though it the information you have still they were in communication of reputed only two days when he went from informal communication based on the appear her appearance in the posting to requesting a meeting for the board for the best solution to a truly unique set of facts would be to remain so the judge will vero could impose a term of supervised release including among other requirements a sort of registration this is a really i'm gars i apologize this is not it's not prejudicial to your argument ok i hope not and i hope so i hope not in the end i want to be very clear that this is this is a serious matter here and i  to do to get it right you're right chief judge stuart but the problem is is that the criminal law is not a place where there are tweeners the due process clause requires fair warning of the pop potential punishments of conduct and so the and that's the specific punishment that is meted out for any statutory violation that's why there has to be expressed statutory authorization for any punishment that's imposed as a result of a look part of a lawful sentence three thousand seven hundred and forty two requires this court to review whether or not a sentence is imposed in violation of law and if the court finds that is and it's is imposed in prohibits that the government did not cross appeal on any issues the government had to cross appeal no but your honor heard that in in the sentencing context that's not a pure top it's precisely the context of the green the cross appeal rule is inveterate and certain as justice ginsburg said in her greenlaw opinion and so if the government had a problem with judge will vary as discretionary decision not to impose supervised release it's really very sorry but i mean we ha is the mandate rule and the mandate rule says that the only thing that's fairly within the judge's purview on remained are the things that flow from the sentence the district judge exercised it discretion not to give supervised release here if that is a final judgment in the united states didn't appeal it and so it can't now come back and say well we think you should have imposed supervised release on better if you think you're going to argue that when it's not argued anywhere here and then you need to put it in the twenty chain letter i will i will do that as soon as i can judge jones i will put green law and whatever else cases i can and not whatever i can but anything that's relevant to that decision including maybe some cases from this court relying on greenlawn d i don't have much time left so i want to make sure i  the again the the authorization here is what's important the statutory authorization it's just weird mr acevedo has to comply with so and i have advised him he needs to comply was sort of in the future if he came back he should of course comply with soren and no one is arguing he shouldn't it's just whether or not this is an unlawful order and whether or not it perrett presents a potential punishment in the future it could be used in a future sort of prosecution if the united states was to do that this defect if we didn't appeal this in argue that it was invalid the united states could use that in plea negotiations to say we acquiesced to that in point to the statement of reasons and so that's why we do have an interest in correcting the statement of reasons which is the appropriate remedy in this case and we also i just think that that if you've got if your honour's would like  point you to a case united states versus nolan is cited in our brief it's a two thousand and six case and in that case it deals with restitution but this court specifically recognize that for federal tax evasion restitution is not  something the district court may order and it held that even though it could have been imposed as supervised release if the facts supported it the facts did not support it and therefore that represented an unlawful order of restitution and the result was to vacate it and then the the last thing i will say if you'll permit me chief judge stuart is judge owen you joined a opinion in the next year in two thousand and seven united states versus ortiz it's an unpublished opinion but it's also cited in our brief in the room in the section in the blue brief and in that case there was a five hundred dollars ankle monitor order that the judge imposed in this court recognized that that was the district court didn't have l impose that order and that it was therefore an unlawful aspect of the sentence and it vacated it and that's all we're asking the court to do here aren't thank you are so sophisticated they're think you are