brief you've got the your client who at sentencing had brought up at least two or possibly three cases crandon invoker being the two that to you it was miller when i read miller that particular that gave me an idea that i needed to do something counsel you didn't you didn't oppose the motion to strike the argument in the reply brief either why not this court has a tradition of wanting to hear arguments and i felt that this court was going to frankly grant the government's motion to to well no no no i posed to strike a sorry i colleagues and we had were advocating a ten year limit on these kinds of conditions or that case is sitting there would we do with that well you are with this particular case i'm  wasn't solicited the internet there is only downloading of images and you could argue the film it was the hub and there was about eight other people with whom he interacted on a separate basis in his part of the ring and that he was a particularly bad actor the flip of that would be that because he was a particularly bad actor that's why he got twenty years and only ten years with his respect to the supervised release conditions which is what's at issue here w the supervised release conditions in this case have more of a bite mr outlasting got five years due to his prior record and also the nature of the crime what was involved  position your honor is that these issues this was brought up during the plea allocation plea allocution where the government wanted them to strapless in ten minutes to i think over three hundred pointed out pornographic images and he refused  they settled on i believe the record said thirty seven the p s i i said but he settled on on a number between the two a place and i believe that the government had its opportunity if they really wanted to push because there were they were on the verge of trial and they had their witnesses ready to go so i believe the government frankly waived the additional images because they felt that we had a history of i mean the government didn't waive the the right to claim up to in this case twenty five years with respect to a supervised release of russians and it could be anywhere from five to twenty five and the concern was that you have a person who was of this time forty years old and that had looks like a significant continuing problem with regard to the bringing up and possessing of these type of graphic images with respect to children and in that context  their argument was that there's something should be done to monitor him until he's in his mid sixty's at least force in this case seventy i guess five plus twenty five is what they were arguing for i believe cases that was cited and miller as i said previously there was a victim that was used by the internet the perpetrator used a used the internet to lure a victim this man  the internet and we're talking about the special conditions in the period of which he will have more you saying that because he did not use the internet to lure victims in court would could not reasonably impose any restriction on his no no no no no i'm not saying  the period of time that you're going to lose on the period of time because you agreed to twenty five to twenty five year period some of the twenty five years up to twenty five years twenty i'm not good at math but i think twenty is up to twenty five and it's in that time frame that wasn't waive government was free to argue up to twenty five years ok there wasn't any there wasn't the eleven simply didn't deal with the special conditions only got with the five years no no no i'm trying to isolate those between the special conditions it suits me and the term you've got a real long road to hoe that you realize human is on the special conditions and i'm trying to focus in on given the kind of restriction we okayed in human for ten years to actually harm the children is one thing the download pornographic images discussed it has it but it's another thing for an adult to lure children and all these other cases children  miller is saying our most recent case that you should look for the least restrictive option with regard to computer access marring i think in that case it was they were saying you know if you can do monitoring the whole the whole idea here is to have someone who's committed a crime by use of the computer be monitored with respect to continued use of the computer once a person is out of prison it's cracked and so that isn't that met please the court i'm ted smith an assistant united states attorney for the middle district of pennsylvania representing the united states was the appellee i just ask you at the outset just to clarify one thing with respect to it appears from y reply brief that it took a very different tack than your motion to strike the motion to strike was that there was an argument that was made in the opening brief it was made in the reply brief and that should be stricken or given the chance to file in the case of the government brief in response to the reply before sir reply brief and i take it based on what you've said in your server reply brief that ok we're not going to press the waiver argument is that correct no i still think that that's not we really i still think it's waived by what you said we're going to press the quote affirmative waiver close quote what do you mean by affirmative waiver as opposed to non affirmative way but  that's that's a different argument that i'm not going to press it's one that the court actually brought up in my opponent's argument and that is it's a difference that when the defendant entered into a plea agreement the plea agreement  stated and i'm looking at page twenty seven of the appendix the government and the defendant stipulate and agree to the following sentence imprisonment for a term of sixty months supervised release term of up to life and then the parties modified that to twenty five years and one hundred dollars special assessment no fine based on the defendant's inability to pass the parties agree that the sent this sentence is a reasonable sentence under the facts and circumstances of this case i think that is an affirmative waiver so you're saying there's a plea agreement that waived yet at the district court level even though both sides had the  the defendant here and twenty five years by the government by mr summers yes and the reason that i did not press that waiver argument in the summer reply brief is that frankly your honor and i'm embarrassed that the  principal brief of the united states replying to the defendant's opening brief did not press that waiver argument and frankly at this stage of the proceedings i did not want myself to press a waiver argument  you know i'm not going to i'm still not here really i think there's a waiver of the issues not presented in the opening brief of the appellate but i'm not really a i am a let he who is without sin cast the first stone and frankly i think we filed a response of brief that failed to discharge our duty to help the court sort out the legal not by not by the plea agreement because we didn't argue that so that's why you argue later on that judgment she doesn't he's quoting that there was plain error here because you thought he did something at the district  level that waived his right to make this argument on appeal i think plain air review applies to the portion of the issue regarding conditions of supervised release year term especially nice pops up in the and i think through the the doctrine of waiver on appeal by failure to raise that issue in the opening brief i continue to maintain that that miller was the first case and that's in the first case but i thought the clarification was you really should look for the less restrictive alternative before you throw the kitchen sink by and i find that in freeman ok i find that very plainly and freeman ok but i don't we don't you don't argue about that personally i think the only thing really new in miller was the court statement in miller that you can't really evaluate than what is necessary to do and when you part of the equation is what is the conduct that the person was convicted of in crandon it was a person who use the internet to lower someone into an under age person into a relationship in freeman you had well that was only five years the volcker was the use of the internet the omen was the use of the internet again to get others involved here you could say and then miller it was just somebody bringing up for own his own personal use pornographic images that are illegal your honor i agree with what you said in discussing the cases i think the important thing to look at here is the fact that the sentence here the total sentence including the restriction on liberty created by imprisonment five years and the restriction on liberty much less severe restriction on liberty created by supervised release twenty years that's a total of twenty five five of which is incarceration in film and the total was thirty and twenty of it was incarceration and only ten of it was supervised release and an internet access condition virtually identical to the one here was held to be reasonable and the term held to be reasonable by this quote though clearly the activities here were not nearly as  moment the only the only difference is that here there is no evidence that the defendant specifically used the internet to molest children but although the fact is a woman had also a ring that he had eight prison he was going to have a special condition access to the internet so he he had a thirty year position on him twenty of which was total incarceration and i think that's an important point here and i think it's part of what the district judge said in his statement of reasons and that is you know when i was when i was a state prosecutor we used to refer to this is we let's give the defendant a long tail ok this is relatively short and that's what the judge just referred to here i mean that you know there's there's a long tail to which the short sentence but help me with regard to what what's your goal here with respect to supervised release and what you want i don't buy this release do with respect to this person in connection with this person's use of the internet i would presume that that goal is to have this person not be in a position to bring up illegal pornographic images on the internet once this person is released from prison is not correct that's correct and what judge went is wrote in miller was that you can do that by ways of monitoring or putting a filter on the computer that can deal with this just as we deal with children today making sure that there are certain things on the internet that they cannot access why doesn't that achieve your goal rather than the complete condition doesn't simply say no internet access without the approval of probation office officer because it goes on to talk about how there will be the defendant will consent to monitoring help pay for the cost of monitoring pro software and so forth and to me that specifically contemplates that at some point that restriction will be taken off and the probation officer can certainly make the initial decision but the defendant always has the ability to go to court to read that word to me as a belt and suspenders he can't go online but you can put software on the computer to make sure he's not going online but  denied than the defendant has a remedy with the district court and i think that that is using his question the real purpose here is to take away that means that he's the he has to ac that there was that there was a letter that the sentence was unreasonable that that's the civic condition was unreasonable because there was a less restrictive way quite the contrary to the court and thielemann seemed quite comfortable that that was a necessary condition for that defendant and this is a lighter sentence than the one imposed in film when you look at you are saying that in effect the omens thirty years this is twenty five years  but let's let's look at the lens the other way miller was somebody who was sixty and was given a lifetime ban so let's say the actuarial tables show that persons won't live to be eighty eighty two eighty three  this person is forty given five years and then additional twenty years mean for isn't that isn't this much this or close to the same that you ran up against in miller that it's just too low when you add it all together i don't think twenty well i don't think it's close to the same i think miller was a much less serious offender miller went to trial and all the government could prove and just barely the court found in the first miller decision was possession and receipt of eleven child porn a graphic images and they were on a visit disk containing a cornucopia of adult obscenity which of course is presumptively protected by the first amendment so there was a real issue as to whether the defendant even knowingly possessed the eleven images he was found guilty by a jury of knowingly possessing and receiving them but that's where there was in miller there were no besson images there was no child no actual child abuse by the defendant in miller as there was here  the district judge had attempted to amend it even for the for miller's life would be reasonable so i think miller is a case that in that respect supports our position as to that condition here which we haven't talked about very much  but i think miller's a much less serious offender your honor made ask me to concede that offenders differ while they do this this offender is a much more serious offender with a much greater risk evading in part because of his tendency to minimize his own wrongdoing here which the district court noted but in part because we know his interest in children sexual interest in children is not theoretical he has in fact been convicted of abusing sexually fourteen at this point here is we're talking about i mean in effect that's talking about the the sentence here we have a supervised release the question is going back to judge mckee's question do you have a problem when this person is out you have a problem with this person getting on a computer and reading the new york times no but i think the means to ensure if he has internet access that all he does is read the new york times or or do his online banking as opposed to viewing child pornography is very very difficult and there's no evidence about this in the case but still are not but if he were to if he were to my understanding is that the apparatus out there today is very good very good compared to what it was just five years ago and that they can block out pornographic sites they can block out or you can find out if the person has downloaded anything in any event and that's that they take the risk that if they do that they're going to be significant consequences but why at the outset say you can't pay your bills online absent some type of approval of a patient officer you can't read the new york times you can't go on to whatever you want so yes philly dot com it just seems like it's it's shooting a online because of probation officers discretion is not unfettered because there's a court in article three excuse me yes on article three judge to supervise the probation officer and make sure that he does not exercise sentencing discretion and that cannot be delegated to a certain point the will based office even though the probation officer's discretion is not unfettered why should the court say look absent these things this is what i'm trying to prevent you from doing don't do this on line and therefore any kind because this court did not do it in thielemann in a published decision and thielemann is on point with regard to this condition with the defendant like this and if the court is going to go that far i suggest that it would be sending very very mixed signals to district courts after a case like the allman we have a judge here who really did try to comply with all that mishmash of case law out there he made sure that the restriction on access to minors did not include the defendant's own children if he ever if he has children of his own specifically paying attention to this court's pronouncements and volcker so i think this court's current precedent  should prevent it from taking the step that your honor is talking about taking unless it goes in bank well if you just look at that miller i mean you're right it's quoting from freeman we make clear make clear in freeman that quote there is no need to cut off a child pornographers offender access to email or benign internet usage when a more focused restriction limited to pornography sites and images can be enforced by unannounced inspections of material stored on the offender's hard drive or removable dis and then since then we now have the ability to put the filters on that actually block this out why isn't that the law and why is simply repeating a principle stated in freeman a part of the problem and freeman was there was an inadequacy of the reasons stated for that restriction and secondly there was no indication that anything  more than what your honor is talking about was needed here we do have some indication you know the defendant was put on probation by his wife and that was posed to be a super monitoring and supervision of his internet usage by a family member and while that was going on he possessed and received that's tough to enforce now there are things out there that can be put on the computer that can make it easily enforced can't get on and if you ever somehow circumvent that they can find out through the hard drive if you if you've actually downloaded for graphic images your honor i i'm not aware of those software packages there's nothing in the record about nanny doesn't work when i was in and then it was the best one i and i don't know who was in one time considered to be the best one but but what i'm suggesting is that there's there was really nothing before the district court to tell it that it hand some fantastic software package available to it that would enable in a fail safe way to prevent the defendant from accessing child pornography and i think the court in the position it was in without any argument by the defendant at sentencing regarding the conditions as opposed to the term it's difficult to suggest that the to say that the district court abused its discretion much less committed plain error regarding the conditions and just as just the gun question how much real practical difference is there between abuse of discretion and plainer i think there's a prat i think there's which one's tougher i always i think you a pretty extreme standard compared to abuse of discretion of the it's interesting what was sort of beat into us in laws who was abuse of discretion was about as good as it gets if you're the deciding person at the outset well i teach the plain error get reversed but i think that standard of review is i personally believe professionally believe that that is the toughest standard but people don't normally discuss that right next to abuse of discretion we talk about the other standards of review and then we sort of put harmless error on planar review on top of those sort of anyway thank you very much that the least restrictive alternative is what needs to be looked at that's in the statute but but still i think it reinforced that particular situation and also discussions about using filters i think that  for the court can reasonably be expected to impose more restrictive conditions and a longer term a supervised release and that's a decent well i think i think we look at the fact that he's getting less times because at that time he had a criminal history of incident with his wife and his child you know we just have her we're just at her statements regarding that i don't think that's really i don't think the court really should weigh that at all and it's and it's thought process  in kiddie porn cases you have someone with a long history of you can all contact ag assault gregory has someone who's who many times employed because you have to have some level income to maintain the computer and of people that we see any now who are people and businesses are receivers in the sentencing judges eyes not sure there's anything that you said that would necessarily suggest the sentencing judge your client should be treated  there's a there's a lot of difference with the cases that were cited and this particular defendant as far as his use of the internet and and the and the imposition of twenty years restriction on asses situated is unreasonable there's other means in which those goals can be achieved so that he does not access child pornography no one has a right to access child porn other than how do we deal with film if you were writing this you had tillman sitting out there were the court imposed a period of supervised lease for ten years and impose a condition we prevented the defendant from wanting or operating a personal computer with internet access you know home which is a bit different here  yes distinguish the fact that he did not use the internet to lure people i've been going back to that particular point i think that's crucial he did not use the internet to more individuals to victimize children  downloaded all right that's questionable and it played guilty the thirty nine images and that was all the government when it will prove if that's the argument maybe we sort of and up where we started because that ability to