it please the court francesca for a chair on behalf of appellant paul wholly a sex offense specific assessment involves a psychologist interviewing a person about his entire sexual history all of his history from the time of the original offense through his current practice is it asks questions about the person's desires it examines whether there is any potential de say exactly that what i'd like to point out though is that the assessment itself is a significant deprivation the treatment that might flow from that assessment is a greater restriction on liberty but that's purely speculative at this point if the person were ordered to conduct to participate in treatment yes if the assessment recommended it though it would then be ordered but we don't know that right now we don't and your client if if it were if there were an assessment and it were ordered you would have an opportunity to request that the court disagree with the assessment and not actually order the condition or in other words you cannot go and i may ask for her revision of the conditions i believe that opportunity would be there but i think there the chances of that changing would be remote there'd have to be conflicting evidence other than the treatment provider that had been assigned by probation but yes that's correct that would be a possibility and we review for abus discretion yes which era there were continuous problems with the registration mr who had worked there there was not i would not say there were continuous problems mr foy greatest frequent no he registered consistently until twenty thirteen when he left the state of washington he moved to california and then he moved to oregon so he did not register between two thousand and thirteen and his arrest in twenty fifteen well he was obligated to register was you know he was and that's why he pled guilty to the offense and i don't think the supervised release was a reasonably related to that i believe supervised release was but not the special conditions your honor i mean the special condition a supervised release here person who was not complying with the registration laws and it was reasonable to wonder if he had reverted to original problems it's certainly reasonable to wonder but i think that on the basis of the record before the district court the conditions were not reasonably related in that he was then forty four he had not offended since he was sixteen years old and between being sixteen and forty four he had never committed another felony other than the sort of violation before the court he did not have any substance abuse problem he had a register is a violation that's correct other than the felony that was before the court he had no other felonies in his record since the age of sixteen that's all i know this is a fine point perhaps but you say he committed no other offenses never arrested or convicted but do we know in terms of his actual behavior whether in fact he did not commit any further would would have been  criminal the only method i know of whereby a person can prove that to the court is by submitting to a polygraph examination mr hoyt did do that that the evidence of that is in our exhibits of record about the past polygraph exam on the question of whether he had engaged in any sexual conduct with a minor since the time of his washington offense and he was found to be truthful in response to his denial of having done anything of the sort so i think there was evidence  the record there where the court can see that the court did not have that record in johnson or in many of the other cases that the court has considered on these sort of violations what does an assessment of the entail the sex offender specific assessment entails a psychologist questing a person about his entire sexual history his sexual practices the things the sexy then engages in all of the sexuality he's engaged in this entire life i think it's the kind of conversation that no human being wants to have and he is it done at his home it's done it psychologists office and it's not an inpatient type thing you know it doesn't last long enough to be an inpatient thing how long does the whole process take i think it's a day's appointment in my experience of interviews and standardized testing and then if there's for the recommendations from that then further appointments can follow counsel following up on my colleagues question  you're talking about a cast if you will to try to get some sense of where he is at this point he's shown by his failure to register when he wise that he finds this  registration offensive and difficult why is the failure to why is registration so any more difficult than what this condition asks him to do i don't believe that registration itself is difficult so he was well that the consequences of what he worried about the consequences of he certainly would now worried about them part of the history here also is that when he was originally convicted the registration requirement did not last a lifetime as it does now they did warn him of that they changed the length of the registration period and they had notified him of that but it was different from when he was first convicted i think that he did he registered for thirteen years in washington and when he moved i think and that's exactly why he pleaded guilty and he was punished for that is that he had a reaction of being fed up that was not appropriate and he was changing his life and he didn't register so that was criminal conduct but it's criminal conduct of a very different sort than what the predicate offense was that had happened twenty seven years earlier your honor and i respect that fact but i guess like my colleague and i look at johnson it seems to suggest in that case there was a single condition it seems to suggest that his failure to register which was related to the sex offense takes it well beyond the twenty seven year old offense a makes it a reasonable at least the nexus is there in requiring this evaluation trying to protect the public that's the reason for the registration i guess i find it difficult to be t troubled by the failure to register and tying it to this new requirement tell me why i'm wrong i think the logic this court offered us in t m that a remote conviction without sufficient intervening factors is not enough to find the reasonable relation standard that one has to find for the statute except in t m the underlying crime was not related to a sex offense and here the fa register as a sex offender is a crime related to a sex offense plus t m i think involve treatment merely assessment that's correct but the drug offense that t m was convicted of that was before the court and also then his violation conduct he had twice been found in violation of a supervised release i think shows at least as much disdain for the law as the of the offense of failing to register but it isn't matter of just disdain for the law or district court in this cuse explain precisely why the assessment was related to the offense conduct which was missing in t m i believe that the district court in this case simply said that it's because he was convicted of failing to register and he had no particular concern that mr boyd presented any kind of difficulty to the community he just wanted to be sure and i don't think the please the court amy potter on behalf of the united states in this case judge simon was faced with someone who did have an older sex offense but who had failed to register repeatedly and gave the only excuse of i'm too busy but he wasn't too busy to move twice to find a job to go to school to make sure his wife had social security benefits so even though judge simon was sympathetic to his situation and opted not to incarcerate him judge simon did have concerns and i know there was a mention of the polygraph but judge simon specifically and i believe it's seventeen again knowledge the government's argument that it was a very limited polygraph it was a single question and indeed in t m there was two questions and that polygraph not only was there sexual a question about sexual conduct but in t n t i'm also past the question about had they had any sexual desires about children which i think the court found significant t m he had past that so in this case judge simon faced with a single question polygraph an unknown history for a period of years when he hadn't registered decided that you know given the entire package a sex offender assessment was appropriate i think judge simon was honest he hopes it comes back as nothing and there's no further conditions but looking at the community the protection the community judge simon decided this minimal intrusion which is court has recognized it's very different so let me ask you about that johnson does say that an assessment far less intrusive them treatment program it's like the difference between having a chest x ray and then getting chemotherapy for lung cancer  well i think councils at my understanding has described it correctly it's a series of interviews in some cases it also involves a polygraph as part of the assessment where they're asked a series of questions do i think it's more intrusive than some of the very standard sex offense much like a fraud defendant has to produce bank account records and credit reports which are also more intrusive than the average but it's tethered to that fraud conviction here we have something that does not require i think the same level findings or the same history as the sex offender conditions but it is something and i think the judge simon here did tie it to the end not only the underlying conviction but given the history and sort of the unknowns his the defendant's excuse i'm too busy he decided for the protection of the public and frankly to offer probation all the tools that needed affectively supervised this defendant who's going to be supervised for five years let them know what what resources does this defendant need maybe he doesn't need any additional resources but maybe he does and this is sesson allows the district judge and probation to figure that out doesn't the fact that the requirement that he register as a sex offender and this rather minimal exam have the same pain underlying basis that is to protect the public the same they are the same i mean the basis of the reason for the sex offender registry is the protection of the public and this just goes hand in hand with that he hadn't registered for a period of years he received a federal felony conviction and the court decided in the interest of public protection it would order this assessment again i think the court is absolutely correct if the assessment comes back and it recommends additional conditions then there would likely be a court hearing and i mean the defendant could i guess agree without a court hearing to the conditions for the defend it would have to agree or the court could revisit that many can certainly argue that there are unnecessary at that point thank you two points in rebuttal if i may one is that the third consideration the court must engage in imposing a special condition is also considering this recommendation is that the sentencing commission it's noted in briefing that this special condition of sex offender assessment and treatment is not recommended for sort of violations by the sentencing commission they've exempted that from the recommendations for offenses that are actually sex offenses so i think that's something also that the district court would consider so if this court is of a mind to believe that a sorn offense by itself is sufficient that does not appear to be the view of the sentencing commission second because of the language in johnson it's i think easy to say that an assessment is really only a light requirement and that is certainly true as judge graber noted in comparison to treatment but i would like the court to consider that i think most humans would more quickly submit to a search of their car for example or even their pockets than sit through a day of answering questions about their sexual practices it's an extremely that may be true but for example  the court want to be sure it's not going to happen again and what the court required here clearly is tethered to what happened before and its failure to comply with his obligation to register to pick up on judge smith's point and i'm looking at the the sentencing comments of the judge on page thirty five of the transcript that said although i have every belief that this defendant is generally law abiding i understand the misdemeanors that have taken place i just want to ensure that there is no risk to the community the might somehow have been indicated by the you to register and that's why i am ordering the special conditions requested by probation that's a finding by the judge that even though the original offense is quite old the failure to register is an immediate problem and it's reasonably related to the assessment and is there an abuse of discretion with regard to that finding and i see i'm out of time so i may respond to your question i think there is an abuse of discretion based on the logic of this court's other cases about what's required for special conditions it's related in that a sort of violation only exists because somewhere in history there had been offense but not reasonably so when the rest of the context shows who this person is and how he's been living he wasn't hiding he was living in the open under his name he was found quite easily when the authorities wanted him he had been married for six years he had no substance abuse history the only legal problems he had in between were mr manners and even of those the oldest one was eight years old it is related in the abstract but according to this court's case law not reasonably so because of the level of intrusion on the person's liberty the other standards of his super the other conditions of his supervision permit the probation office to monitor his progress in the community he has many standard conditions on him the question is just whether these special ones were warranted and simply to satisfy the curiosity of whether there was any trouble in the intervening twenty seven years when there's been a truthful polygraph and