submitted by both parties as to whether this appeal is moot are not so unlike the defendant in the king case which the government relies upon mr colley hoist sentence is not complete in king the defendant's jail term was done he was not on supervision here mr colley where he still remains on a period of supervision of fifteen months so it is possible that in the near future should he be revoked again that this condition can be imposed again or a similar condition and i think there is a specific exception to movements that this court addressed in calling one that specific exception is if a condition is capable of repetition yet evading review then it is still appropriate for the court to hear and i think that's the situation we have turning to the marrow michaeli is it do you think that this particular condition will be imposed very likely  because of the nature of the proceedings that i had below with the district court assuming that mr coe holly hoy's violations are in the future would be for testing jury which could very well be the case because that was the majority of the violations for the first three revocations it is very likely they think judge gilmore would impose a similar educational restriction upon him being one of the problems with this condition is that it is impermissibly v there is a portion of the condition that says mr holly cannot take any and all classes aimed at becoming a c sac so the problem with this of course of things all right i mean crazy i mean almost the problem with it is that it's not fake i mean the problem with that is that it's telling him that he can take a certain kind of classes for some reason but that means for example if you want to stick a remedial english class to improve his writing and reading which is what he told judge gilmore in order to pass a certification if you want to take it simply to better himself that's fine that's not a violation if he decides to take it because he wants to pass the certification in the future  free to take basic educational courses but just not the specialized courses for certification you know the condition says he may not enroll in a program to become a c sec so i'm not arguing that portions of aid but then it says or take classes aimed at becoming a drug or substance abuse counselor which i think is beat i didn't have discussion about that and your client said he understood the condition he did have a discussion about it but how can it be considered you specifically said he understood the condition because i don't think that necessarily my client seen that he understood the condition and agreeing with the judge means that a probation officer would see it the same way if for example mr kahala ojt told his probation officer i'm to english class at least we're community college and the probation officer asked why are you taking this class and he says well i want to become a c second the future is going to help me pass a certification if he would absolutely be in violation of this i think i agree with those birds on the come up think this is your strongest argument all move on to a stronger one that already the second argument i have is that the condition itself is not reasonably related to the goals of supervision  supervised release conditions have to be reasonably related to of course the major and circumstances of the underlying offense the defendant's history and characteristics to deter criminal conduct to protect the public and importantly to provide the person with needed education training what the statute specifically omits is that it cannot be used supervised release conditions cannot be used to punish a person and that is essentially what this condition people i'm sorry can be used to punish a person and that's essentially what this condition is doing and we can tell because of the district court's remarks which were numerous and why she crafted this particular condition she took appeared to take offense at the fact that mr kahala who had public funding that he educate someone who has demonstrated their own sobriety and my question is well first as you discuss it the second is an illegitimate  reason for imposition of a supervised release condition that public monies should not be used as a sort of a judgment by the district court that public money should not be used right she says it several times  fact i think in kahala one if i recall correctly i had asked the judge well if you can secure funding i mean if you piece for it on his own dime is he still restricted and she said yes so i think there's two problems with what the judge did here one is that as as you said there was a judgment about whether public funds should be used for you know for him to become a certified substance abuse college you didn't make that argument below did you make the argument that the judge was imposing a moral judgment in your brief even that the judge was imposing a moral standard upon him i did not say moral but i did talk about how it was her personal opinion about how she disagreed with me and mr kahala wholly that he should do this that was it is part of the problem in other words she was subjecting her own personal judgement of well i don't think this job is appropriate for you i don't think these classes are appropriate for you and so that ties into my argument that this condition was imposed in a way that effects as is actually punitive for mr cali but it did not prevent him from becoming a counsellor because he had been a council previously without  certification correct correct so the problem was for mr colley hoyt he was a substance abuse counselor for sixteen years he obviously wanted to become certified because that carries with it a lot more opportunity and  money but he was not able to pass the test i think three or four times something like that so he wanted to go back to school to become more educated so that he could pass the certification but i would note that let's say he had simply taken the certification didn't take any classes he didn't take the certification at all i'm sorry he took the certification became certified during this time period on the judge i think on numerous occasions said that she personally disagreed with the fact that mr kahala could or should become a certified substance abuse counselor so there was that judgment i think passed upon him which i think drove this condition you know i think there is a reason that supervised release conditions typically order the defendant to either engage in work full time or to go to school full time because we place a high value on education and rightfully so so the real world effect for m away with this kind of condition is let's say he's complied for almost a full year and on the three hundred sixty fourth day of supervision he decides i'm going to take a class to help me become a certified substance abuse counselor or enroll in a course to do that he's in violation he can go to jail for that and that's a perverse outcome i think that for someone who's on supervised release who we want to rehabilitate we don't want that to occur as we see it here that did not happen because the time has come and gone and if the condition is reimpose what could it be challenged at that particular time as opposed to us resolving it now when the circumstance that was set forth by the judge did not occur for two reasons one is that it's very likely that if he does get violated for this condition he's going to be facing jail time how can he be barely the best for this condition at this point because the time period has passed so he can only be valid if it's imposed right in subsequent pursuit right so let's assume that he violates in the future that in identical condition is reimposed because for example the ninth circuit finds that the issue is moot and if you violate that future condition and he's looking at he can he can go to school now so that's why i'm curious as to why we should even decide this issue because now there is nothing keeping him from going to school taking any class he wants to take if subsequently the  imposes this or some a condition it can be a challenge so i think this is the nature of an advisory opinion at this point well i mean i don't i don't think i think there's value in an advisory opinion given what judge gilmore did in this case because anymore it has naturally expired correct is a shorter term than the actual term of supervised release yes it was one year as opposed to fifteen months of supervis i see that i'm out of time and i was hoping to save a little bit of time for about a let me write this if you need it all right but the context was was that the fact that there was no more supervised release and on here i mean we have pretty good evidence that if he did reinvent it she would reimpose this condition because she already did  really may well you know you're the court reserve wishers with respect to king and it's holding when it says concrete and continuing injury this supervision condition no longer exists on september first two thousand and eighteen it disappeared and i can guarantee you that if the court tried to enforce it past some date defense counsel would be jumping up and down for good reason because it did expire and so what is the concrete injury what is the continuing injury there is not and this is the defendant who has a burden of proof to show that there is and there is no what is the court going to decide what will the decision be the court's going to issue a decision about something that is contingent something that could or may not happen in the not doesn't moon out unless there's an assurance are just not going to happen again but but there's a there is a contingency here which is his him having shown offend again yes you're violating again  whatever reason it should have to get this case decided and he therefore ended up subject to this condition for a year and if this were to happen again that would probably happen again right and another is it's nice to say that he that you can you can that there are a set of rules about what are the legitimate considerations and i suppose it would be helpful if you got to the merits and told us why you think these reasons including the public funds question it it turns question  particular are am and the notion that essentially doesn't deserve to do this are legitimate considerations under the statutory guidelines and rules  honor he was going to classes when this happened and so what is the court faced with the the court is given why discretion to adjust defendant's problems to address his needs are we going to do the same thing  was trying to prevent the defendant from doing what he was doing and not being successful and expecting a different result the court tried to intervene initiate a rehabilitation plan that would unfold in stages after one correct something that mr thomas said the record absolutely does not support that mr kahala why he was going to classes when he violated either time in fact he had lined up classes and he was not able to start them because the violations  so when he talks about taking him out of this atmosphere of school that atmosphere simply did not exist and you know i would note that the underlying offense occurred after he stopped being a substance abuse counselor it's not like the