asked myself and co counsel to confer about the case so we can coordinate our arguments we've done that i intend to address the issue of the fact that the oral sentence conflicts with the written sentence in regards to the conditions of supervised release that would be the napier issue and depending on time and if the court has interest i would also like to briefly address whether condition number three was sub simply a reasonable or unconstitutional  and miss richardson royer will probably have a few comments about how napier affects her case and then she'll deal with the issue as to the reasonableness of the standard conditions applied in these two cases  such a conflict it's the oral sentence that controls him mr i'm on the cobbles case the court stated just two conditions of really the court said don't come back to the united states that's one condition mandatory and standard conditions there implicit in a sentence that doesn't really take into a fact what actually happened in the here and what happened here maybe or there the district court clearly told the  defendant in summary fashion about both the mandatory and standard conditions and so the real holding of napier is that where a district court does it by in a in a in at least a summary fashion  the mandatory in standard conditions then there is no conflict between the oral d and written test but here that didn't happen there was absolutely no mention of mandatory or standard conditions  and and it's especially troublesome in a case like here in the one thousand three hundred and twenty six case where most defendants are non native speakers they are looking to the judge to hear what is the sentence and when the judge says him here are the two conditions of supervised release person should be able to rely on that and without any advisory from the district court he should be no that he would have no reason to know that there are all these other implicit conditions out there and that the defendant should be able to rely on what the district court says not what the objective lea intends in terms of these implicit conditions and it's not really that much of a burden on the court here to mention at least that they exist and that d they're going to apply and especially in terms of the standard conditions it would allow that the district court a chance to extreme because as you as you note there are mandatory additions the district for couldn't have in those those had to be imposed right so the argument that you're making the st argument that really only those two or only announce conditions should be imposed doesn't that just about have to be wrong well it i think it's a little nuance dancer and one found no in that it in the sense of a notice to the defense even the mandatory condition even though they're mandatory the defendant doesn't know about how how can you impose something even if it's mandatory on a defendant when the defendant has no note but certainly in terms but i understand that yes mandatory conditions are mandatory and so in terms of the standard conditions if the rule was that there implicit in everyone then the only way that they wouldn't apply in every case is if the district rejects that certainly should not be the rule for discretionary condition the court should have to do some reflection on it and it should be just implied in everything so i think there is a difference between the mandatory  standard in that respect but in terms of notice to the defendant i'm not sure there is any real difference it's really not too much of a burden to ask the court to simply say there are mandatory conditions that are going to apply simply wouldn't understand that there are all these conditions out there that nobody's that the judge doesn't tell him about at the sentencing and that's and now they're going to apply to him and i'm not sure that that's conditions i'm arguing about the other mandatory conditions that were were put him there are other mandatory conditions about not protecting firearms and cooperating with the between mandatory and discretionary conditions and i understand the court's reluctant thing screams and it's not too much to add that the district court at least did by the end of the mandatory but in terms of the standard conditions it simply can't be the case that they all apply in every case and what the district courts expressly reject them also condition three here required that the they give you two minutes of rebuttal but to do that ok we need to get to a close ok ok your honor i would just ask the court to consider our arguments on that on that on defendants who are certain to be deported but i did want to just clarify one point i'm on the argument mr fein was just making which is that the general rule that i would propose is that normally mandatory conditions should be able to be implicit in the normal case where the judge affirmatively misleads that and it's believed otherwise unfair posed them and that's that's the only just ask one quick question so what are you saying that your client should be allowed to be supervised supervised release some carry i have i believe that my client should be subject to the conditions that were imposed by the district judge in this case and the district judge hears that i am imposing supervised release on two conditions and then and then he later said to provide release is imposed on those terms and so i'm norm and it's like conditions should apply in every case without question i think where a district judge misleads the defendant a court should be bound by that and to defend our scout council did you have three my question though i'm asking you if you i'm just trying to make an argument for you the best bet that in this case and so you think person in rosario in this case it's irrelevant what the standard conditions are what the judge is the remedy is to conform the judgment to the question ounce in terms of the procedural error that the district court made by not making it individualized determination of need that would solve that problem but i you know it doesn't solve the more general due process problem which is that when you impose any of these standards and most of on people who are outside of the country they have no clear way of knowing what what conduct will violate the law you know there argument is well taken which i want to give you a chance to respond that what the judge meant was that those standards of conditions kick in if and when he comes back but i i agree it does it didn't say that in this particular case  so if we were to send back the because we need to have clarification on that point we would seem to me avoid the constitutional question right about whether or not these conditions are really violate the constitution if imposed upon someone who has been deported we have that clarification and it seems like we need to have clarification anyway because i think there's a couple standard conditions here four and seven that the government wait that's rez aria is that right you didn't write don't have that the other case you have for the other case talks about if report right away to the probation officer if you're not deported but in your case an updated form is use and it doesn't have that language so the dist it's the disconnect in your case seems to me to be the oral transcript and the judge's repeated references to you can't come back to this country and yet imposing standard conditions that really contemplate him being within the district right that's right your honor and i think you know there is an easy fix all the court has to do is say into the the procedural and reasonable ness of imposing all of these conditions without tying them to disclosing it so you know if you remain and say you have to make an individualized determination of the need for these conditions and you have to say they don't apply w me so i will try and address the arguments in the order presented all start with the written and oral conditions the purported conflict and all address which conditions apply in mexico addressed this specific issue in an unpublished decision induna or teves i think the court should follow the same approach here that case relied on this court's napier decision  other conditions would apply that is a factual distinction but nevertheless the court said that was the federal practice and the commendable practice not to require graft what the court said before we're talking about that best practices was that the oral or excuse me that the standard mandatory can pitch are implicit and necessarily included and of course this is an important point on my scorecard anyway it sounds applies directly here so here's the problem if we were to do that it strikes me that it is an expansion and i'm with you have i'm like you i pregnant there several times and i it's a little squarely on this point but the problem with that of course and i want to have the government a chance to respond  problem is your rule that you're suggesting really doesn't doesn't allow the defendant present at the world sentencing to object at all he's not even if the judge doesn't even refer to the standard a mandatory what happens to that right to to give another example just outside of napier this court is willing to accept that a defendant's right to presence has been vindicated even when the oral pronounce is ambiguous and requires a clarification  a written judgment and in fact that has been the case even when we're talking about much more punitive conditions what's at issue here so to give an example the green case the ambiguity was in the custody of the term itself to clarify whether the sentence ran concurrent were consecutive so in other words this is not an absolute right and we're willing to accept that either ambiguity yes or certain implicit conditions can wait or appear in a written judge said as the judge did in napier mandatory and standard conditions will follow and there's an opportunity for a defendant or is this a lawyer to say hey you know couple those don't really apply in this case and that was that would be lost here under the rule that you're suggesting we have so i think that's right your honor and i think the court could easily say particularly among those cases but have since this is going back anyway what's just happened district  body exactly what it meant by that the difference between the written and oral conditions this one has to go back doesn't that counsel because you got the wrong form here so this went ok isn't that right that's exactly right yes so there's so there's there's just a really a scrivener's clerical issue somebody used the wrong part so that's fine so could we talk about when face castro i think we have the correct form here and i'd really like to hear the government's response to the problem in this case where it seems to me the judge is concerned because of serious repeat offender he wants to deter and so by really focusing on those two issues i think i read it the same way judge how the sting does the district judge was saying hey rather than going into that due process analysis because it seems to me that's what the district court met your big even really say it that this one should go back to do you want to respond to that inclination of mine certainly your honor and again that's certainly an option of the court has in the court could easily cleared up on remand i don't think it's necessary in this case and i'll point to a few reasons that i think suggests that while this isn't the clearest written judgment it doesn't count right saver conditions don't that time he has not reported to probation reported his change of residence shown up for his drug task he seems to understand conditions do not apply in mexico unless we were to take you know an untreatable charitable condition don't well maybe good judge didn't intend to climb so your honor i think it supports the notion that the judge did not intend those conditions to apply in mexico but if the defendant were to illegally reenter the united states then i think there's every reason to expect that they would and should apply now i take the point that my friends on the other side have made which is that in order for the defendant to enter the united states he would necessarily have to violate one of his conditions but of course if the defendant reenters the united states it would still be important to impose the conditions that prevent from owning a firearm or using controlled substances or associating with known fallon's because indeed event of a revocation the district court should have the full spectrum of violations on display still it can evaluate the breach of trust the deterrence rehabilitation and protection of the public aspects and fashion an appropriate revocation and sentence for that  twenty's or mr montalvo for that matter are in mexico only the two conditions that the court in full size would apply where and when they are in the united states the standard mandatory conditions would kick in  although one other point which is that to the extent my friends on the other side conceded that the mandatory conditions should still apply then i think the same analysis should apply to the standard conditions because really we're asking the same question did the district court intend to include conditions that otherwise are deemed implicit in the oral pronouncement so it would be difficult to say that the district court despite never  mentioning the standard or super or mandatory conditions somehow meant to get rid of one set of conditions but not another and let me point to one final case that i think is maybe helpful in analyzing this issue and that's the finger case from this court that case says that sentence that might otherwise appear clear can be ambiguous when it would result in a rational or in fact it legal consequences and here i think the court would have to say that the district court which we presume knows the law intended not to impose conditions that it was required by law to impose under three thousand five hundred and eighty three d d and conditions that are recommended in every single case under five the one got three points asian for it so i think the more reasonable approach here is just to follow the path that this court has tak in that case make no mention of mandatory unsupervised conditions early yes your honor it was the exact same facts same judge same two conditions mentioned at sentencing and it's the same result we're recommending here it's precisely analogous to the montage of those cases the data why the court should in his case strike conditions for seven and eight and remained for the court to update conditions thirty five and thirteen so it is not that's why it's not precisely on all fours i'm not trying to be a nit picky here but but it's not because the government is in the position of by the way i appreciate your candor truly to try to get to the right place for a think the government is in the position of conceding that some of these conditions in montauk was i guess case don't apply to them don't apply right so that wasn't that wasn't true in the  to that the same three conditions should be stricken and that the same three additional conditions should be updated on every man and that's what this court or intimately ordered into no more to use ok i'm talking about now i'm really getting picky  some of the same outdated form i give you that certainly and i understand that judge barnes has this routine sort of routine practice we've seen several of these cases now so i appreciate that point isn't it in yos case where there's the two conditions that don't apply to him personally four and seven yes your honor and i would just throw in one extra which he defended which is condition eight that's the alcohol condition dependence and this individual i'm just trying to they don't seem to be exactly lining up this individual didn't have any dependence right  i believe that's correct your honor and in any event we would agree that that would come out because it had vagueness problems under adams and is no longer a standard right ok thank you yes i think you've answered my question ok i'll finally just note i know my friend on the other side was going to mention condition three which is now standard condition thirteen we agreed that that condition should be updated and i don't think the court needs to preemptively address whether the updated condition has any big problems but i will simply note that this court has already rejected that claim in an unpublished decision and that's th unreasonable about the forty one month term given mr monk combo's prior deportations is prior criminal history including two prior immigration offenses and what the court really emphasized at page twenty of the record is me which is that the defendant was not deterred by a sentence that was only four months shorter than the one you had hear from returning to the united states so i think for those reasons the courts are fine with that's because the standard conditions are discretionary that mandatory condition can't be objected to put this questionnaire a condition can be objected to and if there is no opportunity to object there's no in the recommendation of sentence that there would be three years of supervised released with mandatory in standard condition now but that's a recommendation that's not a finding that needs to be objected to and frankly that's involved a district judge that told the defendant about the conditions that would be imposed the court in that case said even the most general allusion to the standard conditions permit session and that's right but some mention of it has to be made and so if the court were to hold otherwise that would be an extension of need here on the act and just one other distinction i think it's important between that and this is the get cases that are immigration cases and so even if you could you know  in an ordinary if those conditions were going to apply apply during your supervised release in this country you shouldn't have to assume that for a case where you're going to be deported and i think that's a relevant distinction as  well the nd point i want to make is just kind of a factual point the government was saying you know that only the two conditions mentioned should apply the government was saying well that doesn't even make sense that that would be what turns intended because that would mean that and and to impose it mandatory condition and you know why there he is allowed to do that or not he adds in recent cases and perhaps in response to a series of appeals that have challenged you know judgments like this