good morning your honor is may please the court i meds as for dustin piper the parties here agree that the district court committed multiple errors at mr piper sentencing st the court what it i think there's a reasonable probability that if the judge had understood the correct range she might well impose a lower sentence when you want to when you say that so   increase the sentence or there's a reasonable probability or possibility that she sings based on a misunderstanding stats to a maximum suppose some other misunderstanding you're right i think you're right in terms of some stopping specific that the judge said to indicate that she would have gone lower or something we don't have that but i just to be clear the test is a reasonable probability test because we're on playing a review that does not require us to show that it's more likely than not that the judge would impose a different sense it's just a probability sufficient to undermine confidence so if this were if this were a guidelines case but as of this not here so the guidelines was t this is not like the mandatory minimum cases that we've got with this world like the rd circuit case it seems to me where there's a mistake about statutory maximum  why shouldn't we proceed more along the lines of what the rd circuit the of the approach that the maximum and the court nevertheless found that there was a need for a male and remember that the statutory framework is in some ways more important than the guideline range the guidelines are advi but here you have a key measure of the seriousness of the offense which is a factor the judge must consider yeah the judge is looking at this as a zero to twenty crime when it is your intent crime and if you look at the impose sentence of forty two months it seems relatively lenient when you're looking at a twenty year max of two hundred and forty months it's much less lenient when you look at the correct range the correct maximum which is one hundred and twenty there's no question about that and not only the p s r it's mentioned again in the sentence recommendation which presumably is one of the more important things that the judge read and i think the government very appropriately concedes that the district judge and the parties and probation we're all laboring under the misperception if i may judge lawyer coming back to your question it's true i mean in some sense we don't know if this actually affected the judge or not but since we don't know and since as we pointed out in the reply brief that the court needs to remand because there's a separate error about supervised release conditions i think it would be appropriate it would be common sense to simply ask the judge for cas to go back anyway the judge can tell us it will take all of five minutes to say oh that made us make a difference and make a difference does this make a difference and if it doesn't the judge can say that it'll take her five minutes to say that but otherwise you're risking a situation where it may have actually impacted the judge and you'd be leaving in place a sentence that's higher than the judge might impose if she were under the the correct impression and so you're saying you're suggesting that under the well we'll hear you on the conditions issue but you're saying that if we were to agree with you on the conditions issue under the specific circumstances of this case it's so why not we man and that's right i mean the court has said that it doesn't apply the plane every doctrine is strictly when it comes to sentencing errors and i think that principle applies with special force when the case already has to go back for other errors then it seems to me there's no real waste of resources the judge can just either leave a sentence in place or if it did make a difference adjust it but the court doesn't have to guess so i'll just transition yes  yes i was actually going to do the standard conditions for us but it  conditions because he can't work with minors without special permission or an adult present is effectively barred from returning to that career and if you look at the applicable guideline which is five f one  when there's an occupational restrictions or special findings that need to be made by the judge or in particular the judge has to determine that the restriction is reasonably necessary to protect the public because there's reason to believe that absent such restriction t defendant will continue to engage in unlawful conduct similar to that for which the defendant was convicted here there is no finding by the judge that mr piper is likely to to offend again this was an aberration from his otherwise lawful life the crime you recall was actually criminal history category one no prior involved with the criminal justice system at all some evidence  michigan the district court specifically found that there was no evidence to support that and i think the government also acknowledged that so absent a finding that he's likely to reoffend and there wasn't a finding made even if to as i understand the condition for the five years he's on supervised release because he can't be with minors absent post permission from the probation officer and responsible adult present i think it would be effectively impossible for him to be teaching and so you're saying you want to remove and four years donnell it's not just that what the government calls a clerical error because even under the under the current or correct version of the standard conditions standard condition twelve is a condition that this court has already held is invalid that's a condition that delegates to the probation officer the job to determine if the defendant should notify the rd parties of a risk a court refers to it as a risk condition so if that condition is going  imposed it needs to be the judge who has to decide st whether to impose it and how to crafted so it doesn't violate this court's ruling so i think since the case has to go back for both the reconsideration or striking of the special conditions and reconsideration of the standard conditions to me the fair thing the economical thing to avoid the guesswork is while it's going back just pointed out to judge as the score another courts have found is the lodestar is the guideline range which the which judge donnelly reference and then came with a below guideline sentence of forty two months months and considering the three thousand five hundred and fifty three a factors and so when you look at that  you look at all the case and i spent a lot of years sentencing people and and if they were one of the things i looked at and paid attention to was the minute minimum mandatory and if it was twenty years and i greater honor and it's relaxed plain era what's the problem with it would take five minutes you want to but i think the record is already there that that before two months of the appropriate sentence and that there was no reference to judge donnelly didn't make no reference to will give this man less time than i did and you know this weighed on no one but this defense but again your honor there are plenty of you would have five minutes to go to the proceeding right yes you and we disregarded that and affirmed there is not your honor there is not a case similar on all fours and that i don't see what all you are starting off with by reference to special conditions and i think that mrs ass was offering frank then almost a minister the way out of this so that if we were to disagree with the government on the special conditions issue with shoes then it's  a minister doesn't think you might agree or you might not easy fix to just say you know what while you're dealing with this case again on the mend why don't you just provide us with a little confidence that you  as judge ali explained this was not a this was not just a case about access tent with intent to view but talked about the defendant's actions regarding that and the reasons for those and so when judge donnelly quote describes the i'm sorry i'm just looking at the because on that and so when judge donnelly recognize that this was just commenting and the defendant specifically was commenting on babies being raped and boasting bile and graphic terms that the defendant had done so as well he showed pictures of what he was purported to be his nephew and talked about his about him sexually that nephew who was in the pictures a toddler and four or five years old and so when judge donnelly was making these determinations about special conditions she was not just considering just the charge itself but the nature and circumstance of that offense and in addition the protection of nonprofit that works with you and so here that condition with employment one was to notify the employer because of the internet use and computer and so that condition is there and then in addition the condition is that  has to be notified of any individual under the eighteen that the parent or guardian be notified and so that would be a notification to the parents and guardians before that person and working in that i see my time is  wrong i mean absent i mean your honour's suggesting that every parent with you know that if i don't know the number i don't have the details on the number of end of children that in our acts with but it was five and you see actually his former employer who filed a letter saying that she would take him back for employment exactly rob so you referenced the sentence i gather statements about his nephew possession in cases of access and then tend to view here we have video of the defendant though making these statements and not only about that he was that's a slightly aggravating factor yes right i think that's that's that's of judge donald consideration it not only is it that but also the defendant when the st video which was a two year old male toddler the defendant made statements talking about slathering his tongue over his w dripping cock and sticking my finger and goes type of statements that were aggravating comparatively which that which is in the p s r of paragraphs eleven and thirteen which is distinct from a possession case where where there may  videos of adolescence but there's not these aggravating factors talking about protect and the need to protect the public based on the defendant's statements that your honour's have any other questions if i can just start with the special condition of supervised release the government told you that it was a a well founded record but what they didn't mention they can point to is the finding that section five one five of the guideline requires five f one fifty eight to requires the judge to make a finding that absent the restriction the defendant will continue to babies who appear to have been drugged matches viewing but commenting on what they would do with this defendant to those same children and that perceives the finding the imposition of the special specific on this that the court has to find not that is the friend that that the conduct was gross or offensive or criminal but that there's a likelihood of recidivism because you know the whole purpose of supervised release to integrate the offender back into the community it's very hard to do that not only if you're branded a sex offender for the rest of your life but you can't get a job because then at his shoulder sexual interest in children condition is necessary to protect the public that's on the side well that would that would cover i think every child pornography if and they all have a sexual interest in children this defendant there is no connection unless the court is going to assume without evidence on the record that if you view child pornography for this defendant for forty five minutes in a chat room that that necessarily has a relationship not only to real world conduct but his profession as a teacher he's got seventeen years of not a single complaint now i'm not saying we're not asking you to strike it we're just asking you to send it back for the judge to consider whether this finding should be made in my liver condition  you told me before well i'm i'm trying to preserve my right if you know that you've lied to come back to you and tell you that it was clearly erroneous but but the court doesn't need to go there at the moment just on the on the on the prison term i did get a chance to look back at trudeau and that was a case where the judge or at least the p s r stated that the match was thirty it was in fact one and what's significant to me is that is that this court is not is not concerned about whether the sentence that was imposed is far below or five far below the maximum far far above the minimum i think what i meant is a different matter but we're talking about the maximum well it's different but i don't think it's it's materially different for these purposes i think the court has recognized that answered carter pointed out i thankfully have never sensed anyone but i would think that some judges just like some judges give more weight to the guidelines and some don't some judges may give more weight to the range than others and yes i mean of supreme court tells us that and a judge certainly could reasonably view is zero to twenty crime as much more serious than a zero to ten crime a narrow view of the question seems to me is does deal with guidelines what the supreme court has said if the record is silent and the court applies the wrong guideline range that is ordinarily enough even under plain every view to warrant arraignment not is because the guidelines hav but they're only advisory the statutory range has at least that effect or at least we don't know because judge donnelly didn't address what weight she was giving to the range but my nd point goes back to the administrative common sense point that if the court agrees it has to go back for another reason we can find out for sure if the error affected the sentence or not and i think that's preferable than potentially leaving someone in prison for more months or potentially more years than the judge would impose under a correct understanding of the bin and he had a forty two month net and he's due to be released in january of next year but i understand he's doing very well in a residential drug program which if