out with what limits if any the district court has to order conditions of supervised release that would be sorta like if you if you understand what i'm saying there certainly actually  is not a sort of case it doesn't fit under the language of the statute it was an element of the o fence but based on the facts and details of this crime i'm going to order state and federal was compulsory it required courts to put folks on the registry if they were convicted of a qualifying offense as correct and he did that is just separate and off line offense yet to be a sex offender now our government and the fact that that's mandatory for sex offenders it doesn't it doesn't follow as a matter of logic that it's pretty hibbett it if you're not within the bounds of the statute does it defendant let's assume for the moment that the the court imposed all of the sort of restrictions without making a finding that the offense was a sex offense and without  the language that appears in this j n c of must comply as as directed would you have a claim that the district court in power to address concerns over an individual's background you know or the fact that they tried to bargain left out of the equation the fact that this might have been a sex they can address and they said to do it within a three year period sort of about what he said can't make them that there is this line of permissible sorta like conditions as the ones you mention such as treatment etc that also tells us that registration is not permitted is it are you arguing sort of statutory silence or i'm not sure whether you're you're latching on to statutory language or case law to divide the permissible there's been a determination interest of particular defend it and that sounds like an inherent power of the court at sentencing and it is within the limits light then why doesn't that inherent power of the court at sensing also include what's required under the statute on the other so no other words without making a finding that with their eicher has committed a sex offense and the district is the district court empowered to impose essentially all of the requirements that otherwise appear under sorta oh i think perhaps some of them to some flexibility to include something to let's assume that this was an error i want to ask about two related problems the st one your failure to object to support which are and how we should understand that is you know whether it's plain because there's no rd circuit case on point and then the nd after you discuss planar is that the impact of the broad appeal waiver and whether whether this set aside the cuttack factors whether we have to go through those factors whether this is a miscarriage of justice could you speak to each of those points please was broad but clear in its wording that this waiver would reach both the conviction and the sentence and it's clear the whole of the search it is clear that the sentence the criminal sentence includes not just the sentence in prison i think are the sentence dealing with supervised release and supervised release conditions no answer for counselor in order for a waiver to be knowing what one must know at least the realm of possibilit can help me with that as an initial matter then please all right watch out the head to that but i want to make clear it's not something we emphasize in our brief because we do believe that there are clear grounds for the court to decide this appeal but we do believe there's an argument that the  definition that says the offense have an element involving a sexual act or sexual contact i want to emphasize it doesn't say does the feds have an element sexual contact or a sexual act it does the offense have an element that i would argue leads to the satisfaction of that definition which is that the up the element was that mr right or deprive the victims of the right to bodily integrity and i would argue that under the terms of under that part of the definition of sex offense it could be argued i think it's a growth of the convincing argument that that nd element the deprivation of the victim's right to bodily integrity involves sexual contact well i mean where does it does it up early do this i'm sorry doesn't the battery deprives the victims of bodily integrity well arguably yes or any other kind of physical violence could end and they're arguing a battery is a sex offense or you daughter's three years well that doesn't seem to put eicher on notice that he would have a lifetime of sort of registration doesn't that seem to be the inverse of that we're i'm a little bit confused by that argument because there are plenty of cases for example involving child pornography offenses where defendants are sentenced to five years supervised release but it's a known thing that they have to read they're going to have to register and it could be for a much longer period it's a known whether or not a given defendant would recognize that ok i got rid of a five year supervised release but if if the state registration authority determines i should register under the statute i may get i may end up having to have this burden on me for many many years beyond five or ten years i'm just pointing out that this mismatch this possible mismatch between the statutory maximum for supervised release for this offense and the idea person could be required to register for years is not unique to a civil rights affects it can occur in any case where any clear so if you want to say clearer case of sexual a sexual offense where there's where the court imposes a lesser term supervised release while there we're talking about appell here and i'm i'm just not seeing anywhere in the record where i kerger fair warning that he could be required to comply with sort of is it your argument that that as directed does a lot of work here and that that what he's released from prison the probation office might not require him to register was sort of is that your argument that that's certainly one aspect of could how could he how then it's not part of his sentence than because probation officers don't impose sentences judges impose sentence right well i'll deal with the appellate argument and just try to make the best organized camp for why this was knowing and intelligent it sounds like once you do you are it's clear from the from the plea agreement that supervised release conditions are part of the criminal sentence sections of plea agreement that deals with supervised release comes under heading call sentencing recommendation ok so what's right a place where mr i can understand that supervised release condition and here you are part of the criminal sentence right he was told in open court that the maximum term of supervised release was three years yet question was that the acid act is doing work here and that's absolutely the case because a person is going to be on supervised mr reich will be on supervisory for up to three years after he is released from custody but presumably under the terms of what was order at some point shortly after he is released and what he's got supervised release he will have to present himself one or more state registering parties and only then will determine he made as to whether or not he has to register will you when you or protest of that as directed at that tone that one of your arguments that he's got to wait yes i don't think i can speak to what his rights are for dress would be if for example he argues later in the context and before that agency we don't know what state agency that's going to be because we don't even know where mr reich will live or work you gets out of prison and let's say he presents himself and make that you have to register he's going to have an opportunity to push back against that  should have an opportunity and before that agency to push back against that if he believes that he should not be required to register under sort by pretty he he then would have to go into federal court and seek a mandatory  injunction declaring that he's not eligible to read or not required to register under sorta right well i don't know if that would be the initial step i suppose the initial step and i can't speak to this would depend upon what the state registering agency has but he could seek redress immediately through that agency but if he doesn't get the relief that he wants then we're going to yes you might have to seek redress in the federal court system again but that's so that all sounds like you're i mean it just seems like we're not sure whether he's sort of qualified and they'll sort that out later is that the argument and that's that's the argument point to it and and here are just so maybe simple clear we think the government's position in this condition is worded the way it is because it's a nod to the practical reality of how the situation works right the condition could be worded you must register with sword you must do that no no wishy washiness about it but the condition is worded as worded which is you must register when you are directed to comply with or not as directed by the other decision making authority concluding primarily the state registration already and it's a nod to the practical reality that the district court is not the one making the final assume for a minute you lose on that let's let's assume that we say that it was legal error for the district court to say that he shall comply with sort of because he's not a sex offender under the definition of sorta what's your fallback position does the court have to do the inherent powers of the court allow it to place conditionals upon eicher that are sorta like well so i would i would certainly i'm h statutory i guess recognition of this authority would justify what the district court did in this case because the facts of this even if the court finds it doesn't fall under the definition of sorcha what was clear is why the decision makers of the district were after explicit the has two explicit references to persons required to register under sort of it would seem that there's a negative inference there for people who are not required to register under sort of but at a minimum wouldn't we apply the rule of lenity to say you know it's it's technically civil but this is part of a criminal judgment if there's some confusion here we're going to limit three thousand five hundred and eighty three d scope to the people who are actually goes on to talk about the court's plenary ari to impose not on mandatory or supplementary whatever the term would be conditions of supervised release again so long as that reasonable relation is present and  to let's assume we find there's an error i want to hear you talk about whether the error was plain and also whether the appeal waiver covers well for all the reasons that i've gone through it would be our position that any error here objection in the case that this particular offense falls under the definition of a sex offense the district court could have believed it was within its authority as as noted by statute to to with the victims the words sexual contact appears in the information that the defendant pleaded guilty to you're also talking about a defendant who in the plea agreement agreed in a joint recommendation in a plea agreement that he committed sex offenses and therefore that the sex offense guideline tube was a civil rights offense it was its underlying nature it was clearly in squarely of a sexual nature well there's no doubt about that but mr st john i was interested to hear you say the district court could have met this the district court could have meant that you know this court is in the business of reviewing what district courts do and what they are in the form of a final judgment order that's how we get our jurisdiction and then we pay careful attention to what they say and one of the things that's troubling me about this case are these unknowns to which you just alluded and i think also mr alric touched on this somewhat too about well maybe the district court could have given counseling supervision etc why is it not the prudent thing based on the speculation and the unknowns for us to summarily vacate this and send it back for a do over wouldn't wouldn't that be the most fair thing we could do both to mr iger and the government and frankly fair to the district judge because if this court is left with confusion or speculation about what the district court was actually trying to do i don't we owe it in this case to him to to give him a chance to explain it clearly so that if we do get it again we know exactly what he did and what he what  are my my response to that was in the absence of surety about this let's look to the language of the condition and in our position the government's position is the condition here that's the subject of all this supervised release condition is plain on its face without having to have necessarily drilled down into what the district actually think well that that presupposes that the sort of condition is valid and that's very much in doubt i think while that may turn upon exactly what we understand valid that sounds like an extraordinary delegation of power from a life tenured federal judge to a probation department probation departments are in the business of executing and implementing judicial orders not analyzing them evaluating and then making their own decisions are they well that's true for the probation department and that is the weakest of the three entities that are mentioned there because that was under the raul the court to some degree  is not a separate and your government and particularly the state agencies their holes their whole reason for being is to engage in these analyses of who has to register and who does know while it still seems that seems like an even more extraordinary delegation of federal judicial power to assist to is bureau of prisons or to a state agency but anyway your time's up why don't we give you a chance to wrap up unless judge greenaway has any other questions or judge to require sort of registration or just maybe of some other agency determines in its discretion then he will have to register the judge's plain language so to me to comply d with the requirements and the registration so why not why not just why not just send this back to some early for oak a complete do over without constraining the district court in any way in in the almost as if this appeal never happened almost as if the sentence never happened just go back is this court is is in the business of reviewing what judges do not district judges who say i don't know and just kick it to the circuit right wouldn't this court benefit from detailed adversary in the district court where the issues of melt the line of demarcation that we talked about earlier et cetera et cetera every iteration of whether sort of does apply or doesn't apply if not then what and then we get a nice a record that we can have the benefit of the adversary process in conjunction with the district court's thinking on the matter that seems to me this really to be of tremendous assistance to this court if and when we i mean that the nice thing about that issue is that's a legal error that the e u and mr st john have of teed up for us well it doesn't involve the kind of speculation or it you know difficult  all right thank you very much mr alric thank you mr st john the court will take the matter under advisement