may please the court counsel my name is daniel horowitz not represent john gabriel on this appeal he challenges the lifetime supervised release that was imposed as well as the conditions of the supervised release parsimony princip requires a sentence that is not great that is sufficient but not greater than necessary to achieve statutory sentencing purposes here the judge said life time supervised release was needed because of deviancy in the ease of the crimes commission with a computer that explanation is insufficient it doesn't count for the thirty five fifty three eight factors also with sex offender treatment deviancy is accounted for it is treated and a computer restriction addresses the technology concern those are the two things that fuel the judge's decision to impose lifetime supervised release but those supervision if you're going to use the computer monitoring and so on and the sex offender treatment or all conditions of supervised release right yes so why not impose that the rest of his life given the district court's view of this fellow's behavior deviancy the judge can impose the conditions but if the conditions if the concerns that he articulated are as a basis for the length of supervision that is incorrect is the parsimony principle would show that the sentence could be less than lifetime supervised release with appropriate conditions that would therefore address the judge's concerns has instead inverted what are the driving principles for determining what are the necessary conditions and use them as a basis to extend the supervision to the longest period as opposed to starting with a shorter amount of time which be consistent with  principle include the necessary conditions and only give the sentence then of five years or some lesser period of supervision on the theory that it's all going to work if it did the conditions don't work why impose them why impose supervised release for that matter while monitoring for computer behavior for example yes can be very useful i would think for this kind of crime and if under your theory th judge would have to let's assume the fellows younger but but the judge would have to turn he's going to survive prison but that's the premise of the whole appeal so we'll go with that but under your premise we have to turn off the monitoring after five years right now he can extend the monitoring as necessary modify the supervise release conditions the length the supervision all that can be tinkered with under thirty five eighty three eat too so you're saying start short and then extend it makes a special sense from the guy's seventy eight years old on his way to do a fifteen year sentence yes and it's also consistent with the parsimony principle so for all of those reasons my answer is yes and that's the court  additional questions about the lengths to provide vision i'd like to turn to the conditions of supervision i know the government would like to say that there's a waiver of course we know that waiver doesn't apply to unconstitutional conditions and we have several unconstitutional conditions we have not made up could you first about procedures here you focused on the question the judge asked near the end of the hearing is inadequate to establish waiver i think i understand that point but given the district judges and workers in the district docket numbers were eighty six and ninety three concerning the filing of pre sentence memoranda and warning that failure to know to objection to the content of the p s r or the posing party sensing memorandum may result in a waiver of such objections and later that's extended to objections to supervised release conditions recommended so we've got that warning we've got the advance notice and we've got ample opportunity to present objections in the hearing both before and after census holmes that looks like a pretty strong foundation for a waiver to me well troubled by two things in that regard your honor if the sentence already imposed i don't understand what he could have done other than file the appeal everything else that i've talked about ok in a written memorandum objecting to the recommended  conditions which were accompanied by explanations as well as an oral objection when opportunities were provided and obviously he had no intent i mean it's hard for me to believe a judge stark wouldn't have listened to an objection even after it impose sentence i understand that wouldn't be enough by itself but we've got ahold of everything else leading up to that point sure that that's giving a happy discount to the statutory requirements about what the judge must do it's putting the burden squarely on the defendant and i think that's inconsistent with the statutory quire means nevertheless if i am to accept everything that your honor is ticked off we still have a problem that unconstitutional conditions survive even waivers in plea agreements that's a waiver principle that is even stronger than the waiver principle that's at bar and so so can a district judge do ever get a waiver for supervised release collusion if you've got a constitutional vagueness argument no cannot waiver always survives excuse me  saying that even if the rule have been calm if we were adequate the constitutional right would not be waived well as to the jury example i'm not sure but certainly an unconquerable centaurus you're not sure that someone can waive trial by jury if there's a no intelligent waiver of course they did in your life john or no disagreement there's no intelligent way for the circumstance of the waiver would be supported i'm saying though in another context if the length of the sentence twenty years the judge gives thirty that's unconstitutional and if the judge says you have any objection the sentence i have imposed the person says no surely that person can continue to challenge the sentence on the appeal we have unconstitutional conditions here not delegation principles all those are constitutional challenges that the defendant is allowed to bring despite answering a question about do you have any objections despite there being notice of the conditions in advance that principle that i'm articulating is entirely consistent with the idea of can you always protect yourself with regard to unconstitutional aspects of the sentence can you waive it depends on the circumstances and the circumstances here show that the conditions were vague that they have not delegation problems article three those things survive the waiver they serve i've so that we can raise the constitutional challenges if the courts tell me the conditions are right that a very strange argument was  ed you want to prevent someone from waiving you have a perfectly good reason to waive particular conditions hoping that you now get a lighter sentence because not interfering with imposition of the of the supervisor way this right there would have a whole trial on whether this person really had a reason for the waiver now they would just have to be an brief suggests we over rule it your reply brief seems to try to distinguish what do you want to do well i'd like you to overrule it and i think i can also distinguish it in that's what i did so yes i stated my reasons why armor in the limited procedural protection context revocation the discussion in the decision survives in armor i except armors the law of the circuit but this is a different context and it has different procedural protections and therefore armors applicability is suspect so i ask you mr hyllus you're taking the approach i gather that supervised release conditions no matter what happens in a district court can be challenged on people not no matter what constitution ality or her look at constant with you you folks have been able to raise lots of constitutional challenges to lots of conditions on by hypothesiz ing biggest issues or trust so you're trying to understand it's your job but i'd ask you to address the concern that was raised in the lewis opinion about putting victims through repeat re sentencing phase when we've got an issue that is first raised on a people particularly i gather this this victim did not want to appear at the sent and saying but she has to be contacted right she supposed to be contacted and when victims particularly victims of child pornography of offenses have all kinds of long term issues and problems they can what's the point there or should we take that into account in considering whether to order re sentencing on issues that were never raised in the district court well lewis made that determination but the sentencing there i don't think had the victim either as is the case here so i don't know that's really genuinely at play and the focus about what the victim's rights are  wear that's a very difficult and emotional appearance i rarely see that but yes ok i would have a suspect you rarely see it because it is so traumatic but but some victims of these crimes do have the courage and your logic would tell us why the other to give that no weight the the truth the potential for putting somebody through that twice it's a consideration that's something that i would expect the advocates for the government to posit i'm saying that my client's rights are in a category that requires me to argue about what it is in his interest in what he's allowed to do and if the district court wishes to take that into concern that's fine but that does not discredit paraphrase but the actual language of the condition is that you shall not have to turn to my brief on it but engage in conduct that may result in contact or something along those lines it's incredibly vague i don't know there's not a sigh into requirement that's a concern and who's to know what conduct that you're going to engage in that may result in contact with here make shepton employment unless it is approved by the probation wrong with having with requiring that probation officers approval in order to obtain employment i don't know why we're forcing somebody who's going to be ninety four years old to have and i'm on this guy's a monster right what's he doing today it's the seventeen year old victim you're on i think that his look and he's a right yet but proximately but he still carries on with all this bizarre behavior usually of people age out that's true well how do we know what he's going to do and he's ninety remains to be seen but i'm well why not her on the side of caution you're dealing with a they fear a very misbehaving  regarding how much and how long supervision should take place this is really a decision that's in trust to the discretion of the district court what we are here to review as i understood it from the briefing was whether or not the district court adequately followed the statutory procedures that are laid out in thirty five eighty three and thirty five fifty three a in deciding what the length of the term supervised release should be and the court did that the court considered the thirty five fifty three a factors and settled on a term of supervised release that a thought was appropriate under the circumstances given the history and characteristics of the defendant and what was needed in order for t him from committing future crimes and to protect potential victims of future crimes as for whether that the length of the term he could have been shorter or  was appropriately justified by the district court it's our position that the court adequately and within the statutory framework justified its choice of a term of supervised release regarding the conditions of supervised release it is difficult i think in looking at that the two month's advance notice that the defendant had about the conditions that were being proposed by the by the probation officer the warning from the district court that objections prior to the sentencing hearing  should be made if there were going to be any of the sentencing hearing began but with the district court noting that it had certain materials before it but but asking the defendant is there anything else you want me to consider on the defendant starts out the hearing by saying you know we filed the defendant's statement his personal statement and that and what we're going to argue today and what the defendant is going to say now accused is what we want you to consider nothing about that editing to do with conditions of supervised release and then at the time off at the end of the sensing hearing when the district court had recited the conditions and asked whether there were any objections the defendant said no but the defendant did not merely say no  said no but you know i had thought about a condition that i was going to object to if it came up and it didn't come up so i have no objection under those circumstances it's ours about hernandez pardon me that was about hernandez that was about you know the condition that the defendant anticipated it was going to object to was about contact with a specific it is a job and he and it didn't come up and so for these reasons and for the reasons stated in the