that's correct your honor thank you martin vogel bond for jeffrey butts in this case your honor so the district court imposed a special condition of supervised release that prohibited my client mr bats from any use of drugs not further specified and any use of alcohol that is a and unusually broad condition of the sort that this court has repeatedly side would be subject to special scrutiny additionally in this case on a supervised release violation that just your court imposed between the ten month sentence of imprisonment and the four years of additional supervised release that were ordered and aggregate sentence that amounted to two months shy of the statutory maximum typically we would expect that kind of sentence to be reserved for the worst offender are the worst offense says and it's our position that the record in this case shows that this doesn't qualify for that kind of sentence turning to the condition of supervisor release in order for to stand it has to be reasonably related based on an individual assessment of mr batts to the statutory sentencing factors at thirty five fifty three day at least one of them such that imposition of the condition which would further one of the purposes of sentencing for example specific deterrence of mr batts or protection of public safety but the record here simply doesn't bear of finding that that kind of individual assessment was conducted or that the condition would actually further one of those purposes mr simply doesn't have a history of drug use or alcohol use that is in any way related or demonstrated to be related to for example his criminal behavior in that sense this case is unlike a case like chocolate or in which the defendant had a really extensive criminal history and it included a d w i offense in other words an offense that clearly showed that his out of control drinking posed an  immediate in visceral danger to the public there is nothing like that here there is nothing in this case notwithstanding the fact that my client had when he was seventeen years old mr minor drug charge and when he was twenty one  conviction for sale of cocaine there was nothing to suggest that his commission of those offenses was fueled by the need to you know to provide for his own personal addiction the court didn't the court what he's been since for i think that's an argument for government makes in its in its pleadings but i don't think that the just court itself found that and i don't think that what the government suggests in its brief is that in the district  familiar with this defendant and had the original p s r before it and that that p s r showed that when he was in his twenty's up until about thirty he would have six or seven shots of tequila on the weekend with his friends but what the p s r also showed is that neither mr butts nor his mother who was the confirming source believe that this had any anything to do with you know a negative impact on his criminal behavior or his life generally further he was on pre trial release for ten months in that case he tested positive for marijuana on the first day when he was really his presumably residually and then had no further violations and in the instant case upon his release from prison in and thirteen you know he went thirty six months with no suggestion of any kind of use of illicit drugs or excessive use of alcohol or any vocal or you're with the federal public defender office that's right before so you can lot of experience dealing with petitions for violations of supervised release and you have a lot of experience with the imposition of conditions you ride through these these seem to me to be entirely routine and entirely if not appropriate at least nothing to even comment on they're not exactly unusual are they i think are unusual judge i think they're not i what i can represent to the court is is that with this particular district judge perhaps not it's my understanding although most of my work is appellate that this district j judge does frequently and impose a complete prohibition on any drug or alcohol use but generally speaking that's not the case to you what the creed you want from us what we would remedy the remedy your honour's is for this court to specific conditions have been placed we have many cases which say that we are something is not a special condition is not obvious on the face of the record the district  you're now asking us to do something else to save it he couldn't do it and i'm not sure i know whether he could do it or not and listen i know why he did it which is why we have those cases so but i'm a little puzzled by what you're asking i understand your honor however the reason i'm asking for that it well there are a couple of reasons first of all one would have thought that had this been an appropriate condition it would have been imposed in anticipation of his original supervised release which of course is closer in time test but you know you're asking us to make a decision as to something the district court hasn't told us he may have the reasons he's been you know very much complete cerned with vista defended because of which he thinks v's are appropriate now even if they weren't to earlier and it may be that you're right and first of all he's he's had two opportunities now the original sentencing and this violation to put the reasons on the record and there don't seem to be any nor his probation for that matter in its submissions offer any additionally this court has also said that you know ordinarily the mechanism for modification would be one way to handle this situation if this court vacates the condition and sends it back for resentencing without the condition if in time probation or the set out its reasoning at this point at that point but at this point there been multiple opportunities to set out the reasoning and mr bat shouldn't be continued to be subject to a restrictive condition which simply is not good afternoon your honor elizabeth assistant united states attorney for the western district of new york the united states this is a case where the sentencing judge has discretion to provide a reasonable sentence in consideration with the statutory factors as laid out  united states code thirty five fifty three for the sentence and thirty five eighty three for the conditions the sentence here of ten months on a supervised release violation in prison and four years supervised release following that was completely reasonable considering what the district court found was the terrible noncompliance of this defendant moreover even under the for lack standard of plain air the special condensed conditions here banning alcohol use and providing for substance abuse testing that the zero tolerance for failed tests was reasonable considering the defendant's past noncompliance with conditions of supervised release as well as his history of alcohol and drugs just  his past bed behavior justifies a longer period of jail or of supervised release it doesn't justify conditions have to do with his past behavior but the district judge didn't give us any explanation of the link and as to alcoholism very hard to see anything on the record  supports it as to drugs but we have recently in summary orders in some pornography cases for oh no these were a link was much more of abuse because there were no reasons no why shouldn't we send it back and to the district judge tell us why you view special conditions make sense and then the district judge can put up with the very same conditions if he has a reason for well judge i think two reasons one i under this c on was part of the this court can look to what's in the record and for support that's evident in the record and so the p s r i do think comes into play and allows us to consider the defendant's history which this was the sentence original sentencing judge so he is well aware of this defendant's history for regular drinking and regular marijuana use but i also think that the the district court showed us in some of his reasoning the language that he used about how  the defendants noncompliance and i understand your honour's point that the thirty five eighty three and the thirty five fifty three factors are different in that it does not include promoting respect for the law and that that's not a valid reason to include a special condition but what the court here said is the district that they were he was very concerned this judge is very concerned with this defendant's ability to follow the rules and to follow the probation and he sees a probation officer he says they're an arm of the court they're my arm out there if you f or who is troubled by defendant's capacity to follow probation it doesn't make sense to add conditions which own unnecessary and which may be difficult to follow that's just trying to set a trap and one of my problems is if these conditions about alcohol for instance were not veer before and about drugs were not veer before if they weren't when whatever drug use for was was more proximate what makes them necessary now of and that the court is understandably upset i see this district judge as trying to take a defendant who was original conditions included the excessive a ban on excessive use of alcohol that's the standard condition that that was his original condition so after the numerous violations of supervised release that we see and he only pled to one but but there's multiple including your honour's reference to absconding out and have and being on the run for two months at that point i see the judge is trying to improve this defendant's behavior in trying to  give him everything possible to be able to succeed and alcohol impairs judgment so taking away sort of being the anti what he was very is putting these conditions not because they were dangers but because he wanted to prove that he should tell you no vet maybe something that i don't know i'd want to go back and see whether conditions can be used for better or not but my problem is real lack of explanation in the face of any number of cases in which we said explanations are needed yes your honor and the record is what it is i can't fight the record with not going you have not mentioned the the honor i it could i do think at every put in our papers that because an objection wasn't raised in the district court we you couldn't use a plane or a standard here however this court has relaxed that standard in cases where the defendant didn't have notice of the potential conditions and here there is nothing in the record to suggest that the defendant did have notice of these conditions and so even taking the more relaxed playing air standard we believe that that there is that this is sufficient that the district court looking back at the p s r and looking at the total noncompliance of this defendant had sufficient reasoning this morning to go back to the issues that you dealt with already in other ways prohibiting the friend from drinking any alcohol it is not specifically laid out in the record as such your honor or the me let me ask another related question was that special condition recommended by the u s probation office that's also not in the record as as being recommended so we don't we don't see that we don't know either way we have special conditions relating to drug and alcohol use correct yes and that's not a problem here that's not at issue here well i do believe that there is special condition for substance abuse testing here in that it's special in that judge or care ordered a zero tolerance for a failed test and that would is a special condition  and are the government's point on that your honor i see my time is concluded but if i may just finish is that the the remedy or what will happen if there is a failed test is that the defendant would be brought back before a judge or kara who would then have the didn't raise this as a special condition the government didn't seek it nor did the district court give advance notice of it so we do think that as soft sort of soft player standard of review is what's appropriate here his counsel had of time so i would say the saucy standard applies to all of that whereas for the reasonable in this argument it would be abuse of discretion and on the reasonableness argument i would just point out that  stopped reporting after told there was a and being told there was a pending violation further he did have thirty six months of what probation characterizes as and not entirely satisfactory compliance with the supervis release but without violations he was working he had substantial community support as evidenced by letters that are in the record here he was in a stable relationship and lastly just as to the disinhibiting the effects of alcohol which seems to be the government's primary rationale for saying that this is something that will help him follow the rules which is judge our care is concerned it still begs the question you know alcohol is disinhibiting for out for everyone and if that is a sufficient rationale then that condition an absolute prohibition is appropriate for every defendant and yet that would not be consistent with this court's precedents which ask would ask i think how does the particular individual what is his relationship with alcohol and does that bear specifically on his behavior and there simply is no evidence of that here at the special condition requiring periodic testing for the use of controlled substances doesn't seem to me to raise the same question right i think the primary and that sort of duplicative of standard condition seven really which calls for testing anyway and which is why standard condition seven we think is adequate to cover both the concerns if there are they are any about drugs and about alcohol to be functionally different let's assume for the argument you prevail on the special condition requiring periodic testing for controlled substances you'd still be required to periodically test for controlled substances  think the principal objection to it to the drug component of the special condition is that it's completely not specific to illegal drugs or drugs without a prescription it simply says zero tolerance for any drugs and while it's a practical matter it may be the judge or kara had illegal drugs in mind  on the end of a violation having a lot more discretion they should probably have to have another question if something is a special condition and it is valiantly does have a case immediately go to the judge well if it is a general condition that is violated is for some discretion before you bring the probation we have a big bring it to the judges were some procedural difference in the two i believe that varies by district judge and with judge are carried it is my understanding that violations of his zero tolerance policy do require probation to report immediately any violation to him  my question dear is is vet then busy ro policy to be treated as a special condition that for which a reason should be given because of a different procedure or is it not that i haven't been able to fish find anything on that so that we don't know if that reason an explanation should be given or with it is just a matter of of course as it appears to be school if i understand the court's question correctly for think the issue is not the procedure by which the violation does or does not get to the district judge our concern would be x and t is the condition itself justifiable thank you very much will reserve