assessment and then sex offender treatment while in supervised release conditions special conditions of supervised release like this a permissible only if they're reasonably related to certain statutory factors and they also cannot be a greater deprivation of liberty than necessary the service factors now that said and as the court suggested in the letter ordering supplemental briefing the record is less than clear on exactly and well i think i think there is a best reading of the record which would be that the district court meant to acquire a sex offender assessment but to require treatment only  pronouncement also says that st the judge said you will have an assessment and then the judge says an assessment is recommended and so there's you know an internal contradiction right there in what the court said at sentencing send it back well i think one possibility and perhaps the best way to deal with it be a limit agreement to the district court for the court to explain and i claim yes what the court intended with the understanding that if you don't need the treatment you shouldn't be assigned to it yes and also that and also the question of who it is that makes the determination that he's dangerous enough to require tree because they can make a recommendation to the court can't delegate to probation or anyone else to make that determination or it under our case law correct and i think that would probably be the easiest way to resolve this  and i think that's the question and quite candidly if you look at the pre sentence report you will see where the probation officer laid out several special conditions the district court attempted to  i believe incorporate those special conditions into the record some of them were phrased as recommendations i believe they are not conditions so the only ambiguity that exists is between whether requiring the defendant to undergo an assessment and also mandating that he have sex offender treatment whether those two things are harmonized which i think they could be  assessment could be to determine whether he's dangerous but then again it doesn't say that the oral pronouncement doesn't say that and so the assessment could be to determine what exactly his sex offender treatment should entailed so in my preparation i do not believe unless this court finds that there's an ambiguity and i don't believe that there necessarily is one in light of the fact that there is a recommendation that creates be that every man would be required in this case number one i don't think there's any dispute the district court can require this defendant to  have sex offender treatment he has a terrific prior conviction and the cases are clear that the nature and circumstances of the defendant that this sort of condition could be impose i don't believe that there is a necessary conflict between the oral pronouncement and the written judgment i think as we explained in our supplemental briefing that to the extent that there could have been one it was under the assumption that that was a condition which we say i think accurately it's it's not a condition that's what i don't need the written judgment says that it's appears to create the delegation problem in the written judgment could not delegate for them to make the decision as to whether and as to whether that they will proceed with the treatment i've met that's against our precedent correct it if i could so i believe we're talking about condition five at this point if i'm number in them in sequence order and that is the one that begins with the defendant shall register as a sex offender then it goes on to say that recommends an assessment i'm doing this from memory right here and then following that it talks about what could be perceived as a delegation issue sex offense the cosets mint determined that the defendant is still a danger the defendant shell participate and i believe that that is linked to the proceeding statement that says that it's a recommendation now what is that so what is supposed to happen then so i believe that all of that is just a recommendation but what does that mean what will happen to him in this case as i understand it if you were to look at it under conditions three and conditions for that he will have an assessment and that he will attend sex offender treatment no matter what the assessment shows exactly and so it doesn't really matter what the system it determines whether he said danger or not that's exactly right and what does it say should they determine that he's a danger then it's makes it a contusion perceive int to his treatment and that seems to be in conflict with the part oral pronouncement well where i had looked at it was that that he's a danger and then it says is peace a danger of any shall have the treatment so should that since be stricken the nd sentence i would say that the whole provision starting with a sex offense specific assessment is recommended to determine a number one that's not a condition number two should the sex offender specific assessment determine the defendant is still a danger follows from that i have highlighted i believe that all of that is simply not a condition it's to suppress it i think so to the extent that the court believes that this creates an ambiguity with numbers three if you look up above suspicion so exactly so that same language appears twice in two different conditions and should this court believe that that creates an ambiguity as to that limited i think that a limited remained for factual resolution by the district court when it intended would be appropriate because you can't delegate to to them to determine whether or not an interview but you can order it really hard less yes and it seems odd that you're doing the assessment to determine if and make it conditional if you're already ordering the thing regardless of what the outcome of the determination is and that is where i believe that if there is an ambiguity that where it exists that there are direct provisions shall participate in number three the defendant shall participate in sex offender treatment in number four and then you have this says that it yes and you shout which is which limits it in a way that's not consistent with the previous two things you just read or the or up announcement missed yes it's contrary to oral pronouncement can we just strike that sinnott so under judgment absolutely under this court's precedent the oral pronouncement controls and to strike that's contrary since we don't have to send it back at all to strike that out if you believe that and i think that they can be harmonized in such a way that a reman would not be required but to the extent the truth find that there is an ambiguity i don't understand how you there's not an ambiguity because it does can it's a condition perceive it and i think that has to do with whether you believe that it's linked to the preceding sentence admittedly i don't i wouldn't pretend to stand here and say that this is not a model it's not a model of clarity there are inconsistences between three and five that have been identified and to the extent that we argued in our settlement of brief that the delegation problem went away because  purpose of an assessment if treatment is mandatory now it may be well i mean it may be the case that the treatment is a standalone acquirement that an assessment would be part of that in order to  an incident allegedly because you know that's one thing but with which is why it would make sense to for the court for the district court that intended that there be an assessment and then depending on the outcome of that assessment that's not what the oral pronounce we'll be ordered to participate in a sex offense specific assessment and then you'll pay the cost of abel and then at the bottom you will be ordered to register as a sex offender a sex the civic sex offense specific assessment is recommended to determine if you are still a danger to the community as a sexist program and submit to periodic polygraph test that's the that's the next  immediately before they say you will be ordered to participate in sex offense pacific treatment program yes and submit to polygraph testing yes so that makes it mandatory even if the other sort of subtly would not spec do you disagree that we have the authority to strike the written judgment if we were to believe that the inconsistency is between the written judgment and your pronouncement i'm not sure that the court could do that because kelly because we take the oral pronouncement over the written judgment and represent you know we do that all the time and well to the extent that the oral pronouncement or excuse me that the that the written judgment imposes a more burdensome condition than the oral pronouncement here it's actually the opposite of that the oral pronouncement is more severe than the written judgment and it is mr gay pointed out the pre sentence report listed all of these as optional special conditions and if you compare the language of the judgment in the precept support their