morning honors me if the court marcus federal defenders here for home in pain the government concedes error in some places in this case and asks the court to more narrowly construe some conditions that i think their language allows in other places we disagree fundamentally about what the district court said or meant all of that militates in favor of remand for resentencing in this case but all began my comments with the no contact information where mr payne s have unsupervised contact with his younger family members and the district court failed to individually examine the burden on those relationships against his familial liberty interest in those relation counsel let's look to say that we can see that there's a liberty interest in this so far as i know we don't have a case that goes this far too i think a nephew niece we got wolf child we got state versus trump talked about the need for an individual individualized review but in this case if i understand correctly by the time your client leaves prison there will only be one of these relatives in the home does that make any difference should that make any difference in our evaluation it should not make any difference i think he will have one two three depending on whether he gets three sentences but ultimately that's one of the purposes of the individual lives previews for the district court to examine well how well do these people going to be how important is this relationship what's the nature of the relationship that's one factor that's sort of been considered below in imposing this condition since we live in a society today where an increas number of people can afford housing and there are often multiple family groups that live in the same area do we need to expand our definition of the appropriate liberty interest to think that is what more teaches that the court should examine nontraditional families living together of course for the purposes of this case the court does not have to go that  unless the court has other questions about the no contact condition i have a lot of issues and i'll move on to the internet condition in this case where really the problem with the condition imposed is the ubiquity of devices that communicate data or devices that community over the internet that renders this condition vague overly broad and a violation of mr paine's first amendment because this condition reaches virtually any device that he could touch once he's out of prison so many things communicate data via a dedicated connection that really his probation officer will have unfettered discretion to find him in violation of this condition that renders it unconstitutionally vague in addition it's overly broad because of the same concerns and here's the government should we how we draft well the government proposes some narrowing constructions first asking the court to impose only on conditions that access the  devices that access the internet and then only devices that are capable of accessing pornography i think at a minimum the court should construe it that narrowly which does a limited a lot of devices but still even then it would be unconstitutionally vague and overly broad as it prohibits his use of those devices and so it would still reach mr payne viewing internet connected television at an airport so how to can how did how  well i think at a minimum reasonable minds and disagree i think how you use a t v is you watching t v and so my concern there is that you he would be violated for using a device that is internet connected if if  issues like for example the family responsibility standard condition that the court can basically on remey and strike and when the court does that perhaps it can rephrase some of these other conviction conditions annoyed to narrow district court to have an opportunity to explain better explain why this that they thought the sentence was appropriate because as the record stands it's clear the district court violated mr paine's due process rights by doing one of two things either the district and ultimately the court clearly weighed mr paine's visits to chat stuff against him in deciding that an eighteen month sentence was appropriate rather than less the court expressly said it weighed them against him and his lack of criminal history and other i do your honor i'll briefly comment on the loitering condition where the government there are two parts of this condition that render it vague both the verb avoider and that it's primarily yes can't visit places primarily frequented by minors please the court daniels if on behalf of the united states i'll start with the restriction on contact with children the court's restriction in this case provided to two ways for this defendant to have contact with his nieces and nephews first without involving the probation officer at all he could have contact with his desk as nieces and nephews simply by having an adult present who was aware of his conviction in this case that would include his brother who was already at his sentencing and it would include by the time he got out of custody the adult children of his brother as long as he inform them of his conviction counsel but i guess what i'm troubled with is that while  may solve some of the problem one of the brother needs to work for example and he wants the defendant to be a babysitter i understand the government's position is that since he is convicted of offense that he's convicted of that maybe not to be doing that but in this case as i understand it there was never any physical contact with any human being this was all internet based is that correct that's correct on so under the circumstances  what is the nexus if you will what's that what's the basis for requiring that another adult be present opposed to just consenting under the circumstances because there's a just such a fear that he's going to act upon his fantasies is that the concern largely your honor and i think if you look in this case he has no hands on contact with children but he did admit to having sexual fantasies about children he posed as other people and chatted about sexual fantasies with children multiple times per week on the internet and his psychological reported said that he was engaged in increasingly balladry pushing sexual exploits to reach some level of novelty that equated to arouse all that he had a need for average sexual experiences and he tended to romanticize the experience of the child victims in his videos so there's a lot in the record that would suggest that even if th defendant hasn't had an actual molestation to this point there's a lot of risk factors that would weigh against allowing him to have unsupervised babysitting opportunities even with his nieces and nephews and that also goes and we  that against his liberty interest to be able to have a and quotes normal relationship with his nieces and nephews is that correct yes your honor and it's our position that whatever that broader liberty interest might be with nieces and nephews in this case given the sort of narrowing aspects of this condition that allows him that access to his nieces and nephews as long as there's an adult present or even if he wants to baby said it also allows him to go to the probation officer and get permission to essentially babysit his nephews if he wants to so there's sort of two levels of protection here that is far different from what this court rejected him wolf child which was essentially a complete ban on contact with one's own children for ten and the discretion to permit it rests in the probation officer rather than somebody else and your position is that that's not an abuse of the court's discretion no not not once you have the option one of having an adult present that sort of as a backup allowing the probation officer to step in this court has held in the past that that probation officer holds a important role in this process as an arm of the court and can certainly imposed you know reasonable restrictions so for all those reasons we it's our position that this particularly narrow restriction in this case does not implicate the same significant liberty interest that would have required further explanation on the part of the court as to the internet conviction condition this is simply not as written a condition that would cause a person of average intelligence to have to simply guess at what the meaning was the court in this case the probation officer proposed the condition the defense filed a written objection sort of arguing that it was not clear which devices might be covered and at the very outset of the hearing the district court clarified and said it was going to reframe the conviction conviction condition to reflect that he's pretty hit from possessing devices that connect to the internet unless you have prior approval of your probation officer that the device is one that can be monitored by the probation officer only to say you go to the grocery store it's all connected the internet you buy something if you have a credit card the meditative people within seconds know exactly what you do you buy something on amazon same kind of thing essentially what this says is that without the consent of the probation officer he really can't live in the modern world is that a fair statement no it's not your honor i think first of all this court has imposed a mens rea requirement on all supervisors of these conditions so the idea that he would somehow inadvertently violate this common sense and view them in the context of this court said and quinn's on in the context of what the conviction was here this is defend it was convicted of downloading child pornography from the internet and the court statement at the outset of this of the hearing makes it clear that this condition is meant to target that behavior and it's meant to prohibit devices that are at least capable of accessing the internet in a way that could download child or not or the emphasis here is on the accessing right is that what you're saying yes it says the you're prohibited from possessing devices that can access the internet unless you have prior approval that it can be monitored by the probation officer in this context the idea of a device that can be monitored by the probation officer a person of common intelligence wouldn't have to guess what type of devices that is right i think the problem though is that the language as phrase is access to the internet and there are in today's world a lot of devices that could access the internet perhaps without the capability to download child pornography which is the qualification that you put in in your argument but that's not explicitly stated in the condition itself it's not your honor but i think if you look at what the cortex explained on the record at the outset of the hearing it it specifically tied that access to the internet aspect of the restriction to the monitoring of the device like this that requires some modification in the language the condition or do we just rely on kind of the rule of reasonableness and pull to something transcript just to explain what the court meant if he's brought up on a probation violation i don't know i don't believe that it requires modification i mean the condition as written we could all rewrite in ways that would make it more clear exactly what the court was was doing but the test for this court is not whether it could rewrite it in a way that was perfect or more accurate the test is whether as written in the context of this case in the context of the court's other statements whether a reasonable person of intelligent a person of reasonable intelligence viewing that would have to simply guess at what type of let's just take that as the standard i go to ralphs  defendant from go to roust i want to use this self checkout stand i know that's connected to the internet but my probation officer can't monitor it does that mean knowing that it's connected to the internet that i'm guilty of a groceries everybody needs to eat so what's the matter with that i think it's not a device is it is this is a device and this is that's i'm trying to figure out what a credit card is a credit card a device that you use that can access the internet i wouldn't think so but again once you sort of go down the hole of words having no discernible meaning and you know it's sort of the rule of reasonableness read into these conditions yes and i think that's what this court has held in wins on in philips is that you have to view this with a sort of common sense and in the context of what the actual crime of conviction was here and no reasonable person is going to be confused into thinking that after a child porn conviction that the court was concerned about buying groceries you know you're saying that when and if the defendant goes to rouse he uses the checkout stand that the government position is that he's not violated the condition because even though the probably wish an officer has not monitored it just common sense tells you that's not what the court had in mind yes your honor that's that's  would also add that this court has held in philip that there there is in this specific context of vagueness challenges there is a built in sort of second layer of review and that eight years down the road or whenever the defendant is actually out of custody these sort of hypothetical vagueness challenges are only going to come up once and if the defendant is actually violated if the probation officer finds that to be a violation and if the court signs off on arresting this defendant for for buying groceries and that second level review eliminates the need to use timers over me as my colleague rather either has any additional questions do you want to briefly test the number of chat rooms the court did specifically reference the number as being  there was not your honor i think if you look at the totality of the record what what even the defense counsel stood up and said this is so obvious that doesn't need to be stated that some percentage of these fifteen hundred visits were not related to child pornography from that the court went on and because it was so obvious didn't actually state that it was some percentage less than fifteen hundred just used fifteen hundred as sort of a shorthand for the total number of visits and ultimately the number of visits over that eight month period is not what was driving the court's analysis of the nature and circumstances of the offense what was driving the court was the the nature of the access itself this defendant admitted in this post arrest eight meant that he access the chat step program multiple times per week to chat about child pornography and to access child pornography and it's in that aspect that idea that this defendant is interacting on a sort of one on one level with other people who were involved in the sort of activity that set his case apart from the more traditional sort of peer to peer someone sitting in their room downloading from a lime wire or some other access this defendant was out there impersonating pregnant women trading pictures on chat step and doing it extensively over the course of eight months whether that was fourteen hundred times or fifteen hundred times or even one hundred times it was the nature of what he was doing that with the no contact condition as the court's aware this is really not the place for an individual ised inquiry to happen but by diving into the facts of mr paine's evaluation during sentencing the government essentially is to family that really is the core of the wolf child's holding that risk to family is different than risk to someone in the public and as far as the internet condition is concerned i think iran are really  focused on something important which is that this idea that we're focused on things that can access pornography really is something invented in the government's briefs it's not something from the record the district court said did mention devices that access the internet that's one way to construe this devices that can access pornography is another smart speaker can access is connected to the internet but can't access pornography and there is obviously from this hearing i think an register he made he may actually know that it's connected to the internet and therefore a violation the government ultimately doesn't respond to things that are not fart deal far from theoretical hypotheticals a cash register or a smart speaker or a home appliance that has a screen that is internet connected all would place him at risk of incarceration even though they have no bearing at all in relation to his offense even though the court didn't know what percentage were good or bad the court decided to weigh them against him and in light