good morning may it please the court and counsel my name is jim mesa drake and i represent the appellant david a hern we challenge the special condition of supervised release which requires mr a her and to participate in a substance abuse treatment program that is an umbrella term for both a drug and alcohol treatment there is no need for mr a heard to participate in alcohol treatment he reports drinking one beer per week and that the last time he drank to intoxication was fifteen years before the p s r interview hern does not use cocaine either he reported that he used cocaine two or three times in the one nine hundred eighty s he didn't like it and he hasn't used it sits  marijuana is certainly a closer question but again a treatment program aimed at stopping him to use unnecessary there are other conditions of supervised release which we have not challenge to on appeal which address the use and possession of marijuana it is prohibited he is required to submit to testing that will test for marijuana usage we have not challenged that one we're asking for a very modest remedy either for this court to vacate the special condition that we challenge or to remain to the district court so that it can on an off basis he reports and the uncontroverted record evidence record evidence is that he uses small quantities of marijuana as a sleep aid and that he has periods of abstinence before the p interview in this case he had a lengthy period of abstinence and certainly since he's been in prison he hasn't used marijuana for over four years the goal of the sentencing court is to craft special conditions that impose no greater restraint on a person's liberty and considering the other special conditions which the court has imposed that we do not challenge we believe that this particular special condition too onerous is very difference between use and abuse i mean you is what he did of marijuana and use is prohibited the facto translate to abuse even if it's illegal yes your honor and the cocaine usage is perhaps the best example of that no dispute that he used cocaine that does not mean that he is today the abuser of cocaine or in doesn't matter whether it that he is in danger of abuse because if there is a significant danger of abuse then but treatment program is justified and the question is is it justified on the record after bets correct and certainly our position is that use thirty five years ago is not enough if that is the only evidence ok correct only evidence in the record to make him to suggest that he would be more susceptible than the average person to abuse as i was saying but underlying our challenge here let me just clarify something justified in the record that doesn't mean that would be the end because maybe the record could be changed or you could be reconsidered if we sent it back into balance correct the language but souza's whether it's self evident th rationale for the special condition is self evident if it is not self evident the remedy that this court suggested in bet's was a remained for the court to explain on the record and in perhaps in gauging in that exercise reconsidering the necessity of that condition you know my colleague but there seems to be a lot of cases coming out of the northern district in this posture where there were special conditions without statements of reasons yes in this condition is particularly onerous because unlike a condition precipitating the use of the substance we have concerns about his ability to successfully participate in a treatment program and of course if he does not successfully participate that could expose him to additional prison time this is for fifteen years that's correct your honor so if we were to consider a substance abuse treatment program aimed at alcohol or cocaine my worry is that by way of participation and deep self reflection mr would report that he doesn't have a problem because he doesn't have a problem and then either a treatment provider or the probation officer would conclude that he is not successfully participating that he is being recalcitrant and it would cause greater problems down the line but you please the court for the government i'd like to actually begin with an apology for not citing something in the brief that i should have cited which was what the actual words of the district court were when it impose the condition and it said that it when it before it listed all the special conditions it said it found these conditions were necessary and justified in this case based on the nature of the offense as well as their characteristics as outlined in the pre sentence report i think that is significant your honour's it's very general that's very general i mean he was covering all of the conditions right right your honor he was but he then listed and i think this what it gets to specialized conditions given i think i mean your your are your honor bats does say that there has to be an explanation for any explanation why this substance abuse program be in a general i mean whatever one thinks about the marijuana thing and that's not clear to me in these days especially but the alcohol abuse this program is a very broad one and it looks to me as if the courts have been doing this without particular focus and that's understandable because we didn't have bits now we have beds which says you have to focus and be specific you can't blame the judge for not doing it before but why say it was the time it was really more general thing that they were doing your honor i i have to admit i do not know the particulars of this substance abuse program but i need to know it in involves testing and i think i'm not sure there would be any testing for alcohol use he has not challenge the condition for hitting his alcohol use as a matter of testing he's already required not to use marijuana right so he can be tested for marijuana i think it's not going to be so discretion for the court to look at someone who used marijuana when it was illegal and it still is illegal for thirty six years i don't think that condition saying do not break another law to not use another substance is violating supervised release with all the intended consequences this is for his benefit and again i think it's you have a long history of admitted long history you have a district court who says based on your characteristics in the pre sentence report i'm imposing these conditions including this condition he doesn't object at a sentence or restricts and pre sentence report doesn't really tell us anything it just says these are robotic words i am doing this it doesn't tell us i think this person needs this for the reasons and i think the opinion in  you drugs of marijuana and so on that's fine but we said in that case that we want more and that isn't much of a burden for a district court it is just to say on  supervised condition especially over many years is a very serious matter because it can so easily be not met and that the person goes back to jail you're right your honor and i think i suggest that there is room under bat's when you're dealing with special conditions that are recommended in the guidelines to suggest that the the amount of explanation that is necessary that there is no doubt they vary according to that  does leave open the situation where it is obvious on the record why that would be and i take it would be no doubt that if this man were and were an a group no question about that i guess it raises a question though whether it's fair or not and i you know i think that's the first step of the plane or most of these cases are always going to be on plane air because because if the defendant asked for more explanation he would have gotten that says if you adopt the facts of the p s r you've basically given us an explanation for why you're applying in a hansom and i think that kind of case law suggests that here if you adopt if you're specifically referencing his characteristics as described in the pre sent report i think i'm not sure it's a clear error for the court not to say more especially when this condition is read to the defendant it takes a long time to read to define it he does not object to the time but what does th when you're dealing with a recommended condition that the amount of explanation of the court should give and you're not and you also in canberra said that given the heavy burden that sen you know that you don't want to get into a situation just going to have this robotic language that they need to say and that's going to be enough but i think here to find that it's clear error for what the court did here when it did reference on the characteristics of this individual and it's and it's and to something more and i would just this is again i would perhaps i know there are a lot of cases coming out the northern district that that have this posture it's not just the northern district i think it's you know there's other cases that have been decided since then that that where this this is happened and i think it's this is a new innovation and the people are doing you know but it's a breaking a blow for the northern district and but it is even connecticut has even connecticut you're not even connecticut it happens there but i think it is i think the court does recognize that this is bet's was a firm statement of something that was implied in a line and i think that i think the message is going to get through to the courts a good rather than whether it's a good condition rather than just having kind of got it more or less just kind of a routine matter and i guess i would quibble with that saying that was that there should be an assumption i mean in many cases this court has said that we assume you consider this thirty five fifty three a factor that articulating each one to assume the court didn't give i think to worry the court didn't give individualized consideration to these i think is not supported in the record especially when it does reference this defendant and his characteristics just very briefly i want to speak to this last point about the state of the record and whether it's sufficient to support the conditions and come at this from a slightly different point of view to illustrate why we believe it's not if i w probation officer and i was sifting through the records to try and determine what i would recommend for the mr participate in i would see based on the nature of the offense the nature of this offense has nothing whatsoever to do with alcohol or controlled substances as well as your characteristics outlined in the pre sentence investigation report then as the probation officer i would turn to the pre sentence investigation report which details alcohol cocaine and marijuana and as the probation officer i might be inclined particularly where the school a court to affirm to order him to participate in for example an alcohol treatment program believing that that is in fact what the district court intended and as we suggest that would not be sufficiently tailored that would be overly oner s a burden on his liberty other portions of this we don't have and of reasons was there are discussion of this topic in the statement of reasons i don't believe so this was not be curious as to whether there was any discussion within the statement of reasons i feel very confident saying no because they did not appear this was never a recommendation of the p s l right or this particular says a special condition and it did not receive any mention in the government's