her willingness to help us we have three argued cases today but it's going to be a little unusual way we're going to proceed we'll hear davis and  town of colorado city first and then we will take a five minute recess the final case real's versus brandon is going to be in a sealed courtroom so we will have everyone who is not either one of our law clerks or tourney directly related to that case will be asked to leave the courtroom then we'll hold that case and when that's done we have some students who are coming in and our law clerks will answer all their questions for our doing our conference and  come out we probably won't be able to answer any of their questions but we'll try so let's begin with the the first argued case today which is united states versus davis please proceed counsel recess on behalf of ricky davis i would like to reserve two minutes please i'll try to help like you for your honor because the district court committed several procedural errors when it imposed the custodial sentence this court cannot have confidence that the twenty five year sentence is not greater than necessary to accomplish the penal logical goals of sentencing specifically the district court failed to properly calculate the guidelines and it failed to engage with davis is disparity argument in any way that could give this court confidence that the court heard understood and considered davis's arguments before imposition of judgment and that it had a reason to basis for rejecting davis arguments he stands convicted of sexual exploitation of a minor correct twenty to fifty one in a fence committed when he was on parole for attempted murder of a fourteen year old child that is correct your honor he was near the very end of his parole without incident and as i had explained to the judge those two incidences really should not be connected they don't speak to one another and the court the government argued that that should be a basis for sentencing and the court very carefully did not list protection of the public as one of the basis the primary basis for the sentence with seriousness of the offense conduct and that's where the disparity arguments were squarely addressed and called strongly into question the district court's assessment that davis is conduct fell on the far end of the spectrum of seriousness with when you consider the conduct that's prescribed by twenty to fifty one and particularly concerning is how the district court described the seriousness of the offense and why it believed it was serious it looked to the fact that the individual davis involved the minor in sexually explicit conduct took photos put them up on the internet i'll be it for a brief period of time now while that's troubling it also is essentially the base offense elements of twenty to fifty one so if we look at the broader statutory framework twenty two forty three an individual who has sex with a minor between twelve and sixteen years old repeatedly for years on end the most they can get is fifteen years in custody and twenty to fifty two distribution of child pornography masses and masses of child pornography for personal and financial gain for years on end the most an individual can get is twenty years fourteen year old that he attempted to murder that he was twenty years old and that was his girlfriend yes your honor that's my understanding yes and the individual at that time was a gang member who was high on p c p and that's why i discussed with this morning why it appears to have rejected the argument with respect to the need to protect the public and that's where the court's utter failure to even offer any sort of explanation as to why it was rejecting the disparity argument is particularly concerning particularly if you look at twenty two fifty one it's broken down into subsection a and b and subsection b is not the conviction davis was convicted under  subsection b is reserved for the individual the parent the guardian who writes the top lawyer for years on and and distributes the pictures for personal or financial gain and stops only when law enforcement intervenes that's at the far end of the spectrum of what we have here but counsel with respect to although i may have some sympathy for your views from work a special condition aid with respect for a five year sentence i mean as my colleague has pointed out this this man had a serious prior criminal record was part of his criminal history that was part of what the consideration of the court because the calculation of the guidelines includes that and he always when we're talking about thirty five fifty three a analysis the court's not required to tick off each of the things considered in making the determination is that it is not your honor but it was very clear in the basis of why it was sentencing the way it was sensing and the government specifically argued that that danger ness was was a basis and the court didn't didn't impose sentence on that basis so well why should we assume that just because the court did not mention the safety of the public were to presume the judge did not consider that when the when the district court specifically talked about the prior offense it did so in the context of deterrence and that's so i think we do have to look at what the district court did and i think the issue here is not whether this court could justify the sentence it is an abuse of discretion not to consider non frivolous arguments that are tethered to a thirty five fifty three argument and if we look at the sentences that other courts have imposed under twenty two fifty one for far more agree just conduct davis is an outlier and the failure to engage in any way and offer an explanation as this court said is not merely consideration that's required it is an explanation but with counsel are you are you arguing that when sentencing this defendant that the district court was required to us and this is actually research all these other cases you're referring to analyze them make a determination whether this sentence fell within a particular range or to the contrary do we have a requirement of the court of supposed to consider but those not need to specifically reference fortune of thirty five fifty three look at the what the guidelines for vide make a determination isn't that what we're doing with your seems to me you're asking for the court to do far more that at least our case law requires to do i  to specifically says this court's not concerned with consideration but specifically with explanation and while some situations like the that's a different kind of a case as i hear you well i  have to have an explanation if you look at rita and the supreme court or carty the explanation that was needed in those cases was not significant because those and of those cases dealt with thirty five fifty three a one the history and circumstances of a defendant and the weighing of it in the weighing of those factors are clearly within the discretion of the district court so there's not much explanation needed and that's exactly what we have here is your honor i would strongly disagree we have a disparity argument which the court never even engaged in and this very argument squarely calls into question how i can't fathom an argument that could explain how seriousness of this conduct would put someone at the far end of the spectrum as the court stated without any explanation that it heard understood considered let alone offered any explanation for why it was rejecting what when you say the far end of the spectrum i think we're in agreement that the range is fifteen to thirty and the judge discounts that by a third he knocks five years off one third and he i don't know if he varied or he departed it's not clear in the record you know i don't it doesn't matter for these purposes so for some reason consideration of all the arguments that you made the court did not sentence him at the top and you're on the under thirty five fifty three what a one there's two prongs one is the nature and circumstances of the offen and one is history and characteristics of the defendant the district court very down very clearly on the basis of the history and circumstances of the defendant the fact that he was no longer in the gang that he was not using drugs that he had strong family support that he had employment so what the issue in terms of disparity argument went to the first prong which is the nature and circumstances of the offense and the fact that under a six the disparity you had the court had to offer some sort of explanation it could have formulated some basis for sentencing davis as it did but as based on the reasoning of the court and the failure to offer an explanation this court  the condition eight and i think the district court abused its discretion with respect to the imposition of special condition and i think because of the lack of notice this court does have to remain and but because because i think we do have to go back i would like this court to address constitutional concerns with respect to a special condition eight pacifically the delegation to the probation officer and the unconstitutional vagueness  individual's liberty interest with respect to whatever a probation officer deems to be an inappropriate description of sexual conduct between adults good morning your honor sparano so united states at the outset i'd like to briefly emphasize that at the sentencing hearing the district court was careful to explain the multitude of bases and support of the sentence imposed on mr davis within pages thirty through forty three of the excerpts of record the court address aggravating circumstances not just with respect to the facts of the case but also with respect to defendants criminal history as well as fact he was on parole at the time the court also specifically reference target in fact in this case mentioned he wasn't sure that defendant knew what criminal conduct was so deterrence was important in this case the court further addressed mitigation it also addressed not just other cases that it had thirty to fifty one convictions but just in its courtroom but also in its courthouse and the court indeed stated on page forty three lines one through eleven that it considered all of the cases presented by the defense counsel in her recent sing br although the condition with respect to child pornography was clearly in there and in the previous record the aspect of adult pornography was added at the last minute there was no notice about that if i recall correctly is that correct are you talking about our case specifically this case yes no it's not correct what we have here is very similar special conditions as that those that were in the new case both before and after the decision was was published ok let's let me just be sure i understand i understand about the child pornography portion but it was the portion that dealt with his inability to look at i mean basically it covers lady chatterley's lover and everything else you can imagine in this case i mean it was anything related to adult sexual activity of any kind that he could not look at that without the consent of the probation officer from being vague i have some question about its constitutionality but let's focus on the fact that it was not in the special condition and till the actual sentence was was more onerous than the than the softened condition that judge issued articulated pursuant to the publication of new york and i apologize as well if i miss pronouncing that what we just know what case we're talking right and so beforehand in the p r it was a blanket prohibition val shall not have anything that falls within the definition of twenty to fifty six to sexually explicit conduct that applied to writings applied to visual depictions that apply to it didn't separate out whether it applied to children or adults leave definition to the probation office it does and what it does is it follows near a key one hundred percent in spirit virtually word for word by saying look we're now going to soften the blanket prohibition with respect to adult pornography so now restricting it and if the probation office deems it inappropriate then you cannot have it in that precise language was a nervy and so what judge what the district court did at sentencing was he had some proactive prudence and even though there was no objection to the original more onerous special condition eight even the twenty fifteen or the twenty seven eighteen cents increase by the defense there wasn't any problem with that at all he he was after that and this is a condition that requires prior notice yes or no yes conditions i mean i did receive prior notice yes correct that's correct  with an asterisk there was prior notice with respect to the more onerous condition with respect to how the judge if she specifically softened it there was no prior notice to that other than at the condition zone before this panel imposed by the district court was attached after sentencing correct it was articulated at the sense of hearing yes it was added on top of the child section right correct so the written the written language was added after the sentencing hearing the same language was articulated by the court during the sentencing hearing and that's why i had a little difficulty going with a straight yes without an explanation the way to deal with a question like that is to say the answer is yes but i understood what else you got with respect to the scope of the condition itself there was some language in the reply brief saying hey this scope of the condition talks about describing not just depicting and i just want to state that the description language in the new special condition eight is still loyal to new york he new york he relied on two definitions one from black's law one from oxford dictionary the black's law dictionary specifically contemplates writings the oxford dictionary specifically contemplates descriptions but inert he wasn't there a factual record that made it logical for there to be a restriction on adult pornography i don't see any of that here here in the cases suggests a long as it's in the record there the court doesn't have to articulate it at sentencing and here's we have in the record i think it is here with respect to mr davis is of original conviction was engaged in sexual relations with a pose few bess and yet minor female with respect to the conviction t facts relevant to this conviction he was engaged in sexual relations with a post p p s and yet minor female so i think there is a factual tether to hey we really need to restrict adult pornography here because this defendant has  evidence to a dedicated interest in the sexual abuse of post the best of women what is the very purpose of the requirement for prior notice to give parties an opportunity to respond to it and adult situation that's very understandable here you have as you describe it a post besson female i e a child for purposes of the law and child pornography clearly a condition that might bans that which the first part does clear connection but with respect to adult pornography here it talks about including computer images pictures photographs books writings drawings videos or video games you couldn't go to the brode museum in l a you couldn't go to any of the museums in town anywhere without seeing something that would run afoul of that would you basically just has to stay home and read comic books maybe not even all comic books well i think no the case defined pornography is something that is explicitly sexually extenuating now and that's not the point council of question is the the nature again nobody's arguing that there's a problem with the portion of the condition that restricts looking at child pornography but this covers the second part added as my colleague pointed out at the last minute after the twenty five year sentence we had no notice at all covered everything there's no limitation whatsoever as far as i know there's no indication in this record that this defendant has ever been convicted of raping an adult female or raping an adult male or whatever but it was confined to children so my question is what's the rational  connection under wolf child another is that you explain how a restriction on adult pornography is tied to the crime that this person is convicted of the rational connection in part goes back to mr davis defense where he claimed that the thirteen year old with whom he is having sexual relations and posted her images on the internet was above eighteen even though the evidence in trial said she was below eighteen so there really is a vagueness there with respect to the scope of mr davis is a period interests and women and this condition here addresses that above and beyond just with respect to the child pornography component but then you don't even limited to women  adults to be anything you could be a gay man whatever doesn't matter yes and i just want to state that the condition was was profoundly different and i would disagree that it was less onerous my client went from having his supervised release defined by statutory terms to suddenly having his liberty interest in the balance of what if ever a probation officer deemed to be inappropriate description of sexual conduct was there ever any discussion with the probation officer or in the record anywhere in the p s r but talked about sexual conduct with adults no you and there's no there's no information that my client has any unhealthy relationship with adult pornography or adult descriptions of sexual conduct or that he has any issue in terms of relations with adults the the other only the only other relationship that's at issue was the relationship with his girlfriend where yes she was a minor and he was an adult but they were relatively close in age and then we have this case but there's no issue in terms of any any concern about