know that's funny the way it is good morning morning may it please the court my name is and berger and i'm representing the appellant ronald david wade in this case involves the relationship between a defendant's sentence as imposed by a judge and its execution by a probation officer in the context of this case the district court below reimposed a condition of sex offender treatment what what we're asking the court to do is correct a process or a practice that seems to be taking hold in our district as in the broader case which was decided by another panel of this quote it's one thing for a judge to say that i'm going to impose sentence but i'm not going to i'm not going to impose sex offender treatment unless the probation office says you want it says so you get it and then then you have to do it which is a delegation this was one where the judge imposed such offender treatment and then a lawyer for your clients him wasn't you it was me was you said i  want i don't want i want to be conditional and then the judge said ok well wait till a probation office does it and then and then and now you're complaining about that well that the sequence of events was a bit different and the parties proceeding to sentencing new and expected that the court would reimpose all of the previously impose conditions which did include the reimposition of the condition issue here as imposed prior to the clarification made by probation that would not have been era we requested clarification and when the probation department revealed the basis for its request for the condition  you said that's fine you acquiesced in that neither side including myself objected to the condition as imposed and this is on all fours with the modoc case another panel of this court where in that instance the defense requested a drug treatment condition which was imposed the condition however that was imposed allowed me the three possible outcomes of this case one is the error was invited so we just disregard it for wipe out the conditional nature that you requested or or that that was ended up with so that he has to go through sex offender treatment tomorrow the judicial process is what was needed this is a core judicial function we're talking about imposing a requirement process that's correct there's a process by which probation at any time can apply to the court to reimpose the condition in this particular instance as it was imposed was an improper delegation aged and say they were interested in imposing it at the present time that's correct the probation officer indicated that it was requested is a fail safe i believe her exact words were in case in the future it would be needed the probation officer went on to say this is after the sentence the condition was imposed that the probation had no saw no need for the condition to be enforced and i think if we look at the relationship have it in place but not enforced as as a sort of a back up and i think here we go to the court and the court says yes or no because once that's done then that the delegation that's correct and anecdotally mr wayne is still on supervised release he's still he's still not as of this point in time mandated by probation which has taken over in our view the imposition of this particular condition of the sentence should probation in the future follow the proper procedure and go to the the judicial officer to request modification or the addition or the removal of a condition that's the process isn't there another possibility here that if probation does do it does tell him to do it and he refuses then you're back before the district judge and you can sort of that the process that when they came up in that broader case that i mentioned momentarily earlier on and in the broader case a panel of this court faulted the conclusion that it was something that should simply be left to occur between the person on supervision and the probation officer and in this case we have a judge who misapprehended the relationship between the imposition of the sentence and its execution by the probation or you realized that there was  in a few words in answer to judge winters question you would be satisfied if probation was required to come back before the district court if it may please the court my name is joseph cara chefs i represent the united states on this appeal the condition that was imposed by the district court did not improperly delegate to probation the district is when counsel asked what defense counsel asked what would be the circumstances or clarify i'm does he have to start all over again with with treatment or is it just if he really offends and that was participate in sex treatment or sex offender treatment at this time then the remedy is to go in front of the district court for the defendant to go in front of the district court and say hold on a second judge you have to make this determination two what would have a perfect right to go into court and say this adjudication should not have been made by the probation officer but should have been made by you well he can't he has that right to go and ask the court i'm not saying that he would prevail i'm not saying it for the for the this is not like the cases that counsel has cited where there was an improper delegation of authority to the probation officer not like  a case which was a situation where the probation officer was going to be able to decide whether he should go to in treatment drug treatment or out i'm sorry in patient drug treatment or outpatient drug treatment this isn't a case like that it's not like that then he can go in front of the district court and say i did not i didn't do that i need an adjudication as to whether or not i have engaged in this conduct this is and and again where we started here is that this is precisely what the defendant asked for and precisely what the defendant was expecting everyone entered into this plea agreement that i'm going to agree that i violated the conditions of my probation i agree that i'm going to get a five month sentence in jail and after that imposition of all the conditions that were imposed at the time of my original sentence which in wounded sex offender treatment it really would be a supreme irony that this defendant gets this condition removed because he violated the conditions of his office of a supervised release he having that probation office  doesn't preclude the united states attorney from also prosecuting him in addition if it's if it's a sex offender crime certainly but that's not what the united states wanted that's what the defendant wanted that's what his counsel stood up at at sentencing and said functions well normally the circumstances are if the defendant if certainly if the defendant were to commit that were to engage in in offense conduct such as that and normally the procedure is he's violated the probation officer fills out a violation petition completes a violation petition gives it to the judge and says this is what happened this defendant first of all committed another crime which certainly is a condition would trigger this treatment which would trigger it which would trigger the treatment so as a practical matter that's probably what would happen but i think we return to i'm not sure what it is and it's not clear what the defendant wants here if that's the case which you just said that it's going to go back to the judge anyway that if we decide this case by writing you know we're saying that if it goes if if if there is a probation believes that he to probation the right to call the shots and that was what was talked about quite a bit in that broader case where basically you have the judge delegating the computer monitoring condition and i can't use that that would be overcome by an order that requires the requires probation to go back to the judge is that there were a violation request is for the condition to be removed and it any time the probation officer sees fit even for a non criminal offense the probation officer pursuant to the statute i mentioned earlier can approach the district court and request a modification and large meant and have conditions and at that time sentencing was that the offense for which he was arrested the traffic offense had nothing to do with sex and sex crimes those were the comments mostly leading up to the point at which the court imposed the condition following the imposition of the condition when we requested the sake for him to know that based on this condition being reimposed that's the sex offender treatment being reimposed i'm quoting now he will have to begin and start in the sex offender treatment program all over again or if that's simply a condition that will be there in place in the event that there is a some additional conduct across his probation to want him to go back and start from scratch again given that he completed the course already  now that's that's and that's the way it was left anything for the court says and you and your adversary say no and that clarification occurred before the court imposed the sentence w be in a different situation in terms of a standard of review these work post imposition clarifications and a discussion that occurred after the condition was imposed with the time that it was imposed and leading up to it we were certainly not aware i expect the government was not aware that this was a condition that was not needed by probation that was basically a fail safe that they wanted to have just and even they asked for was just a repetition of the sentence of the conditions from the first sentencing yes