has the most impact on the amount of time that my client will do in prison in our view the district court misapplied the guidelines in this case the specific guideline section five g one point three when it decided that the receipt in the possession counts weren't relevant conduct at sentencing the government argued all counts roseman conduct with the state conviction and argue the government's right course the government's taken a different view on the appeal but as we were using our brief the government's position is untenable because relevant conduct requires some overlap between offenses and we have that here and you can demonstrate overlap between offenses in any of three ways it exists if there is a past if there's a similarity in victims same victim in the past and present offenses if the offenses stem from the same underlying conduct or the offenses are similar offenses in the state case involving the predatory sexual assault which my client's doing an eighteen year sentence we have the same victim that we do in the two federal production offenses that demonstrates relevant conduct if we are to go with i think lesser arguments in terms of the relative strength we could also say that the offenses stem from the same underlyin does but she does that by in our view a faulty application of the five g one point three because she separates fences implies separation be five g one point three b two and five g one point three d to the other two if you read five g one point three sections a b c india are listed in li alternative they are mutually exclusive you cannot have and i think the government makes this argument to try to save the sentence here that the judge was essentially trying to apply five g one point three d but the judge didn't say that the judge said as your honor notes issues applying five g one point three b and b they are mutually exclusive you can't do that that demonstrates an error you know the reversible error in this case because contrary to the government argues there's no harmlessness that's evident on the record here because the district court never says and irrespective of my guideline calculation i would impose the same sentence in any event are the three separate visions excuse me the force of provisions are mutually exclusive the conduct is relevant conduct because it is all harm it is all conduct that's the logic is consistent with the court's analysis and sanchez case which came out after i filed my opening brief the government filed its response i said in the reply i think that the district court got off track when it relied on and there was a change in the guidelines in what needed to be shown in this court's recent analysis in the sanchez case shows that the two part analysis in is in a political instead look to stanch as and i think that we've demonstrated that if there's relevant conduct for two of the four federal counts of conviction if it's the same victim and so forth in the state court case then we are under five g one point three b two in the would prefer b but what i'm saying why not be where it's going to the next situation just say it's on your d i don't think it's the complex case that it's made out to be here i think it's fairly straightforward if you look at who the victim is both in the state case in the federal case you find your and be not deep but many that the judge can apply both so we have an error in any that and then the judge and whether it's harmless or not might matter if it's b or d but to correctly apply d t judge has gone through the analysis and considered the five factors that are relevant application d in the court didn't do that here it at least shows some confusion by the judge about what the appropriate sentence would be relative to the god like calculations i would turn it in must course for the questions that matter to the second year that we've raised and that is the length of supervised release and the heinousness of the offense and that is one factor the seriousness of the offense but it's a fact it's not even supposed to be considered for the purposes of imposing appear to supervise release under listed factor we've said you can think about it yes rich you know as defense attorneys we take issue with it's just procedural air that the statute says it's to be omitted in this court has a lot of so long as it's not been principally relied upon in this case was your honor so even if you were to accept that while the statute doesn't allow for its consideration if the district court isn't primarily based sentencing decision on the inappropriate factor of the sentence could still be firm here we have a obvious reason why it's a hook for us to get back to rescind it's and so if i'm flat out wrong in five g one point three b this is still a grounds for us to get back in and the government's contended that we have a waiver issue in the case that would allow us to get back in and argue the five g issue before the judge again we've got pepper which any post incarceration debilitation my client's been engaged in would militate mitigate either in favor of a lower sentence so it is an important point and that's why we continue these issues furthermore it's something that we wish district courts would more careful about when they decide to impose the like a supervised release so if he's going to be elderly when he comes out he doesn't need lifetime supervised release and have a lower period and extended with what is the minimum increase only as necessary as opposed to the reaction always being over the maximum length of supervised release in the greatest number of conditions and work your way backwards from that start small only go up as necessary i think that's consistent with the parsimony principle under eighteen u s c thirty five fifty three anyway impose a sentence that is greater that is excuse me not greater than necessary start small if you are conditions shorter like the supervisor made article three prevents district courts from granting powers to probation officers to impose sentence these are all significant things when you allow the probation officer to determine if you have to be in sex offender treatment if you have to be of substance abuse treatment if you have to be in mental health treatment that's not something that can be left to the probation officer decide the district court wants to impose those things imposed and leave only the ministerial aspects of the program to the probation office that's not what happened here and lastly i am troubled about the follow instructions condition because we have seen a recent example and i've cited it where the super condition allows probation officers they think to do any number of things requiring our clients to be involved in subs do programs we think that's a problem i've identified that brief must  the court if i could just briefly address the point that counsel made at the end if counsel is troubled defense counsel with the supervisor please condition the way to go about it is not to say judge we have no objection to we do object to the p s our wording but not to the wording of the district court that was handed out on october sixteenth of two thousand did so do you think the hill case that he cited in this story j letter which deals with death fall of the instruction cases a said follow the instructions of the probation officer without using a qualification of reasonable instructions is a necessary condition incident to supervision so even if it were not waiver or under  plainer standard and it is hard i don't know how the court could say it's playing there when the court imposed a condition that this court has said is necessary for instance a supervision and with respect to the hill case i understand it was just issue right as far as waiver go it may or may not wind up his waiver and i mean no disrespect it's just when when the issue is waiver and in between is is it maybe what some  dicta concerning conditions because the holding of hill is we need to know whether the waiver occurred that's the whole that would be that's our feeling that's the else that's the whole line so sanchez when we when we look at the application of section five g one point three b the condition preceding to is whether there is the conduct underline the state court conviction is relevant conduct to the federal conviction and what the defendant didn't do whether it's relying on sanchez or other cases in which  mean sanchez wasn't an earth shattering decision to say that relevant conduct is something that related to the offense of conviction what the defendant didn't do in this case your honor is base his argument on the definition of relevant conduct he cites to it but he then goes to a deconstructive approach of analyzing the guideline enhanced meant in this particular case or the specific specific offense characteristics or looking at a chapter for enhanced minister focusing on the definition of relevant conduct to see whether the april two thousand and thirteen sexual assault of a our jane was relevant conduct to the receipt in production counts counts one four and we think that when when the guidelines give a definition of relevant conduct it's then that and the defendant wants to argue that a district court erred in making a relevant conduct determination that the analysis needs to start with that definition as opposed to the constructive approach of looking at not even the counts that he says it's relevant conduct four but the ones that neither party is opposing same the court was correct in finding it was relevant conduct and perspective the two production counts and those are the offense calculations and chapter three adjustments it's unrelated to enhance med center chapter four so to rely on that to argue that the district court heard and finding that it was not relevant conduct with respect to counts  four i just think it misses the mark instead of looking at the definition of relevant conduct and i think in sanchez that that's what the court was doing it focused on the definition of relevant conduct or at least a shorthand version of that to determine whether defendant sanchez met his burden since he was looking to use that affirmatively for his own benefit and establishing whether or not the sentences should be concurrent and so as for sanchez applies it actually reinforces it condition that i understand what the district judge made and condition they had it but it didn't specifically directed that condition it is a sex offender treatment condition  what i would like to point out regarding as far as not delegation but even even if it is a delegation problem what still stands as pressed in this court is something that isn't either tension with thompson capice as you one that can dish and can be modified at any time that there was a substantial denial of rights in opposing that condition when we're looking at a six hundred thirty month aggregate sentence to remain in this back to the district court for most one supervisor elise condition i think actually it detracts from the trust in the judicial system in this context and i'm not arguing about the court in doing so in other cases but on one condition on a six hundred thirty month sentence for somebody who has committed the crimes that he has committed in the manner in which is committed i think that that attraction the trust in the judicial system under plain every view when that can be modified at any time if it is improper delegation of judicial authority so here's your suggestion is it that it can be modified  be done at a later time when i mean to say that it clearly the judge it seems to me had in mind but just didn't direct instead left it to the i certainly don't believe it was judge miers coughing tend to leave it to the preparation officers discretion for sex offender treatment when she says it is necessary and which brings another point i respectfully disagree with my provided her own guidance on what she intended to do she addressed objections made by the defendant he explicitly said no objection to certain conditions and then the ones he maintained she addressed and then when it came time to pronounce the sentence she pronounced the conditions and then followed up almost each dishan aside from men administrative ones with findings i find this is necessary because she she really did model what this court has suggested are the right practices the best practices and imposing conditions supervised release so for the reasons in our brief an argument today unless there are other her questions from the court we would ask that you affirm the district court  like to begin with the government search and waiver on page seventeen in our opening brief we discussed with the definition of relevant conduct is may have taken a nontraditional approach try to illustrate why this is relevant conduct with the meant but let's not forget what relevant conduct is it includes all acts in the missions and all harm that results from that specifically noted on page seventeen of the opening brief before we go into the more specifics of what for the one point five pattern and abuses and so forth so there is no waiver and to follow up on the not lacob waiver issue when trial counsel talked about supervised release it's apparent in both his submission to the court in his commentary and then i think again at the sentencing hearing that he does not oppose supervised release of life time so long as he gets a twenty year fully concurrent sentence he would oppose the conditions in that regard either but that's not what happened here so it was a conditional argument about the conditions of supervised release and the length of supervision and just longer this court's jurisprudence has been clear and johnson and that's an opinion you know that  judge williams you were on that panel to leave it to and i believe authored the decision for the court to leave it to defense excuse me to defend him to modify conditions later after they've been imposed or something this court has rejected and so