activity there were three points that were raised in the opening brief one of them involved whether or not the court miscalculated the guideline range by ripping off that one was one charged and convicted off and the other issue that was raised was related to the supervised release conditions and the third one which was not objected to was just seeking clarification from this  improper for the court to group for purposes of two g one point three well you discussed newsome for the proposition the offense level should not have been elevated as a result of the  charge conduct but newsome is based on conduct that was group but here we're looking at conduct that according to the guidelines can't be grouped right i'm sorry to say that what we're looking at we're looking at the guidelines that can't be grouped here result because we've got it a statutory minimum of ten years that the one twenty and the upper end of that properly calculate guidelines age would be one twenty one but effectively saved him about a year of his time but there and there wasn't any evidence in the course of the trial regarding the the facts associated with the person who called heather that's what was called and we know that the office that he was charged with count one more of the single count complaint was related to gender we know that also by going back to the record to look into the first criminal complaint where the affidavit is attached and it's only related to  specifically what he said but that was within the guidelines range one didn't he say it was adopting the p s r though correct right and that laid it out so i guess what i'm trying to understand because i didn't quite understand your answer when i asked you because new saw in the fact that i knew some was based on group conduct and here we're looking at conduct they can't the group are you arguing that uncharged conduct beginning before and then temporarily overlapping with the charged offense can never be included in the charge defense for purposes of increasing the offense level not not exactly my argument here as it relates to the conduct using the terms of the guidelines for relevant and often it's i'm not sure that the actions as it relates to to heather during that period of the indictment is the type of conduct that for purposes of two g  because the court didn't set out a basis or reason for talking about so broadly stating what the the terms of the case to adult pornography and website and stuff like that we think it's inappropriate for the court to have reached that conclusion certainly if it were to be remanded judge and could say something differently and could expand upon that and connected but there isn't any evidence in the sentencing record where set out this court and to some set out the general rule which we agree with that generally uncharged conduct cannot constitute a separate group under the guidelines and that was the argument on which the defendant relied in his opening brief but the general rule is not a political in this case because we're dealing with a specific guideline that states otherwise and that is two g one point three s d and then the commentary that goes along with that that that does allow uncharged conduct to constitute a separate group under the chapter three if that in charge conduct it's relevant conduct to the offense of conviction and that's the argument that that we ended up addressing with very specific to two g one point three in our brief that because of the temporal overlap which tempora overlap is not always sufficient in and of itself but because of the temporal overlap and both offenses the in the same the uncharged offense and the and the charged offense that the district court did not plainly here and having two different groups and that's the standard of review that we're here today under plain air and absent that objection below you have you have the offense and charged offense involving holly the charge of conviction involving jan why would you have to worry about sticking me the guideline range right the judge has doesn't have to give a guideline sentance and if you have this relevant would why would you need to lie why wouldn't it just be something to tell the judge has to make an independent judgment whether of the sentence to impose you can't rely blindly on the guidelines so any point you could make to add to his guidelines sentence couldn't you just ask the judge to consider listen so i think if i may i think it's somewhat of a two part question because the judge still has to as a corps aware i'm not telling you anything you don't know what the court has to properly calculate the guideline range and i believe at least in this case that the proper calculated guide right guideline range required two different groups oh my why is the offense conduct involving this fictional victim highly relevant conduct to the offense of conviction which had to do with his enticement  fictional undercover undercover officer who was posing as gen y our arguments to full with regard to that first respect where we think the defense started with the incorrect argument by just look conviction that is one of the problems of relevant conduct under subsection a one in our argument would be that the attempt with respect to holland if we look at that across the spectrum with the last  being january twenty first two thousand and fifteen the may have my years wrong but january twenty first whereas the first responded to jen's ad back on january thirteenth and so there is at least a partial temporal overlap as i think that's the term judge williams may have used when asking a question before but so it's because of the temporal overlap and then at the what part of the definition are you referring to under  of relevant conduct your honor yes all x omissions committed by the defendant that occurred during the commission of the offense of conviction of the second half of that the that occurred during the commission of the offense a conviction this conduct ought to be considered relevant conduct no great reverses a guideline now we did we are not this went to trial there was no negotiation we aren't we are not involved in calculating the guideline number three should be struck after the less a sex offender treatment provider determines that access to adult pornography should be restricted because there are no findings by the district court on adult pornography right  e said condition number three which actually condition three be unless the sex offender treatment provider determines access to adult pornography should be restricted for denies that's really a determination for the court to make right not in the hands of the provider and i think it's different here's the difficulty judge williams with that is i agree with what counsel stated mr sandberg that there is no evidence of a connection between adult pornography in this offense i think the court realistically and looking at this knows that sex offender treatment providers will often take a sex offender and say stay away from pornography because of the concern of developing sector healthy sexual relationships so i think what the court is looking at in condition three is the fact that if your sex offender treatment provider ends up determine it's ok that you use adult pornography then that that's fine but otherwise stay away from it and i guess the court may have gotten ahead of itself knowing that many sex offender treatment providers say no progress right in the question is whether that should be a determination by the court in a court should explain that you've given a great explanation for it but that wasn't laid down by the court right i think actually in the p s r the probation officer may have stated i can't remember where it and i could supplement with the citation that i think you may have stated in the pre sentence report that is often a sex offender treatment provider will well ask her direct patient to not possess depicting child pornography but it says or other sexually explicit conduct unless a sexual offender treatment provider directs otherwise yeah that would threaten almost just the opposite that there they pretty respected judge shattered who's very conscientious that i think he may have tripped over himself a little bit of flirting i don't know but that is confusing because obviously you're a sex offender treatment provider cannot direct that a access to any computer you possess unannounced access so what probation officer appears at three am something and says i want to look at your computer and if that's the it's even more funny is the last one you shall not knowingly use the internet etc etc to view material depicting child pornography or sexually explicit of unless the sex offender treatment provider directs otherwise what he tells he tells the defendant wanted you to watch child pornographer now and that's a comment actually very much it that was t so so bottom line is that that that's a problem and i guess my question is if and i understand the probation officer says that sometimes the provider will say hey i don't want you to look at adult cannot be either we don't know what is going to trigger a local bar the question is though shouldn't if that is the case and that's the rationale the district court should just say that at the time of sentencing and then it would be fine if it's laid out in that i conditions for the district judge just to ban it knowing the district court to say and i'm imposing this condition because based on what the probation officer has said in the p s are often people who have these huge issues also have issues with adult pornography it can as i understand with the probation officer is saying trigger some of these other things as so the condition i'm going to impose is  the provider be able to make that judgment i mean i think that would be ok because that would be the district court specifically authorizing that right i understand your honor at the record could be much better on that