may please the court counsel greg noll and for thomas ferguson we believe this case is straightforward for this court the district court did not make in individual ised assessment when it imposed to severely restrict of conditions of supervised release what would you have had in say judge sessions well judge sessions had nothing to say in this case because there were no facts there was no evidence that would support the conditions he imposed he imposed them simply because  in his words they are standard would you raise a legal challenge to the special conditions originally imposed by the state of vermont i was not counsel in that case in that case  harkens back to two thousand and three here i should add to that case was discharge the probation in that case was discharged between the change of  in this case and the sentencing in this case of finding unsatisfactory that's that's right your honor it was an sas factory because mr ferguson committed the instant offense which of course was a violation of his state conditions of probation and the reason he was discharged is because of the instance or no offense isn't that right i think it is fair to say your honor that the state having had him on supervision for war approximately twelve years or so decided to discharge that case against him because he would be under some federal supervision that is correct  that so help me understand it appears that your client benefit would benefit under your argument by committing a federal crime i don't think that's where before the crime he was the subject of special conditions right he was subject to state special conditions the state court and the state prosecutor course could have kept him on on  probation could have supervised him along with the federal government but chose not to there was no guarantee that the special conditions of supervised release regarding no contact with minors as well as restricting access to any place where children could possibly congregate there let's let's say that your client had properly registered as a sex offender and stayed in federal charges had never been brought against him in that hypothetical would he still be subject to the conditions of his state probation he would be until his probation was discharged there's no evidence in the record when that would have happened but certainly he would not likely have been on probation his entire life in the state of vermont and the scenario you pose there would be no reason to keep him on on probation and supervise him here judge sessions made no findings that support the imposition he merely imposed it because it was standard in his words simply because mr ferguson committed a sex offense twelve thirteen years earlier there was there were no additional offenses sexual nature or otherwise between the so we're not offense and the two thousand and three offense the findings in the record indicate that there was a psycho sexual a  valuation of mr ferguson by the state found him on likely to re offend in judge sessions words that he completed sex offender treatment well just so i can understand you can see don't you that you can see to that this special conditions imposed by the district court do contain exceptions that allow your client to have contact with minors including his stepchildren and to visit minors to visit areas where minors gather provided that mr ferguson received pre approval from probation is not correct that that is correct your honor and you're not arguing are you and correct me if i'm wrong that attaining this pre approval would be difficult or onerous well i think it would be difficult or onerous at times certainly  children congregate in many many places and to have to go back to your probation officer each and every time you want to go to the beach or you want to go to a park or you want to go to a shopping mall that has a playground in it that can be quite difficult i think it i think it's fair to say though that the fact that there are exceptions and that a probation officer can can mitigate the impact here that does not that does not alleviate the district court's duty to make particular lies its findings and all the findings found by judge sessions support support leniency and none of the findings at all support the imposition of these two severe restrictions on liberty there any objection to the courts in the expense of my specific finding i i don't believe i objected to that i certainly raised the arcus is objective plain your review no your honor i don't think it is i i specifically raised this issue below i made the to them i made the argument there's no work he did not object to the court's failure to make specific findings which is the that's the thrust of your argument on appeal that the court did not make sufficient findings one argument is that the court did not make sufficient findings the second argument is there is absolutely no basis in the record for the imposition of these conditions at all i see my time's expired thank you you'll have three minutes in good morning and may it please the court nate berkus for the united states the court a moment ago rightly acknowledged that these are the same conditions the defendant was subject to on his state probation and therefore because judge sessions acknowledged and discussed this fact we believe that the defendant's claim that the conditions were imposed without explanation and thus were imposed without any individual ised assessment is plainly contradicted by the record  the court can see in the joint appendix at page seventy two this discussion of the defendant's prior state probationary conditions this conversation continues at page eighty three of the joint appendix where judge  sessions discusses his preference for progressive supervision of the defendant and to be clear this discussion is related to supervision not incarceration but supervision and judge sessions on this point notes that as the court pointed out the defendant would in fact benefit by committing this failure to register sort of violation is your position that that rationale the kind of perverse incentive issue was the reason or one of the reasons because it's not discussed in the context of the district judges explanation of the special conditions this is your position that that is a reason that is one of a number of different reasons we would suggest that these conditions were both appropriate and  discussed by judge sessions relating to thirty five fifty three a factors of course the fact that he would benefit from these sort of violation could plausibly be related to respect for the law in one instance what if there had not been a state a state special condition say probation had ended five years earlier or there it's never been a special condition with the result be different well certainly that  would bend in favor of the defendant we would suggest though that there are nonetheless a number of different reasons why the conditions would still be appropriate at page ninety one of the joint appendix judge sessions discusses the defendant's  significant temper and on the following page ninety two he discusses the defendant's work history and his relationship with his wife and how these two things contribute to his stability and we would suggest that notwithstanding the court's hypothetical those factors would still support the imposition of these conditions they stay conditions as i understand it prohibit mr ferguson from contacting children under the age of sixteen while the federal restrictions say eighteen is that two year difference how should we think about that to your difference is that a restriction on his liberties your honor that's important because  the state conditions were in fact more onerous than the conditions that were imposed by judge sessions in considering whether the conditions involve a greater deprivation of liberty than is reasonably necessary certainly the stringency of those conditions is a relevant factor for this court to consider and so in some respects the defendant even with the imposition of these conditions did benefit because the conditions are now less stringent than they were when he was on his state probation i would also note that in the twelve or so years the defendant was subject to these conditions he fails to recount either in his initial or his reply brief a single instance where his liberty interests were unduly impeded and that is another factor i would suggest that this court can consider it or how are they less less restrictive in the in the federal conditions the age is different in the two to conditions of the state conditions restrict contacts at age sixteen vs age eighteen for the federal condition so it doesn't make the federal more restrictive i think because it is more restrictive it's a greater class of people with which he cannot have contact yes your honor that there be correct why isn't that a problem well it's not a problem because of the basis for the conditions and the reasoning that judge sessions articulated when he imposed the conditions and  therefore our argument is that the conditions are appropriate as they relate to minor children in this particular instance there are essentially three different considerations for the court when determining whether it was an abuse of discretion for judge sessions to impose these conditions this question of whether there was an individualized assessment the relationship and the reasonableness of that relationship between the conditions and any one factor in thirty five fifty three day and lastly whether the conditions which the court noted do have exceptions involve a greater deprivation of liberty than is reasonably necessary i would just like to note that even if the court finds that the reasoning was not articulated by judge sessions this court can still hold the conditions if it finds that judge sessions reasoning was self evident in the record and  so we would suggest that the court looking at the record can discern the basis for those conditions and he does say he does say that some could argue that he essentially would have benefited by having been convicted of this offense at least in terms of his conditions of supervision at eighty four right of the record that is correct your honor and of course the final line of the sentencing transcript and hearing includes  comment that's why i imposed the sentence i imposed he didn't say that's why i sentenced the defendant to time served or did not continue his incarceration we would suggest that he is discussing the sentence as a whole but i wonder shouldn't the the imposition of the federal special conditions stand on their own there's a federal standard which includes the relationship to one of the thirty five fifty factors and least restrictive in visit infringement on liberty and there's a whole set of case law and that is it is it appropriate for if the district judge did rely on the fact that there was the state condition is that appropriate  given that there's a federal standard to be applied shouldn't the federal special condition be warranted or not under the federal standard irrespective of what the state does otherwise the federal imposition  valid or not based on whatever the state happens to have done right or wrong i would agree that the fact that the state impose these conditions may not in and of itself justify the federal imposition of the conditions but nonetheless that is a factor that the court can consider under thirty five fifty three a the defendant's history is of course one of those factors and it is relevant in that respect and as i noted previously it would be relevant in this instance also with regard to promoting respect for the law given that the conditions would in essence disappear as a result of the defendant's commission of the instant  offense lastly i would note that should the court disagree with the position advocated by the government in this instance we would suggest that as a remedy the court should not vacate the conditions but instead should remain on the case back to the district court so that judge sessions could conduct the  individual eyes to cessnock that the defendant claims did not occur and unless there are any further questions i would rest on a written submission thank you you thank  there been several questions about whether mr ferguson actually benefited by getting getting himself convicted of a federal felony offense this was not some plan of mr ferguson's to escape state probation conditions by committing a federal offense and hoping to get caught he i realize that not that might not have been his his intention but isn't there a problem that if we accept your argument then we provided a road map for somebody who wants to evade requirements just just violate federal law and you'll get out discharged here there's not a necessarily a track record in vermont that this is how it works additionally and i understand that and i'm saying going forward going forward it would an extremely risky road to take first of all one can land in jail in a federal penitentiary second one can have all sorts of liberty deprivations impose this state is not necessarily going to do this when someone is charged and convicted with sworn that it happened in this case because mr ferguson had been on probation for an exceedingly long  time to suggest that this would be a road map if it if it is a road map certainly then that the state can see that road map as well i just don't see that likelihood of people committing sort of offenses to get themselves in theory out of state probation conditions there is no reasoning by judge sessions at all as to why he imposed this that  that the condition was going away doesn't necessarily isn't necessarily a basis for imposing it the state a state judge and a state prosecutor made a decision  that that that state supervision wasn't necessary important parcel of state supervision word these were similar types of conditions less restrictive as you point out your honor but  nevertheless there was no guarantee that these  these conditions went away your honor and there was no guarantee that the federal court was ever going to impose the same ones or similar ones when the state court decided to discharge mr ferguson see my time is