the court i name is matthew wright i'm here on behalf of the appellant paul montanus and today we're asking this court to do three things st we're asking you to reverse the lifelong ban on possession of any copyrighted materials nd we're asking the court to reverse the lifelong ban on possession or use of all gaming console zz and rd we're asking this court to vacate that three hundred month sentence as is preserved the argument was against and of her departure of arrogance that was the way that it was positioned to the court below this court's precedent does currently require a post pronouncement objection which was raised here the restriction on copyrighted materials is pressed taking in its scope and it's hard to take seriously it may have been a mistake it's definitely something the parties didn't catch in the district court didn't read it is separate from the gaming console restriction i'm sorry you read it is separate from the gaming console restriction i mean there's not even an andren or i agree your honor but i don't believe there's another way to read that restriction in other words no gaming console is writing you can't download copyright e material with respect to the gaming console and your honor we don't see him that's the only way to read it i'm just saying that's an hour away i'm not sure that is a natural way to read that sentence and it is not the way that the government  advocated that this court read that sentence at me did read it that way would that solve your problems it would solve the problem number one and we would go immediately to problem number two so i'm happy to hear that this court would not countenance a universal lifelong copyrighted materials and say that we will make a ruling and we hope you will like a window that that is too broad then why can it be restricted related to the computer games computer games but the gaming console that the objection that we have briefed in this case and it is right is that there is no limitation to gaming consuls that have a community of ability and that's the only way the government  defended this restriction the i said i correctly correct myself the government also said there was but apparently a lie that the defendant told the police that said the st time i came into contact with victim number one he just wanted to buy a gaming controller i don't think that anyone and i think the government believes that's true the police didn't believe that was true the district court i believe said that he was lying to the police but that's the only other connection to this case but our point is that the condition goes beyond what is reasonably necessary in this case because it isn't limited to devices that can communicate with other people your net what if it was limited to computer it lad computer games that are with the cartridge and it's a defying universe your honor would that be satisfactory if it were limited to gaming console that had the ability to communicate with other key with the internet with the internet and in that situation at every gaming console i mean i'm no most modern ones are but i remember a day where we played gaming consuls that were little cartridges and that sort of thing and that could not communicate with the internet or with other people write your i remember pong i played pong and i think that's an excellent example there is no basis on this record to ban the descended from playing punk although that's probably now in an internet available for internet pong yes but in other words if you are complying with the other restrictions the district has a lot of restrictions about how he can use the internet this condition doesn't pay its own way in terms of the restriction on the liberty of the defended now i would concede i couldn't establish plane air if this condition were limited to consuls with the ability to communicate other people they may be harder to monitor as we are aware of it so i know we're on plane or we are on plane or on the conditions that's correct your honor we narrow it this court has the statutory authority to modify any judgment that is brought before it on appeal so yes you could narrow it you could say so capable right related to computer games that are copyrighted material on computer games that are accessible on the internet or with can can communicate on the last thing that's definitely that takes away all of the bite of this condition i'll say that the copyright part of it doesn't add anything or take anything away from it right it's not pong was written after nine hundred and twenty three dollars it's still copyrighted so to return to judge duncan's example even if the court limited it to copyrighted video gaming console games he couldn't play palm because it still copyrighted copyright has the same connection to this is since the electricity did i'll say sure there were copyrighted software that was used in the course of the commission of the offense as there was electricity but i don't think the court would uphold even on playing a lifelong restriction on the use of electricity right can you can you remind  because some of the judges in our district judge o'connor is one of those provides a pre hearing notice of conditions of sukkot he gave it to him in a nice sawing right at the hearing that they had notice and you'll find that part right i'm sorry it was in writing that's correct it's on page forty seven dollars of the record you'll see this going on why was there no jackson in that format you know we had a big discussion about this last week about the to barry's forms in which these p s r objections and what the court gives notice and what why what why isn't that a way certainly the lawyer would know if my client's having to sign this bill or me i should read the poem or your honor there's no question that they read the form and i'll tell you why if you look at this condition on page forty seven of the record the macro it says macro in the order so it's obviously some kind of keystroke someone put in there is a female gendered pronoun and someone has come in and corrected that or attempted to correct it and said no it's that i think was probably what was on the mind probably like the court quite reasonably wants to wants to read this is something other than what the plain language says because surely judge o'connor didn't intend to ban this man asking why the lawyer didn't raise an objection at that very hearing and conjunction with the signing of the document i think there was just a lot going on i mean i can't say that a lawyer is not with her office anymore there is a lot happening it appears that his attention was that the court has used the wrong gender pronouns and it's going to quickly go through and it's those minor compared to a lifetime ban on copyrighted material isn't it i agree with you one hundred percent that we missed this i'll say your honor that to throw it to the extent that it matters that correction didn't make it into the judgement because if you look at page fifty one of the judgment it uses the copy and paste in language including the female pronoun so even if we had objected i'm not sure anyone would have noticed this i think everyone would have to agree that if somebody had flagged this issue at the time it wouldn't have made it into the judgment i mean you're you can see point here i do it is this is this is on plane air we had an opportunity to object and we didn't but i think it is plain in the same way that a restriction for the rest of your life on using electricity done that on other reading materials haven't we you have your own or you have one published case where the court reversed a condition of supervised release on plain areas cited in the government's brief on page twenty six that's united states versus alvarez heavy short list of unpublished cases where you've done it too but if you would prefer that i submit it in writing so they could respond i would do that or i could read them now i'm ok with either one of those you can read them and then if you want to provide a twenty eight day that those are inapplicable or something o your own your own unpublished cases you can't or thank you your day in five days united states versus escobedo i may be butchering the pronunciation which i've gotten in trouble for in this courtroom before seven hundred and one federal appendix three hundred and twenty seven that was a broad so what do you in any way believe we would have to see in this case back or is this something that can be said we we construe it is this limited with the common sense limitation i don't think that there is a limitation to the language that exists in the judgment you know the words that would comply with the statutory requirements as to the copyright restriction we have to send it back you can just vacated vacate the part of this condition that deals with copyrighted materials in other words copyright doesn't add or take anything away as far as the objectives the district court was apparently trying to achieve if for instance there was a public domain piece of software  that wouldn't help the object is the district court is trying to get the copyright part i've been searching for it's even happened before public domain i think those are licensed i think they are copyrighted but you know with an open source license but the point being that if the worry is he's going to use the computer to contact other potential victims then the intellectual property rights are completely irrelevant to that so we're asking you to strike the copyright aspect of this because it's not getting it this isn't a pira a copyright infringement case of course i will be here and say you can't do that for the rest of someone's life even in those type of cases but what i'm saying is it doesn't pay its own way there are some very detailed restrictions on how he is to use computers how is to use the internet and what sort of procedures he's allowed to do there's even a discussion in the conditions on what sort of software it is and is not allowed to install on the computer and yet then you have what appears to be a lifelong restriction on never only know it is it because it's going to it's going to be available in three hundred months and then the whole thing sort of naive i think that if there was a need to get at the copyright aspect of software it's hard for me to imagine what that would be but the probation office could come to the court and look for something that was tailored to what happened what we have here is the record that was before the district court sentencing and the court imposed a restriction is breathtaking in its scope so stricken of the copyright limitation and limited to gaming console us and am sorry if the remainder of the condition were limited to consoles with internet connectivity or the ability to communicate with others i couldn't stablish player but neither of those things can be read from the condition itself we would need something from this court that said that a brief return to your other argument is your own on substantive reason most of the sentence this court is going to make a judgment the same way that the district court did i don't think my friend and i are going to be able to agree on this so i apologize for that there's two things i'd like you to consider st of all on page ninety three of the record the government told the district court that a two hundred and forty months since would be appropriate in this case that would be enough for variance or departure it was more than what the defend it was asking for but the government cannot say now that three hundred months is the minimum that is necessary to achieve the statutory factors because the government said twenty years with enough the nd thing to have upheld very long sentences in this area both in terms of percentage and magnitude and arc published case law i agree your honor there's a recent case from judge cost the united states versus hoffman exist the only other thing i want to deport to think about when reviewing this issue is that this sentence is consecutive to the states and ins is including the state court sexual assault charge which is still pending so this wasn't a universal package in other words this isn't what sentence do we need to account for all of the conduct this is the part of the sentence that is this is the sole the federal part so it has to be on top of that so the combination of those two things which is the government conceding twenty year sentence would be appropriate and the fact that this sentence is going to come consecutive to whatever the state does with the senate's we submit those two things together make this in its seventy a reasonable but again i suspect and i for one agree with that and we submit to the cour discretion so in conclusion your honor we would ask that you strike the lifelong restriction on copyrighted materials as inconsistent with every aspect of the st amendment except perhaps the right to free assembly and we would ask that any gaming console restriction be limited to gaming it please the court christina williams on behalf of the united states i'd like to begin with a challenge supervised release condition and this court should affirm for three reasons st the reasonable reading of the challenge condition is that the dish a court intended to limit montanus his access to gaming consuls and related gaming type applications and devices without prior approval from his probation officer this reasonable reading does not infringe on montanus his st amendment right you don't think the copyright provisions overly broad if it were to be read as a distinct provision and given the white house possible definition which would be contrary to this court's case law then the government would concede that  broad however that condition is not written in that manner it's listed in a specific line item that st on page fifty one dollars of the record that st limits access to gaming consuls and fallers with a comma and then limits the access to copyrighted materials and the government's usage by pairing those together the district court intended to limit copyright materials as they related to gaming consuls and this doesn't just address your typical nintendo or x box or other gaming type applications for instance that teens download to their cellphones one is called road blocks where teens can basically or any user can create a game and other people play it there's opportunities for chatting so there's the gaming type applications and devices that are not just your average gaming console so it's our view that the district court was intending to limit it modern access to those applications the same way there was concern with gaming consuls without prior approval so this is not necessarily a lifetime prohibition and there is the ability for him to at any time call his probation officer  doesn't even require a hearing and say i'd like to play this game i'd like to have those that location and i'd like to have this device with the pro probation officer giving approval in this court has said in miller that we  clark read a court affirmed those conditions and then sent essentially instructions in the opinion to the district court that those provisions were to be interpreted reasonably so as not to prohibit the use of require approval for each and every ensign so not the same thing modified in affirmed as is and then give some instructions is different than saying we construe this as this and it must mean that or else it would be inappropriate in unconstitutional so therefore we read it as only being this that's different than saying we're just going to let the probation officer work this out with some gentle guidance or is the government opposed to us saying that the copyright only applies to the gaming relationship not not saying we have far it's all great and we're just giving gentle but actually stating that the only way this can be construed constitutionally and appropriately is if we construe it that way no your honor the government is not oppose ok whether it's whatever the exact language is you know the government with leave that to the court so long is that you know links so long as the language is brown and have to clear as i mention these other copyrighted applications that could be for instance put on a phone or a computer or some other probably you know we can have a science fiction seminar but about the future so that it's hard to determine what we would be the right language to use in that way absolutely your honor and that's why this court has in prior cases recognized that when the district courts fashion a provision of supervised release they are attempting to be a little bit broader than what the day is the language necessary today because we are looking at three hundred months from now and as you highlighted we have no way of knowing what the gaming universe looks like at that point is this intended though in the government's mind to limit your access to books about how to play minecraft for dummies or you know best fortnight tricks of you know actual books and things that relate to gaming it books that would simply instruct how to play minecraft or how to you know play another game by it i think would be fine however a book and i would hope that one does not exist that says how do you find teenagers on minecraft or thing up like that would obviously be inappropriate  would be appropriate to have a limit on that or the the one hundred best gamers of all time a biography you know i don't think that that would be necessary you know if the court could problem is communication with others not reading about video game absolutely and point with the government of assuming that we vacate a modification that makes clear that a ban on possession or use of gaming consuls has to be linked to the because as i understand what you're saying the whole point here is to prevent the defendant from having an easy not believe the government would be opposed to that do you have anything so there are other reasons why this provision is not plain error and i think it's important to keep in mind that standard here is the court noted earlier there was no objection in the district court and there is also no case from this court from another circuit much less a consensus dealing with this specific provision so to find that it would be plain error also for acquirers getting over this court's case law most recently in combat lower the court has said that where the court has not previously found a condition i'm reasonable or unconstitutional unconstitutional it will ordinarily knots full force montana's tells the investigators that he was discussing x box in call of duty with the victim and whether or not that's true i do think that admission shows that monson as is well aware that gaming consuls are used by teenagers and can be used to reach teenagers and it hits thirty four of our brief we cite several articles and i think it's fairly common knowledge today that that is the place where pedophiles and you know essentially hide behind their devi link with kids can see you can even send pornography over these gaming consuls today so there's certainly a reasonable relationship between the two provisions and if the court has no further questions on the challenge conditional because this is not the normal child enticement case the implication is made in the appellant's brief that his behavior was just part of child enticement while the government would submit that this is one of the most agree just cases coming out of the northern district and i'm sure that this court has seen montanus as a hands on sex offender he created videos and pictures extremely inappropriate and disturbing that he was sent to his victims before eventually planning to show up and meet necessary and that's not really the question before this court on abuse of discretion review the question is you know was it substantively reasonable was it an abuse of discretion and the appellant has simply not met console portion of that intact with the linkage to the necessary copyrighted material if the animal argument thank you thank you honors just a few points in reply is the problem is communication to use the courts words if the problem is communication then copyright is out of left field for that and what about there the argument that governs making out what this is targeted towards is a downloading apps that essentially as i understand it function is again and or which one could and i could see how that's that's beyond gaming console it's still linked to the idea i see people playing video games on phones all the time none of them are my children i'd like to know for but i see that all the time you are anything you want with children of that age struggles with screen time games you know i can tell the judge all right is bought some of these minecraft instructional books as a condition about installing games then i agree with you that's appropriate to limit in other words to sort of cover the waterfront on ways that one might communicate with children you cannot read this condition that way you know downloading copyrighted material or devices right so st of all it allows the downloading of public domain materials which again doesn't get at the restriction that you're talking about and number two the fact that the materials are coming be righted does nothing to it vs the district courts appropriate object in other words if the problem is communication then say so this was a mistake and i don't think that we should be afraid to say so we're  asking this court to strike that part of his condition because it's wrong short of that we would be happy with a limitation that was otherwise affiliated with the gaming console but again i think the judge all right is right no books no newspaper articles no public advocacy related to video games that would not be acceptable under this court's precedent and it would be plain error i think i know you said this in your principal argument but you just understand your argument is that the copyright clause of this sentence it's there that it's a mistake altogether now it was not intended a by the district court to get anything on it and maybe we can't know that hard to say that it's not intended all we know the district court doesn't get to see you know in other words all we can know is what the language but the language here is says she shall not download possess and or install copyrighted material or devices without prior permission in other words there is no other way to read that than ever objection the district court my client's asserting his right to appellate review of that aspect of the condition in other words the government has quite candidly conceded that the instruction cannot be applied as written my client's allowed to read what atari games he's allowed to put in other words that's the restriction on his liberty and my friend said that playing this is ordinarily not shown where the court hasn't acted but again in the cases we cited earlier alvarez as could be  that maybe jordan had some prior law on it but these are new restrictions in other words it would be unusual to find a restriction like this in the record here we do so it's not like prior