atkins survived florence and the answer i think is fairly clear given this court's later decision and hunt that adkins did survive flora as they provide two different waiver mechanism questions of supervised release flores allowed this court to retain the discretion in compelling cases to continue to overlook a waiver to go directly to the challenge of the supervised release con condition how do you said that and cited and cans when it said not so i believe that that's a fairly easy question for this court to a riot on i don't know if there's a time or a need to overrule adkins and might have floor as given that they can exist in the same universe of cases the next question of course is whether mr barrett then can take advantage of this narrow exception within the two rules of i think under florida as a basic look at the standard in florida as mr barrett did in fact wave a challenge to this issue so if you look at that he had notice that he had an opportunity had to object and he challenged i have a couple of questions because if we assume that mr barrett himself personally raising these objections is the equivalent of counsel raising them it seems that he had ample opportunity to focus and did focus on quite a few of these exceptions i want you to address that and the other thing that i think concerned at least me initially is i don't know why there would be any generic st amendment exception to waiver rules people waive different kinds of constitutional rights all the time so just because this particular can condition for mr barrett might have st amendment overtones doesn't seem to me a reason to change the waiver rule right you're on i think i'll dress your st part of the question st about mr barron specifically and he did raise objections to several of the conditions i think when we we have to look at the whole picture is that he clearly had read on and thought about them i think is a very bright person so he you have thought of some objections as he's going through the he is  with the district court shutting him down saying you can challenge that later it's not going to be applied like that it's going to be applied like this i think for a pro se defendant who is essentially at that moment pro se that's a very hard thing to overcome when a judge is continually saying no no this is what we do and in this district these are normal conditions move along so i think that the meaningful opportunity to object is an issue in this case because it's not necessarily meaningful when the court continually shuts you down and makes it obvious that the court is not going to consider any of your objections there really were not in the st amendment issue i do think that's a little bit of a problem in adkins i think it's an a little bit of a problem in this court's germs print sense and jim's because it did seem to carve out and has been interpreted as a st amendment exception to appeal waivers and certainly this court defendants can waive all kinds of rights st amendment rights they often raise you know wave for the moment rights as part of supervised release conditions what i  trouble together from this court he's on the matter is that the knowing we have our st amendment has an additional protection because there were no findings by the court about why this ban was appropriate in this case so without a specific waiver as to as for st amendment rights that's the issue i believe that found the most compelling well course the reason there are no findings is no one ever called this attention to the  is i believe the only one in the courts listed proposed conditions that did not have a justification listed i believe in the northern district of indiana the court issues a nd separate document saying these are the conditions i'm considering these are my justifications for those conditions i assume that that's primarily written by the probation officer and then reviewed by the judge but for this condition there were no justification so that's a little bit of a problem because without a justification and this court held in shannon that a ban on on adult pornography is not absolutely wrong but needs additional justifications because of the nature of the rights that it infring upon miss christensen let me ask you to react to two points when when we decided at cannes in both you and mr hollar have a lot of experience so he may want to weigh in on this as well might it have been a time where there was not as much perhaps not as much care as a general matter being taken in providing notice of supervised release conditions and the like where where we may have been a little bit more tolerant of a waiver circumstance  that's the st point and then the nd one is i have a very difficult time seeing how mr barrett or his counsel and i know he says his counsel froze up here how his counsel would think it in barrett's interest to challenge this condition given the nature of the offense conduct it's you know it that is a very difficult dialogue to undertake to explain that he has some interest  viewing adult pornography when he's released given the conduct of issue here and to my mind it seems very wise not to have selected condition thirty one for challenge time when there was no notice given about the conditions almost no discussion at sentencing and we have moved beyond that time to it to a certain degree i think we're seeing in these cases particularly post flores however that these conditions that were previously not not the plain error portion but the actual substantive nature of the conditions are still being imposed even though this court has held that they were question of all and vague and overbroad so i think we have moved forward from that time but i don't think that we have cured the issues that was the focus of this court's concern about the nature of defense offense it's always always true to me when you're in front of a judge and any child pornography or offense involving children there is some research out there that shows that adult pornography is not the gateway drug to child pornography i don't know this judge well enough to know if i would have made that objection in the district court or if i felt that i would have focused more on getting a lower sentence i think what we see from this transcript however that those council did not put that much thought into and mr barrett himself clearly had and had concerns about the nature of those conditions i think he would have gotten there eventually perhaps not that's maybe you can  conjecture but it's not always a bad idea challenges convictions particularly since later on the defendant does not have counsel and this may be the only time he can mount an effective challenge you think on the lawyer would realize the fine distinction between a ban on adult pornography and a ban on child pornography that we're discussing here i'm worried about how this came about with the lawyer saying i'm still in a state of shock you know well judge i understand your position judge moore but i don't i don't really see how that allows for an exception choose to simply challenge condition number thirty one i mean if if you have his lawyer was not functioning as his lawyer in his time here and i don't know i think this can look a lot worse from the whole record than perhaps it actually was in court but but if that is the concern then it seems to me the way to deal with that concern is through an ineffective institution to which point he can review and challenge all its conventions not to say we have a narrow exception of some allowing the challenge conditions thirty one we're go back to the district court we're going to deal with condition thirty one and then we're still going to have to resolve the question of whether he had a function where at this portion of the sentence so that's how i believe the courts should which is certainly a valid concern but i think that is the way to address nd certainly not through recognizing some narrow adkins exception that either applies to the st amendment which i don't think she's to suggest it's actually a st amendment exception sense the court has said adkins doesn't apply excuse to communicating with minors or joining a gang or communicating and giving speeches about one's rd party risks to creditors and that's suggested that  clarification do you think the record shows that in the period before the actual hearing where the supervised release conditions were reviewed there it had a chance to review them with the counsel oh well there was the go the filings were sent out on april th and then when you go to the aring he's going through these conditions in order and it's raising very specific questions and concerns that it seems he himself have about the conditions and in fact he sort of starts scattershot right he says yeah you know those conditions i have a problem so it's like he's going through days he's reading the conditions and going through them in a war i mean i think i think from this record it certainly would appear that he had advance notice of the conditions he was asked to do c b s and he said and whether for strategic reasons or whether because he didn't care about that condition at the time and this changed his mind i don't know but he did not object to condition number thirty one and under those circumstances there was no need for the government to produce any of the kinds of evidence scholars talk about that might justify the condition and this court's precedent suggests that we don't need to do that unless the court what the court you know unless the defendant or the court on its own says hey i have some concerns about this condition so with almost inflate whatever the content of the atkins exception is i do think that that condition is rooted in a due process of the anus sense that there may be an exception for conditions that are truly so vague that nobody can figure out and you know the  and condition arguably might meet that standard and this one and the only other point to or do you just utter is i would say i can't i argue that and so i suppose i'm the person in the room best equipped to answer that and it appears to me based on the docket number would have been happened in the dish report about two thousand and twelve so that's before it even good when and the best of my recollection at that time is that there was there was like a general but that's that's my general history of notice and now this is another step that we've been giving for i would say at least the last years or so you know since supervised release has really been basically the floras layer because even if we were to find that the appeal waiver itself was tainted in some fashion we still have floors to do right and i think the florence waiver might be  maybe the german issue in this case and in supervised release condition appeals from does forward and comes becoming less and less of a key factor in that and if it is a due process concern you know i've raised adkins  other he says and not been successful adkins is kind of an outlier in that but there are there should be due process concerns in these appeals because there are conditions that are being imposed that are clearly and violation of this