the court my name is howard pincus from the federal public defender and i represent damon martinez the relief we were requesting here this morning is limited is only for this court to reach standard condition twelve narrowly so that complies with the law standard condition twelve does not itself call for risk notification of rd parties but it does lay out when there can be risk notification which is this court recognize in cabramatta can infringe on significant liberty interests what what the condition says so i'm just mystified why why you consider that a modification of the condition it is simply a performance of the condition  condition itself by its terms doesn't allow risk notification allows it if something else happens it's like g m g m you requested and you get the judge's approval which i soon they're going to do well but if they want occasion they have to do it pursuant to the procedures of roe thirty two well this is allowing them to do it sidestep that i don't i don't see where rule thirty two apply world thirty two is when you change when you want to change  modify a condition they don't want to modify any condition they're perfectly happy with the way it's written they're just simply wanting to enforce it as well there have been with to proceed here of the condition they're not happy with the substance of it the substance of it is there is not risk notification now there can only be in the future if conditions are met if those conditions are met that and that would change the substance of the condition to notification and that's what the modification would be changing it to keep interrupting you but really this is where the train leaves the station for me and unless you give me nothing else matters i when i look at again that condition it is written it says you do a and b and you can get the notification and so i say applying i don't want to modify those conditions i mean it tells me what i have is i'm simply executing or performing the condition i'm not modifying it in any way and unless you can convince me that there is some modification in all that's one of the step one of your argument and so you might as well spend some time on it if you want at least my being on board absolutely the what matters here is the substance of the condition and the substance is no risk modification donors notification now but there can be wrist no if occasion in the future if certain things are met if there is a request by the probation officer and if the court proves it that's a proceed or for changing the condition to allow for receipt of a case that right now nobody has not legation to notify rd parties nobody can notify rd parties it can only be done if certain things are met that is until we can hear what would the modified condition say we don't know what the modified condition would say whatever officer is authorized to notify joe johns for required mr martinez to notify joe johns of the risks occasioned by his conduct and we don't know exactly what is going to be changed too which is the vagueness challenge could succeed on this we don't know what it's going to look like we don't know what the court's going to order we'll only know that if the probation officer says judge there are  you don't even know if they're going to ask for a notification at this point so what would happen if we did nothing and the district court in you go back and the and the probation officer goes to the district court and says we want notification of joe jones and the district court says absolutely we're going to have a hearing and i'm appointing counsel then i mean how do you have a problem at see the problem is that the condition doesn't suggest that it does get silent as to whether there will be such a hearing in fact the questioning so far has presumed on the on the assumption the judge would just grant it what we're asking for is not that the condition be changed in any way or overturn we are saying that it should be read to comply with the law and the laws as you've outlined if they're going to allow the notification of john joe joe johns then they have to the end till you don't get that how do you have a case we don't know because the record is silent on it and the record doesn't doesn't suggest an indicate that that's what the court is going to do and in fact the objection here was look you're allowing a change in this condition later and that's outside of the ordinary sentencing hearing it's without an attorney he won't have somebody to represent the court of or push back on that so the indications probation officer determining independently after consulting the court and getting approval and the defendant never even knows about it is that a condition is your argument and to that situation yes it does it certainly condition in fact it's listed as a condition on it be it what the court it's listed a standard condition the probation officer or mr martinez also it's not true that all conditions are ones that require the defendant to do or not do something and in fact you can see that from the condition that can be imposed with regard to deportation the defendant shall be deported is listed as a discretionary condition of probation price at least that's not a that's not something that is requires a defense to do or not do anything if something is done to him the reason why most conditions are directed the defendants because usually that's the person who conduct you're trying to influence and also because that's the person who the court has jurisdiction to order to do something but it's not true that only things that require a defendant do or not do something  something that the probation officer would verify whether he were employed in the conditions etc that wasn't something that acted on the defendant himself to do or not do anything it was a probation officer shall verify the challeng to wasn't that was an occupational restriction this car rejected the claim but it didn't do so because it wasn't a condition of supervised release it reached the merits of it and that shows as does the  deportation condition which can be a condition of supervised release that is not only things that are directed at the defendant to do or not do something and let me ask you a there's a lot of it isn't there's a lot of conditions here i haven't looked at mail and i don't have all but i'm sure one of them says that as a condition you have to allow a probation officer to come in and search your house on reasonable business hours if he wishes  so what if it does do we need to change that to say he's authorized to come in on wednesday october th to search your house at noon because the condition is a broad one he says you can search upon reasonable notice but now you're saying i think your analogy would be if now they want to implement that and say i want to commit more all they need you get a change condition to comply to rule thirty two to be more more specific is is that is that the  and the court says that's ok and all we're saying is that needs to be read to comply with a lot which this court typically does with supervised release conditions that are challenged if they can uphold them by reading them in accordance with the law court in bare read a condition narrowly to comply with a lot even though it was on plane air review it did the same as a mental health condition in it mike and that's at object for the one based on just mental health treatment that's dealt with and no five the court said well this could be read not to have the effect you're claiming and therefore we're going to read it narrowly even though that was  clearer in bear that it was on play review in this court just said we're going to read it narrowly and the reason is is that this court reads it to avoid an error so that kids around the entire plane or of you or whether there's an abuse of discretion i think we to uphold the condition and we're not asking that you throw out the condition we're just saying we need the condition to comply with the law so that's what we'd asked the court to do you know there was a need i'm sorry asking to read it how this court is often read special a standard conditions or special conditions of supervised release to avoid an error by reading and narrowly to comply with the law and that's all we're asking do we're not saying throw out the condition we're saying read it to comply with the law if you do that you can affirm and so that brings me back to what we were discussing firms you know if there is no error then how do you have a case i mean you can't appeal and say there's no error and what's been done is we can't give you any in it doesn't matter what the delegated power is every use what matters is it was done at the time of sentencing at the time of sentencing it appears that the district court authorized a procedure on several thirty to thank you martinez's challenge to his standard condition twelve is not right for review nd even if this court finds that the issue is right for reviewing the court reaches the merits the court should review only for playing era but regardless of the standard this on whether there are even matter it doesn't not matter your honor because there's no showing of error on the st prime of the plane or a test mr martinez would have to show error  cannot show error here and so it it doesn't matter in the grand scheme of things whether this court reviews for plain error or reviews de novo there simply been no showing of error we submit that that mr martinez has not presented a pure legal question to this court he relies on the brawl decision brought considered to two challenges to dismiss to crawl standard dollars was an improper delegation of judicial function claim the nd was a vagueness claim we submit that this case is more like a brawls vagueness claim than it is like a brawls improper delegation of judicial function claim it's more like that it is not like the improper delegation claim because in cabramatta dischord stated that condition twelve constituted the  delegation of judicial power to a probation officer not merely some hypothetical future violation that delegation might allow but here it is not clear on the face of martinez it's standard condition twelve that in fact martinez will not receive a rule thirty two dollars c hearing if the district court later considers whether or not modification of mr martinez his supervisor at least would be appropriate measure every need to get there but i have trouble with your argument that this is more like the control vagueness issue than the improper delegation issue vagueness requires that you need more facts to to  decide what your what your question is but here the question is a legal question is do you need to go to the court and have a hearing with lawyers and the defendant's representation or  not that that question would be answered regardless of the facts and it seems to me that it's really an improper delegation question that this condition is improperly delegated to be supervised release office or the power to to take certain action without getting court approval st so i mean i'm just saying i if i got there i'm not sure that i agree with your with your effort to distinguish the role i understand your honor even if this court finds that mr martinez is presented purely a question of law it is nevertheless not fit for a judicial review deciding challenges to supervise or at least conditions that might never be applied excuse me and here there are a number of contingent future events that may not occur  as mr martinez anticipates and indeed may not occur at all this court does not know whether at some point in the future the probation officer might ever determine that rd party notification may be appropriate  party risk notification the court doesn't know if if the probation officer might in the future recommend notification to the district court it doesn't know whether the court might approve the probation officers recommendation for rd party  if reviews withheld here hardship turns on whether the party seeking review faces a direct and immediate letter from the ruling under challenge here martinez will not suffer hardship if reviews withheld because he's not court determines not to review on the merits if this court instead determines that the matter is not pretentiously right by i was not clear  withheld and so therefore this court should decline to consider the issue on the merits but even if the court looks at the merits it turns to the merits first we have resubmit that the court should review  error he argued below to the district court and his objections to your standard condition twell that the provision constituted a due process violation he was making a constitutional claim to the district court arguably a procedural due process claim arguing the right to notice an opportunity to be heard but here he is now raising a claim of a violation of rule thirty two dollars c and he's not raising a constitutional  now and mr pinkus just indicated a moment ago during his argument that in fact he's he is not making a due process claim at this time because there are many other i mean if if that is really raising a legal question of issues to know whether it's plain there are other ones this court does your honor and if accord views this as purely a legal issue mr martinez nevertheless loses and he has to show that the district court erred here under his standard condition twelve any any kind of risk notification must st cross the district court's desk the district court must st consider th probation officers recommendation for risk notification and the district court must approve a risk notification before it made may be allowed but nothing in the record and and nothing on the face of mr martinez is standard condition twelve indicates that the district court would not hold a rule thirty two dollars c hearing and prior to modifying mr martinez's conditions of supervised release there's no showing here you you agree  a modification of conditions will rather than simply an execution of existing twelve as written do you just use the word modification there yury as if you bought into mr because his argument on that  honor we are now arguing that if the probation officer is authorized to notify the rd party of the risk that that may be a modification this is this is not what we are getting our answer brief but but but we agree that if the probation officer is authorized to notify the rd party of a risk that may be a modification even though it be even the exhibit well even though what twelve says a probation officer can get this if you get it or if but this court doesn't need to resolve that particular issue particular issue whether it it it can consist of a modification or not because here nothing in the record indicates that the district court erred in issuing standard condition twelve nothing in that in the record indicates that the district court would not hold a hearing before modifying mr martinez supervised release conditions and we can we just back up a little bit and i'd like to know your understanding of what this condition even doesn't lie we haven't because it seems to be an awful amongst the less i would assume that no one would want a defendant to go notify his ex girlfriend or something that he threatened to kill or her that he was indeed still a danger to her and so i gather what this condition is really about is so you have a sex offense and you want to work at a daycare center or something then the probation officer can require you you need to go tell them that you have a sexual offense and so you are risking is that would it's about the whole thing seems to be kind of about nothing to me if there were no condition twelve in the guideline book and the probation officer went and told the daycare you need to be worried about this guy because he has this offense i can't imagine that would be a problem and so i'm struggling to understand what this whole condition twelve is all about places that fenton on notice that risk notification may occur at some point in the future that is that it is a contingency and mr martinez agrees in this case he agrees and as he set forth in his in his briefing to this court that it is it is a contingency so the purpose is is protection of rd parties that is why it's it's included as a standard condition by the sensing commission i'm not sure if that answers the court's question thank you let's say this let's say that down the road the probation officer has a concern that the defendant is the one who needs to go notify someone a rd party of her risk and goes the cork the district court the district court says i agree crew probation officer then tells defendant you need to go tell this rd party that you're a risk at that point can't the defendant reapproach the court no council perhaps but there are still out ability to do that if they're not absolutely or honored the defendant cannot can  approach the court and request a hearing or challenge the probation officers statement that the defendant must notify the rd party of the risk so the defendant has  provided multiple opportunities to argue to the district court that the defendant should not be allowed to do this and if the district court were then to approve it approve and modification to the conditions of release without st holding a rule thirty two point one c hearing the defendant can appeal that that to this court but here nothing in the record shows that the district court w hold a rule thirty two dollars c hearing what a district court no at the district court said you want what no i'm not doing that would you think that would be err on the district court's part if if the district court violated rule thirty two dollars c and modify the conditions of release without st holding a hearing or giving the defendant notice of the hearing because the defendant can waive can waive the hearing under rule thirty t situations your honor only if there is a modification of the of the conditions of release and on and on and there and only if the defendant has not waived that hearing or the other condition and thirty two point one see to i not met for it thirty two sixteen use brief says the relief side is favorable to the defendant does not extend this the term of supervisor lease and the government does not object i see that my time is actually correct that this this is simply an effort to obtain an advisory opinion from this court and we we submit that the sentence below should be affirmed unless the court has further questions we ask for a rm its thank you thank you counsel  the court asked whether well how this is what this condition actually does and why it's there it can be for example in like a notified of a girlfriend of the the dangers because somebody has a pri conviction for domestic violence or it can occur in the employment situation where they want to notify the employer of theft issues things like that and those are things that infringe on significant fundamental interest also we're dealing here with an already realized issue of the allowing a modification with l rule thirty two point one it's a it's right for the