district court fails to explain on the record of the need for such restrictions mr face case falls squarely within that exception more only unlawful activity obviously is the actual sort of violation for this case no i thought he was in violation of the term yes so he was in violation of state terms because he was living with a girlfriend who had fourteen hours and hours of the time yes so he wasn't violation of that but that being said even in those four years there were no allegations of any impropriety against any of her i mean she she had cooperated with probation and said that she was perfectly fine with mr fayed and had no problems with him in the house with the daughters i mean that's not what his prior to sex offenses had to deal with right the first sex offense that mr fay was convicted of when he was eighteen that happened twenty six years ago he was involved with a his fourteen year old freshman girlfriend and they had sexual relations so that's what got him into trouble in the first place and the second one you know tonight not a pretty case he was twenty eight and had while he was drunk he had sexual intercourse with a sixteen year old coworker who was passed out but i wasn't in every sort of violation case there is i'm not so pretty background of the sexual violation case right but we don't have a client here who's a sexual predator of young children we don't know what the daughters as of the two daughters that he lived with of the time are fifteen fourteen thirteen and ten at the time of that situation and he didn't have any prior here right we have a client whose first arrest was basically his first love and the you know he had that relationship for many years after his first sexual the actual offense of conviction which the twenty six year old one and then the sixteen y old conviction was obviously a coworker but it was not a family member it was not your child he has not shown any sexual proclivities for young children and male children and he kind of sets us relationships i think at some point we need to divide the different type type ologies and that's the argument you're making when you quote bone and rightly so a key feature of it like in a lot of our cases is the lack of an explanation correct so i'm just wondering why that listening to you it doesn't sound like you're asking for an explanation sounds like you're asking for a no contact rule i'm actually asking for both so there is a practice as your honour's are aware in the district in boilerplate fashion imposing no contact provisions and sex offender treatment so on the one hand i'm urging the court to send a strong message to the district courts that they need to provide sufficient explanation on the record for before they impose either relationship between those two points in other words the concern about requiring explanation and the concern that not every case in fact warrants this what kind of explanation oh we looking for that would make it mean for us to go back and say please explain yourself because our cases also say sometimes we can infer correct the record exactly and that's really actually what i want to avoid that situation so i don't believe that merely saying the magic words from the statute or court saying i'm going to deter sexual conduct and i'm going to protect the children out there because that's kind of the magic words these courts if they say anything at all use i think they need to actually take the client's case and defend its case and actually draw examples from the defendant's characteristics offense you know his background prior record and actually put on the record more specific examples of why a no contact provision would be appropriate or sex offender so take for example in this case the no contest provision have the judge actually made an inquiry and expanded on the record there would be no reason to suggest that mr fay had any reason to protect male children that would be young or teenage right how is the judge supposed to know whether or no context what is driving the no contact rule is there some social science that anybody's putting into his probation informing the judge about why this is a meaningful thing and whether it would be feasible to have a more terror and one of whether a more toned one would be problematic it just feels as if in my senses it's just overarching fear of not wanting to be responsible for future harm to any child so it's just safer for the courts to say no contact with kids and that includes in the home work anywhere and you go outside you can't go near anybody under eighteen whether they're a girl or a boy but i know personally with louise problem on your honor had actually asked in that case for further information in terms of studies i personally have actually looked at some of the studies i turned the minute i cited a few in the actual opening brief to what it seems to say is there are certain types of sex offenders that are much more likely to  rates for those but i do not believe any court or probation officer is actually looking at the data and quite frankly the supreme court decisions that these that the court keeps relying on i went back and looked at the references you speaking for this case which is all that i can speak about rivera knowledgeably the sex offender conditions or the no contact with minors conditions are seizing i'm not referring to referring to the part that has to do with  that the defendant has failed to register and therefore is being charged with or convicted of a sort of violation to consider the underlying conduct as well and so in that case when you look at the conduct determine whether that generates even more special considerations in a supervised release context so in this case for example and it's your prior sex offenses the court could reasonably look at his record the nature of those violations tie it to what he has done and i know that it's not only the violations and selves in this case that's very important it's also his conduct following the violations that gives rise to the special will go after his first conviction of sexual assault of his fourteen year old girlfriend and he was one thousand at the time she was fourteen he not only continue the relationship but that wasn't direct violation of the no contact order imposed on following that violations against the wishes of her parents the girl's parents as well as the court so he continued that relationship in violation of that condition he also went on a crime series may be overstating it but he had over a dozen fractions in his twenty's leading up to the rape of a sixteen year old coworker after his incarceration in that case he was also subject to a ten year t approval but even if it had he didn't get it and he lived with a woman and her four young daughters which was awesome violation probation so it's not just the violations and selves of the conduct the blatant disregard for the probation conditions that he violated so when this record is presented were here she has not only to consider the prior violations themselves but what the defendant has done to ensure to the court and to the public that he is taking those violations seriously and he's trying to reenter is the bounds of those because as written if you wanted to comply with that it's not obvious that he could go to the movie theater that's true as it's written however the court has interpreted it as stations saying that's not really what it means it means something cause you violate the terms but how how can we be sure that these interpretations are being communicated adequately between the probation officer and the probation that framework for supervised release is something that i am not personally familiar way but have the contact that i have had conversations with a patient officers they have an interest and that is what the conditions are for in assuring productive and tough luck i'm imposing it i forfeited my right to object if i don't then separately a judge can say what i don't like the fact that you give an explanation and we have a case saying that my understanding of the here the defense counsel had a back and forth with a district court judge she mentioned the prior rape conviction which indicated she thought i was very serious he said but i want to have an age appropriate relationship she said well he can't live with his girlfriend and her daughters in ohio because i'm relying on the ohio probation officer view that that would be inappropriate so the court did address those considerations and did respond defendant then said i don't want to belabor the point thank you for hearing me so we have this short but i think  error particularly when the conditions is the significant one what is the sense and allowing district courts to impose these restrictions without explaining i wouldn't think there is a sense in getting that i my point and that was concerning and that also that she wasn't agreed with probation that it was not appropriate for him to be living with the woman and her four young daughters while the cause of we know why the record has to fill in that gap sex offender treatment provision in this case mr fay already completed almost four years a sex offender program for his sixteen year old conviction before he was released from prison in this case and i just think that we have this issue with morales cruz right sex sort of is not a sex offense and in a lot of these cases more appropriate to give mental health treatment or anger management treatment but not sex offender treatment so for sex offender treatment there have to be something in the record showing that the defendant had a proclivity for some sort of sexual deviant behavior that that proclivity somehow so manifest it which was not present in this case and morale is cruise there was no procedural attacks on nobody ever said there wasn't anything clearly in the record and that defendant had had a violent domestic assault so many years prior to that conviction so mike that mr face case is actually very different is not to have the treatment it's initially to have an evaluation as to whether there needs to be the treatment yes that counsel said you put in the horse before the cart reality and then my client's getting sex offender but then when the judge i thought said but this is just the evaluation first i thought the counsel which maybe was you said well we'll cross that bridge when we come to it which sounds like saying post evaluation if i disagree with that you can bring a modification challenge or something which is a way of not raising to the judge a concern with the particular thing that was being imposed which was the evaluation circumstances and knew the judge wasn't going to back at all so he just i mean this is the reality of the interplay right between counsel and it and judge it what he could he moved on you know there was no there was no way he was going to get more which was sex offenders it was completely inappropriate