good morning your honour's mr ross's sense is procedurally and reasonable because the district court all together failed to address grapple with or even say a word about at least eight non priv mitigating factors that the defendants made over the course of thirty pages of sensing transcript after submitting a thirty page sentencing memorandum yana nor the billy to the core of the defense's mitigation  here focused on mr ross's mental illness which was supported by an undisputed expert report which documented three different psychiatric conditions that went directly to mr ross's   lack of remorse the commission of the fence itself and his decision to go to trial now your honor this court's decision seen united states versus blue united states versus slappy and united states said that the senses were procedurally and reasonable and there for the court must hold the same here now before addressing those cases you are right just like to run through the eight detailed arguments that defense counsel ma first the defense argued that due to childhood that was full of poverty physical abuse mental abuse and even abandonment that times at the hands of an alcoholic mother mr ross developed what's called a person gets what personality disorder which impacted his ability to truly appreciate the wrongfulness of the conduct which in turn led to his perceived lack of remorse for that was number one number two you honor the defense argued that mr ross had the nerve development disorder which caused him to have memory retention problems and also impacted his verbal intellectual functioning which impacted his ability to reason and to form good judgment and that also in turn impacted his ability to absorb information that his defense attorneys were giving which in turn impacted  contributed his decision to go to trial rather than accepting responsibility and pleading guilty now number three your honor the defense argued that mr ross had an adjustment disorder which means that mr ross was not able to see nuances his world was black and white so to him if he was going to be convicted it defense argued that effectively this was going to be a death sentence he saw it as i'm going to lose my job i'm going to become homeless star and then i'm going to die and so that that hopelessness also contributed to his decision to go to trial rather than plead guilty but additionally your honor number four the defense also argued that th same adjustment disorder also was relevant to specific deterrence because of the hopelessness he associated with the conviction he was not likely to rear fifth the defense argued that despite these mental health challenges that mr ross still maintained a good job he was a computer data entry clerk for eight years at the baltimore city police department sixty your honor the defense argued that mr ross was a caretaker and provider for his mother the same mother who abused him the same mother who tore an i v out of his arm when he was a child getting treated for an asthma attack because the mother became belligerent because she was because the staff called her out as she was beating him and he was getting treated for this as meant and seventh your honor with respect to the specific nature of this offense the defense also argued that the amount of child pornography here was relatively small was a very small amount compared to the routine child pornography case and additionally your honor the defense also argued that mr and this is number eight that mr ross was not a collector of child porn he deleted images after he saw them now the government argued that this was aggravating but the defense that it showed an amount of self control he was in amassing a large amounts of pornography yet after all of this your honor after both the government and the as the defense a sentencing argument the district court did not ask a single question the district court didn't ask a single question to either fifty men or the government  years a very different sense from what the defense was asking for which was a concurrent five year sentence and the district and even after the district court made this statement the government even acknowledge that it wasn't enough because then the government district court please provide this more and even at that point the district court then just robotically ticked off some thirty five fifty three factors with that individual ising them to this particular case and without saying anything again about any of the eight factors so you are turning to blue slappy and the u s versus cox i'd like to speak a little bit about them because they're directly on point here so in blue yo the district court gave several reasons for the sense in the united states versus blue the district court first set loose guidelines was sufficient but not greater than necessary to meet the sentencing objectives of thirty five fifty three day then the court let's look at us versus slappy so in u s versus slappy the court bound that the error was not harmless in that case before i answer your question there were three sentencing arguments that the defendant made that weren't address and those were very mundane mitigating arguments there that the defendant was employed that the defendant was volunteering that the defendant was attempting to rehabilitate himself and the court still found that it was procedure and reason then after that the court addressed harmless error and said look the standard we apply here look at is is it possible that the court may come to a different sentence if it had to eight rich mitigating factors and not one addressed by the district court so absolutely here we cannot say that the error was harmless so your honor if you have no more question of the respect that like to move on to the supervised release and ok so the for our first argument with respect to the supervised release conditions your honor or that they're procedurally unreasonable because there was no reason given also for these two very very severe conditions and these conditions include first a lifetime ban on the use of any computer computer device any internet capable devi any similar electronic device without the permission of the probation officer and this is that any location and the second condition was a lifetime ban on accessing any materials depicting or even describing sexually explicit comments or were even talking about not pictures but words so because these lifetime conditions your honor were so severe so dress konya it was at least necessary for the district court to give some explanation in u s versus armel this court squarely help that particularly when we have conditions there are so severe there has to be some type of explanation and there are several courts which have had held that it's plain error when the court did not explain his reasoning or the exact conditions that we're talking about here for example in harasta america hot oh this is the first circuit case the court said that vacated the condition or ban on pornography which is even narrower than what we have here because there was no reason in give it and u s authorities dotson it's a six circuit case that was playing error because the court gave no underlain that if you argue for a lower sentence you argue that this case requires less deterrence the average case why isn't that enough to preserve the requirement that the district court explain and sentance your honor well i will go with that i  think that that is that is very because the part i guess the supervised release condition we did make an objection specifically to the reasoning or that there's not at least i couldn't find anything in lynn that says you have to kind of feeling to offer any explanation or offer these conditions but would that would it be appropriate for us to go to continue to reach the substantive reasonableness of the conditions or is it better to wait until we have an explanation for why the district court thought they were well i think your honor that in this based on this record we're saying not only that they not district court not give an explanation but there is nothing on the record which would justify  honor is also i think it's important to note here that the even in the district of maryland now the routine condition the internet computer banned there is no more banned the condition that probation recommends and that courts have been adopting is exactly what we're asking for which is the best evidence that the condition here is to prot and that condition is that the defendants can use computers can use internet capable devices but they have to be monitored and there have to be unannounced inspections so and even with respect to the sexually explicit condition recently the government in that case in the maryland us versus maxon to eighty one apps thirty five ninety four two thousand and seventeen it's a decision by judge but are agreed that the condition here basically is too broad the government set upon reviewing the available literature has seen no scientific or historical studies or academic papers on either side of this issue which establish or refute a direct causal link or even correlation between exposure to adult pornography and subsequent contact offense is against children so even the government agrees that at the condition is to prod near so if the court doesn't have any further questions i would this matter is also trial counsel below i would like to address some of the questions that your honour's had for defense counsel but i just want to sort of get back to one point in this case which is sort of bring this back to the facts a little bit that judge mots was relying on which is that this is a child pornography case where mr ross for years was searching downloading making available for sharing child pornography some of the worst types of chopped margraf we see in the same home where he had abused sexually abused an eleven year old under his care about a year before the arrest in this case and in this case judge mots went through the guidelines found the guidelines considered the thirty five fifty three factors explain his reasons using those factors did not least i mean we decided this blue case after you guys brief the case and i fully understand that so you haven't had a chance yet to explain why blue doesn't pretty squarely govern at least the sentence of imprisonment in this case i mean as i read our case l blue like you could maybe argue that a sort of blanket rejection of all of the defendant's arguments was good enough but after blue it's just really hard for me to see how we can say that there's not a procedural problem with the explanation for the sentence here y that standard from when and with all due respect i think there's one critical word used in blue and subsequently in a caucus that should not be used moving forward and that is the requirement that the district court address every non frivolous argument because reader clearly says that the law and can that's the law of the circuit except that the earlier panel in when addressing the identical issue said that the district court is required to make a record to show that they considered all of defendants arguments and that there is a in manifest court considered art and actually pointed out that not all arguments rest and that's critical the record below supports that but the reason it's critical it's consistent with the supreme court in this district and the circuits law in dealing with senses generally which is that the district court doesn't have to robotically tick through every factor in thirty five fifty three and even read it when addressing applying the actual sentence and dealing with the defendant's arguments read it indicated there are times when the dish report should be more lengthy in its decisions in its explanation and there are times when it should be very brief and it said it was a case by case basis and sort subsequent even even the new supreme court case hasn't i safe but here not well you certainly you're out of the dish record in this case it was clear on the record that he had considered all of them and addressed a few of them particularly and if i could your honor for example initially in pronouncing his sentence what the sentencing judge said was a joint appendix sixty three i've listened to what defense counsel has stated and i'm simply not persuaded now i agree that's not dealing with any one of them and then when they give a set is this inconsistent was recommended they must conclude they didn't want to do that none of the advances manifestly showing in the record that has been considered or be addressed as well as the aga i find that the guidelines are so flawed and he says not so flawed that there should be no sense at all to ensure explain i know he says they're not so he he addresses one argument and he says they're not so far that there should be no sentence at all the concurrent five years but he never addresses it's as though he thinks he only has two choices concurrent five or consecutive ten i think they're not so flawed that should be concurrent five therefore consecutive ten it seems to me like there's a whole bunch of stuff that's left on the table and never addressed it's really it's odd to me that the district court never sort of seems to acknowledge that there's still everything in between nothing and tenure and i notice that argument in the defendant's brief and but that's all sure but in the context of this case where the defendant got a below sentence below guideline sentence by sixty eight months in a case where it was a very serious case which was acknowledged violence court and he was asking for no sentence and on the record in front of the sentencing judge was a defendant who did not accept responsibility i was questioned about that too i'm sorry because part of the mental health evidence in this case one of my genuine concerns about this case is that part of the mental health evidence went explaining the failure to accept responsibility and the insistence of on going to trial so the failure of the district court to do anything to make it clear that there had been consideration of that mental health evidence especially troubles me because  district court relied so heavily on the failure to accept responsibility notwithstanding the evidence suggesting that that was the result of a mental health issue you're out of the response versus i do think although maybe not in any verbose way that the sentencing judge actually address the lack of remorse and the defendant's excuses or medical or mental health reasons as to why he might not be showing remorse and that was when he spoke for the second time and he said obviously the sense is a serious one in terms of specific to turn some concern about the lack of course even if there was remorse and in terms of specific to turns that's my sense so i think a fair reading of that is the sensing judge saying look i don't think he's showing remorse but even if there was remor this is such a dangerous individual we need to specifically determine but i move on from that in addition to him potentially addressing it the argument about the lack of remorse here really has no rational connection to this case so the this is a man who is searching for years for explicit baby rape child pornography but when he was questioned and again at sentencing he said that he was doing his own investigation he had previously a year earlier been convicted of a just a terrific sex offense when eleven year old he completely denied that and indicated that the eleven year old was lined up until the day of sentencing in both cases so the sensing judge had before him evidence of lack of remorse but didn't need in any way to rely on his presentation and that seemed to be the crux of the defendant's argument with respect to the mental health impact on basically all of the arguments put forward so the defense counsel today says there were eight there's probably more than eight and that of course is the problem with putting the requirement or in the district judge to address every argument raised by the defense but their arguments raised in the brief me and below that weren't raised today by the fence counsel including that the judge should consider is mitigation the fact that the defendant had access to the child for years but only sexually abused her once the defendant didn't mention that they also listed as a argument for mitigation that the files on the computer that were seized that were the subject of the prosecution had been deleted and were currently accessible by the defendant but the evidence in the case is that he deleted the files because he knew they were illegal and he didn't want to be caught by law enforcement he should not be rewarded but this is the nature of the arguments that the defendant made in this case for basically no sense and so no the judge didn't go through each and every one of those he record in the context of this case i would say that proves typically that tragic childhood would be particularly important at a sentencing but here where the defendant receives a sentence well before the guidelines for what is the sentence have to do with the probability connected with behavior well as in many of the cases dealing with how much explanation district court no no you really are following what does that have to do with the connection with the the sentencing from the materials fall from the sentencing or that this different what defense counsel says and so if i'm wrong correct me there was no connection in that mental health exam between the defendant's mental health issues and his background  his childhood and the conduct in this case that related to him being sexually attracted to children and searching for and sharing child pornography on the internet so another reason why that's non frivolous is it there frankly was no connection to this case in any way and so in the context of the perfect setting certainly the district court could go through each one of these and address them including the defendant's tragic childhood if he didn't put the standard of course isn't that the sentencing be perfect you you pretty much be what you wanted to so you like you're out of the government's position the law is that the dish report must have evidence in the record that he considered all of the non frivolous charges but i'm also making the point here that what you are nor the fourth circuit precedent well i think the fourth circuit precedent that controls i don't believe the court has i certainly understand those recent cases use the word address but they do cite to lynn and rita which use the word consider what does make a difference or what  because i think we do say in blue that should address it or there has it has to be piquant from the record that it was considered so so so what else could i look at in the sentencing to be sure  this district court was really focused on this mental health thing didn't address it well my first response not repeat is that it was frivolous in a didn't need to be addressed at all but to the extent that it was that the case law required that that particular fact be addressed the district court did not specifically mention mental health but the government's position is that when you look at his comments in totality when he references that there might be remorse even though he doesn't see it and when he says i've listened to and consider parties presenting evidence and addressing all of these very issues but he's basically adopting the government's position in rejecting all of the defendant's arguments for arguments for mitigation that are essentially that with the idea that the could also be harmless error and i do think that there is a difference so you could find error because a particular argument is non frivolous not frivolous is not a high standard but then the court could look at the arguments more substantive and say we can analyze those arguments on the record we can look at the government sends a memo we can look at this fence and see memo we can look at the arguments of parks and that's what i was mentioning earlier had the court had referenced those arguments and it is apparent that all of these arguments in the context of this case with these guidelines are weak and it's also apparent that if this case were sent back to the sentencing judge he would find the exact same sentence and this court's held in that they're not going to you're not going to send back a case for sentencing when it's painfully obvious that the sentence would be the same and specifically in bowl where what the court found harmless error because in a case where the government conceded that there was no individualized assessment on the thirty five fifty three which that's not the case here that doesn't seem to be even what the defense is arguing clearly sends and judge and the court said that even though the court failed to explain why he was rejecting the defendant's arguments it was confident that the dish recorded undertaken the analysis and that the result would be the same and those same factors are here the district court indicated for the record that he had heard the arguments and he was rejecting them and the district court clearly indicated that he had listened that he had used the thirty five fifty  factors in fashioning the appropriate sentence so there's enough information in a harmless error context which is different from the procedural reason if i could draw one additional point relating to the consider versus address if this court and if it's already the evenly obvious from the context that the arguments were considered the best way to make it obvious is to address them but that's what lew says right it has to be paid only obvious we're not just going to assume because the district court says oh yeah i was here and i was paying attention that the district court specifically consider each non frivolous argument but that but that is the holding of blue i think you're allied in a little bit what lou held well that very w of that just to point out that it would it would certainly create a scenario in the district court in terms of sentencing that's greatly different from the way things are now in terms of the amount of time in the way that dish reporter the appellate courts have to pick through the record to determine what's what's an argument with some argument what's non frivolous defense attorneys would probably see significantly more arguments of all types so that they could basically set a trap door for district judges in terms of hoping that they don't address an argument hoping they don't address it sufficiently sentencings will certainly increase by hours if not days if that were to happen but moving to the supervised release condition john of the defendant has indicated in his brief on page twenty four that the standard when supervised release conditions imposed that's not objected to is plain are you here today he's after the court's questioning attempted to make a slightly different argument but there are these plain error as appl disregard didn't explain anything about these conditions that that is preserved just by asking for a different sentence and you are just in looking at the cases cited both by the defense that actually struck down some of these conditions and by the government that uphold these conditions pretty generous in terms of preservation of this particular argument i don't recall that lynne involved supervised release conditions as much as the sense you understand that was a porch question is it all the same but from my reading of cases where super these conditions weren't objected to plane air standard given that there's no cases that have said that these conditions are inappropriate but i'm talking about the procedural point that they weren't explained and there are cases in the four circuits and must explain conditions on supervised release so why isn't the procedural error because in those cases there were they were reviewed in the difference then they were objected to and so the you know i understand but once those decisions are handed down how is the error not plain when this district court fails to follow the clear case law there's then there would be no such thing if we so if this court were to say that procedure is playing there would be no circumstance where this court could review a condition of supervised release under plain air because it would only release for sending it back to the district court we'll explain it and when it comes back to us we will consider whether it's substantively reasonable or not is that not that can't work i don't think to work i don't think that plane error works with respect to a procedur and that's the purpose of the objection is to give the district court the ability to address i'm not saying that this word doesn't have an op op an obligation to address any how clearly they do but that sort of that is the purpose of as this front the issue internet access one computer possession and all and one in the possession of pornography as well as all the other conditions that the defendant is is attacking in this case significantly what those other cases have indicated circuit or giving more weight to dalian the ceci of the defendants life which frankly are quite overstate in this case the other thing i'd point out is that the ban in this case is not a complete ban because it does allow for two exceptions one is united states probation office grants permission the defendant can use a computer work he can access the internet and the second is related that is that he can use it at work with their permission so it's not a complete ban and it's also not a lifetime because as this court is aware it's very common in supervised release cases but certainly in lengthy child pornography supervised release cases or defend is to go back to the district court and ask for modifications of  their conditions for example to allow computer use a worker at home depending on how they're doing and also to shorten the term of supervised release and we see this quite of was harmless but that's a very different case than what we have here in that case the court first of all said that there were strong indications that the district court fully consider well where's the arguments and beyond that the court said that  the argument that the defense was making that arguably the district court didn't address was that her friends and family would be impacted by her incarceration and that this court said well that's always the you know every time a defendant goes to prison family members friends are going to be impacted so that's a very weak argument further the court said that there wasn't anything unusually severe or an unusual about  the circumstances and there was no evidence on the record that this defendant's chair was indispensable to anyone so the well where is completely an apple two we're talking about here when you look at us versus slappy and you look at the harmless  analysis there then it makes clear that the the error here the procedure are reasonable this error is not harmless judge harris also you had some questions about the government was saying that  case in u s versus shannon they all say that it was plainly procedurally and reasonable because the district court did not give any explanation for the conditions of supervised release exactly the type of ones we're talking about here so if the court does