on mr douglas following his conviction for violating sort of a sex offender registration and notification act the condition at issue is that is to try to foster douglas's five years of supervised release which will commence when he is released from the bureau of prisons and just under two months from today he must admit to a sex offender evaluation and based on the results of that evaluation the district court anticipated his probation officer may want to come back before the district court to request additional for the special conditions of supervision for the court to impose at that time and there's two issues as i brief for the court to consider today the first procedural the district court simply failed to provide any justification for imposing this particular special condition of supervision instead only explaining why other conditions were not appropriate along the four circuit here i don't think that's consistent with what i saw on the record there was quite a discussion about the fact they didn't know enough about him  old and it seems to me that this was discussed in the court rejected all the standard conditions and said i want to know more about this one and i'm going to impose this one within the discretion of the court i would agree but to the extent that district court made any findings when he said well ok i don't disagree with that in response to the government's argument which i believe you've just recapped accurately that we don't know if he's a danger we don't know anything about this defendant because he quote stayed away from detection and that's that and i don't think that that and it's a finding that the court made because it was just part of the argument and in other cases the district court rejected that same line of reasoning by saying quote well if you kept a low profile but if you had gotten in criminal trouble his fingerprints would have gone in and also standing accurately that the remoteness of the convictions is such as the court should not assume that the condition if he would would stand in this case i think i agree to the extent there is any recourse to the transfer spend a lot of time on these discussions in the courts as i agree with that i agree with this the reason for giving explanations is the see a wiser course with this particular condition and i think it's pretty clear why the court did it and you can argue that it was unnecessary to the law for over many years but i don't think there's any question why the court to speak ultimately about whether that was a sufficient justification well i do think that the court's findings on that point were not as clear as the case i would require but even if the court did make the finding on the basis that there was just not enough information about this particular defendant i don't believe that a lack of information given the other things that we didn't know about the defendant in this case is sufficient to justify the special condition of supervision as a reminder as the court well knows any special condition of supervision has to be both reasonably related to the thirty five to three sentencing factors and also not pose a greater deprivation of liberty than is reasonably necessary and in this case we have a prior sex offens more than two decades old we have a defendant who actually completed sex offender treatment successfully and successfully completed two years of supervised probation without any issue we have a twenty year period of time between his conviction for the failure to register and the underlying sex offense where there is no other criminal history but for driving while suspended charge no other evidence of sexual misconduct and on that record i would submit to the court that none of the cases they've been cited in either of the briefs or any other circuit or this court have imposed any special condition for evaluation as the court did in this case but i mean the whole purpose of registering is to be able to keep tabs on somebody who has shown a proclivity to engage in mark described it why isn't it reasonable to say hey you know i don't know what was going on with this guy but he certainly kept a low profile he hasn't been charged or convicted of any sexual offenses but who knows what he's done in those fifteen years he inappropriate standard for district courts going forward in this case the court did as in every sentencing order pre sentence report where the probation officer interviewed at length the defendant had the opportunity to ask him about office prior residences all of his prior employment and  the investigators the u s marshal service interviewed the people who defended had been living with over the last five years prior to his arrest for the failure to register so for those last five years where he was living was known all the people who were interviewed and there were no suggestions of any untoward behavior so while i agree that it was a long period of time where the defendant was before he was arrested for the failure to register we have to ask what would registering have done it would have told us his address and that's nothing more so i don't know but just i think it would be going to stake to base to assume that just registering would survive the information the district court felt that it lacked well but just to quote did not have a lot of information it had all the same information still a suspect to be a prophylactic a matter of checking the public against someone who has previously committed a sexual offense but also a deterrence of sorts of the sense that the public understands who they have among them and i would agree that that was a certainly and that's why he was punished that's why he's been subject to a period of incarceration he has another felony conviction for not following the requirements of that statute which clearly applied to him that but it doesn't suggest i think that just the fact that the public when he was living around was not aware that he was a sex offender does not contribute any additional reason to think that this lack of information is sufficient to justify a condition i think one thing i  i i was looking here when you said the probation officer actually recommended this condition the commission officer recommended all of the next spender well i understand but i thought you were said they had a chance to review it all and they couldn't find anything they said that this is an order to serve to protect the community and since the rehabilitative effort of the defendants and in light of his history and this was a recommendation made by the probation officer and it looks to me  office recommended almost every one of the standard sex offender conditions my point about the pre sentence report is that is the mechanism the court uses to find out information about a defendant and then reviewing the probation officer reviewing the defendant's employment history and reviewing where the defendant had lived and having the opportunity to ask very detailed questions to the defendant did not know any red flags or concerns about those specific aspects of his background which i would suggest are the same aspects that registration had complied with would have told us the information it provides the same purpose and i think it's important to and keep in mind that this is not just a simple evaluation the sex offender contacts is not just sitting down of the court to make this kind of condition well first i would say on i think that invasive nature of the about a ration is relevant because the district court had to consider whether this was the least restrictive means rea necessary in light of the facts of the case i do think that there are other least restrictive means that were available to the court just imposing the standard conditions where the defendant would have to for the next five years report regularly to the probation officer answer all the probation officers in under today and i think that just a lack of information is an insufficient basis and i think that certainly the commission it's the failure to register the fact that a man has been convicted of a sex offense that he failed to register that he didn't report and that we know nothing about him now whether he has conducted himself in a manner or not you're suggesting that fourteen when the sentencing commission revise an amended sensing guideline five d one point two and five do you one point three which concern the imposition of supervised release conditions such as this condition took great care to separate out don't have a full grasp of all there's legislative history into why it was enacted but i don't know defecation requirement alone i don't see that as a link that would justify the condition i think the sentencing commission finding that there was no correlation between s as part of your supervised release conditions you have to continue registering it certainly could have been the case in two thousand and fourteen when the commission carefully removed registration offenses out of the definition of sex offenses they could have specified that in every failure to register a case we think you have to at least do an evaluation condition of the appropriate circumstance i certainly agree but i think that the appropriate test for the district court in a case like this and looking at all the other cases that have been presented in these briefs would be that i feel good about a story alone is insufficient but the could consider things such as how extensive the defendant's history was for sexual misconduct whether there was any other criminal activity between the original sex offense and the failure to register  but i think that that could be a circumstance but the court could fairly consider along with whether there's other information such as there was in this case about where the defendant had been living for the last five years but i don't disagree that that could potentially be a relevant factor but i think that the ninth circuit case and is a good one to consider because in that case the court looked at whether there was any link between the present offense in this case i feel you to register and the prior sex offense in that case they found there was a link it was a possession of a firearm and johnson they found that was linked to the defendant's prior sex offenses because he had used a weapon in committing his two prior sex offenses and so therefore there is a link a failure to read it's a regulatory offense and so not keeping up with the regulatory scheme i would suggest is unrelated to actually committing sexual misconduct of course they're linked in that requirement to registered naturally follows from the prior sex offense but the actual conduct being criminalized is very different so that's right morning and me please the court hearing on behalf of the government i think this court has been picking up on some of the broad tenets when it comes to what is a reasonable condition to be placed on someone who committed a remote sex offense the court of course has very broad discretion in imposing special conditions as long as the reasonably necessary are reasonably related to the conditions or the offender i know this court was asking you know why why do we have sort of a look at the whole sort of statute it starts with the preamble that talks about all the various cases where sex offenders reciprocated in horrible ways so congress sought to  basically stop the patchwork type of laws that were out there and to make sure that they had a system to adequately track sex offenders movements and besides having addresses or worse someone resign information as well so it has information about where someone is employed where someone is a student it has various other identifying factors defendants generally have to go and register in person at some point as well you have to get fingerprints you have to give a photograph and as this court has pointed out of course then most can go into a system where people can actually search by neighborhood who is in their neighborhood who is a sex offender but this particular defendant mr douglas to just run away changes the main he was indicted in believe it was kentucky under the name kristin davis or in a cave chris davis he he used jobs where he didn't have to show any type of identification he didn't have papers of that almost fifteen year period of time so we really don't know any information about what mr douglas was doing and that is a concern i also think that's a distinguishing factor in this case if you look at the cases and i know judge he is i think you're right some of the cases that of course were cited in this case including the worley case which came out of my district and rogers as well a judge traxler i think you were on one of the cases dotson as well but a lot of those cases talked about a situation or were dealing with a present offense that was neither a sauna offense or a sex offense and i think someone has seen one of those interesting areas it's not  isn't a sex offense under the guidelines but it's still subject to any supervision under the statute so the mandatory minimum for supervised release is five years and you can technically get up to lifetime supervision or so and conviction i think the other thing that's relevant to her is the law has already made a determination that mr douglas has to register for life there's a reason for that there's a reason to make sure that we can keep track of an offender like mr douglas and every sentence in court when they send the defendant has to make it dangerous to turn dangerousness determination and without the information or valid information or adequate information to make that determination and i think what judge did in this case was perfectly reasonable and certainly within his rag discretion in terms of trying to find out what more can we know and to decide whether there were reasons to impose other sex the government's statement that because of his actions we don't know anything about him we don't know what he's been doing in fifteen years can i say he's done anything during that time now and i never said that during the sentencing but i think the fact that he is fronting the wrong and i think the fact that some of the cases that talk about sort of violations state that a sort of violation can be an indicator that someone has a higher risk of receipt evading i think that is  so it's not like a regular other offense is not a felon in possession offense it's not a drug case it's something that's pretty simple requirement you have to register i think a lot of the registrations including virginia allow you to brief aso suggested the nonpayment of child support as a reason but that's not an otherwise law abiding life the man is avoiding all of his legal responsibilities to know what he was doing before  there was discussion during the sentencing hearing that you know there is a serious risk that if there's a risk this is not a crime against an adult and i think he says make it clear that crimes against children will aggravated in many ways then sex crimes against the dollar which are bad enough that those crimes are committed in the privacy of one's own and just because there may not have been statements to the marshal service well that's a good question i don't know whether they the asset i guess the court ordered a mental and evaluation by an appropriate mental health provider who specializes or has certain information or background in training in how to do sex offender evaluations  it might certainly i think the most important thing is to find out whether he still has an interest in children which i think is why the court ordered this particular evaluation and to make sure he question but i don't know what it would say or how detailed they would get into saying why didn't you register but i think he did say at the time of his arrest that he had an obligation to register he didn't register he also  whether your response you know it's a good point for sort of the same reasons that miss florence said that the probation officer could have asked questions about a sexual history and i wasn't there during his interview so i don't know whether they did one of the reasons that the law has developed to allow certain types of tests that might not be just burble tass is because we know that self repor by sex offenders is grossly inadequate and we do know that there's of course studies out there that show that when you put some type of other cast like a polygraph on someone who has said no i haven't committed a crime these guys don't like what they've done in the past we often find that their interests have been deceptive and that has led to disclosures so yes most sex offender evaluations if you want to be an adequate and sufficient sex offender evaluation will have additional additional types of tests that will be a safeguard to make sure that the self report is reliable or you know presumably to do to ensure the veracity of any information that is given berkeley's so yes they are more invasive than just a simple interview i don't think there was any discussion at the sentencing hearing itself to discuss whether those particular tests would be employed but presumably something other than a straight interview could be employed and i think that a reasonable it's still an evaluation it's still less of a deprivation of liberty then saying ok i think it's important for the court to consider that the reasoning provided by the government and argument and that's under consideration now to justify the evaluation condition things like we know that sex offenders have a higher chance of that softly poor is often adequate that these kinds of crimes often go unreported would justify an evaluation condition in every case where someone has a prior sex offense and we know from the prior case law in this circuit and in other circu that that shouldn't be enough on its own so the real question for the court is whether there's something inherent to a failure to register that suggests some higher level of concern and i suggest that's from the brief that at this point that there explanation maybe it's true but maybe it's not a cover but we have somebody who was a child sex abuser and who ma could be a reset of vista not we don't know but i think it's the length of time and the basin the extreme failure to report that the court relied on below to say let's find out let's conduct an evaluation and not just accept some of the of the fact that this is a child support case or whatever and i i can't see oh when you get back to the question i have originally is how this is an abuse this was the judgment call the court made the court clearly rejected all the recommended conditions went down and in the take you are focused on five because of the time that the defendant failed to register i think it is worth the court's considering as i get to the district court that when the defendant committed has underlying sex offense there was no bed to stations keep in place not even in virginia let alone the sort of registration s and the last time that he registered the fact show was prior to admire being enacted and no arguments were made in this case that he was not subject to so i know he completely admitted that at some point he became aware he needed to register and that he hadn't complied so that was not an issue but we're back to the length of time it failed to register i think it could all it could be argued in the reverse the fact that he managed to live an otherwise law abiding life we've known years we don't know that that's the big problem that since his conviction there has been a lot of learning there been a lot of studies congress has acted and congress has acted in specifically with respect and the public demand that we need to identify sex statutes across the country and there is a reason for all of this and i don't think having this man with this kind of history simply subject himself to an evaluation to statement on in the sentence saying that had he could done some unlawful actions fingerprints are the same no matter what name he's using and so i think a print check of any arrest would have alerted the marshals to where he was and also confirm that he had committed some other criminal act so if there's no further questions from the court thank you thank you story will come down and counsel proceed on to the last case