[00:00:00] Speaker 02:
I'll call the last case of the day, 24-70-20, United States versus Bycroft.

[00:00:09] Speaker 04:
Good morning.

[00:00:10] Speaker 04:
May it please the court.

[00:00:11] Speaker 04:
My name is John Bolin of the firm of Bolin and Schall, appearing on behalf of defendant Jason Bycroft.

[00:00:18] Speaker 04:
It's a pleasure this morning to be interacting with Judge Matheson by audio and video feed over the internet.

[00:00:26] Speaker 04:
That's one thing pointed out by Judge Bell

[00:00:30] Speaker 04:
writing for the court in the ugly or eagly case.

[00:00:33] Speaker 04:
I'm not sure, Your Honor, how to pronounce that case name.

[00:00:38] Speaker 04:
That Judge Bell pointed out that doing oral arguments over the internet just underscored how important the internet is to everyday life, including the business of this court.

[00:00:51] Speaker 04:
The ugly case recounts, of course, that the internet is a means of communication that's become

[00:00:58] Speaker 04:
a necessary component of modern life.

[00:01:06] Speaker 04:
The computers and the internet become more and more important each year as time passes.

[00:01:13] Speaker 04:
And of course, now more than ever, the Eagly case says the internet provides one of the central means of information gathering and communication in our culture.

[00:01:24] Speaker 04:
As the court knows, we're alleging

[00:01:28] Speaker 04:
plain error in the court's imposition of a special condition of supervised release that would ban the internet completely for Mr. Bicroft for the rest of his life.

[00:01:43] Speaker 04:
Mr. Bicroft was subject to a term of supervised release of life after he was released from prison, and special condition three of his judgment and conviction

[00:01:58] Speaker 04:
would allow the probation office to ban his access to the internet for that time frame.

[00:02:08] Speaker 04:
Now the chief argument against this is that in certain circumstances, that this court has described as extreme circumstances, the court may allow a prohibition of the internet completely, a complete ban.

[00:02:28] Speaker 04:
But the problem here is that the district court made absolutely no explanation or analysis of the issue before imposing this special condition of supervised release, which is required under the, I'm not sure if it's Coker or Cook case, K-O-C-H.

[00:02:50] Speaker 04:
We contend that that was error.

[00:02:52] Speaker 04:
The error is plain, because the Koch case requires that kind of analysis and explanation on the record, according to the factors of 3583d, which the court was discussing in the very last argument.

[00:03:09] Speaker 04:
And of course, as to the third prong of plain error, we argue that there was prejudice.

[00:03:15] Speaker 04:
There is a reasonable probability

[00:03:17] Speaker 04:
that if the court had gone through the analysis and explanation related to this special condition under the court's prior precedent in Blair and Eagley, that the court would not have imposed this broad prohibition on the use of the internet.

[00:03:36] Speaker 04:
Blair addressed a special condition that was worded just like this one.

[00:03:43] Speaker 04:
And it differed from a prior case called Walser,

[00:03:47] Speaker 04:
which had said, well, the probation office has some discretion, so we're not sure that the probation office is going to completely ban the internet.

[00:03:55] Speaker 04:
But Blair looked at a similar provision and said, well, the probation office has the power to completely ban the use of the internet during the term of supervised release, and that's just too much.

[00:04:09] Speaker 04:
That is not, that would involve, that restriction would involve a greater deprivation of liberty than is necessary.

[00:04:17] Speaker 04:
That's what we're dealing with here.

[00:04:18] Speaker 01:
Council, could I just jump in here and ask you, based on what you just said about Blair, why isn't this case a candidate, one of the rare cases in light of Blair, for a complete ban on internet usage based on the offense conduct

[00:04:45] Speaker 01:
in this case?

[00:04:49] Speaker 01:
Why doesn't the offense conduct in this case move it in the direction of what the district court actually did?

[00:04:55] Speaker 04:
Because the offense conduct in this case actually hardly involved the internet at all.

[00:05:02] Speaker 04:
The actual offense conduct in this case involved the production of depictions of child sexual activity that happened in person

[00:05:13] Speaker 04:
The defendant and the children at issue Met in person through people that they knew they were at parties and the like in a pool And there was no internet usage for either enticing or alluring children.

[00:05:30] Speaker 04:
There was no internet usage for disseminating these materials the only internet usage that the

[00:05:37] Speaker 04:
And this is confirmed by the government's brief, the answer brief at page 16, is that the defendant, after taking these photographs or videos, uploaded them to his personal Dropbox account, cloud storage, instead of using a local hard drive.

[00:05:59] Speaker 04:
That's really the only connection between the offense conduct and the use of the internet in this particular case.

[00:06:08] Speaker 04:
And so prohibiting Mr. Bicroft for the rest of his life from using the internet in any way is a greater deprivation of liberty than is reasonably necessary, given that offense conduct.

[00:06:24] Speaker 04:
It's also nowhere near the kind of offense conduct that was involved in the Eagly case, where this court decided under plain error review not to overturn the district court's decision

[00:06:37] Speaker 04:
to impose a complete internet ban.

[00:06:42] Speaker 04:
There, the defendant was involved in obtaining child pornography through the internet.

[00:06:51] Speaker 04:
And there were various restrictions imposed, much less than a complete ban of the internet.

[00:06:58] Speaker 04:
And the defendant, of course, kept violating those restrictions and accessing adult and child pornography from the internet.

[00:07:07] Speaker 04:
And so in exasperation, the district court finally said, OK, I've got to ban the internet entirely.

[00:07:15] Speaker 04:
This was the fourth revocation proceeding for violations of supervised release under the Igley case.

[00:07:23] Speaker 04:
And in that circumstance, Judge Abel writing for the court determined, perhaps, and the words used by the court were, this might be.

[00:07:36] Speaker 04:
one of the extreme cases that we've been discussing where a complete internet ban would be appropriate.

[00:07:43] Speaker 04:
Also, in that case, what's really important here, in addition to the complete internet ban, is the lifetime nature of it.

[00:07:54] Speaker 04:
The Walser case, which was an early case, I think was overruled by Blair, but the Walser case involved a three-year period of supervised release.

[00:08:05] Speaker 04:
And of course, in this case, we're talking about the rest of Mr. Bycroft's natural life that this prohibition would be in place for.

[00:08:15] Speaker 04:
And I don't believe that the Eggley case involved a lifetime prohibition either.

[00:08:21] Speaker 00:
Is there a more fundamental predicate concern that the district court here didn't explain or provide any justification or explanation for why he did the internet ban?

[00:08:34] Speaker 00:
Wouldn't the proper approach for us would be simply to reverse and remand for the district court to reconsider that?

[00:08:41] Speaker 00:
And when the district court has to explain it, the court may decide it is too broad.

[00:08:47] Speaker 00:
I mean, we might remand saying this looks awfully broad and it looks like there could be

[00:08:53] Speaker 00:
concerns we'd have to think about in these other matters.

[00:08:55] Speaker 00:
But to do so, we need you to explain why you put that special condition in.

[00:09:01] Speaker 00:
By the way, see our three cases in the 10th Circuit that say you must explain all special conditions.

[00:09:08] Speaker 00:
That wasn't done here.

[00:09:10] Speaker 00:
And so we just remand and see what he does.

[00:09:13] Speaker 04:
Yes, Your Honor.

[00:09:14] Speaker 04:
I completely agree with that approach.

[00:09:16] Speaker 04:
I think that's correct.

[00:09:17] Speaker 04:
The precise error that we are

[00:09:19] Speaker 04:
identifying as the failure to analyze and explain on the record the reasons for the trial court's ruling.

[00:09:26] Speaker 04:
But the reason that we've been talking about whether the court should impose this kind of prohibition is because we're in plain error land where there was no objection below.

[00:09:37] Speaker 04:
And so the third prong of plain error analysis involving whether the court

[00:09:44] Speaker 04:
would have changed its mind if it hadn't committed that error comes into play.

[00:09:47] Speaker 04:
I think that's why I'm talking about it.

[00:09:50] Speaker 00:
So at least there's a possibility.

[00:09:53] Speaker 00:
I mean, it's not a hypothetical or fanciful possibility that when the court asks to justify that ban in light of other cases and judge the comparative problem here to others, there may be a different result.

[00:10:10] Speaker 04:
Yes, Your Honor.

[00:10:11] Speaker 04:
I agree.

[00:10:13] Speaker 04:
If there are no further questions at this time, I'll.

[00:10:16] Speaker 01:
Yes.

[00:10:19] Speaker 01:
Council, you argued that First Amendment interests should be part of the analysis here?

[00:10:25] Speaker 04:
Yes, we did mention as to the fourth prong of plain error review, the fact that there is a bit of heightened scrutiny when a special condition of supervised release might impinge upon constitutional rights such as the First Amendment.

[00:10:43] Speaker 04:
That, we believe, went to the fourth prong of plain error review, whether the error seriously affects the fairness, integrity, and public reputation of judicial proceedings.

[00:10:55] Speaker 04:
We think that this type of special condition is especially important for the judiciary to get right, because in our day and age, many places on the internet are

[00:11:11] Speaker 04:
really the public square in this day and age.

[00:11:19] Speaker 04:
If there are no questions at this time, I'll reserve the remaining time.

[00:11:22] Speaker 04:
Thank you.

[00:11:23] Speaker 02:
Thank you, Council.

[00:11:26] Speaker 02:
Ms.

[00:11:26] Speaker 02:
Williams.

[00:11:37] Speaker 03:
Good afternoon, Your Honors.

[00:11:39] Speaker 03:
Lisa Williams, representing the United States of America.

[00:11:43] Speaker 03:
Although counsel hasn't framed his argument as such, I think that there's a procedural reasonableness component to it and then a substantive reasonableness component to it.

[00:11:53] Speaker 03:
And the procedural reasonableness component is whether or not the explanation given by the district court is adequate

[00:12:00] Speaker 03:
or sufficient.

[00:12:02] Speaker 03:
And I think that I'd like to start there just reading the tea leaves from the benches comments.

[00:12:08] Speaker 03:
It seems that there may be some concerns that the explanation given by the district court was insufficient.

[00:12:16] Speaker 03:
In this case, of course, we're on plain error.

[00:12:18] Speaker 03:
So did the district court plainly err in failing to adequately explain the reasons for its sentence?

[00:12:27] Speaker 03:
The government first submits that there was no error which was plain.

[00:12:31] Speaker 03:
The court gave a rather lengthy explanation as to all the factors that it had considered.

[00:12:36] Speaker 03:
in reaching its sentence.

[00:12:38] Speaker 03:
It noted that it read every single piece of paper, which is significant because the defense sentencing memo, I believe, was 63 or 69 pages long.

[00:12:47] Speaker 03:
And so it wasn't a two-pager.

[00:12:49] Speaker 03:
There was a lot of pre-trial or pre-sentencing pleadings filed by the parties that the court made clear.

[00:12:56] Speaker 03:
that it read and considered.

[00:12:58] Speaker 02:
There's nothing in the court saying that it read every single page.

[00:13:05] Speaker 02:
It says nothing about the basis for the special condition.

[00:13:09] Speaker 03:
You're correct, Your Honor.

[00:13:10] Speaker 02:
That's really, we've required that.

[00:13:15] Speaker 02:
Well, I think... I'm not quite sure why you're not conceding that there wasn't a sufficient explanation here.

[00:13:21] Speaker 03:
I think that I would like to talk about what this court has required.

[00:13:27] Speaker 03:
The Koch case combined with Engelhardt does create a hierarchy of explanation required, depending on what the supervised release condition is.

[00:13:36] Speaker 03:
And those cases say, if it's a standard condition, no explanation, or excuse me, a mandatory condition... And we have a total ban here.

[00:13:46] Speaker 03:
Well, the government's going to push back a little bit on total ban, Your Honor, because of what eagerly is a total ban.

[00:13:53] Speaker 02:
Without permission.

[00:13:56] Speaker 02:
I mean, that's what we have here.

[00:13:59] Speaker 03:
But here we have that permission component, which Billy recognized as a safety valve.

[00:14:03] Speaker 03:
And so the ban in this doesn't go quite as far as the ban in EGLE.

[00:14:07] Speaker 03:
And I think EGLE represents a total ban, thus things that are... This is a significant deprivation.

[00:14:12] Speaker 03:
Significant deprivation.

[00:14:14] Speaker 03:
I would absolutely concede with that, Your Honor.

[00:14:16] Speaker 02:
But this hierarchy... So we don't have an explanation.

[00:14:21] Speaker 02:
I think you argued something about a common knowledge exception, of which I'm not aware of.

[00:14:26] Speaker 03:
Well, that's where I'm going to.

[00:14:27] Speaker 03:
So if it's a mandatory condition, no explanation is necessary.

[00:14:32] Speaker 03:
Then Koch and Engelhardt say that if it's recommended by either Congress or the Sentencing Commission, then that is kind of the next level, where no hyper-technical explanation is needed, especially if it's a matter of common knowledge as to why the requirement would exist.

[00:14:50] Speaker 03:
the reasoning that the district court has to give is not as detailed as the third step, which is if the condition is not recommended by Congress or the Sentencing Committee when, Commission, excuse me, when it's not recommended, that's when this court has said that the reason basis for applying the condition to a specific defendant

[00:15:14] Speaker 03:
has to exist and it has to exist so that it's sufficient for this court to conduct review.

[00:15:20] Speaker 03:
But a statement of generalized reasons will suffice.

[00:15:25] Speaker 03:
And so that's what's necessary kind of at that third level.

[00:15:28] Speaker 03:
But here we're above that.

[00:15:30] Speaker 03:
We're at the second level because the guidelines specifically

[00:15:34] Speaker 03:
say that in a case such as this, there should be restrictions on a defendant's use of the Internet.

[00:15:40] Speaker 01:
And so the government submits that while... Counsel, can I just ask you on that last point, is this your argument based on Section 5B1.3B?

[00:15:52] Speaker 03:
Yes, Your Honor.

[00:15:55] Speaker 01:
And it recommends a condition limiting the use of a computer.

[00:16:00] Speaker 01:
That's the language.

[00:16:01] Speaker 01:
But it doesn't say anything about an absolute ban.

[00:16:04] Speaker 01:
I mean, there's a difference between limithine and ban.

[00:16:08] Speaker 01:
So, I'm not sure I see how this guideline gets you where I think you're trying to go.

[00:16:15] Speaker 03:
Well, Your Honor, the government would submit that Mr. Bycroft will be able to use a computer or an internet after consulting with his probation officer and getting permission to do so.

[00:16:26] Speaker 03:
And so again, it's not an absolute ban.

[00:16:28] Speaker 01:
It's limiting his ability.

[00:16:30] Speaker 01:
The condition is framed as a ban unless he gets permission.

[00:16:39] Speaker 01:
It starts off as a ban.

[00:16:40] Speaker 01:
And all I'm suggesting is that your reliance on that guideline doesn't seem to get you where you seem to want to go.

[00:16:52] Speaker 03:
Well, I would respectfully disagree, Your Honor, because I think that the way that we use computers today is interconnected with the internet.

[00:17:06] Speaker 03:
They are one and the same.

[00:17:07] Speaker 03:
And the fact that that's how the guidelines still reads, I think it's difficult to separate the two.

[00:17:16] Speaker 03:
This is just talking about a computer to do word processing on.

[00:17:24] Speaker 03:
I don't think that's a fair reading of what the Sentencing Commission means when it refers to computer.

[00:17:30] Speaker 03:
I think it means all of the use is contemplated by a computer, including accessing the internet.

[00:17:35] Speaker 01:
I'm not referring to the use of the word computer.

[00:17:37] Speaker 01:
I'm referring to the use of the word limit.

[00:17:40] Speaker 01:
It seems like a limit only gets you so far.

[00:17:44] Speaker 03:
Well, again, I think that's the difference between the limitations versus total ban.

[00:17:51] Speaker 03:
And the government does not agree that this is a total ban, because a total ban is what happened in Igley.

[00:17:58] Speaker 03:
That's a total ban.

[00:17:59] Speaker 03:
And I do want to talk about Igley for one second.

[00:18:02] Speaker 03:
First of all, it is a lifetime ban.

[00:18:04] Speaker 03:
Mr. Igley was originally sentenced to 60 months of supervised release, but then had a second conviction for child pornography that resulted in a lifetime ban

[00:18:13] Speaker 03:
of, or excuse me, a lifetime term of supervised release.

[00:18:17] Speaker 03:
And what the district court judge said in Eagly is you are never using a computer again, or the internet.

[00:18:22] Speaker 03:
Never.

[00:18:23] Speaker 03:
Not even for employment, which is really radical because employment implicates First Amendment constitutional rights to do certain jobs.

[00:18:33] Speaker 03:
Eagly is not an old case.

[00:18:35] Speaker 02:
Isn't your argument foreclosed by our Blair case?

[00:18:39] Speaker 03:
No, Your Honor.

[00:18:39] Speaker 02:
Why not?

[00:18:41] Speaker 02:
Because I think- That was the special condition that the defendant's use of computers and internet access must be limited to those the defendant requests to use and which the probation officer authorizes.

[00:18:53] Speaker 02:
And we said that was a complete ban.

[00:18:57] Speaker 02:
failed to place any restraints on a probation officer's ability to restrict the defendant's internet access.

[00:19:04] Speaker 02:
We called it a complete ban.

[00:19:06] Speaker 02:
That's what we have.

[00:19:07] Speaker 03:
The court did call it a complete ban.

[00:19:09] Speaker 03:
I'm not sure the government would submit that's dicta, especially again.

[00:19:14] Speaker 03:
How is that dicta?

[00:19:16] Speaker 03:
Well, because deciding whether or not the confines of that restriction constituted a complete ban was not

[00:19:23] Speaker 02:
essential to the court's holding in that case and I would also note that where I guess my point is I mean you can argue about what you know whether it's complete or not but the fact is we don't really have a record to review because the district court didn't outline even generalized reasons here so what would be the problem with remanding this back

[00:19:44] Speaker 02:
for those reasons.

[00:19:45] Speaker 03:
So I agree, and that's the first and second prong of plain error.

[00:19:49] Speaker 03:
But before the court demands it back, it also has to analyze the third prong of plain error, an effect on substantial rights.

[00:19:59] Speaker 03:
And Koch, again,

[00:20:00] Speaker 03:
in footnote five and the Borrella decision which is referenced in Koch say that when analyzing a term of supervised release under plain error review, this court can only vacate a special condition if the record reveals no basis for the condition.

[00:20:15] Speaker 03:
And so before this court demands it back for the procedural error, it does have to reach the issue which is kind of the substantive reasonableness of the condition itself.

[00:20:26] Speaker 03:
Is there a basis in the record to impose

[00:20:30] Speaker 03:
this supervised release condition, and that the government would submit there is.

[00:20:34] Speaker 03:
There is given, and in Borrella, the court considered the nature and scope of the offense, defendant's history, and the results of his psychological exam.

[00:20:47] Speaker 03:
And the government submits that if the court considers those identical factors in this case,

[00:20:52] Speaker 03:
those support the special condition number three, the restriction on computer use and the internet.

[00:21:00] Speaker 01:
And that's kind of why... Council, you seem to be suggesting that unless we determine count three,

[00:21:18] Speaker 01:
the error didn't make any difference.

[00:21:23] Speaker 01:
That's the only scenario in which we could remain.

[00:21:27] Speaker 01:
But are our hands really high in that regard?

[00:21:35] Speaker 01:
What if we

[00:21:40] Speaker 01:
an adequate explanation, plainly didn't give an adequate explanation, and it's just unclear what would have happened if the court district judge had had the benefit of working through

[00:21:56] Speaker 01:
reasons for the condition and in our judgment that this case would benefit from sending it back to the district court under those circumstances.

[00:22:10] Speaker 01:
Are you telling us we can't do that?

[00:22:11] Speaker 03:
Your Honor, respectfully, this court cannot bypass the third step of plain error review.

[00:22:18] Speaker 03:
It's the defendant's burden to establish all four problems.

[00:22:21] Speaker 01:
Do you have a case that says that?

[00:22:24] Speaker 03:
I do, and I'll read it, right?

[00:22:25] Speaker 03:
Well, what I'll read is from footnote five from the Koch decision.

[00:22:29] Speaker 03:
Because an absolute internet ban is such an extreme restriction, we think it calls for an extraordinarily careful review and adequately explains supporting findings, which is what we're talking about, the district court failing to do.

[00:22:41] Speaker 03:
But even if we ignored Eagley's waiver on this issue, we would only review the lack of factual findings under plain error of review.

[00:22:49] Speaker 03:
And under that review, we would vacate the absolute internet ban only

[00:22:55] Speaker 03:
if the record reveals no basis for that condition.

[00:22:59] Speaker 03:
So this court can only vacate the condition and send it back if it finds no basis in the record.

[00:23:06] Speaker 01:
We have cases that say that in appropriate circumstances, we can even overlook a waiver.

[00:23:20] Speaker 01:
The court has some discretion to ensure that these issues have been handled properly.

[00:23:27] Speaker 01:
And if it's just unclear what would happen if the district judge had given this kind of analysis and statement of reasons,

[00:23:38] Speaker 01:
Why won't we give the district judge the opportunity to do that?

[00:23:43] Speaker 03:
Well, Your Honor, I think the court, the government believes the court shouldn't find that, but the court can find that.

[00:23:49] Speaker 03:
But that would be an analysis under the third prompt.

[00:23:52] Speaker 03:
That was the court saying, we do not see a basis for this restriction in the record.

[00:23:58] Speaker 03:
Therefore, we're going to, or it's unclear, we're not convinced there's a basis for the restriction in the record.

[00:24:04] Speaker 03:
Therefore, we're going to send it back to the district court.

[00:24:07] Speaker 03:
so that they can elaborate.

[00:24:08] Speaker 03:
But that's still analyzing the third prong of plain error review.

[00:24:14] Speaker 01:
All right.

[00:24:15] Speaker 01:
All right.

[00:24:15] Speaker 01:
So if it's unclear, wouldn't that mean that there's at least some likelihood that the outcome would have been different?

[00:24:24] Speaker 03:
I think that if the court

[00:24:30] Speaker 03:
Yes, however, the government's position is that it's not unclear.

[00:24:35] Speaker 03:
And I would like to address those factors justifying the ban.

[00:24:39] Speaker 01:
That wasn't the question.

[00:24:42] Speaker 01:
If it is unclear, why isn't it likely that the outcome would have been different?

[00:24:46] Speaker 03:
Well, I'll say this.

[00:24:47] Speaker 03:
Even if it's unclear, it's not the government's burden, right?

[00:24:51] Speaker 03:
It's the defendant's burden.

[00:24:52] Speaker 03:
And if it's a toss up, it might be unclear.

[00:24:54] Speaker 03:
Then they haven't met their burden under plain error review.

[00:24:57] Speaker 03:
So the defendant has to demonstrate more.

[00:25:00] Speaker 03:
Plain error review, it's an extremely high burden for the defendant to reach.

[00:25:05] Speaker 03:
And this court has never in this universe of cases on plain error review reversed an internet computer limitation.

[00:25:17] Speaker 03:
Never.

[00:25:18] Speaker 03:
Eagly upheld it, Billy upheld it, and Wassler upheld it.

[00:25:21] Speaker 02:
We're not talking about reversing it right now.

[00:25:23] Speaker 02:
We're talking about remanding it so we can find out what the district court intended by it.

[00:25:28] Speaker 02:
And the district court can connect the dots like it needs to.

[00:25:32] Speaker 02:
We're not talking about reversing the condition in this particular conversation.

[00:25:37] Speaker 03:
But if this court finds on its own

[00:25:40] Speaker 02:
Reason to support it it doesn't need to send it back to the district court Which I think is what we have to find under problem three is a reasonable problem probability that the error affected the outcome of the proceedings and That's not that I mean that's certainly not something beyond this

[00:26:00] Speaker 03:
Well, and if I may, with my remaining 30 seconds, summarize why the ban is necessary, because I really do think the court has to look at the facts in the record.

[00:26:13] Speaker 03:
This is an individual who manufactured child pornography.

[00:26:18] Speaker 03:
It is not a possession of child pornography cases, but we don't have a manufactured case.

[00:26:23] Speaker 03:
And the Dropbox account

[00:26:25] Speaker 03:
They're trying to minimize the importance of that.

[00:26:28] Speaker 03:
But please don't forget that on that Dropbox account, there were several pictures and videos of unknown prepubescent females.

[00:26:36] Speaker 03:
There's a 24 minute, and I see my time is up.

[00:26:38] Speaker 03:
If I may please finish with this train of thought.

[00:26:40] Speaker 03:
There's a 24 minute video of an unknown prepubescent female undressing and masturbating.

[00:26:47] Speaker 03:
And so here's the thing, Your Honors.

[00:26:49] Speaker 03:
He either manufactures more child pornography,

[00:26:53] Speaker 03:
than what he's charged with.

[00:26:55] Speaker 03:
These other videos on his Dropbox account, he either manufactured himself, which makes him more dangerous, or he accessed the internet to download those videos and save them into his Dropbox account.

[00:27:08] Speaker 03:
But either of those situations means that he presents an incredible risk to the public.

[00:27:16] Speaker 03:
And so extreme measures such as this computer ban are warranted in these types of cases.

[00:27:25] Speaker 03:
And that's my final pitch for why this court doesn't need to send it back because there is support here for this condition in this case.

[00:27:34] Speaker 01:
Counsel, based on what you just said, is it your position that the special condition

[00:27:42] Speaker 01:
that was imposed in this case would be appropriate in every case where a defendant has produced child pornography?

[00:27:51] Speaker 03:
No.

[00:27:51] Speaker 03:
I think that the court would have a fact-by-fact analysis of every case in imposing a special condition.

[00:27:58] Speaker 01:
And I didn't talk about the psych... But isn't that the point?

[00:28:03] Speaker 01:
That we don't know from the district judge why he imposed the condition.

[00:28:10] Speaker 01:
But if this court can look at these facts, the nature and circumstance of the offense, the defendant's characteristics, as well as the psychological examination, and find that it's supported.

[00:28:32] Speaker 01:
someone who should do the correct analysis at this point?

[00:28:37] Speaker 03:
I think if this case was a trial, I would 100% agree with you, Your Honor.

[00:28:41] Speaker 03:
I think the fact that it's a sentencing and there wasn't much in-person courtroom work diminishes it.

[00:28:49] Speaker 03:
You're in a better position.

[00:28:50] Speaker 03:
I mean, the judge considered the PSR, which this court can consider.

[00:28:54] Speaker 03:
The judge considered the written evaluation, which this court can consider.

[00:28:57] Speaker 01:
The judge can have an evidentiary hearing.

[00:28:59] Speaker 01:
We can't do that.

[00:29:00] Speaker 03:
That's true.

[00:29:01] Speaker 03:
The judge didn't in this case.

[00:29:03] Speaker 03:
And the government is stuck with what the record is.

[00:29:05] Speaker 01:
And the judge might think he should.

[00:29:07] Speaker 01:
We don't know that right now.

[00:29:10] Speaker 03:
Again, that's all true.

[00:29:12] Speaker 03:
But with plain error, part of the analysis and part of the judicial economy, I think, component of it is if this court realizes that, yes, there was an error.

[00:29:23] Speaker 03:
Yes, it's plain.

[00:29:24] Speaker 03:
But we understand why this condition exists.

[00:29:28] Speaker 03:
That's why the court can still affirm the district court.

[00:29:33] Speaker 03:
Thank you.

[00:29:34] Speaker 02:
Thank you, Counselor.

[00:29:35] Speaker 02:
Rebuttal?

[00:29:43] Speaker 04:
Thank you.

[00:29:43] Speaker 04:
I have nothing further to add on rebuttal unless there are any questions.

[00:29:49] Speaker 02:
Apparently not.

[00:29:50] Speaker 04:
Then I'll cede my time to the court and ask the court reverse.

[00:29:52] Speaker 02:
We appreciate that.

[00:29:54] Speaker 02:
Thank you very much.

[00:29:55] Speaker 02:
We appreciate your arguments both sides and the case will be submitted.

[00:29:59] Speaker 02:
The council are excused and the court