[00:00:00] Speaker 04:
United States versus Doty, 24-5091.

[00:00:05] Speaker 04:
Mr. Kamak.

[00:00:26] Speaker 01:
Good morning.

[00:00:27] Speaker 01:
May it please the court.

[00:00:28] Speaker 01:
My name is Chance Kamak.

[00:00:30] Speaker 01:
And I represent Brian Doty, the appellant in this case.

[00:00:34] Speaker 01:
This case involved Mr. Doty sexually abusing his half-sister, beginning when he was 22 years of age and she was 14.

[00:00:42] Speaker 01:
And that conduct continued for approximately eight years.

[00:00:47] Speaker 01:
The main issue in this case is pretty straightforward.

[00:00:50] Speaker 01:
It's whether the 96-month sentence, which was the result of a nine-level upward variance,

[00:00:58] Speaker 01:
was substantively unreasonable.

[00:01:03] Speaker 01:
The crux of our argument is that the district court failed to adequately explain the reason for the large upward variance.

[00:01:11] Speaker 02:
Now, that sounds like a procedural reasonableness challenge.

[00:01:15] Speaker 01:
Yes, Your Honor.

[00:01:17] Speaker 01:
And I expected this.

[00:01:18] Speaker 01:
In your dissent in Barnes, you talk a lot about the difference between the procedural reasonableness and substantively.

[00:01:26] Speaker 01:
do think that a majority of the opinions say that there is a blurred line between those two, especially when it comes to the explanation given for that sentence.

[00:01:39] Speaker 01:
And I think that's what occurred here.

[00:01:40] Speaker 01:
The court went through all the factors and said all the right things, but then failed to explain the reasoning for that large increased variance.

[00:01:51] Speaker 01:
And I think that's why the sentence is substantively unreasonable.

[00:01:56] Speaker 01:
And announcing the sentence, the court focused almost exclusively on the nature and circumstances of the offense.

[00:02:06] Speaker 01:
In doing so, the court left out the history and characteristics of Mr. Doty and failed to consider what was in a large part mitigating evidence for this crime.

[00:02:21] Speaker 03:
Well, counsel, on history and characteristics,

[00:02:24] Speaker 03:
Didn't the court say, and I'm quoting, that it, quote, considered the defendant's lack of criminal history and his personal characteristics, and also said that Mr. Hardy, quote, has a history of suicidal ideation and depression?

[00:02:39] Speaker 03:
Wouldn't that come under the category of history and characteristics?

[00:02:45] Speaker 01:
It would, Your Honor, and I agree the court did say that, but I think the large upward variance

[00:02:50] Speaker 01:
in considering that, there's not a reasonable explanation for that.

[00:02:54] Speaker 01:
And also, the way I read when the court announced that he has the suicidal ideation and the depression, it almost punished him for that.

[00:03:04] Speaker 03:
Well, now, I understand, but on the one hand, you're saying that it didn't consider history and characteristics, but the statements indicate that it did.

[00:03:13] Speaker 01:
Well, I think the statement said that

[00:03:16] Speaker 01:
But it's not in whether or not the court just stated that it considered it.

[00:03:20] Speaker 01:
It's what the explanation was.

[00:03:23] Speaker 01:
And I think United States v. Gall has said that a significant variance from the guideline range requires significant justification.

[00:03:34] Speaker 01:
And I think that glossing over all that mitigating evidence that was presented in court

[00:03:43] Speaker 01:
resulted in the unreasonable sentence.

[00:03:45] Speaker 04:
Would it have been enough if the court said, this was really horrendous, all this lengthy threatening harassment and sexual conduct with this child, that just overwhelms everything else?

[00:04:01] Speaker 04:
What if the judge had said that?

[00:04:03] Speaker 04:
Would that have been enough?

[00:04:05] Speaker 01:
I still think that the court needs to explain each fact.

[00:04:10] Speaker 04:
This case, he's saying, is really different from the usual cases that get the guideline treatment.

[00:04:21] Speaker 04:
And what more can you say?

[00:04:24] Speaker 04:
That's clearly what he was thinking.

[00:04:27] Speaker 04:
I agree.

[00:04:28] Speaker 04:
So if we know what he was thinking, we might disagree and say that was unreasonable.

[00:04:34] Speaker 04:
But what more does the judge have to say

[00:04:38] Speaker 04:
when it's fairly apparent on the record what was motivating the judge.

[00:04:45] Speaker 01:
And Judge, I would agree with you.

[00:04:46] Speaker 01:
And I think if a guideline sentence or maybe a slight upward variance had been imposed, but this was a significant variance.

[00:04:52] Speaker 01:
It was almost three times the low end of the guideline range.

[00:04:55] Speaker 01:
The court didn't consider other things.

[00:04:57] Speaker 01:
It didn't consider the sentencing disparity that was going to be created by this.

[00:05:01] Speaker 01:
If you look at the JSON data, this sentence was almost

[00:05:05] Speaker 01:
three times that of the national average?

[00:05:09] Speaker 03:
But the court said that Mr. Doty was not part of the mine run of similarly situated defendants.

[00:05:19] Speaker 03:
Doesn't that go to disparity?

[00:05:22] Speaker 01:
It would if the judge explained that.

[00:05:24] Speaker 03:
Well, that is the explanation.

[00:05:26] Speaker 03:
He described the offense and said, this isn't the standard offense.

[00:05:31] Speaker 03:
This is in a different category altogether.

[00:05:35] Speaker 03:
So you can take whatever data is out there, and maybe it isn't the average sentence, but the reason we have an average is that some sentences are below and some sentences are above.

[00:05:49] Speaker 03:
And he said, look, this isn't the mine run of similarly situated defendants.

[00:05:56] Speaker 03:
Why isn't that enough?

[00:05:58] Speaker 01:
Because I don't think the court explained what those other cases

[00:06:03] Speaker 01:
applied and how they were different than this case.

[00:06:05] Speaker 01:
Really?

[00:06:05] Speaker 01:
How's the court supposed to do that?

[00:06:07] Speaker 03:
Is the court supposed to go out and find cases and give facts of each one and say, well, that's why this one is different?

[00:06:18] Speaker 01:
I think the court, in this case, if they're going to impose a sentence this substantially more than yes, I think that's a plumbed in on the court.

[00:06:28] Speaker 03:
Isn't the bottom line whether the variance is manifestly unreasonable?

[00:06:33] Speaker 03:
How is this sentence manifestly unreasonable?

[00:06:38] Speaker 01:
I think it's manifestly unreasonable because of the lack of explanation for the sentence.

[00:06:47] Speaker 01:
The focus on this conduct to the court was so egregious.

[00:06:54] Speaker 01:
But the court focused on that.

[00:06:56] Speaker 03:
Well, so I'm back to where Judge Bacharach started.

[00:07:00] Speaker 03:
Explanation.

[00:07:02] Speaker 03:
Why isn't that?

[00:07:03] Speaker 03:
procedural reasonableness.

[00:07:08] Speaker 03:
Why isn't that a procedural reasonableness argument?

[00:07:11] Speaker 01:
And the explanation?

[00:07:12] Speaker 03:
Isn't that what we've said in prior cases like Lente?

[00:07:16] Speaker 03:
There we found the explanation not reasonable, but it wasn't a substantive reasonableness disposition.

[00:07:24] Speaker 03:
It was a procedural reasonableness disposition.

[00:07:27] Speaker 01:
Your Honor, I would disagree.

[00:07:28] Speaker 01:
I think in almost all the cases that deal with... What about Lente?

[00:07:32] Speaker 03:
Have you read Lente?

[00:07:34] Speaker 03:
Yes.

[00:07:35] Speaker 03:
That was not a substantive reasonableness disposition.

[00:07:37] Speaker 03:
It was procedural because of explanation on disparity.

[00:07:42] Speaker 03:
Isn't that controlling here?

[00:07:46] Speaker 03:
It was a disparity case.

[00:07:47] Speaker 01:
I would say that the way we frame the argument is a substantive reasonable thing.

[00:07:52] Speaker 03:
I know you framed it that way, but why is that a correct framing if it's an explanation argument that you're making?

[00:08:02] Speaker 01:
I think in the cases since that, including the cases I've cited in United States v. Cookson.

[00:08:07] Speaker 03:
Don't our earlier precedents control?

[00:08:10] Speaker 03:
Isn't that the rule in the Tenth Circuit?

[00:08:13] Speaker 01:
Well, but when you get to the explanation, the courts are clear that there's this blurred line between procedural and substantive.

[00:08:22] Speaker 03:
There's a blurred line, and it's your job, and it's our job to figure out which side of the line it's on.

[00:08:27] Speaker 03:
I mean, the Supreme Court in Gall,

[00:08:30] Speaker 03:
And other cases have made very clear that there's procedural reasonableness and there's substantive reasonableness.

[00:08:37] Speaker 03:
And even though the procedure substantive distinction is challenging, not only in this context, but in a lot of others, we still try to work with it.

[00:08:45] Speaker 03:
And that's what we're trying to do here.

[00:08:47] Speaker 01:
I do.

[00:08:47] Speaker 01:
And I think you can frame the argument in both ways.

[00:08:50] Speaker 01:
And the case law suggests that when it comes to the explanation of the sentence.

[00:08:54] Speaker 03:
Well, but if you can frame it both ways, what's the point in even having the distinction?

[00:08:58] Speaker 01:
Well, that's why the line is blurred, Your Honor.

[00:09:01] Speaker 03:
No, the line is still the line, and it's there, and the Supreme Court drew it.

[00:09:06] Speaker 01:
Well, that may be so, but the case law has stated numerous times in this instance that they can frame them either way between procedural or substantive.

[00:09:16] Speaker 01:
Really?

[00:09:17] Speaker 03:
Give us a couple of examples.

[00:09:19] Speaker 03:
I know there are a couple of cases that have said the line is blurred, but you seem to think that most of our cases say that.

[00:09:25] Speaker 03:
Is that correct?

[00:09:27] Speaker 01:
Do I?

[00:09:28] Speaker 01:
I do believe that most of the cases say that.

[00:09:32] Speaker 03:
Why don't you give us a couple of examples of where we've said that?

[00:09:35] Speaker 01:
The cases that I've cited that deal with these large variances, United States versus Cookson.

[00:09:41] Speaker 01:
Other than Cookson and Crosby, what have you got?

[00:09:43] Speaker 01:
Barnes.

[00:09:46] Speaker 01:
Those are the big ones that I have.

[00:09:47] Speaker 01:
Have you got anything else?

[00:09:50] Speaker 01:
On the top of my head, no, I don't, Your Honor.

[00:09:52] Speaker 01:
I mean, I think Gall even talks about both the procedural and substantive reasonableness.

[00:09:57] Speaker 04:
It specifically says that explanation is procedural, does it not?

[00:10:02] Speaker 01:
It says, Gall states that determining whether sentences were substantively reasonable, we must consider the district court's explanation for the extent of the variances.

[00:10:15] Speaker 04:
But the failure to explain is a procedural error.

[00:10:19] Speaker 04:
Doesn't it explicitly say that?

[00:10:22] Speaker 04:
It does also say that, Your Honor.

[00:10:23] Speaker 04:
But let me say it is a procedural reasonableness.

[00:10:28] Speaker 04:
The explanation depends on what the facts are and how clear it is what the judge was thinking.

[00:10:34] Speaker 04:
Now, maybe we would disagree, and that would be a substantive reasonableness decision.

[00:10:41] Speaker 04:
But it seems to be very clear what the judge was thinking, that these aspects were so unusual that that accounts for the disparity.

[00:10:52] Speaker 04:
And these are really awful and deserve a much longer sentence.

[00:10:58] Speaker 04:
I don't think it helps explain things by his saying everything that wasn't important or everything that paled in significance to that.

[00:11:11] Speaker 04:
I'm pretty comfortable that the judge explained why the sentence was, tell me what I'm missing there.

[00:11:22] Speaker 04:
That would really make a difference.

[00:11:24] Speaker 01:
Because I think the judge focused only on the nature of the offense

[00:11:28] Speaker 01:
and left out all the mitigating things that would support a guideline sentence in this case.

[00:11:35] Speaker 01:
And I think that that's why this is an unreasonable sentence, because it just became hyper-focused on... Right, because he's saying everything else is within... But those things do matter.

[00:11:50] Speaker 04:
The statute requires us to consider that.

[00:11:52] Speaker 04:
...the garden variety, and then there's this one of the factors makes it go way up.

[00:11:58] Speaker 04:
I think that's what he's saying.

[00:12:00] Speaker 04:
And the other things are important.

[00:12:02] Speaker 01:
I don't know.

[00:12:04] Speaker 01:
Well, but that wasn't explained in reaching the sentence.

[00:12:08] Speaker 02:
Is that the point?

[00:12:10] Speaker 02:
Is that the point?

[00:12:14] Speaker 02:
Crosby is dealing with a five-day time-served sentence for a gentleman that had 14,000 files of child pornography.

[00:12:24] Speaker 01:
Yes, Your Honor.

[00:12:25] Speaker 02:
Cookson was a situation in which

[00:12:27] Speaker 02:
the panel in Crosby had relied also involved an extraordinarily lenient sentence for the possession of child pornography.

[00:12:37] Speaker 02:
My understanding of Cookson and Crosby, and I'm saying it so you can tell me where I'm wrong, is to say in these gray areas, you know, it doesn't really matter what a judge

[00:12:52] Speaker 02:
how a judge explains it.

[00:12:55] Speaker 02:
It's binary.

[00:12:57] Speaker 02:
It's either substantively unreasonable, it's an abuse of discretion, or it's not.

[00:13:01] Speaker 02:
When there is an extraordinary downward variance or an upward variance that would ordinarily strike anyone as facially unreasonable in those situations, and I was a minority opinion in Barnes, but I thought that that was the case in Barnes.

[00:13:18] Speaker 02:
That view was contrary to the majority.

[00:13:22] Speaker 02:
But in a situation where there is just, as Judge Hart says, just an extraordinary factor that dwarfs all of the other factors, say a trespass conviction for entering the federal courthouse, the Byron White courthouse, without permission.

[00:13:40] Speaker 02:
And there is an extraordinary upward variance because it wasn't just trespass.

[00:13:45] Speaker 02:
The person that came in with an AK-47 and was planning to shoot everybody in the Byron White courthouse

[00:13:52] Speaker 02:
it might be ridiculous to say, okay, well, what were the mitigating factors?

[00:13:58] Speaker 02:
The seriousness of the offense, the offense conduct, clearly made it an outward variance substantively reasonable.

[00:14:09] Speaker 02:
Is that the point that when Crosby and Cookson recognizing the importance of an explanation might make sense when

[00:14:21] Speaker 02:
a good explanation would fill in the gaps for what would not otherwise be readily apparent to an onlooker.

[00:14:30] Speaker 01:
Well, Judge, but I would say that the judges in both Crosby and Cookson did feel like those sentences were reasonable.

[00:14:36] Speaker 01:
So I think you get the same issue here.

[00:14:39] Speaker 02:
I think you may have misspoken.

[00:14:43] Speaker 01:
Well, the sentencing judges thought in Crosby and Cookson that those things were reasonable, right?

[00:14:49] Speaker 01:
based on those factors, and they focused almost exclusively on the history and characteristics of those defendants dealing with rehabilitation and those issues.

[00:14:57] Speaker 01:
And so onlookers might think that those sentences were unreasonable, but those judges didn't.

[00:15:03] Speaker 02:
But it was a failure to explain because they were so- Maybe the sentencing judges thought that, but clearly Judge Bacupe in Crosby didn't think that the judge explained any of those things.

[00:15:12] Speaker 01:
Well, I agree, but it was the lack of explanation was the reason.

[00:15:15] Speaker 01:
I see.

[00:15:16] Speaker 01:
I believe I've expired my time.

[00:15:18] Speaker 04:
And we've got three substantive reasonableness cases on our Dr. Dase who will be very educated by the family conference.

[00:15:24] Speaker 01:
Thank you, Your Honor.

[00:15:34] Speaker 00:
This court should affirm the district court's sentence.

[00:15:37] Speaker 00:
I'm sorry, Your Honor.

[00:15:38] Speaker 00:
Please, the court.

[00:15:38] Speaker 00:
My name is Stephen Brighton from the United States.

[00:15:41] Speaker 00:
I got too excited.

[00:15:43] Speaker 00:
This court should affirm the district court's sentence because it was well within the bounds of permissible choice in this case.

[00:15:48] Speaker 00:
And the court adequately explained its reasons for giving the sentence that it did.

[00:15:52] Speaker 00:
Likewise, this court should affirm the district court's application of the sexually explicit material prohibition, because while the court plainly erred by making sufficient factual findings that were tied to the case, the record itself shows the condition will meaningfully assist in deterring criminal conduct by the defendant and rehabilitating him.

[00:16:13] Speaker 00:
On the issue of substantive reasonableness of the court, I talked about with my colleague

[00:16:18] Speaker 00:
In this case, the court, in addition to what you have already talked about, took significant testimony from an evaluator presented by Mr. Doty about essentially his history and characteristics.

[00:16:35] Speaker 00:
The court noted after hearing that testimony that it considered it informative.

[00:16:39] Speaker 00:
So the statements that Judge Matheson talked about are kind of further clarified by the fact that when the court's saying they took the history and characteristics into account,

[00:16:47] Speaker 00:
It's also taking into account that significant testimony about the defendant's risk, the defendant's history.

[00:16:54] Speaker 00:
This court, just very recently in Hearst, considered a much larger upward variance in a case, varied up about 100 months from the bottom end of the guidelines.

[00:17:12] Speaker 00:
And this is a much lower,

[00:17:15] Speaker 00:
variance than that.

[00:17:16] Speaker 00:
It's a variance of about 50 months.

[00:17:21] Speaker 00:
And there's just nothing in this court's history that would show that 50 months is such an extraordinarily unreasonable upward variation that the court needs to go above and beyond its normal duties to explain its sentence.

[00:17:36] Speaker 00:
Even so, in this case, the court did explain that the issue was the daily abuse that happened when she was a minor and it continued for eight years.

[00:17:45] Speaker 00:
that while Mr. Doty, on appeal, minimizes his conduct some, in the sentencing hearing in his colloquy, Mr. Doty admitted that he controlled who the victim was allowed to see, who the victim was allowed to have friends with, what the victim was allowed to wear.

[00:18:05] Speaker 00:
And he described himself as controlling and hateful.

[00:18:10] Speaker 02:
Let me, can I play devil's advocate with what you're saying?

[00:18:14] Speaker 02:
You know, we do have cases, Cookson, Walker, Crosby, where when the government has appealed a sentence of substantively unreasonable is too lenient, we have recognized a substantive reasonableness and reversed lenient sentences based on our view that the leniency was shocking.

[00:18:39] Speaker 02:
On the other hand, why isn't it what's good for the goose is good for the gander that when Judge Hill says, well, I, Judge Hill, view what he did to this girl, whether it was consensual in part, non-consensual in part, her subjective perception of the gravity of what happened

[00:19:02] Speaker 02:
would justify a remarkable over 2 to 1 variance from the upward cap of the guideline range, why isn't it a fair application of GAL when you have a significant upward variance to require some explanation?

[00:19:21] Speaker 02:
Why isn't it, on its face, shocking?

[00:19:23] Speaker 02:
After all, that's the whole purpose of the guidelines.

[00:19:26] Speaker 02:
And now we have precedent, like in Valdez, that says, well, statistics are just statistics.

[00:19:34] Speaker 02:
But on the other hand, what meaningful review is this court to undertake with regard to the challenges to the severity of the sentence?

[00:19:50] Speaker 02:
It seems to us that we are, to affirm this substantive reasonableness challenge, is to say,

[00:19:57] Speaker 02:
Well, we trust Judge, you know, we'll just defer, we'll abdicate our responsibility to Judge Hill.

[00:20:03] Speaker 02:
She thinks it's really severe, the gravity of the conduct, we may or may not agree, but we'll just abdicate that role to her.

[00:20:13] Speaker 00:
Your Honor, if it was a case where the district court judge said almost nothing to back up

[00:20:19] Speaker 00:
you know, a variance that the court did find shocking, then obviously both directions, the judge would need to provide that same level of explanation.

[00:20:29] Speaker 00:
Here, you know, the court talks about how this separates from the mine realm of similarly situated defendants.

[00:20:36] Speaker 00:
You know, he was given a five level enhancement for a pattern of conduct.

[00:20:39] Speaker 00:
Well, to get that enhancement, you have to have committed at least two separate acts of child sexual abuse.

[00:20:45] Speaker 00:
The defendant here committed sexual acts almost daily for the course of eight years.

[00:20:51] Speaker 00:
And so the conduct here, while the guideline itself may recommend a certain sentence, it can't take into account all the variances inside a case that may or may not directly affect the guideline.

[00:21:05] Speaker 00:
is significant ones.

[00:21:07] Speaker 00:
A 2243A case does not necessarily involve acts of violence.

[00:21:11] Speaker 00:
In this case, it's uncontested in the PSR that when the victim was 15 years old, he coerced her into having anal sex.

[00:21:19] Speaker 00:
And when she asked him to stop because it hurt, he didn't stop.

[00:21:23] Speaker 00:
The guidelines not get you that information.

[00:21:25] Speaker 04:
If I'm understanding you correctly, you could be responding to Judge Bacharach by saying,

[00:21:31] Speaker 04:
We don't just defer to the judge.

[00:21:34] Speaker 04:
There's still got to be a good reason.

[00:21:35] Speaker 04:
And we do, the appellate court does have a role in saying, sorry, we don't buy that.

[00:21:42] Speaker 04:
This was not so much worse.

[00:21:45] Speaker 04:
Yes, Your Honor.

[00:21:47] Speaker 04:
You're not disagreeing with him that we shouldn't just say, well, the trial judge thought it was horrendous, so we'll affirm.

[00:21:55] Speaker 04:
We've got to review the trial.

[00:21:59] Speaker 04:
either the trial court's reasoning or the record to see whether we can see anything horrendous there.

[00:22:05] Speaker 04:
You agree on that, don't you?

[00:22:06] Speaker 04:
I do agree, Your Honor.

[00:22:12] Speaker 03:
Could I ask you about the psychosexual evaluation report?

[00:22:19] Speaker 03:
One part of it said that Mr. Doty is a low risk to re-offend.

[00:22:25] Speaker 03:
Did the district court

[00:22:29] Speaker 03:
say anything about that opinion?

[00:22:36] Speaker 03:
And if it didn't, would its failure to say anything about that make it difficult for this court to engage in meaningful review of substantive reasonableness?

[00:22:50] Speaker 00:
Your Honor, while it didn't address it, the district court

[00:22:55] Speaker 00:
isn't necessarily required to articulate every single fact that's presented to it and how that fact either mitigates or exacerbates the defendant's culpability.

[00:23:09] Speaker 00:
The court said that it considered that testimony, that it considered it informative, and then considered the history and characteristics.

[00:23:17] Speaker 00:
That shows that the court gave it some weight, whatever weight it deemed was appropriate.

[00:23:24] Speaker 00:
As the government also noted in the cross-examination of this expert, the tests that led to these results were simple self-report tests.

[00:23:34] Speaker 00:
The defendant's statements himself, essentially that he had no insight into the fact that he had done anything wrong.

[00:23:44] Speaker 00:
He had no desire to engage in treatment at all.

[00:23:49] Speaker 00:
That he has a distorted view of sexuality, relationships, and appropriate boundaries, and that he's sexually obsessed.

[00:23:54] Speaker 00:
Those would all perhaps cut against a finding solely on self-report questions if there's not a very high risk of re-offense.

[00:24:09] Speaker 03:
Let me make sure I understand something you said at the beginning.

[00:24:12] Speaker 03:
This is the special condition issue, so I take it

[00:24:22] Speaker 03:
You're conceding that the district court erred.

[00:24:28] Speaker 03:
Yes, Your Honor.

[00:24:29] Speaker 03:
In imposing the special condition.

[00:24:31] Speaker 03:
And I don't know, are you conceding that the district court plainly erred?

[00:24:38] Speaker 00:
We're conceding the district court plainly erred by not making the findings that this court has been recently reaffirmed in Caraballo.

[00:24:47] Speaker 04:
I've got to stop you.

[00:24:50] Speaker 04:
Saying that it's plain error is ambiguous, because there are four parts of plain error.

[00:24:55] Speaker 04:
And if you can see plain error, we're going to reverse.

[00:24:57] Speaker 04:
I assume you're talking about the second step in plain error review.

[00:25:01] Speaker 04:
Was the error clear?

[00:25:03] Speaker 00:
Am I correct about that?

[00:25:04] Speaker 00:
You're right, Your Honor.

[00:25:05] Speaker 00:
I thought that that's what Mr. Matheson was asking me.

[00:25:08] Speaker 00:
I should have been more clear.

[00:25:11] Speaker 00:
We do not agree that it affected his substantial rights.

[00:25:14] Speaker 03:
So you're going to the step three.

[00:25:17] Speaker 03:
That's correct.

[00:25:18] Speaker 03:
All right.

[00:25:20] Speaker 02:
We're going to be asking you questions later.

[00:25:24] Speaker 00:
By the way, it's Judge Matheson.

[00:25:27] Speaker 00:
I apologize.

[00:25:28] Speaker 00:
And the reason that we're making that argument about substantial rights is, unlike some of this court's recent cases, obviously it wasn't objected to below.

[00:25:39] Speaker 00:
And so the court has the ability to consider the entire record.

[00:25:42] Speaker 00:
And this record actually has a lot of information in it compared to records in similar cases.

[00:25:49] Speaker 00:
In addition to what I had mentioned already, he discusses that he has an issue with frequent masturbation.

[00:25:55] Speaker 00:
He thinks about sex too much.

[00:25:57] Speaker 00:
He started watching pornography from an extremely young age.

[00:26:01] Speaker 00:
He admits in the psychosexual exam that he fantasizes about sex with children, that he consumes both adult and child pornography, and that his preferred type of pornography is age gap pornography where an older individual is having sex with a much younger individual.

[00:26:19] Speaker 00:
And when looking at the types of purposes where it's appropriate to offer this type of prohibition, it's when the defendant's underlying issues involving sex or pornography are so pronounced that it could affect his ability to do what he needs to do in his life on a regular basis, or when it could be a gateway that essentially allows him access to

[00:26:46] Speaker 00:
the type of material that would further his sexual interest, the illegal sexual interest, which in this case, being able to have adult pornography but being able to engage in this same type of fantasy that he actually acted upon in this case is the type of thing that this court should find is substantial enough to justify the infringement on his First Amendment rights.

[00:27:12] Speaker 02:
Can I ask you a question that is probably terribly unfair?

[00:27:16] Speaker 02:
Prong 3, you're admitting that there was an error, that it was an obvious error.

[00:27:21] Speaker 02:
We have Francis that says, well, if there's a basis for the condition, then it doesn't satisfy prong 3.

[00:27:28] Speaker 02:
On the other hand, we have no idea if Judge Hill were privy to this briefing saying that both parties have agreed that this was an obvious error and that she should reevaluate that.

[00:27:44] Speaker 02:
We can obviously, if we adopt your position at prong three, say, well, even though there was an obvious error, the defendant doesn't satisfy prong three.

[00:27:57] Speaker 02:
Isn't that a very inequitable result in light of the fact that the parties agree that there was an obvious error?

[00:28:04] Speaker 02:
And if there was a joint motion to say to remand or for Judge Hill to re-sentence, just on the

[00:28:13] Speaker 02:
on the supervised release condition.

[00:28:14] Speaker 02:
I mean, it is a serious infringement on the First Amendment under our case law to prevent someone on supervised release from viewing adult pornography.

[00:28:25] Speaker 02:
Why isn't it a more equitable result for the parties to have, before coming here, to have filed a joint motion for resentencing on the supervised release condition?

[00:28:35] Speaker 00:
That goes to the point of plain error review.

[00:28:38] Speaker 00:
in the first place.

[00:28:40] Speaker 00:
Had the defendant objected, there may have been a more fulsome conversation in the sentencing hearing about what would have been appropriate.

[00:28:48] Speaker 00:
Because the defendant didn't do that, this court doesn't have the ability to look into the judge's mind on that particular condition.

[00:28:55] Speaker 00:
She did give two reasons that she thought factually the condition was appropriate.

[00:29:01] Speaker 00:
They weren't to the level of detail that this court clearly requires, especially after Caraballo.

[00:29:08] Speaker 00:
But this court is clear that it can review things for plain error.

[00:29:12] Speaker 00:
And that's an equitable result in cases generally.

[00:29:15] Speaker 00:
And that would apply equally here, as long as the record gives this court enough to show that the condition is constitutional, which in this case, it does.

[00:29:29] Speaker 00:
If the court has no further questions, I would ask the court to affirm and see the rest of my time.

[00:29:34] Speaker 04:
Thank you, counsel.

[00:29:36] Speaker 04:
Case is submitted.

[00:29:41] Speaker 04:
Council can be excused.