[00:00:10] Speaker 00:
Good morning, Your Honors, and may it please the Court.

[00:00:12] Speaker 00:
Alex Podiman, on behalf of Gerhard Hollitz, I'm going to try to reserve two minutes for rebuttal.

[00:00:16] Speaker 00:
I will keep my eye on the clock and apologize about my voice.

[00:00:19] Speaker 00:
I will try to keep it up and audible.

[00:00:22] Speaker 00:
The government agrees that the district court aired an imposing condition 30, which is the computer content restriction.

[00:00:28] Speaker 00:
So the remaining question is whether the court should also vacate the 2,000-foot residency restriction in condition 31.

[00:00:35] Speaker 00:
For three reasons, the residency restriction should be vacated.

[00:00:38] Speaker 00:
First, the district court never analyzed whether 2,000 feet was the appropriate distance that would not unnecessarily infringe upon Mr. Hollett's liberty.

[00:00:46] Speaker 00:
Second, the district court did not conduct an analysis that was individualized to Mr. Hollett's and instead relied on a script that it had used in other cases that contained facts that analysis that was not pertinent to Mr. Hollett's case.

[00:00:58] Speaker 00:
And finally, it was substantively unreasonable for the district court to impose a condition that will effectively prevent Mr. Hollets from living anywhere in greater Los Angeles or any other city for the rest of his life.

[00:01:09] Speaker 00:
This is an extreme condition and it was not warranted on the record here.

[00:01:13] Speaker 00:
So I'd like to start with the district court's failure to analyze the proper distance.

[00:01:18] Speaker 00:
What this court said in Rudd is that when a district court is imposing a distance-based residency restriction, it is necessarily choosing that specific distance over other potential distances or other potential approaches.

[00:01:30] Speaker 04:
Do you agree that the court adequately explained why he was rejecting the direct view condition in relation to the residency restriction?

[00:01:39] Speaker 00:
I do agree with that, with the caveat that much of the analysis was not specific to Mr. Hollis' case.

[00:01:46] Speaker 04:
But the issue, Judge Sanchez, is that- It's more about the 2,000 feet itself and why he didn't explain that distance as opposed to a different distance.

[00:01:54] Speaker 00:
So slightly different.

[00:01:55] Speaker 00:
Directive view was not an issue in this case.

[00:01:57] Speaker 00:
Nobody was asking for a direct view.

[00:02:00] Speaker 00:
The district court said up front towards the beginning of the hearing, I'm not going to impose direct view because I have a problem with it being indefinite.

[00:02:08] Speaker 00:
And the defense accepted that and said, OK, we accept that.

[00:02:12] Speaker 00:
But we would ask that the definite restriction that you impose be a shorter distance of either 100 feet or 500 feet.

[00:02:19] Speaker 00:
The district court never acknowledged that request.

[00:02:22] Speaker 00:
And it never addressed it.

[00:02:23] Speaker 00:
It just went on to conduct this whole analysis of direct view, even though direct view was no longer on the table.

[00:02:30] Speaker 00:
And its reasons for rejecting direct view all went to a lack of definiteness.

[00:02:34] Speaker 00:
It said that, you know, I think there's ambiguity in a direct view condition.

[00:02:38] Speaker 00:
I need a bright line for the defendant to follow.

[00:02:41] Speaker 00:
Nothing in that went to how expansive the definite restriction should be.

[00:02:47] Speaker 04:
What about his public safety rationale that he described?

[00:02:50] Speaker 04:
I think it might have been part of that script or maybe in his own discussions.

[00:02:54] Speaker 00:
So the district court talked about a lot of things, some of which I think even the government agrees aren't pertinent to Mr. Hollett's case, like the need to protect latchkey children on Skid Row.

[00:03:06] Speaker 00:
I think the district court's public safety rationale, it was from his script, and it was only at a very high level of generality.

[00:03:14] Speaker 00:
And entirely missing from that discussion was, why 2,000 feet instead of 500 feet?

[00:03:20] Speaker 02:
Where was Hollett's living at the time?

[00:03:22] Speaker 00:
He was living in New York at the time of the violation.

[00:03:25] Speaker 03:
So he moved out to California for the hearing.

[00:03:29] Speaker 03:
I mean, did he just come out to attend the hearing and was going to go back to New York or did he move out to California?

[00:03:37] Speaker 00:
So he had been living in California for most of the time.

[00:03:40] Speaker 00:
He was on supervision in 2022, shortly before the violation here.

[00:03:44] Speaker 00:
He obtained permission from probation to move to New York to be closer to his brother who lives in New York.

[00:03:49] Speaker 00:
And that's where he was living at the time of the violation, but he's still under supervision in, well, I guess they transferred supervision, but they brought the violation here in Los Angeles.

[00:03:59] Speaker 00:
So yes, he came here for the hearing and that's where the hearing took place.

[00:04:05] Speaker 04:
Do we know where he would be supervised after his term of incarceration after this sentence?

[00:04:12] Speaker 00:
So the terms imposed by the district court require him to reside in this district unless he gets permission to move elsewhere.

[00:04:20] Speaker 00:
It's my understanding that he does intend to reside here.

[00:04:23] Speaker 00:
He intends to stay in Los Angeles.

[00:04:25] Speaker 00:
He has family here.

[00:04:27] Speaker 00:
And, you know, as the court said in Collins, that's a problem because these 2,000-foot restrictions essentially cover all of greater Los Angeles.

[00:04:38] Speaker 00:
And it's not going to leave him with any place to live.

[00:04:41] Speaker 00:
And I think that's an undisputed fact in this case.

[00:04:43] Speaker 00:
So then the question goes, is that a reasonable restriction?

[00:04:47] Speaker 00:
Well, I think if the district court had just come out and said, as a condition of supervised release, Mr. Hollis may not live anywhere in greater Los Angeles because it's a dense city and there's children around, I think it would be very obvious that that's not tailored to ensure that it doesn't infringe more of his liberty than reasonably necessary.

[00:05:04] Speaker 00:
And so the fact that it's- Can I ask this?

[00:05:07] Speaker 04:
In Rudd,

[00:05:08] Speaker 04:
or applying the rule from Rudd, does it mean that if counsel always suggests a different alternative distance for residency restriction that the court must undertake an analysis of which is preferable?

[00:05:26] Speaker 00:
I think probably yes.

[00:05:29] Speaker 04:
What if counsel doesn't suggest a restriction length?

[00:05:34] Speaker 04:
Does that change things?

[00:05:36] Speaker 00:
So Rudd says the district court has to explain why it has selected that particular distance.

[00:05:40] Speaker 00:
I don't know that that rises and falls with whether the defense requests a different distance, but when a defense does request a specific distance, both Rudd and I think just the general rule that district courts have an obligation to address non-frivolous sentencing arguments,

[00:05:55] Speaker 00:
required the district court to address that.

[00:05:57] Speaker 00:
And what happened, I think, was the district court came into sentencing with this script that was written to reject a direct view condition.

[00:06:04] Speaker 00:
He maybe got thrown for a loop a bit when counsel said, well, we're fine with no direct view.

[00:06:09] Speaker 00:
We just want a definite restriction, but a more limited one.

[00:06:12] Speaker 00:
And he instead charged ahead with reading this script that was all directed to direct view and didn't address the arguments that were actually being made.

[00:06:19] Speaker 00:
What are you asking us to do?

[00:06:22] Speaker 00:
Your Honor, we're asking you to vacate the condition.

[00:06:25] Speaker 00:
I think it's substantively unreasonable.

[00:06:26] Speaker 00:
I think it can't stand on this.

[00:06:28] Speaker 03:
What if we sent it—well, you want us to go on to say it's unreasonable?

[00:06:31] Speaker 03:
Your first argument is procedurally incorrect, can't stand because he didn't do the analysis that you're suggesting.

[00:06:39] Speaker 03:
So what if we sent it back and, you know, he adds—he focuses on the defendant's particular situation.

[00:06:49] Speaker 03:
the circumstances of the offense, maybe the violations.

[00:06:55] Speaker 03:
And he does his best to link the distance to the defendant and imposes 2,000 feet again.

[00:07:05] Speaker 03:
Then it comes back up to us.

[00:07:06] Speaker 03:
And then we ask whether or not it's substantively reasonable.

[00:07:09] Speaker 03:
Is that how this is going to work?

[00:07:11] Speaker 00:
So, you know, I think the court can reach the substantive reasonableness question now, and perhaps it would be beneficial to do so.

[00:07:18] Speaker 00:
And I think under Collins, it's clear that this is not a reasonable condition.

[00:07:23] Speaker 00:
Collins said that there's good reason to suspect that this condition is subjectively unreasonable for someone in Collins' position who had

[00:07:31] Speaker 00:
was actually being sentenced for possessing child pornography and had recently admitted that he had committed a contact offense.

[00:07:37] Speaker 00:
That's very different from the record that we have here.

[00:07:40] Speaker 00:
And so, you know, if the case goes back to the district

[00:07:45] Speaker 00:
It's one of the reasons that we asked for reassignment, and it's not a request that we make lightly.

[00:07:49] Speaker 00:
But if the district court reimposes this condition, even if it gives different reasons, I think given this district court's track record with this specific condition, there'll be reason to doubt whether that's truly based on a faithful application of Rudd and Collins, or at least a reasonable observer could question that.

[00:08:06] Speaker 00:
But why?

[00:08:07] Speaker 04:
You know, reassignment can't be just because you might predict the court to resolve things a certain way.

[00:08:13] Speaker 04:
There has to be a little bit of extra, don't you think?

[00:08:15] Speaker 04:
What would be the basis for reassignment to a different judge?

[00:08:21] Speaker 00:
So I'm mindful of my time, but I'll answer the question.

[00:08:25] Speaker 00:
I think the extra thing here is that we have a district court decades after running Collins, where I think it's kind of clear message that this condition should not be being imposed willy-nilly.

[00:08:34] Speaker 00:
You have to reserve it for really extreme cases.

[00:08:36] Speaker 00:
This district court appears to be imposing it across the board and apparently feels so strongly that it should be imposed that has gone to the trouble of creating this multi-page script that it is reading in

[00:08:47] Speaker 00:
multiple cases as the supposed individualized analysis that's justifying it.

[00:08:52] Speaker 00:
And so I think that that combination of factors suggests that the district court will have trouble putting out of its mind its commitment to this restriction.

[00:08:59] Speaker 02:
Is this district court routinely imposing the 2,000 foot limit in child porn cases?

[00:09:08] Speaker 00:
I think yes, Your Honor.

[00:09:09] Speaker 00:
We cited a number of them in our brief.

[00:09:11] Speaker 00:
And the government hasn't identified any case in which

[00:09:15] Speaker 00:
that was before this district court judge, in which he has not imposed it.

[00:09:18] Speaker 00:
So I think as the case comes before this court, the record seems to show that, yes, he is applying this across the board.

[00:09:25] Speaker 03:
Is it unique to this particular district judge, or is this condition being imposed throughout the district by other district judges?

[00:09:35] Speaker 00:
So I don't claim comprehensive awareness, but it's my understanding that He is the only judge in the district or at least one of only a handful that regularly imposes this condition And I think we can see that from the fact that if you look at all of these cases this court's recent cases with respect to this condition They're all coming from this one district judge So I think that's a pretty good indication that he's an outlier compared to the rest of the circuit Reserve nine seconds.

[00:10:03] Speaker 00:
Thank you

[00:10:18] Speaker 01:
Good morning, Your Honors, and may it please the Court, Joseph Guzman on behalf of the United States.

[00:10:23] Speaker 01:
I'd like to go straight to the record in this case because I think that there is some disagreement here as to how serious this particular defendant is.

[00:10:30] Speaker 01:
And the defense counsel minimizes the history and the record of this particular defendant, starting with his original offense, which involved not just a touching offense, but a pretty dramatic and aggressive touching offense.

[00:10:42] Speaker 01:
He took a child that was 14 years old to a hotel room, dressed him in diapers, wrapped him in plastic, took pictures of him, and before that had already told that child what he was going to do while for over a month he sent 20 different messages to him on AIM.

[00:10:56] Speaker 01:
That's how this case started.

[00:10:58] Speaker 01:
Now, in that particular PSR, you'll also see the defendant admitted to having sex with another 14-year-old boy.

[00:11:06] Speaker 01:
That is how this case started.

[00:11:07] Speaker 01:
And since that time and since the punishment was over, the defendant has not been a model citizen on supervised release.

[00:11:14] Speaker 01:
There are four violations here, two of which are extremely concerning.

[00:11:18] Speaker 01:
The first violation occurred only two months after he was released.

[00:11:23] Speaker 01:
It involved him being in a room with a child

[00:11:26] Speaker 01:
and not telling the mother of that child the nature of his actual offense.

[00:11:31] Speaker 01:
He told the mother that he had an internet-related offense, but did not tell the mother that the offense involved having sex with a child around his age.

[00:11:40] Speaker 01:
The third violation in 2014, defense counsel refers to this as conversing with the mother and her child at a public laundromat without telling the mother about his conviction.

[00:11:51] Speaker 01:
There's a lot more to that story.

[00:11:53] Speaker 01:
Again, for over a month,

[00:11:55] Speaker 01:
This defendant visited that laundromat specifically because he knew that that mother and those two children would be there.

[00:12:01] Speaker 01:
And he went at the exact time that he understood them to be there, which is around closing time.

[00:12:06] Speaker 01:
The defendant admitted that he was trying to befriend the mother because she had children.

[00:12:12] Speaker 01:
And he did.

[00:12:13] Speaker 01:
He got her phone.

[00:12:14] Speaker 01:
And the only reason why that violation report ultimately came to the court is because the neighbor who knew that he was a registered sex offender saw him with two children, those two children, who by the way are four and six, outside the laundromat, handing them candy and touching them on the head.

[00:12:29] Speaker 04:
Mr. Guzman, let me ask you this.

[00:12:31] Speaker 04:
What is it about that record that indicates that 2,000 feet is the appropriate distance that should happen for a residency restriction?

[00:12:40] Speaker 04:
Because I, you know, we're all familiar with this record.

[00:12:44] Speaker 04:
The problem is neither the government nor probation recommended this type of condition.

[00:12:49] Speaker 04:
It came from the court itself.

[00:12:50] Speaker 04:
And there doesn't seem to be an explanation as to why 2000 is the appropriate distance as opposed to what council had proposed.

[00:12:58] Speaker 04:
So help us.

[00:13:00] Speaker 04:
Is there something that we can infer from the record that would support a 2000 foot restriction?

[00:13:05] Speaker 01:
Certainly, your honor.

[00:13:06] Speaker 01:
And in fact, I think that the district court judge made a specific finding on the 2000 foot restriction in ER 48.

[00:13:12] Speaker 01:
And it was a finding where this court has upheld that similar finding in De Los Santos 1 and De Los Santos 2 and Carrasco.

[00:13:19] Speaker 01:
And I think there's a key difference here between this case and the prior cases.

[00:13:23] Speaker 01:
In this case, we have not only an offense in which the district court is sentencing somebody in the first instance, we have four violations which show that the defendant was getting increasingly dangerous over time.

[00:13:35] Speaker 01:
Probation department several times in their reports talked about

[00:13:38] Speaker 01:
how the defendant's actions are escalating.

[00:13:41] Speaker 01:
The district court used that language in this particular sentencing hearing, talking about his concern about the escalating nature of the offense.

[00:13:50] Speaker 01:
In the fourth probation violation report, the probation department wrote, the defendant's conduct is not a lapse in judgment.

[00:13:57] Speaker 01:
It is egregious, premeditated, and calculated deceit.

[00:14:01] Speaker 01:
This is in CSD 60.

[00:14:03] Speaker 01:
Given defendant's criminal history, defendant poses a significant, if not imminent, risk of a free offending.

[00:14:10] Speaker 01:
The district court heard those statements by probation.

[00:14:14] Speaker 01:
And I think that the district court issued various punishments throughout the four violations.

[00:14:19] Speaker 01:
And it got increasingly serious.

[00:14:21] Speaker 01:
And finally, the district court decided on the fourth violation report, he was going to try something new.

[00:14:25] Speaker 01:
Because clearly, the prior sentences were not preventing this individual, the defendant, from harming children.

[00:14:32] Speaker 04:
But I guess the difficulty I have with that argument is a similar thing happened in Rudd, where there had been reasons to impose some type of a condition based on the defendant's actions in that case.

[00:14:46] Speaker 04:
But that wasn't enough to explain why a 2,000-foot restriction was appropriate as opposed to a different type of condition.

[00:14:55] Speaker 04:
I grant you, I think, you know, he conceded violation and some type of condition should be imposed, but it's still murky why it would need to be 2,000 feet.

[00:15:06] Speaker 04:
It just seems to be difficult to square what the court did here with what Rudd requires.

[00:15:13] Speaker 01:
There's a few ways to distinguish this case from Rudd.

[00:15:15] Speaker 01:
So first of all, as I mentioned, Rudd involved the initial sentencing of a defendant.

[00:15:18] Speaker 01:
And so in that particular instance,

[00:15:20] Speaker 01:
there was no record in front of the court as to how this person would perform on supervised release.

[00:15:26] Speaker 01:
Secondly, in Rudd, the district court did not provide any reasoning whatsoever for residency restriction of any amount of feet.

[00:15:34] Speaker 01:
That's a key difference.

[00:15:35] Speaker 01:
And in fact, when this court has sent these cases back, it is often because there is no actual explanation whatsoever on the record.

[00:15:43] Speaker 01:
And here you can look at ER 36 to 37, ER 47.

[00:15:48] Speaker 01:
In the midst of this alleged script, the court is identifying specific facts on this individual.

[00:15:54] Speaker 01:
The district court is well aware of this defendant's history, and he references those things throughout this so-called script.

[00:16:03] Speaker 03:
His use of a script, I mean, a little bit.

[00:16:09] Speaker 03:
I used a script at times when I was a district judge to make sure I covered all my bases.

[00:16:15] Speaker 03:
I didn't want to overlook something.

[00:16:18] Speaker 01:
Absolutely, Your Honor.

[00:16:19] Speaker 03:
A checklist kind of thing.

[00:16:20] Speaker 03:
But he's got a script here that's not really tailored to this particular defendant.

[00:16:27] Speaker 03:
For example, if you go to his explanation, when he first says he finds within sight whatever the prior restriction was, it's just too ambiguous, there's no certainty in that, so he wants to impose some certainty, so there's no ambiguity.

[00:16:48] Speaker 03:
Then he says, there are a couple of things that caught my eye.

[00:16:56] Speaker 03:
You know, if his proposed residence is located within Skid Row, was there any suggestion that he was going to live in Skid Row?

[00:17:07] Speaker 01:
Your honor, I'm glad we're talking about that issue.

[00:17:09] Speaker 01:
There was no suggestion on the record that he would live in Skid Row.

[00:17:12] Speaker 01:
But if you look at what the court was articulating, he's articulating a concern about children of low-income families, children that have maybe a single parent, who probably have to rely a little bit more on walking more than 2,000 feet to school, to a public pool, maybe even an arcade.

[00:17:29] Speaker 01:
And the defense counsel talks about how

[00:17:30] Speaker 01:
It would be it's not likely that children will be walking 2000 feet to a public pool.

[00:17:36] Speaker 01:
That may be true for children that have a pool in their backyard.

[00:17:39] Speaker 01:
And I think what the district court is articulating when he's talking about the last key children, even if it's not articulate, he's expressing a concern about children who do have to walk 2000 feet, perhaps to school, perhaps to take a bus to school in part because their parents may not be able to take them to school or they may not have a nanny that can take them to school.

[00:17:57] Speaker 01:
And with respect to the scripture on it, I agree.

[00:17:59] Speaker 01:
It is not a script.

[00:18:00] Speaker 01:
It is a list of factors.

[00:18:02] Speaker 01:
And the list of factors.

[00:18:03] Speaker 03:
Well, I didn't say it was a list of factors.

[00:18:04] Speaker 03:
It was a script.

[00:18:06] Speaker 01:
I'm saying I think it's a list of factors.

[00:18:08] Speaker 01:
I think that's the appropriate way to classify it.

[00:18:10] Speaker 01:
There is nothing wrong with using a list of factors.

[00:18:12] Speaker 01:
And I'll point out that the list of factors demonstrates that this judge is, in fact, taking his lessons from this court.

[00:18:18] Speaker 01:
That list of factors is incorporating what this court decided in Rudd and other decisions.

[00:18:22] Speaker 02:
So I have some other problems with this particular condition.

[00:18:27] Speaker 02:
Obviously, I think imposing a standard 2,000 feet regardless of the nature of the individual defendant before you is contrary to the principles of sentencing.

[00:18:44] Speaker 02:
We have individualized sentencing.

[00:18:47] Speaker 02:
But the restriction says that the offender shall not reside within 2,000 feet of, and then it lists a few things.

[00:18:55] Speaker 02:
But then it says, or other places primarily used by persons under the age of 18.

[00:19:00] Speaker 02:
So that, to me, I'm not sure what that means, but it certainly seems to me that it would cover malls, shopping malls, grocery stores, places where

[00:19:18] Speaker 02:
I mean, sporting events, the circus.

[00:19:24] Speaker 02:
I mean, I don't know how he could decide where to live.

[00:19:29] Speaker 02:
And I'm within Los Angeles, if he's going to live in Los Angeles.

[00:19:36] Speaker 02:
I don't know where he's planning to live.

[00:19:37] Speaker 02:
But it seems pretty difficult to find some place that's not going to be within 2,000 feet of a place where people under 18 go.

[00:19:48] Speaker 02:
Movie theaters.

[00:19:50] Speaker 02:
That's another one.

[00:19:51] Speaker 02:
I mean, there's tons of places.

[00:19:53] Speaker 02:
I just am thinking of Old Town.

[00:19:57] Speaker 02:
You couldn't live within 2,000 feet of Old Town in Pasadena.

[00:20:02] Speaker 01:
I understand, Your Honor, and in fact, I think that same concern was raised in Rudd, and I'll give the same answer, which I think still applies.

[00:20:08] Speaker 01:
We have to look at condition 31 in the full context.

[00:20:10] Speaker 01:
In this paragraph, the sentence after this particular concern states that the offender's residence shall be approved by the probation officer.

[00:20:17] Speaker 01:
That means that the probation officer has to decide if it's okay.

[00:20:21] Speaker 01:
And therefore, the defendant can propose different residencies, and then the probation officer can decide.

[00:20:27] Speaker 01:
That will take care of the vagueness issue.

[00:20:29] Speaker 01:
And if I can, I know my time is up.

[00:20:31] Speaker 01:
I just want to remind the court in ER 47, in the midst of this list of factors, the district court identifies specific issues about this defendant.

[00:20:41] Speaker 01:
So it was not generic reasons.

[00:20:44] Speaker 01:
And if I can close with this, it's that after 15 years of supervising the defendant, four violations of supervised release, and by my count, over 110 pages of reports about this defendant's violative conduct and underlying offense, this district court concluded reasonably, and it's certainly not illogical for him to do so, that this is in fact one of the most dangerous sex offenders, and the 2,000-foot restriction

[00:21:09] Speaker 01:
should apply to him if to any other of the defendants that this court has considered.

[00:21:12] Speaker 01:
Thank you.

[00:21:13] Speaker 02:
Thank you, counsel.

[00:21:17] Speaker 02:
I'll give you a minute.

[00:21:18] Speaker 02:
Your opposing counsel took a minute.

[00:21:22] Speaker 00:
Thank you, your honor.

[00:21:24] Speaker 00:
Just a few brief points.

[00:21:25] Speaker 00:
I'll pick up where counsel left off with the other condition that the probation officer approved his residence.

[00:21:31] Speaker 00:
that condition should be sufficient to ensure that he's not living too close to some place of concern.

[00:21:37] Speaker 00:
The only thing this distance date pace restriction is doing is imposing an additional restriction on top of that that says even if your probation officer would think this location would be okay, you can't live here because it's within this arbitrary distance.

[00:21:50] Speaker 00:
I think that exemplifies why the condition is unreasonable.

[00:21:53] Speaker 00:
You know, the government also talked about the list of factors and that the court was taking guidance for Ronan Collins.

[00:21:59] Speaker 00:
I think what happened here is the opposite of Ronan Collins.

[00:22:02] Speaker 00:
Ronan Collins say you need an individualized analysis.

[00:22:04] Speaker 00:
And I think it's clear that the district court was using a script here.

[00:22:07] Speaker 00:
It was not an individualized analysis.

[00:22:09] Speaker 00:
And finally, I'll just say, it's notable that the government even now doesn't say that it thinks it's necessary to banish Mr. Hollets from living anywhere in greater Los Angeles, even as it doesn't dispute that that's the effect of this condition.

[00:22:21] Speaker 00:
I think it's an unreasonable condition, and I would ask the court to vacate it, and we would renew our request for a reassignment or remand.

[00:22:30] Speaker 02:
Thank you.