when you are prepared you may p mittens had her first sexual experience at age sixteen she was raped her rapist laughed at her while she cried she didn't tell anyone for a long time years later in her early twenty's she tried to get in therapist to help her move past it and her therapist told her that she saw it since he had been molested by her father and didn't see it that way and she never went back to therapy or relationship with her father was far from perfect but as she recalls it was not that kind of a relationship there were certainly problems her father would use a hammer to slaughter rabbits in front of her when she was young and they would string up the carcasses and they are he would throw things when he was angry sometimes big things like that's what we we have we've read the brief and understand the horrible facts on all sides of this matter but absolutely i think you'd use your time better if you'd focus more on the the actual sitting issues that we face such as the undue influence to him and other matters thank you and i just wanted to make certain the court had fresh in its mind a good understanding of might who my client was as a significant part of my argument is about our position that the sentence was substantively unreasonable course there are facts a cut the other way as well concerning the conduct towards the victim absolutely there are your honor and it's exactly that why i think it's so important to examine the facts from both sides because frankly as they relate to the victim themselves your honor and i don't want to pretend that there's some calculus to these kind of cases because they're all atrocious but the reality is the physical touching and the harm that happened to to this victim was far less than what we see in many other cases where people receive sentences half as much as what my client received there were and again but that may be a good segue to the undue influence of the relationship between a mother and a daughter absolutely your honor and that i think is is a significant part of this case and the issue that i want the court to understand is that our perspective is the sentencing court significant weight to an improper factor and part of the transcript and again i appreciate the court has used and i can skip the quotes of the court wants but the reality is that the court talked about all the different reasons why the court would all those things that are persuasive persuasive to me normally and other words a reason that the court would normally give a lesser sentence but in this case there are some cases the court said so there they are th ings that are so serious and so dangerous that no matter who the offender is kind of the phrase second chance doesn't apply and in my view this is one of those cases or one of those crimes excuse me so why was the court so offended and there was a there was discussion at sentencing about this but the court said specifically it's not so shocking to us because you're the mother it's so shocking because you're the parent in other words because my client was a parent the court put this in a different perspective and said when this case is so bad because you're the parent that we're not going to look at all the factors would normally look at the court wouldn't look at all the factors you normally would the court even said would normally be persuasive to her but it's because my client was a parent the reason why i say that's an improperly they wouldn't be persuasive doesn't mean though i normally would of so it's just one factor being the parent that gave the gave the significant input impetus in this case so why why do you say that's an improper factor because it's already accounted for in the guidelines the guidelines are to gave my a two point enhancement because of being the parent and why is a two point to have been so significant well my client even after the three point adjustment for cooperation was still only two points away from the top of the  lines they ended forty three after her three point us adjustment down she was at forty one but two more two points puts her at a life sentence and that's for a person who was forty nine years old who had absolutely no history of any criminal anything no no arrests no probation no nothing in her entire life until at age forty nine while she was according to the psychologist and according to the court a broken woman a psychologist found her to be very naive and i can't remember the exact quote but she's externally naive a broken woman and this woman without any problems ever in her lifetime who was from my perspective groomed by a pedophile  prior convictions this woman because she was the parent the court would not make any adjustment any variance downward that the court said she normally would have given these factors that's why the sentence of three hundred twenty four months a substantively and reasonable and again not to try to get in the calculus of this crime versus another crime but the reality is that this court sees many cases where the victim is victimized in a much more significant way albeit not by the parents so is there anything specifically in the guidelines that tells us it's privy to double counting to consider both the parental factor as well as undue influence  as to whether or not there can be double counting or not in this in general but it's rather these particular circumstances that we don't look at the guidelines we need to look at the case while that's developed talking about when it is or is not double counting and that brings us back to you  versus hip and back or from one thousand nine hundred seventy which talked about in general what is double counting double counting according from the case double counting occurs when one part of the guidelines as applied to increase a defendant's punishment on account what kind of harm that has already been fully accounted for by application of another part of guidelines have been back or goes on to say double counting is permissible if one the commission intended the result and two it staff story section concerns conceptually separate notions relating to the sentence in other words according to hip and back or what the commission tells us is one part of the test but the problem is don't tell us and in this case they specifically do not tell us that it's double counting but i would say it's double counting under hip and back unless the commission has intended the result of it silent i don't think you can say they intended the result i don't i think you're i think you're misusing the term double counting i think double counting refers to the situation where there's arguably two or three guideline adjustments i could apply to an offense and you use multiple adjustments to increase the guideline i don't think we've ever sad for instance that a judge who says i'm giving you a higher sentence because you have a horrible criminal record there we say well you can't do that because criminal history is already accounted for i think judges do this every day they there are factors that they considered a to and i don't i don't that's not the answer your honor if i can clarify your position i apologize if i was not clear in reference to whether or not this was a substance substantively unreasonable sentence that's a whole different part of our argument but rather with regard to whether or not the guidelines were properly calculated in the first place that's where a double counting argument comes in and it's in reference specifically to whether or not it is appropriate to use the parent enhanced when a defendant is a parent as well as the undue influence when some for different harms well i think one has to do with relationship the other has to do with the actual undue influence they have on you can have undue influence u can be a started or affected that individual is not apparent that they absolutely are on it and i guess what we're trying to say the defense position here is that in this case factually they rely on the same here those two things are in fact double counting i'm not saying they always have to be double well i guess what i'm saying is when you talk about double counting in the sense that you're arguing it don't you look at the harms that are being addressed the harm that's being addressed about each of the each of the enhancements and isn't it a fair isn't it fair to say that there there is a distinct harm based upon the parental the status of being a parent that's taken into account that separate from the distant harm of whether undue influence was present and i absolutely see that see the court's perspective that the notion that as a parent when you when you victimize your child that's a different kind of harm and i appreciate exact what the court saying i don't think that's what's going on here however because in fact the end to influence in this particular case  is not separable from the parenting aspect of it in other words the harmony issue is the the way in which my client influenced her daughter and that's part and parcel and these facts of the fact that she was the parent but the court in finding that under the influence applied said i do find by a preponderance they have and so the government has established that the defendant did in this case after closely considering all the facts under will under the influence of her child to engage in prohibited sexual conduct by really overriding the will and physical resistance of her child encouraging her new singer enticing or in the court goes on but the point being it it's all about the relationship the fact that it is the child and that's the harm here wasn't just the relationship it was the techniques used to get the child's participation into those acts with the perpetrator correct your honor in an arson committing those acts toward the child would not have had to be the parent understood your honor in a way but i would say factually here they had to have been the parent because only the parent would have that kind of access and be able to do the typically for a nine year old but they did it's not it's not factual good morning may it please the court the defendant in this case offered up her nine year old daughter to a convicted sex offender so that this man could sexually abuse that little girl the sentence at the bottom of the advisory guideline range was certainly within the district court's wide discretion and there were no errors in calculating the guideline range i'll start with the undue influence and handsome and where the court left off these are separate harms the parent enhan meant and the under influence enhanced meant target separate things the parent enhanced meant applies automatically based on a defendant status if a defendant is part of this conspiracy and is a parent then she gets the enhancement simply by virtue of her status so for example when the defendant brought her daughter from minnesota to iowa so that the sex offender could sexually abuse the girl that was sufficient to get the parent mansmann the undue influence enhanced it was based on additional conduct of the defendant engaged and that involves a separate heart so for example when they are in a hotel room and the defendant is shaving the genitals of the sex offender and tell the her nine year old daughter to help and the daughter says no she doesn't want to and the defendant grabs this little girl's hand and places it on this man's penis the district court found that that compromised the voluntar of this nine year old actions i can't imagine any court anywhere disagreeing with that conclusion it's plainly true and that's the legal standard for the undue influence enhanced meant it's a different it's different conduct than simply being the parent is far more aggravating conduct than simply being the parent and it is worthy of an additional enhanced meant i also know that under the guidelines because of the age difference between the defendant and the victim in this case rebuttable sumption that this enhanced one applies i have not heard any evidence either in the trial record at the center not in the trial record but at the sentencing hearing or this morning that would rebut the presumption that when you physically cause a nine year old to touch goes beyond undue influence to coersion into actual physical absolutely it's assault and coersion that's probably the most blatant example there are other examples in the record but there's no doubt that there was additional conduct here separate from the merely being a parent that warranted that enhancement we're not aware of any court saying that under circumstances remotely like these there's double counting here the defense argument rests on application note for to this particular guideline that note says that a person has to use a computer to communicate directly with a minor or someone who has custody of a minor there are a couple issues here first the guideline itself has two parts and application note for only applies to one of those parts so that's the first issue basis on which the court could affirm the application note does not apply to par capital b of the guideline which says that the enhancement applies if someone uses a computer to entice or encourage a person to engage in for him but it's sexual conduct with a minor so in other words if i use a computer to reach out in the world to another adult and to entice and encourage that adult to have sex with a minor then i don't have to communicate directly with the minor i'm communicating with someone else to get him to have sex with that minor this court held in the you the united states against gibson that the application note does not apply under that scenario we cited gibson in our brief the defense did not acknowledge gibson in their reply but it really controls th issue because what the defendant did here was she pressured her nine year old daughter to take new to pose for nude photos the defendant then takes those nude photos of her daughter on an i pad mini which a computer and then she uses that i had to send those photos to the sex offender and the purpose of doing that was to entice or encourage the sex offender to sexually abuse her daughter which is exactly what happens because they then meet up so that he can commit that conduct that's a textbook case of conduct that is covered by this enhancement and there does not have to be direct communication with the minor but even if the court wanted to affirm on the other sub part of the guideline which is part capital a that applies when the offense involves the use of a computer to essentially persuade or entice the travel of the minor to engage in sexual conduct and there you do have to a computer to communicate directly with the minor but the key phrase here is that the offense must involve the use of a computer well the offense in this case was a conspiracy that's what the defendant pled guilty to it was a conspiracy between her and the sex offender to transport this minor and the conspiracy without question involved the use of a computer to communicate directly with a minor as part of this conspiracy the defendant sex offender conspired to cause the nine year old to communicate with the sex offender over a computer so that they could then entice this girl to travel so that she could be sexually abused those conversations happened over the course of months the sex offender is chatting with this victim on the computer he sends her photos of himself ejaculate ing the defendant is present she tells her daughter that watching him ejaculate is a good thing this is all part of the grooming process so that they can essentially break this girl down and get her to a place that they can cause her to travel so that this man can have sex with her so there is no question that the conspiracy involved use of a computer to communicate directly with the minor the defendant is directly involved in that conduct she is responsible for the actions of her coconspirator certainly under any sort of a pinkerton theory she's responsible for his actions she's also responsible for them under the definition of relevant conduct their acts of her coconspirator and codefendant that are known to her that are in furtherance of the conspiracy indeed these communications over a computer are ones that she is present for and encouraging and enabling and so there is no question that the offense the conspiracy involved use of a computer to direct possibly get very far because as i understand the arguments that the district court considered an improper factor namely the fact that the defendant was a parent well as judge malloy pointed out there are many factors that are included in the guideline calculation that a district court might decide are simply very aggravating and so the defendant got a two level enhancement in this case for being a parent but there's certainly nothing improper about determining that when a parent commits the conduct of the defendant committed in this case that it is particularly aggravating maybe even more than two levels aggravating but i don't think the court even needs to get to that issue because the fact of the matter is that this defendant was tense at the bottom of the guideline range so we acknowledge that the parent enhancement is accounted for by the guidelines and she got a guideline sentence so we're not aware of any court anywhere saying that a guidelines and says improper when when the district court considers facts that are accounted for by the guidelines that's why you get a guideline sentance the other i'm not going to rip her the facts of this case they are frankly too vile to repeat in this court room but the defendant's conduct in this matter over the course of months was i would submit that the only proper response to it is one of moral outrage and that the district court in this case was very careful she noted that it there is a danger of having an emotional reaction to a case like this and she specifically said that she was guarding against having that sort of emotional reaction she discussed the district court discussed in great detail the mitigating facts about the defendant and the aggravating facts and made a judgment that in this case the aggravating facts outweighed the mitigating lines that is the exact sort of exercise of discretion that is within the particular province of the district court and it cannot be substantively unreasonable to sentence a woman who offers up her nine year old in this way to the bottom of the guideline range you would ask thank your honour's with regard to the argument about it being substantively unreasonable whether or not it was significantly to an improper factor or the court used clearly erroneous facts such as the court's finding that she being my client is personally an actively leading this conspiracy versus weighing factors improperly looking at the notion of manipulated versus coerced whatever it is we have a substance of the unreasonable sentence because again my client for nine months was groomed by the sex offender someone to four different times that had convictions related to sex offenses and children and over the course of nine months when she was dealing with depression when she was not fit when she was strikingly naive during this time frame over the course of nine months he got into her head and got her to do something that was otherwise completely out of character for her because he's now you're you're arguing for  three way the facts i'm asking this court that to look at the facts and find that the court's decision wasn't was substantively unreasonable based on those facts and and one of them this notion of being manipulated versus coerced we had findings that talked about that she was a female coerced sex offender meaning mensa when you read some of the transcript of the conversations it it's it's understandable why someone might not reach the conclusion you  advocate and that's exactly that's exactly i'm talking about your honor when we look at the did trains we're talking about that the messages back and forth between the two there are two different sets of them there is the the facts are they're talking about historically what happened and those are are terrible but the really vile facts that we read are the ones where she is fantasizing with him about an attempt as it was her burden to get him off she said some horrible things in in order to help him with his fa you've been groomed to do that over the course of nine months just briefly though with regard to use of a computer your honor that the notion that the government says well we can use the other subdivision because my client reached out to the sex offender and enticed him it under gibson your honor again for nine months he was reaching out to her getting into her head and the notion that she was trying to entice him to write produce i think is a difficult position for the government t at the very best when in fact he was using the computer to groom her now from their other perspective well that she's responsible for the actions of a codefendant that is a different position to take and that's exactly why i asked the court to look at the fact that this woman who is a victim in her own right who is not mentally well who was groomed for nine months did after all of that do things that she is horrified by she couldn't even at first realize that she done those things because it was so bad to her that she just literally could had to block it out she is incredibly remorseful she feels horrible about what she did and she did it because this man groomed her just like he then with my client groom the one year old thank your honour's interest rules court thanks both counsel for your presence an argument this morning and the briefing that you submitted we take your case under advisement render decision due course thank