two in mind stevens objected at sentencing as he does now on the grounds that under the two thousand and three definitions of a minor a minor was a person who is not a pain the age of eighteen about that's right now on and the court found that that the court found that it was that it only clarified the provision that it found clarified changed the definition of minor from a person who who had not seen the age of eighteen to including that and also adding in expanding that who either it actually had two categories a law enforcement officer representing that another person was under eighteen or the law enforcement officer who represented through the defendant that he was in our position and as it is now is that this was a substantive change in your client have tempted at a minimum to distribute to a minor are and why wouldn't that result you know essentially the same consideration by the district court sentence was level forty or forty one and without this enhanced we're looking at a level three four and to whether this is a clarifying or a substantive amendment and in the court below the district court relied on the morton case which is the eleventh circuit case that we believe still has vitality even though it was remanded or a finding of the sentencing regarding  booker and that the discussion in morton talks about again clarifying versus substantive amendments and notes that in another portion of the guidelines dealing with the same issue that the word victim includes law enforcement absolutely attempt does qualify under the guidelines and so i think that your your question really kind of hits the nail right on the head i think it was very clear to all of us in the sentencing hearing that judge people believe that robert stevens was a very dangerous know there certainly is an argument about that the the ninth circuit case that is directly on point on that talks about is it on the list and of course it isn't on the list in this case it's a huge amendment what is the commission's characterization and in this case the commission said that it made this amendment in response to an increase in undercover law enforcement activities and the other the third factor being what does it was all the circuit conflict and it really isn't a circuit conflict because i think m even if they say it's a substantive amendment you can still find it's a clarifying amendment because you look at that issue specifically and look at the history and i think that's you know that really is the issue here and it is a close call there's no doubt about that i think that why it would make any difference because as a matter of law the guideline would still apply to an attempted distribution to our on line that's correct i mean and the other issue is he makes the argument that that it's a seven level increase and even if you find that this is a completely substantive amendment and therefore you can't apply it then he would get at least a five level distribution as i noted in my brief or expectation of a thing of value which he believed he was going to meet this person he thought was a value and so that would be an issue i think that the court would need to look at if you agree man and decide that this is in fact a absence rather than a clarifying amendment and we believe that the district court would then need to have a resounding hearing and decide is this a two point distribution then a five point well and in this case we could have at some point down the road charge the distribution where you could write the events occurred with a receipt in full possession and then the search warrant his admission that he had committed top progress defenses and after the government took his computer and enhanced not that he received first actually using his own daughters he objected to that below the district court made the finding and then he's abandoned that on appeal but those are all relevant conduct issues that don't need to be glad that can be proven in this case i believe the court found  and convincing evidence that those did occur and there simply isn't any argument here that he didn't distribute these images the question is the number of levels in terms of clarifying versus substance and any other questions from the panel i believe not thank you thank you and i  for distribution or if they can prove they can something of value that goes up by level but there's no record on that court did you address that so there is a lot at stake here i do not believe the morton case help commentary in effect in the year two thousand and one on and on a different hansen and it did not address this issue that is whether an amended definition of a minor which now includes in adult law enforcement officer is a substantive change to the old definition and the eyeless court did address that issue and that was my reason for citing it and bring it to the court's attention because it was a very  definition of the word minor as used in two thousand three guideline there is nothing on in big us there is nothing hard to understand about this change has to be considered from a common sense damn point that