hundred and twenty months and i respectfully submit that this sentence is problematic for a number of reasons st it is substantively unreasonable and secondly and this is not in my brief this is a this is something which has reared up in the last twenty four hours yesterday i got in from phoenix late in the day and when i was able to go online and discovered a letter from my adversary mr solver indicating that he had reviewed the sentencing documents and it come to realize that the  guideline range that had been proposed at the time of sentencing was dramatically incorrect and i think judge d'agostino would have imposed a lesser sentence if she knew the guideline range was two hundred years rather than five hundred years also that's a dozen excellent question and i don't know all i can do is speculate and i don't think that the court is interested in hearing me speculate about these things the fact is that on a five hundred year guideline range you know if my client started  i actually is going to come back in just a minute i respectfully submit that that enormous guideline range is a factor which the court was required to take into account when balancing the equities in this case and because the thing regardless of any potential miscalculations in the guidelines boring the court would impose the same sentence yes that's that's the judge's language at the time of sentencing and i don't know if that is controlling here or if that were just was just preparatory just something to do something that you know avoid any find tuning adjustments but in any event the  child pornography charges several he pleaded guilty to the entire indictment so please don't don't think that i'm trying to minimize that it's very very serious however we're also required to look museo as a person and it is middle late thirty's who has no prior criminal history he was once the law enforcement agencies came into contact with him he was incredibly cooperative he admitted his guilt he cooperated in every conceivable way in a form of time given the opportunity to do so he waived his right to trial he pleaded guilty and he he accepted full responsibility for this not george museo is a mercy is a person he's a very humble person he's not he has a limited intellect he was the victim himself of childhood sexual abuse he has a psychiatric history he was released by judge status pheno pending trial and during that period of time he he did fine he was under supervision he behaved himself he had no computer he couldn't get  married he has two children they live with he and his wife and their children are children were living with their parents if you see from the sentencing documents and ask a question are action things that you just mentioned items that the you are aware of the difficulty of making out a substantive on reason one is mine and the conduct here as you say started is extremely egregious and there's no indication or at least i was unable to find anything that the district court failed to consider your client's history his substance abuse problems his mental health problems so it's hard for me to see given the guidelines range was a life sentence she departed and that how how we are in a position to conclude that this is a substance of leon reasonable sentence well i realize that sentencing is perhaps the most difficult job that a district court judge has heard that frequently in fact is that he actually did very well when he was under supervision and therefore i submit that his dangerousness to the community post sentencing can be very  controlled by lifetime supervision and that's one of the things that was part of the sentence i don't i don't suggest that that should be changed i think that mr moviefone do well with life and supervision he did very well with pretrial supervision he work he behaved himself he did all the things that he was supposed to do there were no substance abuse issues there were no law enforcement issues he just simply was moving along and enduring doing well and i would submit that for the judge to impose a sentence so dramatically in excess of the agreed upon set of the not the agreed upon sentence but the recommended sentence from the plate remit is evidence of the fact that perhaps the judge didn't give full consideration to those things  while and clearly judged discussed the six thousand month guideline range on at least two occasions and partially based her sentence on that guideline range i would i just interject there you did receive the government's letter late yesterday as did we are learning us to a miscalculation it's a missing would you like an opportunity to respond to that please the court pulse all around the half of the government i would like to say initially that there was no agreed upon sentence in the plea agreement there was a plea there was a waiver of a right to appeal and three hundred and sixty five lines but what i think is standard practice if you will the please greenman says expressly that nothing in the appeal waiver is meant to or should be construed as a representation or an agreement concerning the appropriate sentence in the case so i don't think it's fair to assign weight in this argument to where the parties to the plea waiver no question a thirty five years  long sentence and in thinking about it i think it's helpful to look at the spectrum if you will of these types of cases where perhaps the least serious would include simple possession i don't mean to demean that either of child pornography and at the highest end of the spectrum would be hands on abuse of a child for starters i would say that production of child pornography falls somewhat right in the middle of that spectrum and i would say in this case we're in the upper half of the spectrum because it wasn't just a production of child pornography that result but this defendant took those images and worse took the social identities of his victims and provided them to at least one other predator online predator who then tried his efforts at getting at least one of these victims to produce additional child pornography so i think that's a very significant fact here that distinguishes it  from a production case without more in arguing that the sense imposed is substantively and reasonable at least with respect to the brief not so much here today counsel argue that two or v and it's progeny have come under state a lot of scrutiny by the courts because of the tendency in possession and distribution cases to result in guideline sentences that approach a statutory maximum without differentiating between the less and the more c defendants but i think it's fair to say that this court has routinely were frequently treated production cases differently than cases that should be controlled by  remanded to her she imposed a twenty five year sentence which on appeal this court held was barbaric is a sentence in this case when there's no contact with any victim and a longer sentence than the thirty years she imposed they're not barbaric i think the fact that there is no contact obviously plays into the substantive reasonable list of the sentence do i think this is barbaric no and i would ask what distinguishes it from sawyer if it's not barbaric as this court held it was better barbaric but not uncommon well in this case we have production of child pornography we have two victims that formed counts of conviction we have an investigation that discloses fourteen victims that produced child pornography at the urging of this defendant and when this defendant spoke to the probation office he indicated that he had contacted some one hundred dollars miners are in line and had conversations with them seventy five percent of which he estimated to be of a sexual nature and i think it's a fair inference that that was designed to achieve the result he got here so i think there are some very aggravating circumstances here or in new york state if you have sex with someone under the age of eleven you've committed rape in the st degree and least the statutory maximum for that crime is twenty five years do we should we consider the fact that there is such a disparity between the sentence imposed in this case and a child rape sentence imposed in the state courts of new york you know why not regardless you know why not because we're in a federal system and the substantive reason alone is of a federal sentence i submit your honor with all due respect shouldn't hinge on how a particular state happens to treat a related crime for lack of that word so it's state that's not there the the coincidence that he says he's prosecuted in federal court means that he can get dramatically longer sentence for much less serious conduct i think that's the right answer your only yes and that's because what we're seeing seeking i think through the guidelines and principally through the guidelines is uniformity throughout federal sentences i don't think there's an interest in determining an appropriate federal sentence to consider what the state sentence might have been  and one example might be if it's kinetic it treats a rape conviction differently than new york that shouldn't in my opinion your honor influence whether a federal judge applying federal law impose we take fairly seriously that the anchor in the district court judge calculates the guidelines range and understands what it is at the beginning and it seems like this began with a misapprehension for a few reasons i don't would be very helpful for us to hear i apologize for that here i mean and i'll tell you quite frankly on a personal note i generally don't even look at that number because it seems to me that that's i don't want to say irrelevant i think that overstates what the guidelines say suggest to the district court the sense that you should impose here is life and that six thousand number of the two thousand four hundred number is really only the means to accomplish what the guidelines have already suggested and i think i'm guilty of this is well but i don't i don't think six thousand should be regarded as the guidelines sentence i think the guideline sense is life looking at the counts of conviction we should be doing some math the mass should result in two thousand four hundred months not six thousand but all that number is there is a way to achieve the guideline sentence of life if the district court is inclined to impose a life term of imprisonment so i don't think that there's any realistic notion that the judge said all right i'm starting at five hundred years you didn't say this i'm going to this judge that just you know didn't depart from six thousand months she imposed a non guideline sentence and as you indicated judge livingston she added that regardless of what errors might be and they were not brought to her attention we never they might be this is the in the sense i would impose regardless of the guidelines so for all those reasons the concerns that you raise which i he was a predator were and yet he never touched any child was never in the same room with any child in what sense is he a predator and in the ordinary definition of that word well if by ordinary  honor you mean someone who puts his hands on a child it didn't happen here now there were some conversations where the defendant discussed well when we need you know i'm not here to suggest that he had the intention of meeting a defendant be a victim in this case but clearly he was a predator i mean when these young girls who love and thirteen years of age with counts of conviction realize that they gain some maturity and realize that they have sent pornographic images of themself to someone who then went and shared them again and again it's a serious crime there's no question about that but i'm trying to figure out is if you have a lifetime of supervised release where his computer use is restricted his phone use is restricted why is why is it not a sufficient sen to go much lower than this court went in other words the point is to protect the public she emphasized that a number of times protect the public and yet we're not protecting the public from a person who is physically attacking people or children we're protecting the public and we can do that without whatever it is how many years in jail can we well maybe so i mean if if judge that you know pointed out with respect to the character letters for lack of a better word that she received on behalf of mr museo was you know all you people say such a wonderful guy but none of you knew he was doing this he carried language of this court and rocks more i don't think it should be then you know i mean as you know better than i i judge looks at all these factors and comes up with what she believed and stated expressively this was not greater than necessary and i don't think it's for this court with all due respect simply to substitute judgement for the district judge i think you have to find that the sense shocks the conscience  to use not all of it barbaric sentence that is from  what we're hearing here is that you know child sex case the guidelines are meaningless a six thousand month guideline is proposed for is a two thousand four hundred month guideline is preposterous it gives  no guidance whatsoever and the reason that the guidelines are so preposterous we read is because congress is forever saying to the sentencing commission and more make it more harsh and we've ended up in a ridiculous situation i'm not suggesting please don't think that i'm suggesting that this client should be given probation but to give him a sentence is look this long you just know in your bones it's not right absence of we reasonable range in your mind i think the range that was specified in the plea agreement prepared by the united states attorney which is obviously a very long time it's a thirty year sentence it doesn't mean it's not terribly different from what we've got but it's it makes more sense than us all i'm saying give this man a couple years of freedom at the end of his life because he is he's in his late thirty's right now and thank you very much