to just keep in thank you in the context of a fairly complicated sentencing the district court here made one mistake that is it considered as a factual matter the allegation that mr henderson committed a sexual assault when he was a juvenile in foster care the source of that information that the district court relied upon was the statement of mr henderson's mother fern henderson she made a statement to the evaluator in the context of a psychosexual evaluation and then made a similar statement to the probation officer in a follow up phone call the problem is that miss henderson was not speaking from personal knowledge at the time that this alleged incident occurred she had lost custody of mr henderson he was in foster care so she was relaying at best information from another source so we read the record well we're familiar i think with what happened but let me ask you the district judge was careful at the end  doing after heard argument and this issue was brought to his attention and it was used in initially to for an enhancement correct correct and the judge made it pretty clear that he wasn't go rely on it for purposes of the enhancement because it was too unreliable correct or right but then he said then i think this is what your problem is is he said that well it's a historical fact right and it was apparently there or he didn't make it clear that he was disregarding that when he did his twenty when he did his i forget the  that the overall sentence at the end correct correct that's so so how could we say how can we be it looks like he tried to disregard didn't he this is why this is a little bit tricky the district court apparently concluded that this evidence deserves some weight but it didn't reach really the level of clear and convincing evidence to support a five level unhandsome it but the  indications that he relied on it to some degree and the sentence imposed and that's that's all that we have to show to get a recent thing it doesn't have to be the primary factor or even a significant factor of an increase the number of months imposed or if it looks like it probably did and we sensing is warranted and that indications that the district court did that there's several strong indications that the district court did that that the most apparent is the one that judge has just referenced that in the discussion of the thirty five fifty three a factors the district court went out of its way to say i'm considering this as a factual matter it doesn't reach the level of clear and convincing evidence but in terms of the personal history and characteristics of the defendant it's something that the district court apparently found relevant there's no reason that he would have discussed that if you didn't think it had some bearing on the appropriate sentence did he say he was considering it or did he say it was just a historical fact he said i think that i think the exact quote is i'm considering it as a factual mat reciting as a as a historical fact that's relevant under the history and characteristics suggest that it's something that is worth recounting that it factors into the sentence he said he would consider that probabilities that's how i read the record judged and it's important to note that it's the district judge that drew this distinction between clear and convincing evidence and preponderance of the evidence that's not an argument the defense counsel made so the sort of intellectual leg work that the district court did to draw distinction that allowed it to consider this for some purposes but prohibited the imposition of the enhancement is kind of circumstantial evidence that it thought that there was some value were some relevance to this as a factual matter it would have been far simpler under rule thirty two for the district court to simply say i'm not considering it for any purpose and it could have been a much shoot shorter allocution by the just refresh my recollection is the only evidence in the record as to the prior child most the nation the mother's testimony the curd there was no conviction there was there was no conviction and in fact there was no record that a criminal there was any criminal charge that resulted in any criminal charge so the only evidence is the mother statement first the psychosexual evaluator where she told the psychosexual psychosexual evaluator that apparently he engaged in sexual conduct and then in a follow up phone call with the probation officer she told the probation officer that that he attempted to engage in sexual contact with with an infant while in foster care so that small discrepancy and she said that would to the psychosexual expert and to the she did yes and in short succession the probation officer read that statement in the psychosexual evaluation and then followed up with a phone call to miss anderson i'm sort of pointing to one small difference in what she told the two individuals which is in the first  she indicated that it was actual hands on incident in the second she indicated it was an attempted incident which is a small demonstration of the sort of reliability problems we have with these hearsay statements from somebody who's really you know but later on just after he made the after the district court made that statement that is there was a factual matter yes he later when he opposed sentence said something to the  effect that the defendant because this is a very substantial danger to the public and there is a substantial need to do to her him from engaging in this kind of kind what was that w very concerned with and probably more concerned with this this incident in the past but the district court signaled that the main factor driving the sentence imposed was this defendant's prior criminal history and prior conduct and that that was why it was electing an above guideline sentence so the final place where discusses the sentences is right at the end of the sentencing hearing i think it's sort of recounting it for the statement of reasons for the probation officer and the district judge went through and said you know i'm i'm concerned about this prior conviction that's a reason you know the fact that i haven't applied the enhancement that doesn't make sense to me it should be all or nothing but i'm going to blunt that to some degree because i don't think another enhancement applies it should apply to the full extent but then even after it goes through that gave the same sentence everything would be ok if the district court had done that i wouldn't have made this argument but the indications are in the record that the district court worked hard to salvage its ability to rely on this fact to some extent to impose higher conviction for most vision of a child and yet i see here the judge judge windmills recitation and the fact that he engaged in this conduct after already having spent time in the state prison for molesting the child that in correct of this i may have misspoken on or there is one uncontested prior incident of sexual abuse that resulted in a conviction in two thousand and two my point was that that in addition to discussing that conviction as a factor he then turned to a general discussion of the defendant's background and how it suggested a propensity to reoffend suggesting that there was more than just that conviction in the defendant's background that was driving his decision but there's there's nothing else other than that one conviction and then the incident honor i just have to show that the improper fact improper allegation was a factor in the sentence imposed district the district court was certainly allowed to consider that two thousand two conviction but he went beyond in the record indicates that he imposed a greater sentence than he would have if  morning the morning of the morning may please the court and council my name is and which i represent united states the government requests this court affirm mr henderson sentence for two reasons one the district court did not air in considering mrs henderson's information about her son as part of mr henderson's character and background history character and number two even if the court somehow did earlier in doing so mr henderson would have like received the same sentence and it was permissible for such a sentence that's a harder argument actually the fact they would have gotten the same sentence so he didn't actually say that correct not well  e court came pretty darn close to saying that he hinted at it on two specific locations page forty and and your forty one are that one that i know that if you would you would you wouldn't disagree with the fact that the district judge said  the statements by the mother about the prior conduct when he was a kid when he was younger were unreliable i would not disagree and they couldn't be and they couldn't be used for the enhance correct right so why should they be used for anything else because the standard of proof for the enhancement is clear and convincing and improve the standard of proof or any other consideration is that preponderance however what we do know is we know who she is she's not an anonymous informant she's not a criminal informant she's the defendant's mr henderson's mother she has been relatively supportive of him over his whole life but notably after he was sent to prison fo molesting her grandson she had him come back and live with him with her scuse me and remained he was living with her at the time of his federal offense that is that issue and so as someone who is one a family member that's inclined to be a favorable witness for mr henderson but one who's demonstrated actual support of him in a very sensitive situation she could have sided with her daughter and her grandson and cut mr henderson out of her life completely and she didn't and that w favor of giving her information and note of reliability there's also nothing to suggest that she had any motive to provide inflammatory information to her son's detriment and that's significant here in the looking at the source of information and one further note on that is mr henderson relied on her information a number of other capacities in the pre sentence report and some of the information from ms henderson that was cited by the court as part of mr h history and characteristics or things like him helping her after he lived with her after getting out of prison the fact that he had employment was another thing in that category she provided a significant amount of background especially about his foster care placement about the fact that after this juvenile conduct he was then sent to a home or a place for troubled youth and so there's a great amount of information besides this one or two sentences worth of information that we're arguing about well but that goes to reliability right don't you also have to show cooperation and that is at the point you just made you see some corroboration besides the reliability of the statement itself no there's not you can't tell i mean it's just some statement she makes to the to the probation officer and the psychosexual waiter the fact that she made the statement to two people related to the sentencing proceedings on specifically distinct ok sions and that those statements were consistent i think bolsters her liability do you think that the judges were trying to do is say i'm just not this information is not going to affect the sentence in in so many words i didn't say that and you didn't do the rule thirty two i can't get around the fact that he said he's considering the information as a factual matter that's that's in the transcript and i i was at sentencing i heard him say it myself however it was in the this guy is a danger to the community for two reasons one hindsight's twenty twenty and to help the judge you know well you know that actually goes to part of why we're here on a plane air standard the issue of whether or not there was sufficient reliability on a more proper pondering standard was not really before the court because the objection was to the enhancement which carried a clear and convincing standard for my purposes as the  government sitting there at the time the sentences imposed the district court has already resolved the matter of the enhancement and correctly resolved against applying the enhancement on the clear and convincing standard so in my mind you know in my mind that issue has been resolved and there's no should be you can't use it for anything i disagree if the conversation right why is it suddenly if it's real if it's not reliable qualitatively why does it suddenly become reliable when all you're doing is looking at it for for years for preponderance of the evidence well because there's no period after it's not reliable in the record it's not reliable information that's not what the court said what it said it was not reliable applying a clear and convincing standard and fact the court wrestled with that and then mishal he was going to apply be enhancements and then talk himself out of it which signals to me how close of a call it was which means that it's above a preponderance standard but as the district court sitting evaluating the entire record of mr henderson in front of them he found her information persuasive enough on a more opera pondering standard just not quite enough to get over clear and convincing even if it was unreliable probably had an effect on the sentencing or probably was the basis there's there's three different ways of saying that all the courts have approved it all kind of get at the same thing which is review of the brain if you don't have to show was the basis for this  correct as my time is running out sure shortly what i would like to leave the court with is this in order to find clear error on the part of the district court here this court has to have a definite and firm conviction that a mistake has been committed and i submit to this court that it cannot be left with such a firm and definite conviction where the record as a whole in this case is replete with grounds supporting the two hundred forty month sentence and repeated references by the district court about how troubled he was by the treatment by the guidelines of that prior lewd conduct conviction because when the court signaled the heart of sentencing when  guidelines get it totally wrong they don't give the lewd conduct conviction any more weight than a conviction for anything else that would have counted for the same three points it could have been a burglary it could have been a felony do you why it could have been fraud and if it was the same three points it had the same net effect that troubled the district court enough to reference that issue five times in the transcript which is more times than he makes any factual findings about ms henderson's information and that's significant in the course of also the references to mr henderson's past my counsel's my opposing counsel scuse me suggest that there's no other context for the word passed than the juvenile misconduct and that's simply not true because the district court was well aware that mr henderson denied responsibility for that hands on offense he was well aware that mr henderson served the entire ten year sentence on that conviction and that within four years he returned to the federal offense of sharing child pornography and then it within the context of that offense demonstrated a continued sexual interest in minor children one quick point on the reliability of the statement of the government emphasizes that there's no reason to doubt miss henderson's truthfulness but another problem with hearsay reason we usually like it tested by cross examination is reliability and in this instance we know this is a her recollection of something that allegedly happened thirty years ago when she was not in we had lost custody of the child so there's some reasons to doubt that she's a reliable witness even if we don't know of any incentive for her to be on the other hand know it is kind of kind of odd to say that the kid's mother would the defendant's mother would make up a story like this i don't think there's anything in the record that suggests that she was lying or had an incentive to lie but the point is that  she's a woman who has some problems she's talking about something that happened thirty years ago when she was unable to hold her household together and keep her child in her house and so this is her account of what an unknown person told her thirty years later and there's there's a minor but kind of important inconsistency between the two statements she makes to the psychosexual evaluator and then to the probation officer in terms of whether this was an actual sexual assault or an attempted sexual assault but the bigger problem really is that we don't know anything about the first here declan we don't know the who what why when or where and it's significant that the government acknowledges that there's no corroboration for this statement because at least two of this court's cases eg in ponce say that there has to be some extremes of corroboration in order for a statement to be considered reliable can be can it be reliable for purposes of the preponderance of the evidence but not reliable for clear and convincing it cannot there's a threshold question whether there's any indicia of reliability for it to be considered at all and it doesn't it doesn't get past that first hurdle so it can't be considered for any purpose that is a court did conclude or thought this is this incident had happened by a preponderance of the evidence it would be surprising if in the context of a child pornography sentencing that allegation didn't factor into the sentence that the district court imposed the fact that the person before them they thought it had first committed a sexual assault when they were a child the record indicates that in that in this case that was one of the factors that the court considered when imposing this particular sentence not the biggest but it  sentence to some extent and that's enough to warrant recent saying thank you ok thank you counsel we appreciate your argument in matters