and if so to impose a sentence he would have imposed had he realized the true guideline situation was the guidelines as calculated would have been properly calculated exactly the same no matter how many minors had been involved just the two teenagers who testified at trial just that would have been enough that would have been enough and my my point would be your calculation and what i understood her early to be saying to be inquiring about was whether or not the calculation would have been the same whether or not the four children were included and that's guidelines this matter judge has the discretion to sentence outside the guidelines when he thinks that the seriousness of the sexual abuse or exploitation involved is not adequately captured by the guidelines and certainly judge hurley detailed what the abuse of the youngers youngest children was to explain why misapprehension that the conduct relating to the four small children young children was not reflected anywhere in the client's offense adjusted offense level and it was reflected  calculation and reflected in the guidelines why shouldn't we read the judge as making the very sensible remark that the guidelines don't adequately take into account the extremity both in terms of the numbers of children in terms of the age of the children that is reflected by this case and then giving a sentence that is under the section thirty five fifty three a factors the sentence that the judge thought was right that's what he may say if you if this course and it's back to him your honor and i would have not be in a position to complain about it but the fact of the matter is that it appears that he operated under a misapprehension and it appears also your honor that that misapprehension was something which even though there is a subtle point here it is something which he kept on which he focused on it wasn't apparent until after right answer the question any impose a sense that he had been operating under the misapprehension i didn't jump up and say i should have missed it there are couple of things i this case including the what was in the revision to the revised and then them when i got it because i was focusing on other things you but the fact of the matter is the way he phrased phrased what he was doing and the question that he asked and what he said at the end suggests to me that he was looking to justify that one of his justification zwar a principle justification for going above the garlands which is that at the very least you did not call it to his attention that's correct your honor that's  that's right so it is a plane there and so the question we have is whether i mean assuming that it wasn't waived where are all the requirements of plane there are including in just as you know are also met and that's a bit harder to do when this when the distinction is at best a very subtle well your honor in this case i would say that they are met and i think the molino martinez  case talks about a situation where all you're talking about doing it if i was cited this case original decision in this course original decision warning well you're talking about doing is sending it back for a judge to think about whether he would have imposed the sentence differently may i briefly address the return of property issue two which is perhaps more interesting of a couple of factual question yes that one wouldn't there be non peak tauriel data on the hard wouldn't there be likely records of the internet chats that he engaged in and in this case well there are records of the internet chats your own are and i don't think that they're for food and in fact the government gave us printouts of them and never claimed that they  everything that wasn't pictures and i understand that that makes a certain concession or you know that the defendant is with respect to pictures perhaps asking for less than he thinks he's entitled to but he also may be asking for more than he could possibly be entitled to your honor i think that the records of the of the chats are indeed just records now if he took a check and forwarded it to somebody else in an effort to have that person face that person into permitting him to do what he wanted to do with that person's child i think that would be forfeit of all because then the intellectual property itself would have been used in further incident connection with the crime but what you've just got now is a record of the crime not something which is surface contraband not something which was used to commit the crime and i think you can understand that that point the the other thing i wanted to ask is he's also asking for medicaid data doesn't that method date it was the request did they request exclude method data about the photographs no doesn't that raise another isn't that one of the things that the court focused on in the hearing that in terms of the difficulty of desegregating wouldn't that many data be associated with the the pictures themselves and therefore require more complicated isn't angling than just you know there's a text file that's separate from the picture file i don't believe that to be the case your honor but i would submit your honor that that is not a reason to deny a return of property or to hold up the forfeiture order precludes it i think that would be something to be dealt with on remain and we have taken the position that this is an equitable remedy we realize that if it becomes unduly burdensome that can be a limit on this one of the district i'm sorry before the district court the government said it would take thousands of hours to segregate the material give recent think that's not correct well with regard to the met data i believe the testimony at the hearing from detective forrest gave conflicting testimony at the trial was it would take a day or two maybe forty hours i forget the precise number when we're not looking for other evidence that it would the records that would show of the size of the file when the file was access to last access to it when it was when it was changed to the extent of ala and mr warneke to get to that to the get to the heart if it and i told he accessed and materials were retrieved from them too in the prior to his arrest and two he also suspects and believes and he's told me the reasons why he believes it that there was what amounted to an illegal came in and it was a very broad order probably i think who brought it wasn't at the time to say this is broad and try to make it rather than now trying to have us go back and see what there was and was but i don't think it's too broad your honor and i don't think it was the time to object because i don't think it purported to cover the data that was in in the hard drives or as it existed elsewhere if the issue is would be worth amendment issue the time to raise that even earlier wasn't that if you had a belief that there was some kind of illegal search and had any credible plausible they says for thinking that could be true why wasn't a request made  pretrial in connection with the suppression motion or at least a request for discovery that could help you to decide whether suppression motion was in order in fact your honor in part it was but leaving that aside your honor i'm not government's view to commit the crime and you're saying if you got a chance to look at it you would be able to show that he was basically either trafficked or there was evidence that was tampered with you had a right to look back before he was convicted but now to argue that it's not for football it seems to me your very argument has made the case for why it's forfeited what am i missing well your honor i don't think it becomes and i was not deliberately misunderstanding and i am telling you your honor that i most respectfully disagree that is forfeited will simply because it's a record of prior you what happened to computer files that previously have been  have been asked for before and it perhaps it should have been pursued more quickly again i didn't represent him at the time but it doesn't become for for double simply because it relates to the commission of the crime or it's a record of the commission of crime it would seem to me that it would be very much like a list of a list for pretty much  sentence that he gave judgment specifically said the conduct in question as it relates to the three children can and a doubt oblio will be considered by the district court on remand in assessing the factors relevant to sentencing under eighteen u s c thirty five fifty three a that was actually the instruction from from the circuit is that judge really should consider that and he did what what mr travel is is saying is somehow parsing the words pattern and the conduct that occurred with respect to them factored into the guidelines as they're presently configured is it specifically said is it configured in any way in the guideline calculation mistretta said no it isn't figured into the guideline calculation and neither does the enticement of a girl factored into this guideline calculation the guideline calculation is predicated upon the enticement of the teenage boys and the child pornography possession distribution  has to try to elicit no and i said no and judge probably specifically said well then i'm going to consider them under thirty five fifty three pursuant to judgments and lynch's instructions as a factor to consider and he gave two theories on which he could sentence the defendant to the sentence he gave him he said he could consider as an upward supporter or a non guideline sentence he said this was not within the heartland of cases and it's clearly not within the heartland of these types of cases and he also said this was a case if any that called for a non guideline sentence and frankly he gave the defendant five years off from his original sentence after warneke one so he strongly considered the arguments of counsel and the submissions and he found that that was the appropriate sentence under the guidelines so the record is crystal clear that all the parties agreed these three children were not considered under the pattern hansen and to argue that the pattern pattern hansen says two or more acts against children so it's two children that's the baseline to it to say that now going forward if there's one hundred children molested that they are the subject of the same five point unhandsome and as when one or two children are molested or attempted to be molested violates the spirit of the guidelines in toto so i ask the courts to consider strongly judge hurley's very clear direction in his statements at the sentencing hearing that the reason that he impose that's this was because he believed and he relied on the party statements at those three children as the attempt to molest those three children was not considered under the guidelines and that pattern calculation it's not double counting the three children deserved to be considered separately from the two children that were the teenage boys that were molested with respect to the return of property motion it is clear that the defendant  forfeited those computers to say that he forfeited the physical computers but not the content is really an absurd argument if you think about it you're saying that you actually write to me i think you heard a little bit extreme if a person uses a computer to access one piece of child pornography he has committed a crime and the crime was committed using the physical computer it wasn't committed using his stock investment records  or data from chemical research that he was working on towards trying to patent some new drug or family photographs from his parents fiftieth anniversary party he didn't use any of that intellectual property as mr fabulous refers to it to commit the crime did it no your honor and then of course you would forfeit the property you would ask for it back at the proper time but if you have at the time you made that order he came and i want that back because of his order is too broad so i want you to make that border clear so be his now wouldn't that be in fact a very powerful argument it would be your honor and in fact in the district court i ask mr try to list over and over again what is it that mr warneke wants from these computers if it's family photos or other thing else but your argument now seemed to be broader even if they had done something like that you done something like that then he couldn't get it back because after all the computer was forfeit and therefore everything on it would be forfeit too and i'm having trouble with that broader argument now you're say things that were all of a computer that were not subject to forfeit your or her might have made clear people's were not to be forfeit i'm sorry i was inarticulate what i meant to say was that mr try to elicit argument now that the date on the computer was not forfeited pursuant to the forfeiture order is an absurd argument because i don't think you can force it out this way seven or eight years later after something's been forfeited especially given the unduly burdensome task it would take a law enforcement officer to go through six hard drives with thousands of images of sexually act that would have been through at the beginning as well so i'm trying to i'm trying to separate out what you are say should be forfeited to me you're kind of going back and forth between one and the other not like you know which of these you're really to well i'm telling you a little of both what i'm saying with what rob and i admit and what i'm saying is if there is something in a case like this where a defendant asks before its properties forfeited that there's something in particular that he wants on his computer because it's important or it's a financial information he needs on an ongoing concern there's a mechanism by which to do that there is a mechanism by which to do that that the defendant waive long ago what i am saying is to now argue at this point after something's been forfeited forfeited after all this time to come back and say never mind i want things back and the government should now be be and pose with the burden of going through six of these computer hard drives all contain child pornography it's not an instance in which somebody looked at a few pictures on three there are three different arguments that i could disentangle here in sort of increasing levels of extremity on the part of the government one is just as an equitable matter the district court should deny request like this because burden outweighs the legitimacy of the claim at least where the claim made is not for anything in particular that might be valuable to the defendant and clearly not for football but is a  blunderbuss request for things that include as far as i can see things that are forfeit and that in any event disentangling it would be very time consuming and expensive and in any event it comes so late that's the did then there is then there is an argument that the this whole thing was sort of waived or forfeited by not raising it sooner because the order calls for the forfeiture of the hard drive and all its pomps and all its works and then there's a third argument that is even more extreme that as a statutory matter he simply has no right never had any right if he resisted if he asked for something the government shouldn't give it back the family photographs and the portfolio records and the unpublished and whatever a person might have on a computer is automatically forfeit to the government as soon as that limited to the facts of this case that is when as in this case you could show that pornography was on this computer in other words the computer was used for that purpose you have the right to forfeit the computer now if the defendant says ah but there are files or materials that are separate and distinct you might concede that he has a right to have those back but that your statutory argument is as you stand here today you don't have to go through and segregate what was clearly part of the pornography files and what may have been part of the novel in the absence of  do i understand you correctly and the final thing i'd like to say is this this return of property motion was all tempt again and again by the defendant to get his these files to try and prove his innocence he had three experts at the district  review these these hard drives in their original form not even in copies and there was no x he had full access to them its files in pursuit of the criminal repeatedly and he never asked for copies of anything he just wanted experts to look at the me so i think this is all an attempt at the eleventh hour five years later ten years later to do what he couldn't do the first time around because the evidence doesn't exist so i have a very small point that goes to the inconsistency between the checking of the box gree with the p s r exactly as it was which said in effect that certain attempts were completed and the  our no i know what he said was clear it's actually in writing as well but there is vet check and couldn't somebody you read that check some other time and say this was dumb and therefore possibly in a parole or in something else later that count against your honor and i offered mr travelers the option we jointly to recommend to the court that the that the sentencing hearing minutes be appended to that to the presents were he didn't want that he like that option he wanted specifically to charlie to do something which the rule didn't require so i understand the concerns and it is a concern but i think if you read the judgment as a whole it's clear that judge hurley at in the judgment no easy way to do anything your honor but yes the answer is yes mister did have experts who were given access to the to the hard drives and i believe he actually may have had copies of the one point the original were actually given to his counsel when the act was and the district court ordered it turned back i'm not sure you could happen absolutely no objection your honor and that isn't even what we're talking about we're talking about the things like the records of what happened and challenging the government's legally i'm challenging the ability to forfeit your honor because i don't believe that if any of the categories of for material you're saying that regardless of mr wernicke's motive to look at this material that's irrelevant to your argument because you're just saying it's not properly for food that's correct i only got into the motive because i was asked your understanding and by the way i want to have responded to the government's request to pare down the challenging the district court order if you write that this forfeiture order doesn't include the intellectual property and the government won't give it back to you is it your place in front of the district court to say judge that your doesn't cover the drive and doesn't go to all the failings of it are connected with a crime that are on a hard drive now you're saying oh well that was automatically forfeited because because it but the fact of the matter is that the action with at the minute there is simply a record of computer usage and a record of usage is it's the interpretation of the order i agree with you when you say the the   forfeiting the child pornography images and the hard drives no because the that would seem to me to imply that the order should be interim to demean the hard drives and what's on it because otherwise there's no forfeiture order that refers to as you say the obviously for federal child pornography i don't think there was any necessity just formally forfeit the the child pornography because the child pornography was contraband wherever it might it might be found