reference for manufacture production of child pornography under two g two point two see one the government rely on clips a post arrest statement of david geary to argue to the court that ms geary had knowledge pictures that were going to be taken of their young child and he also presented statements that suggested that when he showed her those pictures he had a she had a positive reaction to them an affirmative reaction to them he could not describe what that reaction was he could not describe the words she used but  said at one point it wasn't negative perhaps ignore every piece of evidence supplied by david just wipe him out of the whole thing we still have quite a bit of evidence that stating that after seeing the podesta in two thousand and thirteen she did not tell him not to do it again but rather she said i just tried to change the subject we have word for the sentencing guideline to apply your honor because under two g two point two the cross reference only applies when the individual is responsible for the manufacture production of of child pornography she of course pled to possessing the child pornography during that time period the government has not been able to provide us with a single case that would in fact accept what was the district court's conclusion that because sheila did not her tap her daughter batter because she did not call the police and the word actually it's my child runs out into the street without looking and there's a car coming and i know that it's happening and i do nothing have i allowed it to happen i permitted it to happen well in that example if you're standing next to the child and you see the car coming and you see the child running out and you don't attempt to stop them probably you've allowed that to happen however that isn't what happened in this case but i want to get back to the language of two g two point two  and the only thing that had to be found was that the offense involved permitting a minor to engage in sexually explicit conduct for the purpose of producing a visual depiction she knows she that david is doing this and is judge roven are outlined at the beginning she had multiple opportunities to go to the police or in other ways to protect the minor children and she she doesn't she she's actually more focused on what david is doing so why isn't that at least a rational person could say she's permitted this to happen she has she's allow she's allowed it to happen well i disagree because we're talking we're not talking about a sentencing consideration that the court is is looking at but this is a cross reference i just gave the exact language right now is that if you can find that she allowed are permitted to happen then the cross reference applies you go to two g two dollars and there you are which of course i mean there's actually sort of a harmless error issue in here too because she winds up with the sentence at the low end of the guideline range that you wanted to yes but as the court has said repeatedly and guideline calculations the correct calculation from which the court begins is really very significant it is for the court but there's still harmless error that can the question becomes though if the court understood that the application was inappropriate would the court have given her a fifty seven month sentence and i think that is actually something that would have to be taken up on remaining but i guess i'll stay with the st point and i don't see why the district court committed clear error by finding that her offense involved permitting the minor to engage in the described conduct and our point your honor is that in order to implicate the cross reference there has to be evidence by the by the obviously the government's burden to prove that she in some way assisted in the manufacture and the permission means i mean and hard and i don't think that's what permit means and i think that is the issue your honor is what does permit mean all of the other words in the applications that we've seen with the cross reference require some type of action in this case even david curious says that he had to wait for an opportunity to take the pictures the pictures are taken on two separate occasions and april and then again in june both times this occurs when she is out of the house there's no question that she is not in some way participating but she knows that it's happening why did she stick the thumb drive behind the mirror for four years you know if it's if permitting mean something other than causing that would be an active assistance in the making of the visual depictions transporting offerings seeking by notice or advertisements or permitting is you know i know it's happening go ahead i'm the guardian of this child go ahead nothing to stop well there is indication that she did confront him at one point this before the nd pictures were taken and then she takes the pictures away and then if for some it stops completely stops there's no more pictures so obviously her intervention did do something to stop david's behavior but the point is whether that whether or not she should have done something or her her conduct was wrong by some measure but whether or not it's appropriate to hold her responsible for actually abuse her son zachary she was able to stop that she was present and that's the difference in the testimony she was present when that occurred and being others led letters from the children would indicate that she did intervene at times when she could it was a very violent he was a very violent him and nippy a live person who created a great deal deal of fear in the household much but i do think it's important to talk about the fifty five thousand six hundred dollars in restitution in the pre sentence report when it was indicated that we there would be that the probation officer wanted the fifty five thousand six hundred dollars  restitution we did file objections and we and did indicate that we had no justification for that figure well if there's evidence underlying i wasn't sure what your argument was because st of all it's joint and several liability so he's responsible it too secondly there's a lot of evidence nailing down where that number comes from about cost of mental health and so on he relies in part on evidence from david's perceiving that there is nothing wrong with that well it's entirely proceeding because it's not even mention even though there were objections an ass and we were asked for verification of where these figures were coming from we had a lengthy evidentiary hearing nothing was presented by the government th restitution was not even mentioned by the government until the concluding moments of the sentencing when the court imposed it as we had already objected to that figure the government in their briefs suggest that there was some information submitted to the probation officer there's nothing in the record to indicate that and i would suggest that the court look at docket entry eighty two because the probation officer i believe filed information  restitution it's all related to another alleged victim that was in the among the identified pictures at the time of sentencing and i believe pia is the name of that individual however the government did not seek restitution in the end for pia so there was absolutely nothing in sheila geary's record to show why she was responsible for fifty five thousand six hundred dollars in restitution  photographs of their youngest daughter m f two that she had the capacity to prevent him from doing so and that instead she expressed we consented this nd the legal didn't express consent or acquiescence and look at what what's weird is permission well as we pointed out on page thirty one of our brief your honor miscues consigned here was both expressed in the form of a positive response when mr geary had discussed his plan with her who was also implied in the form of her admitted failure to  permitting component and i'm happy to answer any questions the court has about the evidentiary basis for the discords factual findings but i'd like to focus on the you know the inquiry here as i mentioned the dictionary definition of permitting and encompasses household sounds terribly dysfunctional to act but that she was sufficiently coerced in intimidated by her husband that she wasn't really capable of permitting or not permitting she was just surviving herself and not challenging him correct your honor that is the exact argument that she presented to the district court the just report rejected it as a factual matter not as a legal matter the district court never said something like there's no direct defense to permission or something like that we've acknowledged in our brief that we think control is one aspect of permission the courts can and should look to and i think that control would capture a lot of that  getting specifically to what the district court found as a matter of fact on that point it pointed out that it is here he had called the police on a number of occasions to protect herself from her husband's physical abuse but that she hadn't taken that same step to protect her children from his sexual predation despite being in possession of quite damning evidence against him in the form of his stash of child pornography which he took and held onto as a trump card sufficient to overcome or to overcome her control and i think that that's verified by the fact that she did ultimately confront her husband and kick him out of the house and to go to the police albeit four and a half years too late and only after she found out that he had also molested their middle daughter and if one the fact that she was able to do that at that point suggests that she was not laboring under  you know some sort of paralyzing fear for her life or further the lives of her children and that her she had somehow overcome it i mean it seems interesting to extrapolate for the entire four year period sometimes people do muster up the courage to do something and that's absolutely right your honor and i don't know that it would have been clear error for the district court to have gone the other way on that right and for the just report to say look we do have a lot of evidence in this record that to prevent this kind of conduct from occurring but the just report didn't make those findings that made the opposite findings and i certainly don't think there's anything on this record where we can say that that was clearly erroneous unless the court has further questions on the sentencing i would like to briefly address restitution so as a threshold matter there is a little bit of a disagreement here about which arguments were preserved in the district court i understand music theory to have raised two arguments of various points  w and i just want to go through this because i think the timeline is important here st in her objections to the p s r she asserted that she had not seen the documents that the government had offered in support of the loss calculation for m f two during mr geary's sentencing proceeding the government then emailed that documentation to the probation office alongside its response or her objections and mr and ms your you did not renew that complaint at either of her own sentencing and she got access to them when you emailed them probation so did she judge what i i was not the trial prosecutor in this case so my representations to the court are based on things that have been represented to me i agree with my friend that the record does not conclu demonstrated whether or when ms fury's counsel received access to these documents the trial prosecutors best recollection is that she was provided with this document before the nd sentencing recommended that's correct your honor and again and in her supplemental sensing memorandum that she filed between the two sentencing hearings she shifted course entirely on the rest solution argument no longer made any mention of you know not having access to this documentation and that made the argument that she should be categorically exempted from any restitution notwithstanding the statutory mandate here because her conduct actually protected victims of child not adequately explaining its exercise of discretion on the record here with respect to restitution that's a concern that could have been easily rectified is mysterious and objected any of the four times the district court pronounced its prestige and determination on the record at her nd sentencing hearing i would argue that her failure to do so constitutes a forfeiture of the objection and just as a practical matter she'll have to pay the whole thing he's going to be in prison but yes your honor i didn't as a if you don't have any concerns about that i was on the saxman the question is is it not reflective of what she ought to paint restitution sure and i would just argue that here it's very clear that the district about a minute as conor i'll give you a minute takes issue with the government at this point relying on something supposedly submitted to the probation office that never made it into the record and that the government never discussed during an entire three to four hour evidentiary hearing when there was an objection on that issue i think today in oral argument the government is expounded and that further in terms of the timing of when that was sent and that is not reflected in the record i do think it's important to look at it and docket entry number eighty two because clearly the probation office submitted documents that were available under seal to the parties in which it was relying on for purposes of prostitution there is nothing in that to talk about the fifty five thousand six hundred dollars that was imposed and as an outside representation as soon as we received the information restitution i contacted his lawyer does not talk once about restitution then we go through another hearing and then at the end the court imposes restitution after the defense has renewed all their previous objections it's very unfair to suggest that there is a waiver of that issue i will thank you very much and we appreciate very much you're taking the appointment for the court it's a great help thank you as well to the government we will take the case under advi