good morning your honor we may please court my name is rob wagner and with the federal public defender's office here in richmond and i represent mr johnson in the peel the district court erred in imposing the and masochistic four level sentencing enhanced meant for conduct that no other court has characterized as sadistic or masochistic and imposing seventy eight thousand dollars of restitution for mental health treatment at the victim may never use the court relied on speculation and set the bar far too low in granting the government's requests to apply both sentencing sanctions this court must engage in line drawing to distinguish between conduct and factors that qualify for sentencing sanctions and those that do not mr johnson asks this court to reverse the district court in remand this case for recent so the two issues that are before this court are first whether the evidence in this case justifies a four level enhanced meant for sadistic and masochistic conduct under sentencing guideline to g two point one before and secondly whether restitution for mental health treatment was improperly ordered by the district court the first issue before level enhanced meant for sadistic and masochistic conduct the imposition of this particular guideline provision took mr johnson's guideline range from two hundred ten to two hundred sixty two months under level thirty seven all the way up to three hundred  twenty four to four hundred five months level forty one at the midpoint of both of these guideline ranges there's a difference of a ten year sentence between what was imposed in this case and the guidelines had this in henchmen not been granted to g two point one before states that the court should imply that handsome and quote if the offense involved material that portrays sadistic or masochistic conduct or other depictions of violence this record imply applied this enhanced and based on two arguments that were advanced by the government first that the produced images themselves represented sadistic or masochistic conduct and second that the possession of the sadistic and masochistic materials just the possession was sufficiently intertwined with the production of child pornography that the four level enhancement in the district court in gage an analysis under the auditors case from the six circuit a six factor test for the first argument that the produced images are themselves sadistic or masochistic this is a case of first impression no other court has addressed the specific issues as it relates to simulated intercourse with a pre built p besson child an adult male resulting in a this is a new thing perhaps reflects perhaps it does but i think the court should be looking to the severity of what's depicted in these images as to pose to what other courts have looked at in applying this enhanced your honor but if they never think like the other chords then we're comparing apples and oranges well that may be may be true to an extent judge but all the cases the government minimal penetration but not which is a penetration how much as i would suggest that what is enough under the definition of sadistic is that which would cause pain to the child how was this child this child it was five years old at the time of the unreasonable for district court to find that any level of penetration would cause pain to a child and adult penetrating a five year old i would suggest not if it's merely the loud b a of the of the small court is the solution maker here yesterday mr we don't have the film here and i think there's a difference between the grimace that was reflected in the district court's findings as opposed to the pain that other courts have looked to for determining whether it is a sadistic act if there's there's simply no indication from the record of any intent of the actor to inflict pain and of significant pain and maybe a grimace but significant pain by the victim in this case and that's really the takeaway from just about every case that has identified and described and  defined what a sadistic act is that it produces pain and that looking to took to the burgess case from this court at four fifty four this court used the language quote would necessarily cause physical pain to the victim the riordan case the written case identified and defied the find sadistic the act is the infliction of pain upon a love object as a means of obtaining sexual release excessive cruelty viewing this image the images in this case the videos in this case the court could not find that there was excessive cruelty here the that the district court used as a a definition of of sadism of a sadistic act as quote deriving pleasure from the infliction of pain suffering and whom you humiliation on others and i would suggest that nothing about these produced 's no does no distinct there's no distinction made in those cases i mean that i am judge and i think it's an important distinction to make when when you consider the images that those courts looked at when making the finding of sadistic conduct there the images appear to be and from the descriptions in the cases full penetration how do you how do you get to a conclusion though that that's intended to be a floor in terms of but that doesn't mean that that's an absolute requirement oh i agree judge this but this court must engage in that line drawing ok so where's the line to be drawn whether or not the conduct it issue necessarily would inflict pain  i think that is what the the court should use as as its guide in this case that full penetration by an adult male of a young child certainly would necessarily inflict pain simulated intercourse would not necessarily inflict pain and that's what i would ask this court to draw that distinction to draw that line between what is sadistic and what is not as you use the i gotta say this rather idea that on this record as judge diaz was suggesting that somehow there's a war for some i don't know food truly a long suffering and your honor and the defendant clearly accepted responsibility for that when he was first confronted by the f b i in this case he came clean with everything and he came forward to the court he pled guilty he accepted the punishment in this case he his allocution to the court was was was very hard has helped that i said he hasn't said the punishment he's authorized you to come here before the three of us and seek a preliminary ruling to send this back to see what the district court does a second time there's every reason to think that the district court would do exactly the same thing maybe she will maybe she will but the point is and again don't get me wrong i'm not saying he didn't accept responsibility in the context of the federal sentencing guidelines ye responsibility but the fact of the matter is he thinks you've got too long let's not judge we're here to ask the court to draw certain lines in conduct here and for that legal distinction asking the court to make that legal distinction i don't think in any way reflects on the defendant's acceptance of responsibility he accepts full responsibility for what he did we are asking the court to win here without his authorization and i don't fault him either yes i don't fault him for wanting a shorter sentence i'm not making a moral judgment about him right in saying that i really am not but i mean if you're going to make an argument that he's accepted full responsibility you know that that doesn't resonate i would just take exception to that john i want to thirty years  just it is and i am the advocate for that position and i firmly believe that the lines to be drawn when it comes to this particular enhanced been and the definition of sadistic conduct the bar should be much lower but she's maybe much higher than what the district court found in this case and your i did make the comment about the labby that that was a comment that the district court made that was a factual finding that the district court made and i feel so so without conduct that necessarily involves the infliction of pain i don't believe that this enhanced ment should be imposed but there's also a a second issue under the enhanced in the four eleven hands and whether there was the nexus the necessary nexus between the possessed materials and the materials that were produced and the district court found under the otter's test that this was in fact satis that there was  sufficient nexus drawn but what's interesting is that the district court court found that the nexus wasn't established for purposes of distribution yet found that the factors were sufficient for purposes of production and if you look at that test judges and if you look how that test was applied the district court relied far too much on speculation rather than what the facts actually were in the record in the images themselves and so based on that finding by the district court of the nexus between the produced images and the possessed images we feel that the district court acted erroneous lee in this court should overrule the findings of that court turning to the issue  of rest to there was insufficient in dishes of reliability and no reasonable certainty of the damage in this case based on the evidence submitted to the court a letter from a guardian ad litum to a prosecutor to support restitution of seventy eight thousand dollars for mental health treatment of the victim in this case the consulted professional in this case had never seen the victim never treated the victim never of valuated the victim in this case at met with i'm sorry yes we're i did not ask for a hearing judge i knew what the government had had presented to the court for purposes of  contrary oh no we're not tell asking the court if we're not saying that under the appropriate circumstances mental health treatment may be appropriate for this child we're not saying that judge what we are saying is that the level of proof that was a deuced by the court that was presented by the government simply failed to meet that reasonable certainty threshold finding that a court needs to make in order to to to order rest should and in this case it wasn't maybe no one no no no no professional no specialist no one of value weighted the victim in this case in virtually every case that the government has cited on this issue the victim the child was evaluated by a professional again that this involves line drawing and in this case the court fell far short of the bar required to impose seventy eight thousand dollars of restitution in this case the government in their brief relies on on the singletary case for the notion of sufficient reliability relies on the on case for circuit unpublished decision  for the statement that the victim is not required to participate in the proceedings and we agree one of the victim is not required to participate but the next statement in that case well is that the government not the victim bears the burden of proving that a victim is entitle to restitution and the amount of rest to show and in this case the government did not satisfy that bird did not present evidence nearly sufficient to demonstrate that seventy eight thousand dollars of mental health treatment was required no further questions you afternoon now please the court my name is tommy johnston on behalf of the united states the district court in applying the sentencing it has been for the sadistic and masochistic material or other depictions of violence did not abused discretion in applying that and handsome and it also did not abuse its discretion in ordering that the defendant pay seventy eight thousand dollars to the victim and starting with the sentencing enhancement the court had two paths that it could take to appl the court made several significant factual findings after to its credit reviewing this forty five minute video that the defendant produced and those findings included that the defendant actually penetrated the victim with an inanimate object beyond the libya that the victim penetrated herself with an inanimate object beyond the lady that she in doing this when this happened that she pursed her lips as if in pain the court also described the scene where the defendant grabbed the victim's neck and lifted her off the bed during one incident of sexual molestation the district court also found that during these instances of mala station the victim had to steal herself in anticipation of penetration that she looked uncomfortable that she looked unhappy and that she looked grimacing so contrary to what the defendant is saying we're not dealing merely with simulated penetration we're dealing with actual penetration of a five year old female and when the district court made those findings it looked at the case law from numerous other circuits all of which have said that the penetration of a young child by an adult male or by a inanimate object qualifies as violent and inherently sadistic so as to justify the application of this enhancement and following those decisions the district court properly applied this enhanced meant to this case i would point out that doesn't take a medical degree to determine that a child who's been partially penetrated a young child is going to experience physical and emotional pain or both and that's what we have in this case i would also point to the case determines beyond a preponderance of the evidence that an image depicts a sexual act involving a minor that an objective viewer would believe would cause physical pain emotional suffering or humiliation to that minor in this application is a pluck and i would say based on this forty five minute video that the defendant produced with the victim we have all three of those qualifications met and so the district in which i would have hoped the government went beyond the guidelines and argued the way we used to in the old days when assistant u s attorneys actually had to argue for something and i say that with all respect the judge ordered supplemental briefing or i in my supplemental brief i did include an alternative argument saying if the judge if the district court doesn't believe this enhanced meant would apply the government would be arguing for an up weeks ago they dismissed this now the state did pursue the hands on offenses against the going to elect him and the defendant pled guilty to those offenses he has not been sentenced i believe is it isn't it i believe he's being sentenced in january or but the state did pursue that so the second path that the district court could have taken and which it said that it could have taken two applies and hasn't related to the defendant's possession of sadistic or masochistic ch few within his collection and the government showed in this case that that possession occurred before during and after the period in which the defendant was molesting the victim  the dates of the offense while a tad murky just based on the evidence but by the defendant's own admission he molested the victim between when she turned five years old until about a year before he's arrested so that timeframe would have material depicting children he also did it during and he kept on to that that material until we arrested him based on that as well as the factors in the otter's case from the second circuit the district court said that the possession of this material was sufficiently related to the conduct underlying the crime of conviction to apply it as relevant conduct and to apply the enhancement in the district was proper in that the possession of this material was and had temporal proximity to the offense of conviction the conduct depicted in the chop in r p collection was similar to what the defendant was doing with the victim they were the entire shop and every collection was was stored on the same device and easily accessible the district court found that made a specific factual finding that the defendant took chopping our feet from his collection and showed it to the victim which is depicted in the video as a model or as a grooming  technique similar in content also goes to the issue of the defendant using his chopper now if he collection as a guide to what he wants to do the victim and that's depicted in both those types of material and then finally that the defendant was sexually aroused by the could take to apply this enhanced and there's finally are just going to the restitution issue i would just point out that restitution is not required to be proven to mathematical the government has to present a finding or a number that is reasonably certain that did the district work and look at and say yes that number has sufficient indicia of reliability obviously in this case the victim qualifies as a victim under the statute and i don't think that her physical or emotional harm is that is that question and i think it's disputed that the question is on the number and this court has ruled a definite isn't under no obligation when restitution is mandatory as it is in this case to participate in the restitution process and precisely for that reason the government had a concern that given the defendant's family or the victim's family situation giving her age or giving her new living requirements that she would not be able to participate in the restitution process in the sense that she wouldn't be able to reach out and get the counseling that she needed so the government moved for a guardian  in this case and the court appointed that and the guardian ad litum as the victim's representative reached out to several therapists with expertise in this area who all said that the victim needed immediate treatment based on what happened  until the victim turns eighteen would be appropriate and there would be one hundred fifty dollars a week that's the that's the government's evidence in this case but that is a reasonable reasonably certain amount that it will cost the victim to deal with what is admittedly this significant and extensive harm that she's suffered based on the defendant's conduct and so i asked the court to uphold the restitution order as well so no further questions just to follow up on the on the the question about the state court proceedings very briefly judge the defendant pled guilty on in the state court to right and he pled guilty with the understanding that the time he receives in the state court will run consecutive to the time imposed in the federal court so in terms of accepting responsibility that's a further indication of his acceptance of responsibility as far as the the nexus drawn between the material that was produced and the material that was was possessed i think it's important to look at the percentage amongst his his his very vast collection of child pornography but the percentage of which was sadistic and masochistic and i believe if you look at the images themselves the still images he was maybe point five percent the videos maybe two point five percent to suggest that he was showing the victim or that he was viewing before his is engagement with the victim s and m materials i think is a step too far and a step too far and far as as far as speculation goes on behalf of the  these images were produced and there was no indication of any male mental health treatment that the child had received we are now a year beyond that and there's still no indication that any mental health treatment has been received if there are no further questions  i'm sorry oh certainly not your honor will remain that might be why there hasn't been any mental health it would seem to me if the child needed it that there would be ways to provide that that that treatment to the child or at least there would be efforts to obtain the treatment it in you know for actual fact if you ever nothing that provided by thorough record of the facts and of what she thought of the facts it doesn't seem that there's much indication that she wouldn't exercise her discretion to give exactly the same thing that that may well be run but if the guidelines reflect a ten year low or a guideline range i would hope that that how it would have some impact on the judge up to impose a lower sentence in this case and the fact that he is now pled guilty to a state offense and would be sentenced for that offense at the time of the recent saying that perhaps that would have some impact on the on the judge as well thank you very much ask our clerk to adjourn court