plea agreement and i recognize that there may be an issue in the first instance sr what is the appropriate standard of review i argued in my brief that the appropriate standard would be out of abuse of discretion the government se return it to the district work for further hearings on the evidence at the center of this case is a computer phenomenon referred to as file sharing or europe your programs those allow people as i understand it to enter into these programs download data and their baby instances in which those who participate in these broad programs can access other people state or and mr stitt certainly understand how review of the record and i making concessions for maybe post conviction purposes later but based upon this record its audience would you accept the fact that he admitted in the factual basis to his plea that he installed barry's peer to while i would remain tain that the mens rea its knowingly correct its no only distributed now the question for us i think is and i could not find a direct published case in the four circuit is the mere fact that a defendant enters into a peer to peer program is that by itself and to constitute an ns right and you do understand that also a factual basis for his plea he acknowledge that in order to install this particular software he was required to agree that the any files he downloaded would be shared or could could be sure there are some record evidence that he had made you know this is the factual basis  intentionally knowingly or didn't want to well intentionally and knowingly are two different things right and knowingly is not a specific intent crime is it well you're correct very narrowly i'd say they're first cousins possibly but they requirement for this statute congress did choose knowingly evidence is no intent to exempt innocent use of child pornography from prosecution rights why isn't that a his case he did take steps to disable the file sharing peer to peer features of his program didn't he continue to download software after he was unsuccessful in disabling the peer to peer file sharing peter we can see that he did continue to download perfect so he had he knew after his unsuccessful attempt to disable that feature that he was still downloading images t he was downloading images for his personal perusal but he had to know that they could be shared because he knew that was the feature of this particular software that he was unsuccessful in disabling i can't well with your you're saying essentially that there has to be well i'm not quite sure what you're saying are you saying that it has to be an affirmative desire to share i would say there has to be an affirmative desire to share which goes back to this issue intent versus knowledge i would also say in this particular case on the facts of this case riya have a defendant who says at sentencing a basis i tried to disable this feature but was not successful because of the way the program is instituted i want any authority for your position that there has to be  there i don't have any authority conclusively that i could find that there were up there my review to produce a lot of cases that discuss the sentencing guidelines and has meant and i would back up one step and try to argue your question i think in this fashion if congress had intended to criminalize here to peer programs or file sharing so  could have in this particular case congress said you have to knowingly distribute these items in my case mr stitch i would argue it was a passive distributor and i think that point was made on the record below by his counsel probably at sentencing so you have a passive distributor for lack of a better phrase it was not taking steps from what i can tell on this record to to further barter distributes walk these programs is there an exception in the statute for passivity as of this third there is not an exception in the statute for passive a t or just sitting back when you can see that but i think that's because the statute requires that your distribution be knowing and this is a very crude a rough analogy and i didn't make this point on brief but for instance in controlled substance cases it's against the law under twenty one u s c eight forty one for instance to assess controlled substances primarily with the intent to distribute there are exceptions if you possess it for personal use so the question by now gee maybe this if you access attain child pornography or cocaine base for personal use does sat make you guilty of  another crime the conspiracy in the drug case or in this case guilty of knowing distribution of the images which you obtained except in your hypothetical there is no sort of external mechanism as we have here the power the file fall about sharing mechanism by its very nature does the work right distribution and then the question is whether or not your client understood that and it seems clear that he understood that in fact he had a computer background which suggests that he was not is not a neophyte when it came to these things he understood these programs were and that seems problematic for me it is problematic and there are cases that even back up your point charge she has but in my case he says i try to opt out or disable that and in this record i was not the council below so i don't know with discovery shows i think it would have an instructor for instance for someone his defense attorney or the prosecutor to make part of the record these contracts are that he should then we are he did say he tried to disable it but then he further said when he couldn't he just kept using it kept using it because it got him what he wanted it's an it's a trading system and he knows it i would agree with you on that stack or i that's a very accurate reading of the facts of this files i didn't want them to do that i didn't keep track of it and i did everything that i could to preclude that but that's not inconsistent with an intent to distribute on this record i mean he he had some remorse for what he did i suppose and attempted to minimize the bill a terrorist nature of his conduct but the bottom line is that the files were in fact shared and he understood that he did understand half of the record that's very true maybe the judge should have asked them again after he said he did say it was never my intent to disturb you but you have this to be lesson of fact which lays out how even with that assertion by the defendant given the nature of the program in the way these things operated and his  he did try to disavow the use of these programs and this is why i think in the facts of this case and the procedural posture of this case it was era for judge conrad to have not explored this further or abated the hearing for further inquiry or further briefing and that's why we maintain it was inappropriate for him to have accepted the facts to a savage the factual basis and then you know issue the judgment factor mandate i guess from rule thirty two to look at the four corners of the record below to make a decision as to whether there's a factual basis i would suggest that at this late stage in sentencing when this issue is or you know is presented that perhaps judge conrad should have taken a time out and asked the parties to to recalibrate their positions well if you characterize it that way is it was a plainly it please the court amy ray for the united states your honour's under a plane air standard or view on air is only plane if it is clear or obvious under the settled law of this quarter of the supreme court the very fact that the defendant suggests that this court has not issued a published opinion and that as we know the supreme court has not that actually settles the matter right there they're big this record could not have plainly erred in accepting mr states's guilty plea based on the factual basis to which he did stipulate both in a written factual basis that provided detailed facts to support his guilty plea and at sentencing i think that was page thirty nine of the joint appendix he stipulated to the factual basis that there was this factual basis to support the offense now the defendant argues that it's not enough that because he said the defendant says an allocution i didn't really mean to distribute this i didn't want to do that is not the mens rea in the statute it's quite plain in twenty two fifty two way that it is knowingly that's all that is required and if this court refers to the supreme court's decision in flossy in last term the supreme court itself defines what knowingly means it means that it is practically certain to occur so we know that that knowingly is it what it means is practically certain as opposed to intentional which means that he has to have the purpose of distribution that is not what the statute requires however i also note that mr stints at mit it in his allocution and in if the court refers to i think it's page one forty one the statement that he provided to the probation officer he knew what this this software did he may not have liked it but he did not this continues he knows it and he does not  discontinue the f b i downloaded files from this gentlemen's peer to peer collection his software collection of child pornography on three occasions between may and june of two thousand and fourteen so we have three downloads and during his allocution mr stewart's acknowledges that he watched the computer as it downloaded as someone downloaded one of his files he says after that he discontinued   defendant created a shared folder called my music that allowed others to download is child pornography files which implies some affirmative steps in route to distribution this is a different situation here there are no affirmative steps correct i don't think that the record reflects that there were no affirmative steps your honor there was a and i will say this because we're on plane air standard of review because the factual basis wasn't contested that was not developed but this court doesn't need it in layton what this court actually held in that was the very use of the peer to peer software was enough to satisfy the distribution enhanced meant under the sentencing guidelines which is we was enough under the sentencing guidelines it didn't actually say that the court had that the defendant has to take those affirmative steps now in the context of what qualifies as  distribution let's leave the mens rea element to the side and talk about distribution the circuit courts of appeal three of them at least really host one in the third circuit says there has to be not only the use of the peer to peer network but there has to actually be evidence that someone did in fact download a file the tenth circuit in done and in shaffer seems to suggest that that's not required and in dunn the te circuit actually says we're really not going to talk about it because we don't need to create a circuit split in each of the cases in that weary court has addressed what distribution means there has been evidence that other then in the third circuit case there's been evidence that there was a file downloaded in this case we have that evidence that a file was actually downloaded in fact the f b i did it three times and then we have the evidence that mr sits acknowledges so this court does not need to reach the issue of whether or not mere use of peer to peer qualifies as distribution without evidence that a file was downloaded because we have evidence that the files were down because that's also the first  so well we are at least it makes reference to the fact that makes files available and to take in those files are in fact taken exactly what i would say about that judge docket both the first circuit the ninth circuit they use that language but in those cases there were files it's not exactly presented in those cases because files were actually downloaded having said that i i wouldn't take issue with that the way that that  because we don't need to take issue with that in this case i'm not sure we would take issue with it anyway but we don't need to because because i think distribution fairly interpreted probably means it was in fact distributed  but we have someone has to be someone has to be on the receiving end the distribution should be so let's say we had a case where a peer to peer was used for one day or peer to peer was used for you know three days and it maybe it's as it was i think it was in johnson maybe it's somebody who's on supervised release so there's a probation officer that's regularly watching and they say oh my land this person is under supervised release he's used peer to peer it's been maybe three days and maybe we don't know whether there was somebody who ever actually downloaded the file whether it was in fact sent out that's a much closer case it's just not this one and not only is it not this case but we have the further layer of the standard of review and the fact that all judge conrad had to do was be subjectively satisfied that the facts would support the guilty plea well of course here you also have the fact that mr stitt have to check a box  recognized that the the files were in fact available for down that's right and it and it's it he did and it's not in the record but i think he also had to have a share file of some sort now whether or not he had to you know put what he had to put in it again it's not it's not developed because it didn't need to be developed and part of why it didn't need to be developed was because he did not object to it but even if he had objected i would respectfully suggest that his admissions that he used the software and be evidence that the f b i agents downloaded child pornography files from that software and actually let me just look because i believe there were the f b i agent on the factual basis there the defendant was sharing one hundred forty nine five miles so there is actually something in the factual basis that suggests that it was in some way in a place in his computer where it could be shared one hundred  forty nine files so and that's on page sixteen of the joint appendix so anyway i don't think that in this case the issue of whether or not he put it in a shared folder or the affirmative steps that he would have taken was important because we know that he in fact history and he had made it facts supporting that so the district court did not err let alone plainly air when it accepted his case if your honour's don't have any further questions the united states requests this court affirmed the judgment of the district court thank you thank you that the government can't rely on leighton carly because leighton did involve the affirmative steps that are not did not appear to be involved here well and i think maybe i didn't present the behavior of those other people who happen to mr stewart says computer database in other words i'm sure the f b i would be because they tap into it to get the hundred forty nine images of china and videos of child pornography that he made available for sharing well is criminal either way i wouldn't read the statute quite that way at least one can see the point of argument but i understand your point judge sachar i'm asking the court to consider conceding that participating in the well i suppose it would not be for you to concede because you're not representing  acknowledges that people downloaded tapped into his and maybe tapped is correct word that they access through the protocols of the file sharing program probably through the contract of adhesion which gave in this right  the i'm not sure it's a contract but he didn't have to purchase this program he didn't have to purchase a that's very true very true but he also took steps at some point to not enable access under these programs accessed by the people and that's why i think the four circuit should take this case as an opportunity to try to maybe clarify you would have crafted as a result of this law that you wish for us to create i would suggest that the opinion should say something along of all lines up when congress and acted this criminal statute roman allies  distribution congress had more in mind than just taking passive part in a file sharing program that's how i would put it