good morning to me please the court my name is take the suit jurgens and i represent the appellate mr kessler and i don't need to read is there time for a battle here this morning since the facts are set forth in my brief detail i'll go directly to the issue that the court directed us to hear is in our case here where there were four factors that the court looked at and one of them was the fact that they had been given to the to mr kessler by the parents money and that your honor i believe that those four factors that the district court announced which one of those is one of the kessler and the children was also all taken into consideration of the specific offense level and he was credited with a bump up there as well so i believe if you got if you landed in on that factor specifically and only you would run into the same double counting issue believe that's that's a very good question or honor and that's what we're trying to discuss today is i think if you go into talking about degrees of age i don't think we can do that here we have specifically in this case the guideline in the note that's taken as the law here h the agents been considered the guidelines talk about from age fourteen to sixteen and then from twelve to fourteen and then under twelve is what we're talking about here we can't talk about the degree of that factor i believe if we did that every time certain became book for sentencing court if you have a vulnerable victim factor in you've got the court saying well maybe the physical condition that makes them vulnerable isn't really taken into consideration the following hypothetical let's suppose th victims here were ten year old boys and that because of the onset of puberty one of the boys was six feet tall and the other boy was a much shorter statues are feet tall there's a wide discrepancy so the six foot boy would be in a position to perhaps resist or be more developed and the other boy not because susceptible than the other your honor i think the way the court could divvy it up then if they wanted to look at the spot you could talk about the physical size of those boys but you have to find another factor besides ancient order to talk about the vulnerability that's what i believe  these stars were the factor you would say that's not it related well i believe in the example that you gave that would be true of the sixteen what happens when you are scaling down through infants where they are old in my hypothetical and this is unrelated to age and therefore they're there they're vulnerable and it's not it's related and you're on a sense of the guy right and you're on it was our position that that the way that this ties that we talked about the court talked about it in where i was speaking about there is if you talk about the idea that they were given to mr kessler and i was talking about that relationship of him being the guardian or the caretaker whatever the children and that had already been taken in consideration under the other specific offense level under the offense guidelines that talks about relationships and there's already been an upward adjustment based on the fact that he was the caretaker for them and that's that's the part that i was saying would be double counting if you went to the relationship o able to walk away from the sexual abuse that they can't walk you're right about that but what about the four year old toddler in this case i think we're on dangerous ground here when we start giving up the degree that we're talking about here about the predictable ways and they really do differ at those ages well in terms of ability to walk away you're correct about that trying to but i think if you're talking about other issues here what is it that makes them vulnerable i mean that's the question here is that about the psychological harm science that in the first three years of life patterns most predominantly i mean when you're talking about an eleven month old i don't see the line growing problem when you move up the age range maybe maybe start with the guidelines technical sense age related that's why i was asking you about the typewriter it's it's it's the onset of puberty for the growth hormones are triggered by age and if you over read the guidelines anything having to do with  there are two different things here there's a two itself excuse me there's wonder if there are two different things there is egypt itself and the fact that somebody is sexually abusing a victim under heaven is fully taken account of by the by the guidelines whether the victim is ten or three and then there are things that are not age itself but that tends to correlate with age though imperfectly like ability to flee ability to defend oneself ability to resist ability to make it difficult and that they're not age they're just things that tend imperfectly correlate with age i wonder if anything that tends in perfectly to correlate with age but it's not age it self can be a vulnerable victim factor if these children of this age need to be considered under the fence guidelines they have spoken in decided what those categories should be and it would be wrong to categorically start giving nothing under twelve age here they're outside the heartline except your honor i'm not sure that's the legal analysis here since it's not a departure issue i think that with all due respect i think that that and that it's been done and he's already been punished with that four level bump to the fence level of twenty seven and the whole point of that that application note under under the banner of the plectrum is to say don't double punish them for that and i think that's exactly what we've got happening here thank you very much issue the answer is yes passing a child from one adult who is sexually abused him or her to another adult with that child having no indication that the first sexual abuse is wrong or passed around the adults mutually assaulted them and took pictures of them while they were being assaulted and that is a factor that exists separate from age that exists entirely separate from the fact that these individual child victim had been previously right on another occasion by another adult and that's the same sort of situation i'm i'm reinforcing here these kids were raped by an adult or sexually assaulted by an adult were given no that that was wrong are you know appropriate and so when they're presented to another adult for another sexual assault it is they are more susceptible to that behavior to that crime you you argue  that the children have not developed a basic morals and i think your honor that goes to then these other factors in relationship to are there other factors that exist that are predetermined by age or roughly correlated age i think that we can we are must agree that children who are so very young who have had no exposure to the social mores of the society in which we live we have never had an instruction on what is written is not appropriate behavior who are sexually assaulted by their parents turned over to another adult for sexual sexual assault factors are independent of age are determined by age and i appreciate that when accounted for right and i would suggest they have not because here in the hypothetical you're on a race with class counsel if you have that you can have a ten year old child who is a large physical child the guideline provides for and enhanced simply because of age why is that because there's a power relationship there are certain aspects of that but once you get below age twelve there could be other factors that exist with respect to a child who is ten years old you might have a child who's ten years old who is cognitively impaired and in fact the twelve year old victim in arch old child who had a congress of level of an infant i believe that your honors would in doors the application of the vulnerable victim adjustment to match child similarly if you have a ten year old child who was a paraplegic been around the passing around the small physical size of these children need their inability to resist their inability to run their inability to record it to any other adult children even pre verbal children who have the ability to draw are may have a chance to express in a drawing for example to a teacher to a daycare worker the you know the anger the fear that they're expressing these children had no ability they have no language