number five her argument this morning is united states against court with the hat in hand out peacefully because i'm asking the court to reduce his sentence based on cruel and unusual punishment and that bears and of itself a heavy burden  it appears to be judge that the are judges that the concept of the statute under which he was convicted has a precursor to  punish those who have child pornography and in particular those who may certainly have had ophelia tendencies that is typical for my clients a horrible upbringing and it's always difficult to recover from those things he compensated i think by self medication starting a few age of fifteen with alcohol and there is a principle of alcoholism i don't know what does this have to do with your constitutional argument question but what it has to do with judge is that it's my opinion that mr rodriguez is not an individual who falls within the overarching concept of the child pornography statute and you're not making an argument for innocence no judge i'm not and i made that clear  but jumping forward to his sons your honor you receive seventeen and a half years fifteen of that as a mandatory minimum there is no safety valve in these kinds of cases and  quite frankly i think you know three years to straighten yourself out another three years of punishment is more than adequate for a first offender who in my opinion was motivate what is again my question is what does this have to do with your constitutional argument you're telling us what your sentencing philosophy is there's no reason to believe it was the sentencing philosophy of the  constitution we are we have an existing constitution and it's not just the same as whatever you think now your honor a i respect usually understand read the guidelines and he was certainly within that and that's why i'm left with the constitutional challenge of cruel and unusual punishment because the the sentence quite frankly is too long and the courts are the only recourse and i've been a lawyer many many years and i appeared in front of this court i think but quite frankly we i it's my opinion that we need more of that last and this is a case that illustrates that this young man as far as i can say that i soon lose count and you type from a cruel and unusual punishment case get your two and a half years over the mandatory minimum and that's to ease the cruel and unusual punishment no thanks are you because i would finally said still don't understand what any of this has to do with the eighth amendment if you think the sentence is on reasonably law your argument should be that it should be reduced to the statutory minimum just as a matter of our took police on reasonably long sentences but you've chosen to make a constitutional argument and i notice that your brief doesn't cite any of the supreme court's current eighth amendment cases they have established jurisprudence about what the eight in them it requires and you're ignoring it and i'm kind of waiting to hear an argument he keep it short your honour's and the kid in this case the district court did impose a reasonable and fair sentence for serious crime i don't believe that there's can be any doubt about the seriousness of the offen seriousness of the conduct i'm not aware of any legislative efforts of any kind of efforts to treat this so called sexting as conduct that should have a he special treatment i think it's generally left to the discretion of the prosecutors whether or not the facts fit whether a prosecution should be brought and in this case i believe the evidence and  the conduct that the defendant pled guilty to shows that the crime does or that his actions do amount to that crime and that that crime fits   thank you very much mr nelson we appreciate your willingness to accept the appointment in this case the case is taken under advisement