case number one five dash three two six three usa v ryan collins and case number one five dash three three zero nine u s safety ryan collins or argument not to exceed fifteen minutes per side mic united states versus martin the district judge considered historical surveys of jurors he had conducted in previous child pornography trials to opine as to the adequacy of the child pornography guidelines a panel of this court criticizes surveys observing that quote the jury asked to select a sentence without receiving any more information than it had to determine guilt is acting without the tools necessary for the sentencing decision and about a jury selecting a sentence that's an entirely different ballgame well frankly the does it's the same district judge and the district judge the conduct in the martin case was actually frankly less egregious than in this case in martin he was considering historical surveys and he was just using that as as it as he termed an academic exercise talking about the sentencing guidelines here he actually surveyed the jury that determine the guilt of mr collins and admittedly use their responses to inform his decision as to sentencing so he actually not only he didn't say to them you're in charge of sentencing here and he didn't use what they gave him how they responded to his questions as anything but a factor his but his view on these sentences is certainly well known but it's it's not as if he surveyed the jury and then said ok well that's what the jury thinks and that's how i'm going to sentence you didn't do that no he did admit a leak it was a factor he considered he indicated he considered it and what's your best source what's your best case for saying that he can't consider that as a factor reference to malone case we're talking about considering state sentences and that is state sentences are an impermissible factor in determining a sentence and frankly while it's clearly a permissible factor state sentences or at least based on the informed decision of a state judge and legislation that supports the state sentences here this is a jury survey judge givens during the martin oral argument referred to the surveys as the man on the street survey this is nothing but just an opinion of the jury when they had absolutely nothing to base the opinion on there are so devoid of the factors necessary to to in that to be your i'm sensing now you're saying in permissibility impermissible feature of this using this factor is that it should have been used at all because they were so ill informed yes that's that's it so that the government's position is that these sentences subsequently unreasonable because it was impermissible factor additionally we also indicated to the court gave very little credence to the deterrence factor and in addition just the size i think it will be an impermissible factor frankly whether or not the department just as well as there is an appeal on a sentence like that i can't answer that but i believe it's an improper and frankly as even the court observed him alone i believe it was just kids  mickey observed him alone considering informational factors also could lead to upward variances right so it's not only that it would lead it in his case it lead to what the government can attend as drastic in the ultimate variance down to the mandatory minimum but permitting such a procedure could lead to upward variance as well judge quinn's own laurie article says that in the white collar cases the juries often recommend sentences higher than the guidelines well i guess  sentence and it really doesn't matter how he got there supposing he hadn't consulted the jury and given this man five years would you be here i would still be whether i'd be here i can't answer i still agree that the drastic variances is a huge part of that i believe the imprimis of all use of the juror survey is also part of it i think there are really three distinct factors of the sentence that make it an abuse of discretion in an unreasonable sentence and one of them is the drastic variance i mean he went from two hundred sixty two months at the bottom of the guideline level to the mandatory minimum of sixteen months the mandatory minimum should be reserved for the least culpable offender committing the least serious form of the offense here we had neither we had you know measure a minimum on a receipt of child pornography would be five years here is receipt in distribution it involves images involving children as young as infants being subjected to this to conduct that but it appears the judge when measured against the features that that argued for leniency in that is that this gentleman no prior offenses you know you need to take them off but you know exactly what i'm talking about there was a balancing that went on well but frankly when if there is a balancing doesn't that it is much as we can see from judge  the reasoning that he offered on the record we can see that he balanced many factors and and right there is that very difficult for this court to say that it's that this impermissible factor weighed so heavily let's say it's impermissible call it that for your purposes here that it weighed so heavily that the sentence becomes on reasonable i think not judge i think first i think the impermissible factor in and of itself makes the sentence on reasonable regardless of the ultimate sense that the use of it makes you have a case that says that any case well again i was not the ones you told us about it's not martin now more on no martin didn't was it wasn't exactly on point but i think maloney using the state's sentences it was not necessarily it was just the fact of the use of the state sentence that the court in a case where there was an impermissible factor they didn't i don't believe they reversed it specifically on the ultimate number that was given but on the use of the state sentence a comparative sentence but i'm struggling with whether it makes any difference in your analysis that the court the supreme court has said you know sentencing judges if they just have a policy disagreement with the guidelines they can factor that in they can sentence in a way that reflects their policy disagreement and judge quinn pretty clearly has one of those  d it sort of looks from this record that all that the jury questioning did was to sort of show that they were in line with his polic certainly certainly the supreme court gives the district court thirty two to have a policy disagreement absolutely but that's not just what happened i mean in the bistline case the court reversed it because the court said because congress you know because the sentencing vision wasn't involved in all the guidelines i disagree with the guidelines and and give a little sentence in this court said that's not permissible that was not ok you can have a policy disagreement but you can't say just because you don't like the way that the guidelines were formulated in that case so i think that it's certainly the jury's survey reinforced judge quinn's opinion regarding the guidelines may have reinforced his opinion his policy disagree with the guidelines but that's not just what he said he said he relied on the jurors has to be supported by as significant as the justification and response a judge cooks comments while he may have balanced mr collins background there was nothing really particularly unusual of mr collins background he was really rather a pedestrian offender he was someone he had no priors as most child an r v fenders don't he had a family he had a job there was really nothing that was so extraordinary about him that it would take him from two hundred sixty two months down to sixty months without something else and it's the government's position that in this case that something else was the impermissible juror survey is what that was what tipped the scales here and caused such a drastic various to the mandatory minimum when he even according to judge quinn's own findings perjured himself during trial and the evidence showed that he not only was getting social gratification from the images but that he also was getting sexual gratification from observing children in public clearly this if and it was more than the least serious offender clearly his conduct was was more serious than the base offense level of the receipt he received and distributed and his conduct in his background warranted a more significant sentence than the mandatory minimum good morning your honour's and may please the court i'm robert sharon an attorney and squire patton boggs i've been appointed to represent mr collins in this case mr collins committed a serious offense and he received a significant sentence to the trial judge found was sufficient to carry out the purposes of criminal punishment after the trial judge accurately calculated and fully considered the advisory guidelines sentencing range the guidelines in this case were the centerpiece for good reason and that is that everything in the record indicated one thing the guidelines were off the mark that began with the pre sentence report recommendation with the sentencing memorandum by mr as counsel below with the report of the commission in two thousand and twelve on these guidelines and opinions by members of this court in the walters case at the sentencing hearing to this already considerable record the trial judge added his own experience and the results of a post trial questionnaire of the former jurors the trial judge at the sentencing hearing then put the core question in this case directly to the government and asked how the guidelines would reflect just punishment from mr collins to that question the government had no answer other than to object to one piece of information in the record the results of the about about these guidelines what what did he ask the government he asked the government how the guidelines recommendation would reflect just punishment for mr collins and instead of answering that question which was obviously fundamental in the core question in the don't know it seems it seems rhetorical to me seemed rhetorical yes your honor but it's significant given that the only efforts by the government i mean should we take anything that the government didn't come up with something in response to that yes you're asking us to do that what is it that there were there's no argument that this sentence is not sufficient to meet the purposes of thirty five fifty three day oh the sentence imposed this sentence imposed i see if there's a right that i understand i misunderstood sorry and to be clear the government it's only recommendation of a sentence was in response to the question are you asking for twenty years and it's the answer yeah so the point is you have mr collins as counsel requesting sixty months supporting that request with the sentencing memorandum the pre sentence report recommending a variance given the obvious disparity in the sentence and everything else in the record supporting the sixty months the only thing going the other way is the guidelines appear to come to a different result and so the question is what weight should the guidelines receive and the key to why the guidelines are off the mark it's not that mr collins has something in his background it's about his conduct and his culpability and this is an easy case to understand where we need to differentiate amongst offenders because mr collins did not purchase  pornography he did not trade child pornography and the difference between trade and this distribute is what he did not offer child pornography in exchange for child pornography with others he did not encourage the abuse of children which is what that conduct does there is significant evidence behind the guidelines that says that when you turn child pornography into a currency you encourage the abuse of children and that is the offense that the guidelines are aimed at and we can understand that when the guidelines were first put together and adjusted by congress the reasonable assumption if the person has child pornography is they got it one of three ways they produced it they purchased it or they traded for it we now have a category of offenders who got it another way and did so without encouraging the abuse of children by turning it into currency and doing anything incentivize someone to abuse children that's the conduct that merits these guideline sentences the conduct of mr collins was wholly apart from that qualitatively different in the robinson case in brabants in one footnote to file sharing is qualitatively different than purchasing materials and reviewing this court's review of sentences such as in finck in both of those individuals engaged in trade and even more dangerous conduct including finck had abused his own daughter the file sharing only defendants are qualitatively different and the guidelines are simply not aimed at them and that is what everything in this record indicated that it made no sense for this type of offender that you can draw no link between him and encouragement of the abuse of children that this five year sentence was reasonable so the only thing the government objects to is this jerk questionnaire and your hono questions make clear that the real question here is how was it used and what was it it was it was not a whole of the jury the jurors were no longer serving and how is it used it was used the record shows to assess the guidelines to confirm what everything else indicated that they were off the mark it was superfluous he says he relied on it but it was truly superfluous given that this was such a one sided record indicating that the guidelines were off the mark so this the government is saying well whether or not the sentence is reasonable or an abuse of discretion the sentence should be reversed simply because of the reliance on the jury questionnaires if this court were to find that judges shouldn't use questionnaires and that calls into question the court's impermissible factor review cases and mr collins would submit that it's time to examine those precedence in light of golf spears and and in light of the traditional rule of wide open sentencing thirty six sixty one and the sentencing of the broad sentencing purposes to at least define if not abandon the idea that a single important statement in the sentencing record would merit reversal in re sentencing and that the court has directed that the sentence be reviewed that the variance be reviewed the supreme court in gaul did not and outlying the standard review identify anything about impermissible factors notably the court did refer to clearly erroneous facts so it wasn't that they weren't listening that the basis for reversal and i think the two funk opinions unfortunate both of which were vacated actually reveal this dichotomy because in the first fun opinion there is a finding of an impermissible factor then that is vacated in light of golf or for reconsideration and in the opinion reconsidering it it sets the impermissible factor holding it doesn't use that term but it refers to the two holdings in function it says both holdings reversed by gaul so arguably impermissible factor review at least in the way that the government would have it be used as a basis reversing the entire sentence does not survive the court's cases and in its brief the government says well thirty six sixty one doesn't apply but there's a finding on the record that the relevance of the juror of the jury questionnaires is that the jurors were familiar with this conduct they were certainly as for milieu with this conduct as the other individuals who've been permitted to contribute to sentencing hearings such is the mother in law of of of an offender or a sister in law of an offender or the mother of a victim that this was information about the conduct and it reflected how serious the offense was in in this case the jurors not only had ten had been at the trial but collins testified about his conduct so they were well aware of his conduct and this was again just one piece of information in the record that all went one way and while this might be somewhat novel  i think it's wholly similar to other beneficial practices that have come along that even preceded the commission i note i would note that my understanding from your confirmation hearing judge guys that the eastern district of michigan used to have sentencing counsel were judges would get together and discuss the appropriate sentences in order to try to achieve greater uniformity and less disparity in sentences it's also similar to the probation officer who again in this case said that variance is likely in order it's the same thing it's someone looking at the conduct in giving an assessment there of so there's no basis in the in finding that this is an abuse of discretion strict reading of thirty six sixty one would say that no limitation can be placed on the use of this information concerning the conduct and importantly this trial judge use this information because he thinks deeply about sentencing and he believes that this is centrally relevant information in order to assess the seriousness of the offense now he did not replace himself with a jury he did not delegate his sentencing function to them he used it is additional information now the government relies on the martin case and i think the martin case goes the other way in martin you had an extraordinary claim that said the judge should have varied further because of the juror questionnaires from other cases that weren't even about the direct conduct issue one would have thought that that would have been cast aside summarily as not a proper basis for an objection and an abus discretion standard instead the court in an unpublished opinion went to great lengths to explain why the judge's decision couldn't be second guessed by those two juror as search surveys from prior cases so that that the the the jurors former jurors assessment of the conduct was so important that you needed to point out that they didn't have the pre sentence report and again this isn't giving them the sentencing function it's using it not even to impose the sentence but to assess the validity of the guidelines as applied to the conduct and culpability of this particular offender as to consideration of deterrence plan or applies  and other than pointing to page i d seven five six and observing that the key word there is extremely long sentences as in longer than five years of incarceration that the judge adequately considered deterrence he was merely commenting that longer than five years he didn't think would pose additional deterrence this is not a non custodial sentence finally or honors i think disparity is crucial in this case  i don't see how this sentence could be held to be in reasonable given grossman you had a sentence for sixty six months for an offender who engaged in trading he had thousands of images the he enticed children online he was a member of an online group of an offense of offenders and this court affirmed his sixty six month sentence so mr collins is clearly less culpable mr grossman and i would reiterate here this is ninety three images in one thousand videos obtained through file sharing there's no trading there's no indication of dangerousness of the government is not arguing that mr collins is dangerous they're not arguing that he encouraged the abuse of children and that indicates that the guidelines are off the mark and there is no basis to second guess the trial judge's reasoned decision that this sentence carries out the purposes of criminal punishment and it was not an abuse of discretion accordingly mr collins would ask this court to affirm the decision of the trial judge in this case  frankly software is every bit part of the industry of the trading of child pornography as purchasing child pornography or anything else it's peer to peer and mr collins was in a unique particular situation to understand it he was a computer i t guy he knew exactly how it worked and how it works is that the images are available to you making images to others available to download in your shared folder so peer to peer software is the way that offenders now trade child pornography they make them available to others to download and they download them from others so it's every bit part of the industry of exploiting children as any other form of getting child pornography and he also makes comments that somehow a jury would be a comment of a juror regarding sen is is just is is important as the coming of a victim representative speaking in sentencing he said to jurors don't know any more about the you know just as much about the crime as a victim nothing to be further from the truth the victim is there first of all statutorily authorized to make a statement at sentencing and secondly the victim is giving the perspective on the seriousness the offense because the victim is telling the court how this crime affected the victim the jurors don't have that perspective and in fact asking the jurors their opinion bad sentencing specifically this car it's the importance of the victim's statement is the jurors in this case had no ability to read the victim impact statement or their victim statements here they had their part of the no they didn't there were statements i was submitted to the court that the court had the opportunity to review they did not testify life i'm sorry judge i misunderstood and additionally that the juror jury doesn't have really all the facts the jury only has the facts sufficient to support a finding of guilt frankly l the evidence it's regularly excluded pursuant to federal rules evidence for all three is very relevant for sentencing but it's not admissible at trial so when you ask a juror who gets a sterile  filter down version of the facts only the stuff that's admissible to prove guilt dest them to opine at the sentencing they're not in a position to do such and in this case again in a trial by case only small portions of the videos are images are displayed to the jury they don't get the true flavor of the depth and depravity of the defense collection to see if the government would show everything then to be an argument that was only prejudicial to show enough to establish the crime but we're not there to show affirmed by this court so clearly you can look at it you know you always point to certain cases to prove your point but the fact is this this case this sentence was substantive reason because of the three factors as state more it seems to me and if you have a different view tell me but the only way that we could address the jury issue in the manner that you suggest yes i i do is as to the issue that your service i believe that this court should hold that it is an impermissible factor and a district court cannot serve a jury to ask their opinions as as to the sentence ok thank you thank you counsel