court i mean appearing on behalf of marie i'd like to discuss with the court st this morning the issue of whether there was an error in the district court not finding an obstruction of justice enhancement prior to considering the alleged false testimony of miss on monday during the trial and i ask you on that point can you  direct this to any authority that says that in a sentencing judge must confess consider false testimony under the guidelines three c one point one  s and frankly i think the most salient citation is booker itself booker makes as a rule across the board that district court judges must st consider the going lines and here we have a question it's clearly something that fell under the obstruction of justice and handsome an a three c one dollar and it's something that can't be that suppose you have family circumstances and a defendant doesn't make a motion for a downward departure for family circumstances you're saying under three thousand five hundred and fifty three a factors a judge can then independently lower defendant sentence for family circumstances even though there was no motion the court didn't address the guidelines issue under th ignore the guidelines you can't do that and it was no request here for the court to make a finding that once the court said on i'm considering the false testimony the defense attorney did not say wait a nd if you're considering the false testimony you have to make a finding under the three c one point one in fact we have said you can't even object to a three c one point one lack of a finding unless you ask for finding right so there is no no there was no request here that the judge make the guidelines in the guidance under the three c one dollar the guidelines it's a high standard in the wilfulness standard is applicable here so then we have it should have gone to the judges no the judge would have had the discretion had the false that you have to make all these findings completely inconsistent with thompson i would say that the procedure st is the present report and the present report here did not recommend that obstruction of justice and hand the onus was on the government point to object government did not object so what it does is it puts it frames the whole issue badly let's say or doesn't bring it i think they're due process concerns that happen here then where it's not highlighted particularly in this particular case where willfulness is really an issue and here what we have miso monte she had serious mental health issues including schizophrenia caused by her horrendous upbringing raped when she was five and through her childhood these are causes of these serious mental illnesses certainly the case could have and should have been made that it was more on whether her testimony at trial was willful here the government in its sentencing memorandum said that her answers were incredible and incoherent well i submit that that's evidence that that we have a person who is not operating well she she suffering from those conditions that mental illness is explainable and as to why she would have a deluded state of what she said she thought the reality of her situation was and that was all should've been brought in in the context of a between how she was and how things were going on in the previous two years did so your honor i would say but also what the just record set in explaining why she gave the twenty year sentence we had a mandatory to the nd point in my brief and this past to do with whether there was sufficient evidence under count two of the indictment and this is the issue and dealing with this mens rea element of  whether what what satisfies knowing reckless disregard or a reasonable opportunity to observe the victim and this is raised in the context of whether someone is the victim is under fourteen years of age and we have an enhanced penalty in that regard this case is different in one way from robinson although i submit it's analytically the same but i do raise it to the court because i i think we really all have to thinking in in terms of the court and how do you how would i approach this and i think the st thing is does that make any difference that we're talking about for under fourteen years of age as opposed to under eighteen years of age which was in in robinson and the reason reason is a court and i'm just saying that i think well the government is saying here that that some p applies there is what i would say to the court is it's a matter of statutory construction i can see the statutory construction in it it's the statute is not entirely clear i'm highlighting it for the court because  really an officer of the court i'm raising this to to highlight it just to say that i think it's something the court needs to take a look at it i think it comes out and i have an argument about what does it mean to say reasonable opportunity to observe but i under eighteen years of age but obviously the government and the appellate are saying well obviously it means also with regard to a determination of under fourteen years of age and just simply bringing it to the court's attention i understand i is relevant in this case and that is what is the meaning of the words reasonable opportunity to observe now if there are key words there reasonable opportunity if this was simply seeing someone then the words reasonable opportunity would be superfluous and of course we don't construe a statute to render words superfluous and we know in the law which repeatedly see the word reasonable reasonable depends on the circumstances so say for example if there were a nine year old and someone had one viewing of one observation of a known you know your rights obviously that would be sufficient to satisfy that reasonable opportunity to observe what i submit in this cases and how it goes to the is we have someone who is within one year of fourteen years of age and in a situation like that where there is where it is so close what is a reasonable opportunity to observe i would submit it is a much longer period of time actually conditional strict liability in other words a condition preceding must be satisfied before strict liability it becomes a strict liability statute so those critical words what does it mean to have a reasonable opportunity to observe is is very important and not simply not simply simply something ok it's automatically a strict liability sachi what i'm also saying for example is that the word observe we use the that word often and it does mean to observe appearance but observe is a broader word observed is it relates to also what the person says observing how they interact you know we have science experiments  interview that use well a brief brief and again going back to judge karen spins a question about she said you know she seemed very young the important thing is there observing then includes what did victim say in return and in return the victim said essentially i'm an experienced prostitute i've done this before giving a cup and indication that she's older than in other words here  saying you seem young and she's saying i'm not that young because of experience so there what i'm saying is that there's there's importance in the length of time we don't have the length of time here we have a brief look pretty young you know it it's it's an ambiguous statement as what does it mean doesn't mean you look younger than eighteen i mean looking young is a relative term we don't know the context we do know the response and the response us please the court my name is stephanie lake and i'm an assistant united states attorney in the southern district of new york and represent the united states on this appeal and i represented the united states at trial as the court's questions have reflected united states versus robinson and ninety one c are clear that as long as the government fruits that the defendant had a reasonable opportunity to observe the minor victim in a sex trafficking case the government does not need to prove that the defendant actually knew or recklessly disregarded the victim's age here there was ample evidence in the record that the defendant did have a reasonable opportunity to observe the minor victim who was under fourteen years old we refer to her in our brief as j f that evidence included the defendant's own testimony that she had met two times cooperating witness testimony that about the st interaction the defendant had with afterwards the defendant sold  to an adult man there were also text messages between j f k and one of the defendant's minor sisters who also worked in the defendant's sex trafficking business that demonstrated that j f had continued to work for the defendant after that  meeting from all of this it was entirely reasonable for the jury to conclude that the defendant had had a reasonable opportunity to observe the minor victim again as the court's questions have reflected on the defendant nd argument about the procedural reasonable of the sentence judge wood was entirely justified in considering the defendant's false testimony under section three thousand five hundred and fifty three there is no limitation on the district court's ability to consider that sort of information and fashi the response of the the argument that lower sentence whose was warranted because of this the circumstances of child abuse and  the improvements in rehabilitation in the previous two years before sentencing all of those arguments were before a judge would at sentencing and judge would fairly consider them the defendant is essentially trying to relive it gape the sentencing here and to argue to this panel that judge what should have weighed those factors differently than she actually did this court's precedents are clear that it's up to the district court how it should weigh factors like the defendant's history upbringing any challenges that the defendant had in addition and here the the district court judge did give the defendant a significant variance below the guidelines range for guidelines for a life she was sentenced to twenty years which was only five years of the mandatory minimum sentence so all of those factors were fairly considered at the sentencing unless the panel has any further questions the government will rest on its admission  with regard to this mens rea standard and the reasonable opportunity to observe i just want to share with the court and this i have found it to be a difficult statute honestly to to understand and correctly interpret i'm giving the court what i think is the correct understanding and i'm sure here what you view as i looked over and over knowing and reckless disregard if we think not in terms of subjectively what the defendant knew or recklessly to sonority disregard it's a subjective standard no reasonable opportunity to observe i submit is an objective standard i it doesn't take into consideration what in fact the defendant thought or disregarded but what would a let's call it a reasonable person or an objective person abstractly would have  is it fair to say that that objective person would have had a reasonable opportunity to observe so and also i think it needs to be interpreted in context of what it was intended to substitute and it's clearly intended to substitute this something for knowledge or recklessness but in an objective standard so it's in that context is why i'm saying it has this broader interpretation of what sixteen not in and told them in age of sixteen said under fourteen and they looked over fourteen your position would be that under under the your reading of the statute that if any would be knocking at the right well i know actually what i even though they saw the person twenty five dollars times if then not whatever the defendant claims they knew or didn't know at this point an objective person standing in the shoes faced with us and opening act during all the issues about trying to determine someone's age was exactly what congress wanted to avoid by putting in stern requirement it which is a substitute for that if you're a reasonable opportunity to see the person doesn't matter what they said it doesn't what they look like when those things become irrelevant is what congress is doing well that judge bianco at least on the robinson that's what he said as well  i can read you the ones from i did i read the lines and about i think wrong some was ambiguous where i have gone here in in this discussion i would what i'm saying here is so let's take the robinson facts there was this intimate relationship so and it went over a period times things were said during that relationship so an objective person looking at that situation has said well look there was this reasonable opportunity to observe over multiple periods of time therefore there was no need for them for the government to prove that the defendant actually knew she was eighteen years of age or recklessly disregard that was when they looked at this preeminent version they went through all these things that you're talking about well i respect leap so i do what it meant and actually what i would say is that in rumson talks about the legislative history and the and what went back and forth between the house and senate i would submit that back and forth that's what i'm saying that this was not a pure strict liability statute that it was intended to have something here in moore that had to be met and it was it was significant thank you thank you thank you mafia arguments the court