thank you your honor may please the court here today on an appeal from a sentence outside of the recommended sentencing guidelines in fact a maximum sentence for the receipt of child pornography is i think a little bit unusual because there is not a dispute about the office conduct in this case it is the goes to a proposition of mr hall and his the minimum mandatory for his prior conviction of a sex offense involving children now of course i understand that there is no sex offense involving children that is not shocking to the court and there are but there was a disconnect in this case between what is required under the statute mr hall was convicted of and the there was an error made because something wasn't contained in that well the reliability of what was in that file is that's that's the issue so well isn't it true that the video that had been admitted  in the state court had been destroyed but everything else was attested by the case agent that it was a complete trial i know that the government was never able to produce the video and the rationale behind that was that it had been what was there but others tested others but there was testimony about all of our statements about what was and video or they're not there were statements in the case file from the two thousand and two case about what was contained in the video and that included the digital penetration of some young children mr hall did not that conduct there were some control phone calls made with mr hall there were also admitted over here say objection and i need to point out to the court a bit in the brief you know i describe it as mr hall denying touching the children it's not that clear when you look at the transcripts of the phone call i think the question was asked many many different ways during the phone call mr hall admitted to some certainly inappropriate and criminal conduct during the phone call he did deny ever penetrating the children or having oral sex with the children he was clear on those points and that is something that the court did find that he committed and used explicitly as a basis for the senate's but didn't he during the sentencing in this case not the two thousand to one didn't he say that he didn't remember he said when he did these things i mean he didn't deny that he did these things and this sentencing in this case he said he didn't remember isn't that right i believe that's correct judg tattoo on the arm of the person in the video even though we don't have the video is that right that's what was alleged judge i could never verified well here's a evidences is usable under the guidelines kind of circumstance well the court is also a lot of a lot of this was actually subject to cross examination the depositions certainly worth anything of the testimony apparently was i think it's important to note that in state criminal depositions there's a different motive than there is a trial those are discovery depositions they're not admissible in the state court trial and the rationale is that there's a different motive so i don't think it's exactly the same kind of cross examination there somebody that there would be if the deposition were admissible substantive evidence the attorney may not want to show his cards or her cards during the discovery deposition judge there may be  you know a number of reasons to wait till trial to not put someone on notice of what the defense is going to be going to do what this is unavailable they're not admissible in the state court there are certain circumstances involving child hearsay in sexual crime where the deposition testimony or out of court testimony came be admissible there was no indication that there was that type of hearing that's required in this case and then again confrontation cause problems with that if the witness never could be a solicitation of children to perform sexual acts exhibition to children he did not plead to digitally penetrating their oral sex with the children which the court found that he committed the hearsay was really just the statement of one child that was repeated in the police report so the mother you know course didn't witness what happened the child was the witness but there was really no cooperation between the child statement in the police report it was just a regurgitation of of what the child stated was so so you're saying the district court ruling considering the hearsay rule considering that two thousand and two evidence much of which which are some of which was hearsay was  they do rely heavily explicitly on the fact that mr hall so me so we where you determine she's not credible when she started that i don't know how you separate the cor she found that he committed from the need to protect the public and determining what her sentence would be i would think the way you would do it is by listening to what the judge say understand your honor i don't think that we can unring that bell once the courts made a finding that he committed these offices i would like to point briefly to the opportunity to rebut the evidence that's one of the things that the court you know has looked at that i think is really what was lacking in this case again before you get there wasn't there an investigation in two thousand and seventeen where where there some of the pictures of one of the victims occur when his friend rob white spot the victim to his house what she would do whenever they were in town and that quote maybe i should have taken any pictures not the ones he was taking pictures of his friend engaging in and acts of sexuality with underage children and pretty much judge michael i did that a problem for your client absolutely and you're saying you didn't have an opportunity to review but the evidence from the state proceeding which was two thousand and two which involved incidents that took place back in the one thousand nine hundred and ninety s and you didn't have an opportunity to re that which was taken into account for the variance is that your position on this all is judge i am not sure i would call it a variance in my brief i call it a departure because she based it on the inadequacy of the pattern  this court you know found something you know to be a variance even though the court called it a departure did well you know the inadequacy of a god my when it specifically in dress by the guidelines it's it's really a departure and if we look at no nine point two it talks about in order to partner can be warranted if the pattern in hansen it doesn't adequately reflect the seriousness of the sexual abuse or exploitation involved tell me how any of this is unreliable i want you to have a full opportunity to explain how any of it's unreliable his only response and this is on page twenty four is well the way i shorten robin as i did not that i touched two thousand and two court file indicated that the defendant had admitted to touching the children sex like touching the children to the police did he deny in this senate searing that he ad trial there was no claim that the factual findings made by the district court martial hears were clearly erroneous that's never voiced one time let me ask you one other thing the charging document in two thousand and two case she been able to just court she but the district court said that it would have imposed a life sentence if it if it possibly could have and isn't isn't this a life sentence i think but sixty two years on that so yeah i understand what you tell me because you know she made a very clear point that this was not a departure from the guidelines that she or it the district court was imposing  be ultimately sonnets two hundred and forty years which is a significant difference and no one put him on notice of that until when the p s i came out and what when did prepared for it or helps even in that decision to plead guilty to this in alone was ever a zari the supreme court specifically wrecked rejected the proposition that you had to give notice for an up the court has talked about the need to not give notice for a variance versus a departure to me it's very difficult to tell the difference especially in a situation like this where there may have been i agree with you from a from the standpoint of what seems fair and right and as judgments i'm saying from the due process standpoint but we do i mean we have the supreme court opinion here so i mean what difference does it make i mean how legally would you address the problem i mean that seems case law that says she said it was a very she was clear that it was a very hands judges understand the difference between variances and departures so it's a variance i mean does your argument depend on on our finding that it's a departure or is there another way that you would argue that the supreme court's decision does not bind us to find that notice wasn't necessary well i don't think it has to be one or the other judge i think it can be both and i'd also point the court to the united states versus capper dilutes case cited in my brief where the court found something to be a variance even though the district court called it a departure so i don't think the district court's characterization of it is controlling i think the court has to look at whether or not the court cited a guideline the court in this case did talk about the pattern  in whether or not what the court's rationale was here the court had a discussion with the probation officer in the courtroom at sentencing about the inadequacy of the pattern in handsome and how many victims would be required for that oh yeah well i mean we also often have cases where for example the district judge might find a criminal history and a calculation either overstates or understate and that might mean that the criminal history guideline is inadequate right i mean what is the difference why is this any different from the pattern of activity as a specific often characteristic enhanced judge and i would just say that the arguments are connected this is part of the opportunity to rebut the evidence that is required for the finding of reliability thank you thank you mister i don't usually say there's a court appointed counsel but i would like to