hurd asked me out when i asked jessica rather whether my client peter she said must give me twenty dollars one time but that was for cleaning the house and in fact she later says on page forty explicit sexual contact as well again both use both these women to talk lives and that's no excuse and certainly the borders the boundaries or portions very poor mother figure i don't understand why but the evidence here clearly indicates first of all that hammy hauling ambers mother was involved in deviant sexual activities long before amber was ever in the house she had a webcam set up the pay pal account set up  for basically predators to peddle her own children to and thirteen year old child she did actively participate she was in the peanut butter show i don't think there's anything more sexual contact and by any definition in my opinion and the evidence also indicated that amber couldn't get a job because she was absconding from probation and tammy  basically said to her you need to pay your way here and this was what her option was and ultimately it was him who profited and he made hundreds of dollars in the course of about ten days on these activities  o the other thing to keep in mind is that an amber is life up to that point had been kind of hair raising experience with abuse exploitation violent sexual and physical abuse she had all sorts of mental difficulties and problems she had been abused essentially since she was about two years old on words evidence of rape evidence of severe beatings she was diagnosed by the federal forensic and so while the district judge might have given more credit in a way to the childhood abuse i think it had to because in order to understand this defendant in order to balance a three five five three eight factors and because i had her defense attorney put it before the court as a major issue here that was enough to require the court to give substantial consideration to those issues and if you read the transcript of the sentencing the court pretty much blows it off he says as he rejects the court rejects any contention that  she was a normal nineteen year old and her mother was responsible for a good majority of her abuse throughout her life so when you have a situation with the mother controlling the household and the daughter being there having been invited up there by the mother and then getting involved in the situation it's understandable that amber wouldn't just have run away like a normal person this was just another episode in a long history of abuse and exploitation the difference here is that at the time this episode occurred she was nineteen and not seventeen you know it's interesting you know i don't pretend i understand the psychology behind this but your client got up there and said to the court i don't want my child said i don't blame my mother and blame myself for having continued this activity and i want to have the court take her at her word to say she's not blaming other she's not saying that she has no responsibility well i think the reason is that the courts the function of the court is to take a global of these issues anger was nineteen years old she believing her so i guess now you're saying well he shouldn't have believed my client i mean no no i'm saying that he is confusing and for accepting responsibility for her conduct and his role  understand the defendant and why she may have committed and you don't think we should take that to court at its word when he says he's considered that and that's history characteristics and what's happened to her i think the record he made is insufficient because the record is so vast and there was direct testimony by us probation officer and a second witness confirming all of this abuse and the u s probation officer said i want t on this family of abuse according to files that you know there was an obligation to take that into account and spent some time balancing that against other factors here and that th here i just want to really quickly go into the guidelines arguments there is one principally that i'm concerned with although there's i made several basically in the guidelines calculations there were sex crime whatever the two provisions are for different statutory crimes the correct one is two point one as for twenty two fifty one exploitation the second one two point two is for trafficking i think for the same page you get a very nicely laid out i'm sorry not page eight page seven you see the the the full set of groupings here group one group two you get the entire guidelines calculation then you see two g two point one all the way down all the way down so you get to g two point to use the computer and the second one to g two point to use if you rampage there it is in black and white it's not a typo  it's clearly a mistake and it clearly runs afoul of law and u s b archdale which says and i think it's on point in permissible double counting occurs where one part of the guidelines is applied to increase a defendant's punishment on account of the kind of harm that has already been fully accounted for by the application of another word in the guidelines that squarely on points you're right it's it's and it's  me but there was another enhancement due to the grouping of the factors now as i read three d one point two which is page three thirty eight of the guidelines manual it says that specifically excluded from the operation of this subsection which are the which is a grouping subsection is offenses committed under two g two point one so i think that's plain air  well i think the harm is the same because in order to get into that guidelines provision you actually have to commit an offense against a minor that's the only reason you can get into that guidelines provision so further provisions for additional punishment because you've committed harm against a minor in the same guidelines for vision it's the same exact thing but aren't saying aren't things grading it by how young his victims are it's more considered more harmful worst more punishable by the state or i think it's the guidelines kind of legislative judgement but it's not a judgment that's made in the statute and by making the judgment of the guidelines what you're doing is i think legislation if there had been some sort of desire to make those kinds of gradations it should have been done on the guy minds so by the guidelines going you're just asking friends and on reasonable way for the record gunners again my name is marsha heard and i'm with the district of mines and i'm here in the united states i have to say in seventeen years prosecuting sex cases this had to be one of the most unusual that i have ever tammy's arguments about sufficiency of evidence when you look at this entire excerpt of record and the trial transcript there are numerous places within there where the first miner j and the second miner am as well as an eye witness identified tammy halle as being involved in one way or another in these shows if you look two that amber was involved in various sexual activities with the second girl am and that the two of them amber and i had asked him if they could do the show and that she'd given them permission if you look at that testimony testimony from the first girl first thirteen year old girl j again excerpts of record thirty four she talks about she became involved because  regard any comment about whether the peanut butter show was sexually explicit or sexual conduct or not that's thanks joe both amber and jay reported involved oral sex and involved various sexual toys and so you can exactly it does not need to be actual contact the statute specifically says the actual or simulated and has all these various types of activity j's testimony goes through you know her entire testimony that tammy was typing on  that like three times where she and amber were involved in this the related sexual activity and the second girl again her testimony is replete excerpts of record forty two through forty nine about the simulated  and that she knew it was going to be sexual nicely that she also gave her permission to say when she was uncomfortable she could stop so there are just a sufficient evidence arguments here with regard to tammy how line you have to read the entire transcript to see what her involvement was and i think the court is absolutely accurate she was providing the computer she was providing the residence she was the typist for some of these shows she was a participant in terms of the peanut butter so although she denies in other child was thirteen years of age and she gave her specific permission to be in what she knew was going to be it's actually explicit shot and that's why there is just when you read the entire transcript there's no way to say that there was not sufficient evidence to addressed the court made and also to his argument that two guidelines have been axed to gether and use and i think it's really clear and the reason i set it forth in my brief is because that's the way discussed exactly but that's ok i didn't understand the grouping point i really didn't either your honor i'm not quite sure if that's just kind of something that he has recently thought about but it seems to me if you look at the pre sentence report in this case that she benefits from the grouping and i'm not sure why we'd be arguing now that that was was not accurate i think the court also pointed out the problem with the argument about double counting and that birthday and that's all contained within two point one and then as the court is noted there's a great deal of two levels and additional four children who are younger and then more additional levels for for kids who are even younger than that and i think ask where my off the top of the head response is that's the purpose of the guidelines as the guidelines are set forth in their advice refashion now generally what people in this country think is better or worse if we could say it that way about various aspects of the crime and if we wanted to take that kind of argument that he's making here today for the first time every single increase and every single decrease would be unconstitutional according to him it would have to be in the statute the statute would have to say if you sexually abused a child between the ages of ten and twelve then this is the potential penalty between it doesn't make sense to me because the point of the guidelines is to give some gradation to what we as people think of either factors favoring the defendant about the crime lessening the role of responsibility or think is worse about the crime and you know it's an argument that i just kind of think off the bat doesn't just doesn't hold weight in terms of what the guidelines are meant to do the other issue is of course now under both booker and all of those cases the guidelines are advi so the judge can look at those and say you know if this child had been seen and three hundred sixty four days i don't really think i'm going to apply that because she's so close to sixteen that it doesn't really seem to be appropriate to apply the two level increases and so i just don't think that's an argument that can be made under the advisory guideline regime that we have now he also tried to make some arguments about the district court simply not taking into account numbers on background and history and it's fair to say if you look at both of these women's pre sentence reports they both had pretty abysmal histories and the court is absolutely correct there was a kind of finger pointing at each other in this case about who was really grown up and who was really responsible and who couldn't couldn't do what the bottom line though for amber she could get a job she could have gotten a job anywhere she just needed to go take care of her on probation violation issues using the fact that she's running from a criminal sentence and from a court is not a reason to say well then i was forced into this kind of activity because the beginning shows were shows amber did herself didn't involve a child she had made some joking comment when tammy was doing some shows that it be funny if you could make money off of this and that was what she was beginning to do herself so the courts finding that she was that much money not much money i think in the beginning she had done just a few she hadn't been there all that long but she certainly couldn't could have gotten a legitimate job she could have taken care of her for a patient violation issues and i think the judge also looked at quite frankly the psychological evaluation that was done where amber claimed in a brief to the court that she had multiple personalities and then it must have been one of he didn't believe a number of the things that she said or the items that she endorsed as being psychologically supportable and so i think the court also looked at that and said yes we have had this history however it appears that you have mulling r about at least some of it and you yourself sad when he pled guilty and it your sentencing that you were willing participants and that you didn't want anybody else were fully accountable for your own conduct and that you were going to blame your childhood for and that's i think rather admirable for a defendant to do and i think we don't see that very often but i think in this case it was probably true that she felt like she was going to stand up and say here's what i did and here's how i feel like right right there's not that i'm aware of a specific definition of profit that talks about in these cases however in the child pornography context when you look at what profit is or what a thing of value is it doesn't have to be money and so in this case you know amber received money she also had room and board a place to live tammy drove her around drove her to the bank and to her various appointments and those kinds of things so i think it's clear that she didn't profit that she was taking care of  although she says now that she feels like she was forced into this that the record is also clear that amber came out from taxes and the idea at that time was to get her off of methamphetamine to get her away from an abusive boyfriend and she was going to enroll  that was the beginning plan between both mother and daughter and that quickly went by the wayside when both of them figured out that they could make money doing doing what exactly it was that they did in terms of exploiting i am stranded and exploiting am and making right that came up when mr half raised it as saying the court erred in making a factual finding that amber profited from these activities he wanted to argue that she didn't profit but there is no requirement under the statute that anybody making money and i wouldn't i wanted to be sure that you had a chance to tell me it wasn't and yes your honor i didn't argue it in my opening brief but the government raised it in its responsibilities and if you look at the way the will be submitted and will