the term of supervised release that now the got a lifetime supervised release yes your honor the facts of this case are ugly and we don't dispute that and clearly the district court did did ma efforts and attempting to reach a fair sense of that but the reality that the facts in this case are makes it all the more important to calculate the guide by outlines range from fairly to give the court an objective standard by which to judge the minister are similarly the judges efforts in sentencing him well lovable do not ultimately excuse her problem considering all of the relevant sentencing factors now with not those particular cases so the district court discussed pulitzer which was wide up but not particularly she actually discussed why it was different in a different context with respect to whether or not it was maximum that was the request that was made and then why when the guidelines are revised used and the core all to muttley imposes a two hundred and seventy four months  request was granted you requested a cent below the statutory maximum you got that so for the written motion i take it that your motion was granted and you were given even more than you asked for you cited but in doing that so i get so you made a request for a variance in essence you got what you asked for a guideline range below three hundred dollars mines and then your claim is well we reap made influence guideline i think is something else that the court should consider and that's because that affects i was one of but i do influence yes your honor that was one of the guidelines objections raised and the district court relied the solely on enhancement based on the age of the victim but the district court did not rely on any other facts showing undue influence they relied solely on this presumption and that th duplications argument or something else well the result of using this presumption wish our argument is actually that improperly it spans the scope of the guideline beyond what is well it results ultimately in duplication because the age of the victim is already accounted for in the guideline of course guidelines do permit double counting but all of the cases that look at  double counting within the guidelines generally are assuming a general rule on double counting use that you can double counting all you want plus the guidelines specifically tell you cain't it is however it presumes that it is the guidelines that this is  my own judgment that when you're more than ten years older than a five year old and you sexually abused them that that's undue influence and so i make that as a factual finding not a presumption but just a you know a is does it solve your problem i'm trying to understand your problem i understand that hypothetical is not your case right but i want to know is whether my hypothetical would solve your problem i don't i don't think it would your honor because the just well which is the th circuit case considering the skyline it looked at the new and the and the influence together so i'm not going to over bear i mean because your time is running out here but it seems like to me if you have a five year old victim you're that's an application of common sense from human experience the trial judge is titled the money the undue influence guideline is geared not just at it's year that some wrongful application of cross i think it's that would have just said otherwise influence because we're already talking about the abuse of a minor in this guy the guidelines already talking about the sexual muse abuse of a minor so the use of the influence itself must have been  defendant were taking a nasty gathers i understand that but there's no indication that you look at the wizard which other courts have applied the undue influence and the book that had there been threats has there been take in the victim's identification or told to take them and love them or told them that they would disclose what they've done there's no there's no evidence of back here and so being more than a trusted half the government appellant r i challenge is a heartland guideline sentence by asking this court to transform procedural reasonable heth's into procedural twenty three year sentence and then he had a lifetime restrictions or a supervised release and usual computer ya need and you didn't like that supervised release period he didn't like being restricted commute in the two particular issues one that mr arvai requested a five year the minimal supervised release and their point is the district court didn't articulate why five years would be denied and life would be opposed and separately there was no articulation of the reason why the computer restrictions were goods and that because of the lack of those further engagement with counsel and further explanation that what is being by did any of the reasons that they provide for the sentence reduction that based on your read did they go to this question at all i mean it i understand your idea that they didn't raise it you know if you're going to ask for something you have to give reasons you can't just make conclusions but could could we look at the arguments the defense counsel made with respect to the sentence and read  terms not imposing all of the standard nd under conditions and trying to hear them where they were at in the argument which was to make that lengthy period supervised release respectful of the defendant's libert defendant asks for a specific term in there or said the district court's obligated to say something about why that quest for a term is not accepted and picky but there are cases that would seem to indicate that something along the out why that's certainly true your honor and if that's dylan had said those words that i'd be here today on this argument and hopefully that's what will happen in the future incarceration and longer term supervised release she rejected that assertion she specifically stated on the record that she did not think that a lesser chairman incarceration with sufficiently protect the public and she stated that a long term of incarceration influenced point to address of the court's question and the opening argument the commentary the guidelines are replete with examples where the guideline interprets defines or otherwise  here the commentary explaining that a ten year age gap the relative age difference between an adult and a minor are big as you are a bubble presumption of being in deep are capable of overcoming the voluntar other guy i like where the comment expands the scope of the guideline similarly to this is exactly like this three two there is a mirror image of this guy but elsewhere the comments do not and we don't say that we're there is an evidentiary presumption or that there's a shifting burden that that changes the underlying standard right we just say did you know the burden of persuasion or production shifts or there's a presumption here or not there to me sing like it changes the standard itself is just the proof that's required it changes what the government needs to prove the government no longer needs to prove that the actually influenced min burden of persuasion remains with the government to then disprove any evidence that you put forward so why do you chose not to put any evidence forward understand that but it seems to me that didn't change the underlying standard then expand the guideline it just adopt a you know in essence a burden shifting evidentiary issue we don't think that mcdonnell douglas changed the standard protocol seven it just provided a burden shipping method for doing that seems like that's exactly what the guidelines doing here so st of all th there was a factual discussion on the record about whether one of the seven a j one of seven the government had argued that the guideline applied based not only on the age difference but also  but under that does that again that's that his age is only his age does it prove that he unduly influence minor victim one as i pointed out the record what's the kinds of evidence of you see and other cases now with respect to the other arguments that the court asked the government about regarding the the computer conditions in the terms of supervised release of course our position is that sentencing hearings you have extensive argument on the issues on lots of issues not you're just raising one you raise a kitchen sink of issues right literally everything in this race and then the very last minute you're like and would like five years  and that seems to place a lot on the district court to keep track i mean with the discord as you acknowledge did a very good job here trying to do their best but when you don't when the defense counsel doesn't raise it in a meaningful manner until the very together and make a comment about it doesn't the government seems to be arguing that this was a real request but of course what's because we asked for and that's what's required under th circuit precedent however even if this  field or and the limitations placed on him by those missions would prevent him from potentially working in the future those conditions had no yaks you objected in the district court to the imposition of these restrictions yes your honor and there no evidence of any computer crime in this case this is not child pornography it's that there were no explicit pictures of the victims and there was no nexus to computers whatsoever in this case but your your argument here isn't to the merits of it only said i'm imposing these restrictions and i'm paraphrasing here but if you think they need to be changed in the future you can ask for them to change but of course that's not the standard this or courts are for all the diligence still is required