good morning your nurse may please the court this case is about an individual my client john farrar serving amanda torrey minimum ten year sentence for the mere possession of drawings in violation of his first actually serving on what for or do familiar because the district judge back they did that in your phone your honor at the sentencing hearing judge god he was constrained in his judicial authority he was constrained to giving a minimum and answered my question he's serving an additional four years beyond his twenty year sentence for the first of them that's correct your honor but at sentencing hearing the judge could do nothing but impose a mandatory minimum ten year sentence or  there was a lot of back and forth at least answer my question didn't he do that yes he did not contest the government's presentation of that evidence and that he agreed with it you didn't there's not contested he agreed with it your honor and his that's when that the lawyer when and all this where they were saying they were going to challenge the punishment on eighth amendment grounds in the confession that the government tendered to the magistrate judge my client john four consistently said i had adult images i hadn't seen the stuff in five years the sentence he received violates his first amendment rights because the statute under which he was prosecuted eighteen u s c four thousand nine hundred sixty eight congress prescribes a wide range of lawful contact mainly the  individuals to possess obscene images in their home the images at issue here also not obscene my client is entitled to an independent judicial determination of whether these images are seen this court's the backstop and one could conclude that they're not obscene in ashcroft the free speech coalition the supreme court weight many of the rationales that the actual basis when it was presented to the ma offer does the defendant have any objection to government or prove no your honor and the defendant said no your honor court goes on then the court does accept the government's offer proof of well i just again i don't know why you're here trying to claim that we should engage in a second review of obscenity belmont this material your honor i'm here because that's exactly what the supreme court allows even when the even when the defendant has agreed case with facts similar to this one where the defendant has pleaded no law the court goes ahead to protect a defendant and has a factual basis presented the defendant has no objection to the factual basis and then the supposed to go back and look at the material again your honor in this case which was not a criminal case and i don't have a criminal case for you the reason and for why the court to make an independent determination whether the  you and i are just talking cross purposes because your client was given every opportunity to litigate this matter and your client tells not to and voting just falling out accepting on the low play which the mansard judge said this is so unusual for this type of proceeding and went ahead and had a factual basis in your client did not object to it your honor in the factual resume that was submitted to the court my client laid out what she was trying to do there he si i don't know what these images are legit she jury would say about them what i do know is that danny borgo sixty before judge godby was given a reduced sentence because he got in front of judge god be as quickly as possible what my client side was i don't well you're looking i do know that at page one thirteen his lawyers said mr ferrars goal is not to try to hide behind the law and try to come out with some appeal issues you know on the record as page thirty one in the first  six a d five which requires that it period merely be possessed with into territory all jurisdiction of the united states but that's somewhat problematic because the mere possession of obscenity is allowed within the territorial jurisdiction of the home it's a government for saluting but she still has constitutional rights within that commit facility your own you are really direct in your argument of course you have constitutional rights he doesn't have a constitutional right of them incarcerated speech coalition the court had to decide whether visual representations fakes were the same as child pornography there the government advocated strenuously that these two things were way that would make it hard for the government to prosecute chopping our feet he says because we'll get to a point where we don't know whether these are real images or fake images the supreme court weighed all those arguments and said we don't buy them children can be enticed with video games and candy if this was fueling the market for child pornography no one would risk being caught with real child can or the mere fact that free speech may entice criminal action at some indeterminate time in the future is not something we're going to buy and finally we're going to war it's it's not a rush now we're going to find we don't find that persuasive and finally you know whether this is a fake or whether it's real it would make no sense to prohibit constitutionally protected speech in order to ban unprotected speech the penalties which the court called sabir in that case ranged from that they could not bring  over broader in the dissent rehnquist said ok we can draw a more narrowly tailored solution here if we want to protect the romeo and juliet scenario we don't have to turn to overturn these provisions in the court said no we're going to overturn these provisions the statute is overbroad it didn't buy the rationale that these images drawings whether they be obscenity or not upset that you were equal to child pornography i second is the violation of the sun since it's too long that it's cruel and unusual in rome will be a style which is the case that the court cited two men saying that we're going to dispense i just can't reach the eighth amendment claim and that's the case of the circuit also relies on when interviewing the proportionality of statutes two things were not at issue the constitutionality of the law and the ability of the state of texas to impose the punishment that it imposed in this appeal both things are to shoot the constitutionality of this law which punishes conduct that in some instances is legal and also the way the law was applied to my client john for more over if we go back to the conversation i just had every rationale that the government gave for punishing images in the same way as child pornography has already been rejected in ashcroft there disapprove court directed to congress to go back and draw a statute under the obscenity provisions obscenity nowhere in this country nowhere in the federal code is punished the way congress says that the possession of having these images whether they be obscene or not should be punished  i mean you might want to be careful what you ask for your honor in the fact a resume that was submitted to the court in the record up into thirty eight my client expressed a concern that if you challenge a statute and want to trial that the court name close morse of that the government m proceed with more severe charges that happens sometimes you know that's the course of power of the state in closing your honor i would just say that impose a mandatory minimum has a horror to the child at the time it's made and has a continuing harm when it's viewed these drawings are just drawings thank national question you're claiming that these drawings are obscene but yet you file them into the public record in your brief without putting them under seal what were you thinking of now you punish you've published what you call obscene drawings  you all i know to try to cut and paste into our briefs where possible but here of course with the sensitive subject matter we we did file under seal we did so i would just start with the first women issue a couple of points one of course is the standard of review i think it's hard looking at these images to have any real question your question from the get go why didn't the government claim that this challenge to his conviction was waived either way because of his normal plea or waived because of judicial stoppel with agreeing to the factual basis and now back up here wanting us to review this material one of the government take that position i think i think we could know whether it's plane air review whether it's to novo i mean these images are clearly obscene i'm certainly i think there's also a strong argument that he should even be a stopped from raising this claim having you know pled no contest below and especially in light of his comments  a quintessential injury question i'm going to tend to take that straight to the court of appeals i think i think that would create a strong argument for stop all but ultimately you know it was just kind of a strategic decision here because the case for the images being o saying oh well there's actually there weren't really sufficient facts to to commit and say that here in fact he said in court before the magic judge who filed a report with the district judge who adopted it he agreed that his conduct satisfied the elements of the offense he agreed that's true i mean he had green dot com that the government could prove each element beyond a reasonable doubt i mean again i think there's just a little bit of procedural i don't want to use the word usually when they're challenging an appeal a plea i'm sorry here they're saying well my lawyer didn't explain it to me or well the judge didn't explain it correctly there's none of that here that's ramat a loss as to why the government didn't say this cases that i found in my research i thought it was most analogous to a case like the walker case where you have if then has pled guilty he signed a factual rise maimed and then it's come out in the fields that actually the facts in this resume don't add up to the elements of the offense and so therefore you know the government would not be opposed to any of the court found that he was a stopped for me to bring in this claim in the first instance and you know obviously we are going forward sake of argument that he had made that argument what your response  i'm sorry if i and if he had argued that there was no factual basis for his praying right right i'm so you know argument of course is just that the images are obscene you know that's a factual it's a it's a factual question yes it's a constitutional  go into further detail of if you like about why each each of those is satisfied you know i think i think one point that he contests in his reply brief him is the average person whether the average person would find that the images appeal to the period interest and whether or not we how do we adapt that point when you consider that these are you know pedophile images on the supreme court has been very clear that when in michigan and also in the handling case that when you have something that's clearly targeted to a deviant audience that you do adjust that period interest question you adjust the average person is considered to be the average member of the recipient group   and then finally that last point and this is the line i think that he contests the most strenuously is whether the images have serious literary political artistic value and one point we would want to make is that i think he is misstating the test about the value of the images the government is not required to prove or would not be required to prove in front of a jury that there is no shred of value to these images and he raises the possibility as well maybe the viewer might be curious about the manner in which they're drawn or maybe have you or might wonder why the person drew the images and even if arguably that could establish some value to the images  question is not whether they're wholly devoid of value the question is whether they have serious literary artistic and political value and this is mr nader this argument and just moments ago about the romeo and juliet question i mean this is how we protect romeo and juliet this is how we protect lolita without and in the within the confines of of of the miller test south you know so that would just be our response your honor to  this if indeed he is challenging and i believe he is saying the images are now not obscene and another point i wanted to make on the on the basement issue is that the free speech coalition case that he keeps mentioning ashcroft versus to prosecute a video game i believe it was that was a very realistic depiction but they were not actual children it was that it was a video game and the supreme court in that case the constitutional issue there was the first amendment to use the child pornography statute in that way and the supreme court held that it did because child pornography received less protection because it involves real children so the supreme court said the child pornography doesn't have to satisfy the miller test it doesn't have to say that and it does if there's an image of a child it might is and have to be qualified as i've seen under miller to be able to be prosecuted and in the supreme court there said look you can't use the child pornography statu to prosecute these types of images that don't involve real children because there's no can comment and harm to real children and so that is why congress went back to the drawing board and drafted the statute we have in this case the the validity of the statute itself and so a lot of the arguments he's raising while interesting are not relevant here where that's not before the court whether the statute itself is overbroad am constitutional in all of its possible was grossly disproportionate to his crime and then that the ten year statutory minimum itself is always categorically is going to be cruel and unusual no matter  specifically for juveniles in for juveniles only and if you look at those juvenile cases and we talk about those in our brief the supreme court has specifically said that the problem with as life without parole sentence for juveniles has to do with the particular characteristics of juveniles themselves that either offenders they are not as culpable all that they also don't understand long term consequences as well and can't be deterred so but the supreme court has never recognized that a simple ten very minimum sentence or any number of years minimum synods could be cruel and unusual punishment they've never recognized that so for this court to even entertain a categorical challenge would be for the court to get the getting fairly far out in front of the supreme court on this issue  close to ten years but what triggered that statutory maximum or minimum here was the fact that he's a recidivist ok it's not the fact that he has representations and in fact there's no minimum s i may be saying that wrong but i believe there's not a minimum sent i believe that there's no stature a minimum sentence for possessing an obscene or presentation in and of itself if one is not a recidivist but if one has a prior conviction for child pornography that person will be published punished more harshly and that reflects congress's judgment and it was in the findings specifically and acted with this legislation that these images and you can you all have seen the images here they're very gruesome realistic images that pedophiles can use these images to fuel their appetites and that puts real children at risk so of course when you have a person who's a reset of as to who's already been convicted and in this case mr fry not only had already been convicted he was a contact offender he was produced he was serving time for producing child pornography with a child of a family friend that's why he was in prison when he was found with these images so everything that congress is saying here about an offender like that being a dangerous person applies absolutely to him and so it's hard to make the argument that it was grossly disproportionate rising to the level of cruel and unusual punishment for congress to want to punish someone like that for congress to want to incapacitate someone like that and keep them away from children for ten more years now of course here he will not spend anywhere close to ten more years away from children he'll be out and for and his have just recently in his in his argument about this were policy rationales for the statute while they can in the cases are very clear that this court and any court any any court anywhere in the country  sit as a super legislature passing a view over the legislators policy judgments about what they want to punish and why in and how it's really just an ultimate backstop against sentences that are just so far out of mind that they rise to the level of cruel and unusual and that this court has said repeatedly will be the rarest of instances so in this case certainly does not rise to that level is written into the argument again that that free speech coalition case saying that the supreme court rejected the rationale that i mentioned is not for punishing these types of representations and that's not the court said in that case it was not best of on even in that case and second of all the supreme court only said at that those rationales were not enough to exempt visual representations of children i've seen drawing them so on and so forth from the miller test if again the court did not say that these are not valid reasons to punish someone for the types of representations that the court has said that's not enough to a dissent a drawing or a video game or what have you from the  the government argues that this court does not sit as a super legislator and normally that may be a valid proposition but in this case the russian else for this punishment have already been examined the free speech coalition about the common principles of context of the use and look it uses the limits of proportionality review the supreme court so that no form of punishment is per se constitutional therefore even a term of years can sometimes be questions the united states supreme court has question specific punishments for below ten years in robinson beach california the state of california trying to imprison someone for the mere status of being a drug user the court in even prison for one day would be too much because that's not a crime here we have questioned whether the facts add up to an often seen on indian issue brethen pages of love into fifteen of their arguments  made for why does images may not pass the miller test also the minimal value of the third miller prong which was forcefully argued in the portion of opponents brief makes it very clear that the these images may have some artistic may have political value they may have a message that the community may find acceptable the government in arguing that by my client said i hadn't seen these images in five years i didn't know why they were the pointed to a massachusetts statute and i indicated that under some circumstances a person may be punished for a certain number of years but that citation was wrong the more applicable statute is massachusetts to seventy two section twenty nine which would punish my client for the possession with the intent to distribute these images distribute for up to five years have nothing for the years thank you