united states versus steven go off the  subscribe to the website from which he could download images of child pornography and the congress in the united states henson commission have expressed the belief that guidelines say i don't consider this a factor in arriving at the guidelines it can under three fifty five three can the court still consider that factor if it's reasonable i exemplary life up until he committed this crime and that is something she could definitely take into account and very effective three to one back out in circumstances of this defendant but i don't believe it's enough to factors not permitted under the good lines your habit factors are already considered under the good i think some consideration can be given but not so much to justify such an extreme variance and certainly his background even though someone might be criminal history category one he may not have had the most exemplary background but i would like to point out that the sentencing commission data suggests that over eighty three percent of all the defendants who are convicted of this same crime are criminal history category one because this is the take the crime where people you know tend to have except for a background stare professionals they tend to be middle class they tend to have work and no criminal history category so the fact that he has criminal history category one does not make him that usual which justifies that you are sure although getting back to your question i think the court can consider it in thirty five fifty three and of the appropriate sentence than a violation where congress had not spoken so clearly i think inform should have for the district court judges and houses of one of the factors t congress in the sense in commission of the importance of stamping out that in mantra this product which fuels the market and i think that's something that the court should take into account in determining the seriousness of the offense both the type of to go to the harm to each particular child appearing in each particular photograph to the extent a photograph is duplicated there's no additional harm to count and that's why we're in this case remember very sensitive government would only ask fact perhaps an eighty seven percent variance can the lower quite like me which we would start with but i don't i think that regardless of whether it's an eighty nine or hundred percent variance you really have to look to the reasons they're justifying  and there have been cases where defendants prosecuted for this exact same crime for similar conduct have have received one hundred percent their chance and they received a probationary sentence and we have an appeal th guidelines range the more compelling the reasons should be that sound similar to the phraseology used by the circuit in the claiborne case which is now peel for the supreme court and in fact i did want to mention that the government  where the sentence was very close to the range or within the range i think this court is certainly there's more room to create more jurisprudence to set forth legal principles about how assess a sentence that is so far from the range under these circumstances i see that my time is up here again we do deliberate decision pending the decision play board i presume you would like an opportunity to submit an argument on the impact of claiborne's yes your honor i'd be attorney really identified the issue in this matter for the very end of her of her present patients which she said did they really disagree with the way judge thompson weighed the factors i think the record is very clear but she addressed all of the factors she identified all of the factors but the government really disagrees with the conclusion that she reached after weighing all these factors and as you know that's that inherent in a reasonable analysis no you know at some point not a sentence in court then it probably doesn't want to be a sentencing court but it's really to review the standard that was set for the coober did the judge consider the thirty five fifty three a factors did she recognize what the applicable fairly comfortable with this continued application of percentages this is an individualized specific sentence that was opposed by the judge or a human being for for pilot to to to a wife at the appropriate punishment if it's necessary but nothing  judge thompson has done for completely other cases with regard to completely other individuals completely other circumstances a completely different application of all the thirty five fifty three a factors will is the same crime and issue will  same statute being charged lets me get we can agree on that but not necessarily the same crime and specifically would i see just why that's important is because not only are you reviewing the crime and the circumstances but you are reviewing it every so every year he gave back ten percent and honestly of his salary back to the school isn't congress concerned about child porn not because of what the observers of it do but because of the impact that it has on the children who are used to post these things and the damage it does to those children and if it's if its congress is worried about the children and stopping this illegal as we we find this in so many of those situations the situation of the perpetrators and we may down the road find out that the the bill harsh treatment of the perpetrator is not going to not go accomplish the end result that often this situation is a psycho it was the result of so psychological as the station was with computers it's you have people who wouldn't go into a bookstore and buy this that's correct or who wouldn't go to amsterdam and in the marketplace for this but they think they can do it home on their computer because no one is ever going to find them and if they realize that in fact they can be found out and if they are found that they're going to have a serious penalty about it are we really going to deter some of these people who would do it in public places where they could get caught doing it in private places i feel entirely wrong but i guess what i'm suggesting clearly on the record why she's due which she did and interestingly enough i keep bringing up the issue of the record because we have this whole issue about there's a five level his script as a result of the six hundred it just as you organized and stable than four years in the fact is that mia went back again and again and again and every time with back and paid money to download one of these things he's put money in the pockets of somebody someplace in the world that was abusing him molesting children not being brought down or being brought back up on the computer time after time to get again the share of your friends maybe to trade in do other things with their as as judge was explained you are alone in your world comes up at your computer you look at it you're done with it it's gone forever if this is what this is what the united states attorney said when we dressed this issue about this number of images in addition we some considerations to choose of downward but adjustment not a not necessarily a departure who make up the market who talks about that and then he says but i think a sense at the bottom of the garden range which right is it would be thirty seven months but a more generous reading would be twenty one it's sometimes in that range would be appropriate in this case the is this downward adjustment for the number of images of the way they were there which proves it from from above twenty one to level sixteen and the remainder of the departure was based on the extraordinary offender pack touristic so this individual the information that was contained in the will guideline minimum guidelines sentences in this type of case i just don't have any information over there with the government has has indicated that maybe some judges or isn't that a problem in sentencing disparity isn't that what we're trying to to avoid so that one person doesn't sit in jail and say i've got three years to do and this guy next to me did exactly the same thing and he's only doing four  must be some sort of somewhere compelling justification and that that is why complete unfettered discretion cannot be permitted to the other crew who the other problem is do well in the area of child porn factors for one thing but also in the area of extreme divergences extreme variances i think i think district courts in the circuit with that from guidance both of those substantive and procedural areas we the government in jersey does feel here that we can go back to the pre sentencing reform act states and with regard to certain crimes where one of the main