wanted to hear this case this case seems to present the interesting facts scenario where this might be the case where a defendant used foul sharing software but lacked the computer sophistication to know that that made what he had on his computer available to others because we've had a number of cases in our circuit where the use of that kind of client a teacher yes so he's worked towards with kids right and i don't remember the judge saying anything about that particularly but i think he had a couple of  back to the guidelines calculation and tell tell me why two i think is two hundred ten months is substantially unreasonable don't know talking about the guidelines i mean because the alternative sentence has nothing to do the guidelines upward mobility so if that's the right word in her sentence one of the problems one of the problems that i have of this case and with the u s attorney i'm going to ask distribution business beyond his knowledge of frank defragmentation or whatever it was that she may and she was much stronger it seemed to me than in this case and judge jervy did a variance downward so that we have here about an eighty month disparity between two defendants with similar records which runs contr one of the aspects of three five five three a and i don't know that that in the cedar rapids in the northern district is there any cross pollination so to speak with the among the judges that's what that when we started out getting the guidelines because there was this great disparity now with the guidelines this is a case in which  in the sentencing ambiance of the sentencing guidelines to attempt to keep similar release situated defendants getting similarly situated sentences and if you do if that's part of your duties under the federal law that the u s attorney the attorney general supported it will do it you have an obligation to point out to the judge have we do have a duty and we look at each case carefully but we're well aware that some judges are more likely to impose a guideline sentence than other judges and it's part of the reality in our district i doubt that you'll get v because the evidence of this transportability of this is so thin and so a lot bigger in his case than this one i'm going to vary downward and i believe if my calculation is correct there's an eighteen month disparity between the event and i understand you're under part of having the advisory guidelines and post calls we're getting those disparities and it's not something that we in our position can can get rid of completely obviously there are some cases where we have cases where we offer a plea to obsession and the possession offense will reduce the guideline level by by four if we think that's all and so we do take some steps to address that the bottom line yes there are there are disparities i did want to mention judge smith you're concerned about is this one of the cases where the defendant did not know of the software work we strongly believe that this is a case where there is significant indirect evidence that the defendant did just distribute with the expectation of receive a thing of value this is different from the from the durham case in the durham case mr durham even install the software and there was limited evidence that he even knew how to operate in this case now granted we have no direct evidence other cases there are some cases with direct evidence where the defendant admitted that ye how i know that other people can download i have no but when you're done talking about that we don't have that direct evidence in this case primarily because the defendant a smart man when confronted by law enforcement they're seizing his computers  he knows they're going to find child pornography but when he's asked did you know that other people were getting it off you he denies it and he denies it again and again his mere denial of doesn't mean he did not germany's case in this case the other guy was lawyer and this guy he just came in and said i didn't know she she then says well he knew he had the fragmented his examining then that he had this capability and his brother i guess what put this on his machine so i'm not sure that your answer to judge  found that there was concrete evidence of ignorance that durham didn't know how to use the software what we're arguing is this case is much different from the durham case here's what we have in this case the defendant has had files downloaded by law enforcement from his computers in january february march and april of two thousand and thirteen you can tell that by looking at his computer the only way that we can tell that is that law enforcement download it you can tell by looking on the computer according to the record and these are all law enforcement  he had three different shared folders called my shared folder and the way he got child porn of other people was by typing in search terms like little boy ends and then he would download the information the files of other people's computers it would be amazing it would be very unlikely if the defendant could have spent years using peer to peer file sharing software to download child pornography of other people's hard drive and be totally unaware that they could also for you can't tell by we see an ear out and you can tell by looking at his computer let's say he's got one hundred files in a folder you can't tell whether a file on that in that folder had been downloaded b person ok all you can tell is that he uses the program and he has those files in the share folder you can't tell forensically by looking at a computer yes fifteen different people download off however  he know that someone else took software to fall from his computer by using the software for years when he was doing the same thing to others you browse on you type in the little boy's comes a list of files think the duration of the presence of your software on his computer is the proof that he was sufficiently computer literate to to be aware of the capability of fellowship that's part of the duration the number of file are on the computer so she said that lynch was fairly computer savvy and that included the fact that he had dag defragmented whatever that is th computer to make it run faster and he had downloaded the program seven years ago two thousand and seven and two thousand and eight and that was the basis for essentially  giving him a sentence that is eighty months longer than your germany's analysis with more evidence of this kind judges of different positions but here here the bottom line is that his extensive use he had collected child pornography since two thousand is extensive use is part of the indirect evidence and in other cases like all church installs and dull hide we didn't have a defendant mid into it we didn't have the direct evidence but we did have indirect evidence as we have as we have here in the event that the court found plus five did not apply then the plus to apply and as to there is the harmless error as well and i think certainly even though the judge did not repeat all of the arguments all the testimony offered and everything in the pre sentence report there was of information in the precepts report which we've all i mean our brief show