thank you although we raise six issues in the appeal it is my intent to discuss first with the court the second issue which is the withdrawal of the  and after discussing that moving on to the fourth issue which is the five level up or departure there was imposed by the court it's your time and you can use it  anyway if you put it in your brief you will not have wait thank you your honor i start with the withdrawal of pleaded the decision issue because we submit to the panel that the lack of venue in the middle district of pennsylvania means that the entered play should not have been taken initially you as opposed to jurisdiction i don't think there's any question that the offense which was committed is a federal offense so the federal some federal court has  it is that all of the sexual contact between the child and mr cain occurred in the eastern district of pennsylvania the government proceeded on the theory that it was the crossing of the state line with the intent to awfully engage and in sacks that allowed the middle district to be the place of venue the we've litigated the intent we litigated the place that the of state line was crossed but even if the crossing the state line took place in the middle district applies to jurisdiction but also applies to then you the somewhere sound like i'm not going to make much progress of what i was intense health ameriquest and i understand what i was attempting to establish is that there is a case out of the tenth circuit called pri that was relied on by the judge and also relied on the government as the basis for establishing that the middle district was the proper place of prosecution the reality is that when you read  cry or says that a twenty to forty one c violation is not a two element crime as the government maintained and as the trial court stated that the change of play is a three element crime one is the crossing of state lines two is with the intent to have sex with an underage person and three is the actual sex or the attempt to have according to the court finding the purpose was to meet up with the mother and the child and to take the child back to the eastern district of pennsylvania for sex well so what wasn't the trip through the middle district of pennsylvania for the purpose of engaging in sex with a minor we don't dispute that but that's you know as we that you went through the middle district and something that the court has found that he withdraw and we did disagree with that finding in the says that we have argued that there is not a sufficient record to allow the court to make that finding and we brief that in our brief and but if getting back to crier those two elements the crossing of the state with the intent to have sex are only two  three elements there's a third element according to the tenth circuit in the third element is the actual act of sex or the attempt to have sex in prior the act was not completed so it was the attempt which was the basis for venue being in the western district of oklahoma rather than in the eastern district of oklahoma the position crier took in his case is the same position the government took here and that is crossing the state line with the intent there's only there are only two elements to the offense prior says it's wrong there are three conduct elements to the offense crossing the state line with the intent and then the act of sex or the attempt to have the sex since there was we were to agree with you that venue was improper again going back to the waiver issue isn't the new wave by the entry of a plea of guilty i don't believe so and in this case because the change of plea proceeding the judge said there are two elements across the state that the state line with the intent did not mention the need to have the act of sex or the attempted act of sat so at the point in time when he is offering up the plea in the middle district of pennsylvania he's under the impression that those two elements are the only elements you as judge one case is this you what difference does it make if there were two or three elements to the crime because the third element that you say crier and doesn't the the waiver of the venue as i understand it is based upon the fact that he entered the play what i'm trying to point out is that he entered a plea that does not cover all three elements of the offense and in fact if the waiver is based upon the admissions he made as part of the plea the only admissions as found by the court are the crossing of the state line and the with intent to have sex there's absolutely no question there never was any sexual conduct in the middle district of pennsylvania i still don't know i'm not sure i fully appreciate your your argument under crier is it true that you're saying that crier requires all three acts to occur in one judicial district no prior seems to say that there can be a continuing violation but the key to the prosecution is the third act of conduct that is how do we know that well it at pages thirteen twenty one to thirteen twenty three of crier the court explains that venue is appropriate in quote any district in which such offense was begun continued or completed and quote the offense here was continued through the middle district of pennsylvania it was completed in the eastern district but what i just quoted from crier suggest it all doesn't have to occur in one place though the crux of the crier court also says after crossing state lines any district in which the completion of the crime occurs as venue in talking about whether arguably the eastern district which is the place where crier crossed and had the intent but had no sexual contact the court says venue might arguably exist at the moment of crossing state lines if the intent and attempt elements were also presen as i read prior cryer saying it's not the mere crossing of of the lines the what what the prior court points out is that when you look at the legislative history of the legislative the legislature said that this was a new sexual offense against children when a person commits a crime after crossing state lines with the intent of committing a sexual offense so that the crime is defined by prior as being the actual sex act or the attempt to engage in these well that's not what the statutes of the statutes is traveling interstate with the intent through gauging the sexual meaning your client wasn't willing guilty to committing the act is pleading guilty to travelling interstate with the intent to engage in a sexual act in life that and that that is twenty to forty one c is what he entered the plea to all i'm pointing out to the panel is that cryer has interpreted that most of your time did you use up all of your time do you have another point in mind i mean i am sentencing yesterday if you want to tell us quickly yes we send your time  you enter three step proceed or did the judge sentence on the basis of a subsequent amendment or did the judge merely reference it as a reason for imposing a five level lot he looked at the post two thousand and three amendments as a factor which he found was not of a place it was not a hard line heartland mainline factor he did not say i don't care that it's x x post facto i'm giving you a thirty year mandatory sentence oh he did not do that he looked at the amendment changes and he said that the amendment changes take mr king out of the heartland he's loaded down mr cain's conduct me said mr king's conduct takes mr king out of the heartland the problem is he failed to do the second step of the analysis once he's a den of fide the factors he is supposed to as i understand it compare the king case with twenty to forty one c cases to see whether those factors do in fact take the king case out of the heartland mine run of cases he did not do that analysis and did not point out why it is that those factors are unique or special estimation or gang and would not apply to other individuals who suffered the same conviction and that is a twenty to forty one c violation  five five k two point zero and this court has set up specific procedures for to be followed when that type of upward departure is going to take place on governor good morning your honour's may please the court is travis my name is fred martin i represent the united states in this proceeding i will address the matters that mr travis raised in the order in which he raised them  first of all with respect to the claim that there was a lack of jurisdiction i agree with you judge want as in terms of the issue it really isn't a matter of jurisdiction as much as it is venue and cry er does refer to venue and cites eighteen us code section thirty two thirty seven which talks about crimes beginning continuing and ending in various districts as far as we're concerned twenty t twenty two forty one and we believe that the district court correctly concluded and certainly was not clearly erroneous in determining that mr king while he might have started in the eastern district of pennsylvania with  travel certainly went through the middle district he did not dispute that he went through the middle district and that's what i thought he did but he didn't he did not at the time of his guilty plea he did not dispute that he went through the middle district of pennsylvania  act had to be committed but it did not have to be committed within the district in which travel took place and that's typical specially for a like a travel act violation and talks about traveling elements you yeah that's either an attempt or the actual criminal act or the sexually illegal sexual conduct but the travel and traveling with the intent to commit sex as far as we're concerned and i believe that's what cryer stands for  what our belief is is that judge jones looked first at the pattern of mr the overall pattern of mr king's behavior not just what he did on thanksgiving day two thousand and three but what else he was up to both prior and subsequent to that and in terms of way prior the court was concerned about mr king having had sex with his own child and also his various  internet outreaches where he thought sought to become teacher for young girls with whom he had contact on the internet encouraging them to engage in a mass to tory activities and other things so the  statute or rather the sensing provision upon which the court started was on to a three point one which relates to that travel act or to the twenty two forty one violation then looking at his overall pattern of behavior the court found it similar to that reference to the subsequent and it's it's hard to tell the the court did seize upon that language and felt it was an appropriate guide it again it's not part of eleven levels up which it did not do and had said what i'm going to follow is to a three point one as it exists in two thousand and eight or two thousand and nine the court specifically part  penalties for child abuse offenses since two thousand and three that was something that it took in into consideration but it did not go in lockstep with what the sentencing commission had changed as of two thousand and eight and two but five levels and it was guided by the pattern of sexual behavior or pattern of misbehavior rather under two g two point two before which the court found was more in keeping with the accurate facts of of of mr king's behavior and now whether two g two point two before existed as a five level departure back in two fifty three a and imposed the thirty or so the judge could have done that in one sense judge hardiman my job here would be easier had the judge explicitly said that he would do that but he did not do that it's his choice which  we think we can defend and it was his choice to pursue a variance as opposed excuse me his choice to seek an echo upward departure under true five k point two zero as it was applicable to child offense we're talking about procedural reasonableness really whether whether that was a valid procedural move to grant an upward departure and if so whether that procedural the part from the government and perhaps on reporter from your able adversary regarding the application of georgia versus randolph to the search of the hard drive of the computer the good news about the search  searched instead as judge jones found it was basically brought in put in a mosque balls and then a separate state search warrant was obtained to examine the particular item he said he wanted the hard drive basic real estate or more general property whereas a computer we view as something more tangible and certainly smaller in scope and  great many things which would affect this court's judgment in that respect though it's one that is a computer without a hard drive is like an automobile without an engine it is the essence of the item and room is integral to the house and the husband in georgia or the boyfriend i forget which i think was a husband in georgia v randolph said yeah i know my wife said you're coming in but this is my house too and you're not coming in i said oh i mean don't you have to argue for a distinction between the home being one's castle and personal t not being one's castle that is part of it and also what is the essence of the item that's being se for example there was a disk in the computer or some files that were in the computer and if mr king had said i want to take out my disk i want to take out my files that would have presented an easier  at the district court recognized that in the exigency if they have to yeah there was an accident say to preserve whatever evidence the hard drive and i thought you would come up they were preserving as jewish law views and as one would in a traffic stop if you take a container out of the automobiles right and not search it but then get a warrant to search the container that was within the trunk of the car seizure was only valid because of consent because of mrs larkins i guess what i'm one of having difficulty thinking through is why should seizure be different from search we have an entire body of law regarding consent searches that vitiate any need for a probable cause or reasonable articulable suspicion you get consent you get it why should a consent seizure be any different than a you're right it is search i might rather be searched and seized it depends on the nature of the search for the nature of the seizure and if it's lower to point out the fourth amendment doesn't make any it does depend on the nature of the item seized do you happen and it depends on how all the computer wants some of the new ones you can just buy a screwdriver and this you get the hard drive now but maybe that wasn't so in the computer in this case you know what year  would have been difficult to remove the hard drive then your argument is look and she gave consent and that covers the whole thing like you can drive away my with respect to the application of the randolph case to the seizure of the hard drive we submit that there is no basis to distinguish rand often the holding a round off which clearly says that if there are two people one says yes you may seize this have this take this search this and the other one says no you may not that you can't ignore what about the need to preserve evidence i mean are there cases in this thing or that say that there's an exception for me when what you need to do is preserve evidence and all they were doing is computers there like five computers and in that house and they were supposed to assume that this computer actually was a lot part of the gory details you know that doesn't what it what i'm saying is that the hard drive that in that computer there is no information that that is the hard drive on which chats were sent or received with respect to the interaction between larkin and can't let me let me if i have if i am walking down the street with a friend of mine and he's carrying a gym bag with his gym clothes and i'm carrying a satchel full of cocaine and and i ask him to hold it for me put it in it put it in the gym  we walk down the street twenty minutes later police come upon us they know that he's a basketball player and they have reason to believe i'm a drug dealer they turn to him and say mike to see that bag would you mind giving me your gym bag so we could take it out of the station and look at it he says sure it's valid consent right there why have a right before the police take the gym i mean did the police violate the fourth amendment by saying no i mean we we have we have this bag and we have valid consent to take this back and look at what how does the fourth amendment give me some sort of superseding right to come in and and and vitiate what is valid concern well all i can say is that under rand off isn't that what the united states supreme court told us can be done you have two people one says yes go ahead you may search the other one says i don't care that you got consent from my wife or i think you're right that that is what it would it says i guess what i'm struggling with this is if i'm remembering my reading of that case justice souter went to great pains in his majority in two focus on the fact that this was a home and and the supreme court has said the home is one's castle it's quite i guess my large question here is is the home quality really a piece of personal if no then i think the rule that you've articulated may control the day if yes then it would seem to require a different result i think i would agree with that analysis obviously my position is there is no reason to dissent distinguish between the home and the item here ok thank you