may please the court i'm here this morning representing william babcock who is the defendant the court below and i'd like to reserve five of my minutes for a bottle if i may thank you there are two issues which i raised in the brief and i'd like to address both of those with the court but i'd like to address them in reverse order this morning so i'd like to start with the argument that the four b one point five in him was improper in this case because the prior conviction that the district court relied upon was not countable under the guidelines and therefore should have been used to enhance the sentence under four b one point five and that prior conviction was was clearly not everybody admitted that it wasn't countable under for a one point two of a prior conviction for corruption of a minor back in one nine hundred ninety eight and that conviction wasn't countable under the sentencing guidelines it in other words it wasn't assigned any criminal history points because it was too old it occurred more prior in excess of ten years prior to the instant offense so the so the probation officer couldn't assign any criminal history points whatsoever none the less that particular when you look at the guidelines and that's why i've cited to like the graham case which is which the graham cases you know it talks about an enhanced meant for prior convictions having to do with either career fender having to do with an eight fifty one in his men under the under the statute and the graham case jury distinction between the guidelines and the statute in that case and said that the guidelines have a temporal atemporal limitation on them that the statute does not tip to read through or be one point five and say that that has no temporal limitation when it's not when there's nothing in it in that that says that there's no temporal limitation sets it apart from every other piece section of chapter four and when you're looking at chapter four again back to forty one point two it's describing the prior offense and in chapter forty one point five it was all leading up to the sentencing judge to determine in light of the facts of this particular case whether it should be cut off to what extent it should be used as a again or not mitigating factor well in this case actually your honor the sentencing judge had had a concern about the about how long how old this case was and his mere fact throughout the sentencing the sentencing hearing stated on the record that he had a really a real problem with the fact that it was such an old case and he said but my understanding is that the guidelines say that it counts therefore we all agree it counts therefore i need to use it but the court did actually impose with reduction yeah and it's more than that it's not i'll count it all what's wrong with that as a way of going about cells well because number one he thought that he must count not that he would not that he could count up of the that he felt constrained to count it in the guidelines calculation so then his guidelines became two thirty five to two ninety three he imposed a sentence of one ninety which the judge felt was a downward variation based upon what he could do had this enhanced not been imposed the guidelines would have been one twenty to one fifty and in under that scenario it was highly unlikely that the court would have imposed a sentence of one hundred ninety months at that point so it does make a huge difference in the overall sentence if this particular judge in again this particular judge was was struggling with this particular question if the judge felt that he could if it did that he wasn't required to impose that enhancement he very well may not have come to the determination of one hundred ninety month sentence in this case didn't sentencing hearing i can read and i think when i come up on the bible i can probably get you chapter and verse i don't think that you know i'm using the term i must and i don't know if the if the sentencing transcript goes so far as to where he says that exact words i must but he makes it clear that he believes he is bound by this and he answered i don't think there's any question in the sentence looking at the sentencing transcript he is expressing concern and then says but nonetheless the guideline range is computed as to thirty five to twenty three so he clearly applies broad guidelines as to whether that is a statement that he must i suppose you could make that argument but then you've got a couple of pages later where he says so i have some concern that the age of the offense that imposed the guideline for the one point five is old but at the same time there are many other offenses at least one of which involved a minor  court is not convinced that age alone season it would be enough to discount the enhancement and then he says one nineteen months his place comes to him is the right amount so it seems like the district judges starting with the guideline applying the guideline and then definitely varying from the guide to your point is that if you'd started without the guideline he would have ended up with a lower yes if you were not going to start out with what i believe is the correct guideline which is one twenty to one fifty then we he would have had to have come up with reasons to vary upward from that point to get to the one ninety which i don't believe on this record he would have gotten to do so unless there are any other questions with regards to that particular show i'd like to spend a couple minutes talking about the lifetime supervised release and i think that the record in this case doesn't support the one there's no findings to support  as a practical matter of policy on what do you do in cases where the defendant is a threat perhaps for his lifetime unit don't know what is going to happen in the future you know there's a case in which the levels pedophile and he  the few years later he began to have the same propensity and they found that the murder was growing and we don't know what causes these things how permanent they are impermanent and the only way i know that you could deal with that is the way this judge dealt well your honor the stay the guidelines allow for a term of supervised release and in this case i believe it was anywhere from ten years up to life and don't they recommend isn't there a presumption there's a presumption of life in this case but the court even though there's a presumption of life that the court still required to consider the range at least make some consideration of the range in this case and i do agree with you that it is a problem judge marriage but the court asked to make a determination so what you know what it comes down to this defendant was in his thirty's i think when he was sentenced in his mid thirty's so if one hundred ninety  months he gets out in when he's fifty is thirty years of supervised release enough for him thirty day age eighty is that enough time for us to look at him to make sure he doesn't refer is twenty years enough the problem is that there's no even consideration of anything other than life in these cases where these guidelines unfortunately are constructed but that's why this don't have parole we don't have any way to modify things in the future under thirty five eighty two you know i mean we're stuck with this kind of situation and if i can answer that i see my time's up if i can use a little bit of my rebuttal time then that is the reason why we have the case because we can't just draconian lee say on every case is a life supervised release because the guidelines suggested because each case is different we need to weigh them different and someone seek a modification of their length of supervised release based on good behavior in the first few years of supervised release yes so that is a way to deal with this issue or all that is that there is a way for the yes and being able to get it on quest off after one year i don't know i think there might be a difference but depending on the offense that you're convicted of but you can actually for go off after one of the best release and the out of time you've got to spend incarcerated are different and the defendant can come in and see you reduce the supervised release or alter it in some way absolutely no thank you thank you may please the court and glassman on behalf of the united states i think we fancied that last question let me try to talk through this happens with some frequency yeah it does happen sometimes i'm aware of within this year in artistry the district court terminating supervised release for a few folks not for this particular france which was enticement of a minor i think that might give the district court pause given that but it there is a statute that deals with that and the numbers thirty five eighty three something yeah it's  just more my only has a taishan is without having researched it ahead of time i'm not positive that there's the same rule for this offense i don't want to make representation it might be wrong but as a general matter yes it's thirty five judge i just don't want to say something wrong to the court without knowing for sure i'm not aware of it being an exception but i haven't space at a general rule is that you can seek your modification yes or even one point five enhanced many issues so here's what the guidelines tell the court to do in terms of determining the guidelines this is that you know the very first page of the guidelines on instructions about what you're supposed to do first you care calculate the offense level using whatever guidelines a reference to the offense then you calculate the criminal history and to do the criminal history you look at chapter four a of the guidelines period then it says look and see if there's any other adjustments under four b and that's where you got things like career offender that would jump the sentence even after you've done the regular offense level and criminal history what's in that section where this four b one point five this and that jumps the sentence after you've done the regular offense level after you've done the criminal history it jumps if you've got up prior sex offense conviction actually the actual words of it are if this if the defendant committed this offense subsequent to sustain a sex offense conviction so it does have a time frame on it says subsequent to that's it that's the restriction you've got to have one have it done before you committed this crime now as the core pointed out in talking with my friend for a one point two which is what you do for criminal history that does have separate time limitations about well if it's a year in a day sentence prior sentence then that's we've got to be within ten years if it's less it's got to be fifteen or something like that there is no equivalent in for b one point five as judge moore pointed out so you'd think that that alone would be a pretty strong indication that for there is no time limitation other than the one that stated in the text of subsequent to but actually judge more i think it's actually an even stronger indication that we have here that that time limitation in for a one point two has no application and again i think it's a preliminary matter there's no reason to suspect that it would have an application in less there is some but actually if you look at for be one point one which is the career offender that i mentioned earlier the last application note for career offender says when you're considering the prior convictions for career offender you do use for a one point two some restrictions on timing so and there isn't that instruction is not in for be one point five so i think it's pretty clear that when the commission wants to put the time restriction in it knows how to do it and  doesn't and it has not done it here and actually that makes make kind of make sense because the whole the whole purpose here is to ensure a specific jump in the sentence in a sex offense case where you've got a prior sex offense and if you look at the referenced statute that's referenced in that guideline section the reference statute twenty four twenty six is all about providing a higher sentence in a sex offense case for sex offense recidivist so it's a specific oh is that the person had this first sex offense where he was nineteen and now he's seventy happy to answer that since two thousand and five because what i think would happen there is exactly what happened in this case in that yes under the terms of the guidelines that would count since you said it was nineteen and not juvenile which is a did yeah that's a whole other issue but made it very yes right in the seventy's so i think that that would count but i think there would be a very good equitable argument that might be relevant under thirty five fifty three a about the history in characteristics of the defendant that the court should exercise its discretion to vary downward from the sentencing guidelines for that own or her own reason to in judgment to do something about that that's right and and that's with the discretion that judges half post booker and that's how it worked in this case you'll recall that for his argument that a downward variance was appropriate for exactly that reason and the court gave some weight to that you know what is being proposed by the sentencing commission and others as to how the guidelines regarding sex offenders like this should be treated there's been a great deal of dispute difference of opinion among judges scholars and so on you know what is being proposed to be anything about this but my understanding is that the sentencing commission came out with a report in it was issued in february twenty third team regarding i believe it had to do principal with the two g two point two which is the guideline for child pornography possession and it was a lengthy report about the merits of certain of the enhanced mintz that are in that guideline change to the sentencing revenue statute change to the sentencing reform act or course we can do that yeah i can't do that but actually that i'm glad that your honor did raise that point because that actually i think factors into the other argument that might colleague made about the lifetime term supervised release you know there are some cases where this court is vacated a lifetime's term of supervised release based on an insufficient explanation for why it was imposed in two of the cases are human and boil which my colleagues cite in his brief one of the ways that this case is quite different than those is that well besides the fact that the district court did give a pretty thorough explanation but separate from that those cases concerned either possession or distribution of child pornography not enticement of a minor and all those cases in this circuit other circuits that have opposed to a situation where you're like enticing a minor but that's in this case this case is enticement of a minor is there a problem with respect to the lifetime supervised release here that there isn't much of a specific explanation by the district judge of why he's doing a lifetime supervised release i do not think so under this court's precedents and under the facts of the case the reason as to the precedence is that this court has said that if a district court explains the reasons in support of the sentence that explanation works for both for all parts of the sentence the term of imprisonment in the term supervised release in less there is some reason to think otherwise  here the court gave an explanation and then for the sentence elected and then imposed in one paragraph transcript both the term of imprisonment and the term of supervised release so to say that there is nothing specific in the explanation for the term of supervised release you could just as easily say there's nothing specific for the term of imprisonment the court gave an explanation and said having considered all of this including the age of the offense in varying down the prior offense and during down or for that then indeed months and then the imposed life times to provide treatments and other words that there is a really significant downward variance on the term of imprisonment but going the following supervised release would that be a situation where we would expect a district judge to explain that dichotomy if the united states were appealing that id i hesitate to say yes judge moore because what would jump to my mind under those circumstances is that the poor was especially where here the court has talked about the dangerousness of this offender in light of his and the risk to the public in light of his criminal history and the specific criminal history i would assume that the district court was using the term of supervised release to ensure the safety of the public even though the term of imprisonment was not as long as that called for by the guidelines that would be my first reaction to that song not not sure i do think where i think you have a different situation is let's say that both parties the defendant and the government came in your recommended a ten year term of supervised release and say the probation officer also recommended that and then the court kind of without warning imposed a lifetime term that would raise some concern in my mind and that's the situation in part in inman so i do want to emphasize of course that has to both of these issues we're talking  standard there was no objection to the procedural reasonableness in terms of the explanation of the term supervised release and not only was there no objection but there was actually agreement that for b one point five the prior offense for the guidelines did apply here so you know the court certainly could resolve the case as to both issues without actually addressing whether there was there could rely on any of the other problems of plain error as well which i could elaborate for the court if it's so inclined otherwise the united states thinks that the district court did a good job in this case and would ask this court to affirm just a couple of points your honour's with regards to the how this case is different than in mine and it obviously does have some differences but one similarity is that the defendant in this case did ask for ten years of supervised release that's on page one eighty one page eighty page one eighty one so we have a defendant requesting ten years a supervised released in this case the judge imposes a lifetime supervised release in this case but doesn't judge how he got there or why ten years was inappropriate just just know you know we disagree we don't think there are any findings as to supervised release on this record and all of that support why a life time cases that they clearly say in this circuit you know that there has to be some explanation and in this case this is the this is the they statutory maximum amount of supervised release and there's a libya cases from this court to talk about when you get close to that extreme on one side or the other of the statutory range that there needs to be some explanation right we have to consider the offense of conviction here that this is died oh absolutely but but we can't implied that the district court that's why they did it when it's not on the record that that's why they did it that's what we can't do when we can guess that that's what the that's what the district were had in its mind when there's just no record whatsoever for this court to make a proper review one and that's the procedural and reasonable as in this case will take into account what you form and that is that this is not written in stone for the future that th if the district court had that in its mind that that was a consideration i think that would be proper but this court against just reviewing what the district court did or did not do the there is a district court judge in this in cincinnati here that does if in fact that he says i'm going to give you ten years of supervised release but it you know if you do good come back and see me after five or we'll talk about cutting it then the records clear that's what the court was considering obviously here that we can imply that based upon the cold record where it's completely silent on that issue that you're in for me that's what the law is and until you know the judge is not going to know what he's or she may want to do ten fifteen years from now depending on how the facts it but i'm up here all the time arguing that the district court got it wrong on the law so they know it will be used in these cases yeah yeah i understand and let me just finally say as to the forty one point five issue if you look at it for a one point too and it's no eight and it's the a political time period and says section four a one point two d to an even establishes the time period within which prior sentences are counted prior sentences that's what it means it for the it is but that that counting method is used in four b if you find that it's not used in four b one point five it's the only section of four b where that is not used