right the next case is united states of america versus patrick answer back is number seventeen dash one one four three nine please the court tracy dry spell assistant federal public defender on behalf of mr ransack today i am going to discuss two issues why mr and stacks disclosure of the password to his cell phone was a testimonial communication and why the variance imposed sentencing was both procedurally and substantively on reasonable rest on my brief with respect to the remaining issues unless there are question is the use of the contents of the individual's mind that has long been held to be the crux of what makes a communication testimonial for purposes of the fifth amendment to exemplify this point the supreme court has actually used the example of giving the inquisitor the combination to a safe in this case mr anzac was quite literally asked to give the inquisitor the combination to his cell phone when he did so he made use of the contents of his mind made a testimonial communication let me ask you something though wasn't wasn't law enforcement able to and didn't law enforcement obtain the same communications through a separate means not through the cell phone only the kicks communications the real prejudice from the search of the cell phone was the fact that mr and sac had been googling to catch a predator on the day before the offense mr and sachs defense was that this was all a fantasy there was evidence in the record both from the government's own witness agent matt fowler that there are people on the internet who have these sorts of very disturbing conversations but never act upon them it is all fantasy there was evidence in the record that mr and  at least two prior similar relationships on the internet that it we're all pretend that here he actually shows up and he's got the i phone or the i tunes card which he knows is supposed to be a gift for the nine year old child i mean that seems like it takes it to the next level i would certainly agree there was more than sufficient evidence in this case your honor but the government made tremendous use of this to catch a predator there was also this issue of this motherless dot com which i didn't really focus on in the briefs because it turned out to be a double edged sword by closing argument the government was arguing ignore the mother was stopped because that may all have been fantasy but they got all this really disturbing evidence that they put into trial to to refute the only defense in this case which was yes he did have the i phone the i tunes card he showed up but that could still not necessarily have been inconsistent with a a fantasy relationship with someone who turned out to be an adult the only question was whether he really knew there was a natural minor involved or there was supposed to be a natural minor involved and they got that evidence by the use of the information on his cell phone which was taken in violation of miranda and should have been suppressed i also would like to discuss the sentencing  issue and i'm pausing because i'm wondering if i there were a couple points i wanted to make a with respect to the harmlessness as well take your time that there was also evidence in the trial that in these prior prior relationships mr and sack had had with individuals who pretended either to be miners or to have access to miners that were not proven to be true miners he at one point had asked this one person for videos and at one point this man who had pretended to be a fourteen year old girl says you know i'm a guy right and he responds yes i figured that when he would never make videos for me he never asked agent fowler for a video he never asked to speak to the little girl on the phone he didn't do all these things that the evidence in this very same case would have shown he might have done to obtain proof this was a real child moving on to the sentencing the sentencing is both procedurally and substantive and substantively unreasonable in this case is procedurally unreasonable because it relied on two factors which were either clearly erroneous and objective we refuted by the record or else completely speculative and the first is when the district court stated i think mr and sex criminal history category woefully under state his true criminal background mr anzac had one prior offense he had no other prior arrests i believe it's paragraph thirty one to thirty three of the p s i i nothing else for that one prior offense you got one criminal history point even if he had been sentenced to a period of incarceration the most he would have gone for that would have been three criminal history points that would have placed him in category and level thirty four which is where he was after the district court found he deserved acceptance of responsibility at sentencing that would have placed him into one sixty eight to two ten to get to one to get to three sixty one would literally have to go off the chart provided by the united states sentencing commission on level thirty four maybe i misunderstood i thought the district judges point was that he pled out to a lesser count but when you look at what he actually did it seem like there was enough to convict him of the count he was actually charged with a crime he was actually charged with which would have carried with it the potential for a much higher sentence which would have translated into more criminal history points but if i may have mis understood that's exactly what i'm saying your honor but the most criminal history points he could have gotten for that crime would have rendered his guideline range one sixty eight to ten the court went all the way to three sixty and i understand that the court doesn't have to go incrementally any more with a horizontal departure like it used to but i think the fact that it's literally off the chart is a sign a symptom of on reasonableness on the other hand i mean you know i don't want to get into the nature of the communications you know the exact words but they were you know if you read these communications that occurred over a month it were pretty deserted and descriptive and some of them were directly with you know someone who represented herself to be a nine year old child and they were pretty equally learned and unfortunate and then he showed up and so i understand your first point is well it was all just a fantasy but by the time that the judge was engaged in the sentencing the jury you know if you were to if you did not succeed on your first point why couldn't the judge consider the extreme nature of these communications and some of the things that he said he wanted to do to a nine year old child well i at there is no dispute that the communications in this case were graphic and disturbing but the the point that i'm trying to make is that the district court actually gave reasons for the sentence that don't justify it and the second one was that he either did not avail himself of therapy or is not amenable to therapy that is also affirmatively refuted by the record but any also talk about the nature of the offense your honor my my recollection was that he focused on the prior offense and the need for specific deterrence this was and this was a very disturbing graphic communication but the united states sentencing commission is presumed to have reviewed and taken into the thirty five fifty three a factors of every crime and it suggested a much much lower offense a much much lower sentencing range for this a fats it suggested with acceptance of responsibility because there is the belief that one who except for france ability and admits the need for treatment is less likely to receive eight it suggested a one fifty one to one eighty eight now the government advocated one eighty eight to two thirty five the sentence the district court imposed was a decade higher than even that advocated by the government and so i'm not suggesting this was not a serious offense that did not warrant a serious period of incarceration but the sentence imposed was off the chart and unjustified by any of the statements the district court me  the supreme court recently reiterated that the parsimony command is a is a broad command that sentences should be sufficient but not greater than necessary and so the question is what in the record shows that the sentence even advocated by the government in this case one thousand and a half years would not have been sufficient to deter mr and sacked from future criminal crime because the way i read the transcript the court was really concerned with specific deterrents when he talked about the escalation and that is a valid consideration but you you have to look at the fact that mr and sack was on probation from the state court for four and a half years there is evidence in the record provided by dr christina miller that he complied with that probation and showed significant progress so the suggestion that he's not capable of conforming his conduct is belied by the record the the cool supreme court held in gaul that a deviation from the guideline must be supported a sufficiently compelling the justifications must be sufficient compelling to support the degree the variance major the variance must be by more supported by mortifications than a minor one this is a major variance it is almost double it was a ninety one percent by my calculation over the high end of the guideline range is a decade more than the government advocated the number seems almost arbitrary where we get to three sixty is unclear sentence in this case the court was trying i believe when it talked about the criminal history to avoid an unwarranted disparity it created an unwarranted parity the thirty year sentence imposed for mr and sack was the same as that imposed for mr irate who this court called the worst of the worst and perhaps the most egregious sex offender ever prosecuted in the circuit it is the same as someone who did not admit responsibility for his offense did not acknowledge the need for treatment and yet who had at least three prior incarcerate of sentences so perhaps a serial rapist and it is the same as the thirty year sentence being served by patrick's father who is now serving a sentence in state prison for molesting three children in his life when patrick was sixty eight years old his father wasn't convicted specifically of raping molesting patrick but he later did admit the sexual abuse patrick was also molested from six to eight years old by an older relative and there can  doubt that that victimization he suffered as a child led to his disorder and led to the criminality in this case and thankfully mr anzac was caught before he ever touched a child when both in the broward county case and in this case he was asked over and over in interrogation in broward county and by page and found the reason undercover who he had no incentive to lie have you ever done this before he never has agent  even asked if he had child pornography and he did not he there is nothing in the record to just suggest he has ever done this before the court and i recognize that evidence showing pedophilia is a treatable disorder the reason why we impose h supervised release was escalated his brother well he didn't get cured but the evidence is that he completely complied and that was from dr christina miller's report which is in the record under seal he already conceded that he really wasn't getting any yeah he didn't hit the knowledge that he was going through correct it didn't cure him it didn't it didn't it didn't make him better it didn't make him stop having these ideas but for the four and a half years while he was in that treatment he did not so for the nineteen and a half years the government suggested for a lifetime of supervision there is ample evidence in this record that he will be capable of reentering society and not refunding and there's just simply nothing in the record to suggest the thirty year sentence was and you've reserved three minutes issue is foreclosed by smith versus wainwright this is a very simple matter however to address what your honor correctly noted we already had all of the kick messages in this case counsel discussed the the web searches for motherless dot com and to catch a predator however we actually already had some of that information in the record as well we didn't have the web searches but in government's exhibit nine on page two the defendant told the undercover it that he was into motherless dot com he specifically discussed motherless dot com and there he said he was into motherless dot com and incest and other weird stuff the defendant also told the undercover on government's exhibit nine on page twenty five that he didn't want to end up on to catch a predator so while we didn't have the specific web searches for those that the defendant conducted we already knew that information through the specific text messages that the defendant exchanged with the undercover  if there are no further questions about that issue your honor is all turned to the reasonableness of the sentence in this case judge school a did not abuse his discretion in this case when he imposed an upward variance of three hundred sixty months of imprisonment he thoroughly and sufficiently justified the upward variance in this case and documentary want to one on pages fourteen to fifteen was the primary portion of where he justified this as your honor correctly noted when just cool it was talking about the prior offense being willfully understated here and he was talking about the seriousness of that prior offense the fact that he pled to only felony and sanity the fact that which is in the record that he was sentenced to only five years probation he actually ultimately ended up getting early termination of that probation and within just months of that early termination he was online talking to the undercover in this case exchanging the sexually explicit in addition to that  regarding the therapy issue that was raised which of school was that the defendant either didn't avail himself of that there be or was not amenable to it or wasn't able to conform his conduct and so that creates a danger to people and just school cracked basically whatever the reason for it mr insect had there be available to him as an adult the judge didn't even consider that there be available to him as a child whatever the reason was that there be didn't work and here he was refunding and escalating his crimes in fact not just refunding with viewing child pornography again but here he was explicitly attempting to entice a minor to in sexually explicit and so the judge noted the seriousness sufficiently justified the extent of the variance in this case because the defendant showed that he would in could re offend and in fact escalated his behavior if any if this court has no further questions we would ask that you affirm the conviction and your honor that this court doesn't even need to get to the smith v wainwright issue the fourth amendment shouldn't even come into play what the united states supreme court held in petain united states versus petain is that the fifth amendment clauses self executing it hath no man sh be compelled in any criminal case to be a witness against himself evidence which is taken in violation of the fifth amendment which the government is not contested here and the district court in in the hearing spoke about miranda but in the in his written order he finds both the fifth amendment and a miranda violation the government is not appealed that when there is a fifth amendment violation evidence and any evidence derived from it is automatically excluded that is a bright line rule and has been in force for over fifty years we don't even get to the fourth amendment issue which is what smith v wainwright and what had dago addressed because we are talking about a testimonial statement and the government has never even argued that the password i guess they did argued in the district court but they have never argued that it's any different than what this court held to be testimonial and reg ran jury subpoena case that we've relied on in the briefs the to catch a predator they had no idea that mr and sac was googling to catch a predator eleven times on the day before the offense and the prosecutor used the six times in closing argument this was a two day trial there were three witnesses it was agent fowler agent humphrey and the four a four b evidence the only question was did he really know this was a child and to prove that the prosecutor in closing says how do we know we know because he's googling to catch a predator and why on earth is he going to catch a predator if he thinks he's going to be an adult and that was a very powerful evidence that the government had that they only got because they took it from the compulsion of mr and sat giving them the password to his telephone us with respect to the sentence you know again the united states sentencing commission has determined what is necessary to protect people from these crimes and the only evidence in the record is that under proper treatment and supervision patrick  able to conform his conduct for four and a half years there's simply nothing in this case that justifies doubling the guideline range and the district court certainly didn't point to anything even if it had i would submit to the court that these statements made by the district court suggest that it was relying on erroneous information we do not put people in prison because they have a disorder that aren't cured we put people in prison based on their contact in the united states sentencing commission has determined the appropriate sentence for this crime is up to fifteen years and a half with acceptance of the nineteen and a half without there's nothing in the record that suggests a thirty year sentence was necessary in this case for someone who the evidence suggests has never done this before was a greedy asli abused as a child and we know that and there's no dispute about that and is amenable to treatment and is able to conform his conduct with supervision and counsel he will be in