court should remain and for recent saying with regard to the restitution issue that is that is numerated as number three in the statement of issues in the brief however the a little under five years i think it's forty six months was that one way to look at this is that we're really talking given the thirty year concession for lack of a better term really talking about this additional five or so years correct judge in this case we are really talking about the forty six months however the court should how was this in any way based look i'm going to give you five years more than what you're already serving and for a state thing which is moderately jealous and generous considering the crimes with he was a eged to have done most of the most serious ones seem to me to be a state ones but why isn't that just perfectly ok and any argument about guidelines or so  same said that's correct judge but it would affect mr young down the road it would affect his designation at the bureau of prisons that he has criminal history category three and not one it would also affect any violations of supervision where does the  judge is the problem that the judgment or the statement of reasons the written document says criminal history category three it was a nazi and it is three judge and the statement of reasons and judgment also says so the judgement says three yes so that problem would be solved since this is going back anyway by just a ministerial remained to correct that statement if you're worried about what impact that has in the bureau of prisons right and everyone agrees that it's really won and in fact the judge actually adopted the pre sentence report which says category one so this is virtually a typo correct judge but it is on the judgment and it would affect history on down the road ok so but to the extent it affects him down the road we can just direct the district court i take it since it's going to have to enter a new judgment anyway to correct the typo judge but no now but so now i think the question of judge comes back how can this possibly have affected the sentence in any way since number one the criminal history category is irrelevant to what the guideline recommendation is which is life across the board regardless of criminal history category and since the judge obviously disregarded entirely both the government's recommendation of a one hundred years sentence and the guideline recommendation which is effectively one hundred years because whatever else you can say about the guidelines they're very careful to adjust their recommendations to reflect things like that are three maximum and gave a sentence that is completely  disregard of the guidelines and pretty obviously says i think there should be some increment for the federal nature of the crime and the photography and whatever else above what is the core of the misconduct which is the thirty years so how how can we say that there was a procedural error that affected that calculation by the court judge we don't know what the district court judge was thinking when he enunciated that his criminal history category was three that's two levels off from christmas tree category one so he would the judge knew exactly what his criminal history category what his criminal history was there was no it was not a case where oh my goodness i don't know what these crimes are but it looks like a mostly category three that's very serious the judge knew precisely that the reason it was three rather than one the reason why the government had originally thought it was three rather than one was to give him two points of criminal history for something that also was part of the relevant conduct and therefore affected the offense level and not the criminal history and the judge knew perfectly well that there was no other criminal history besides some remote misdemeanor so why would we think that the judge was in any way affected since it doesn't affect the guideline calculation actually and it doesn't seem to have anything to do with the sentence rationale that he gave and the judge knew exactly what the real criminal history of this defendant was and it just seems to be very hard we certainly don't know what was going to the judge's mind left with is the fact that he stated on the record that it was criminal history category three and that's what made it into the judgement so he also but he also said he's adopting the pre sentence report calculation which is inconsistent with that that is correct and to make one think that the judge wasn't really paying a whole lot of attention to the case struck me as very peculiar to say the least that there is this almost random one thousand dollars restitution award on behalf of a victim whose role in this case is only that she appears in one of the pictures that was on the defendant's computer but there is no restitution to the immediate victim that he sexually abused for years now i take it that's because that victim did not seek restitution i did not handle this at the trial of i'm not aware of that reasoning whether or not there's the record certainly doesn't bear that i don't know in the in the thirty year state sentence whether anything was can afford because as you are a standout the crux of the actual abuse was was covered by that sentence and the five years anything that looked like a motion for any restitution do you happen to know because i didn't try to research this does there need to be such a motion by a victim can the government make any application for restitution to be provided or is that the government's practice which might be very understandable if the victim says i just don't want to deal with this guy at all anymore a check from i never want to see him again hear from again the government would defer to that it just strikes me as a very peculiar situation where there is this you know legally cognizable victim who might be entitled or might not be entitled on agreement to some sort of restitution and becomes the focus of this somewhat perfunctory award while you've got a real live victim grievously harmed by this person and that plays no role in the sentencing  but that's not an issue i was just curious as to how that might have happened i guess the answer is you're sure how that happened because you didn't handle the case and that's not an issue that may be raised here roger and i would just know with respect to whether it would be mandatory  honour's i can say that at the sentencing the victim did not request restitution and there was no victim impact statements submitted on behalf of the actual victim of abuse the victim impact statements were submitted  in determining it cites instead rely on two different things that i'd like to discuss one is the fact that it presumed at the images that were found to have been sent or posted to somebody in england made their way and will haunt the victim for the rest of her life certainly this is something that could happen but there is no evidence that the images that mr young sent to this person in england ever made it out anywhere else so happens the judge knew perfectly well how many images were transmitted as compared to the vast collection there were only a few that were transmitted and he knew exactly how many people to whom the defendant sent them namely one in england and he made the point that once it goes to that person you're no where it's going it's now already on another continent and that means that this distribution is an act that shows greater culpability than if that hadn't happened i mean i don't know how much that's worth and i don't know that i'd be maybe it would be all one would have if i had a defendant and i was representing him and he hadn't sent it to say well he did  you know abuse this person for years as a child raped or pleaded leave whatever but at least he didn't send any pictures to anyone i'm not sure that's a big mitigation looks like the picture is of a aggravation but it is an additional factor right or a correct judge but i went to court and it said that saying jumps to conclusions that said that you know these pictures will haunt her for the rest of her life a court he'd here seems to me to be well well we very in the range of the sensible head this is basically a horrible state crime there is an additional federal element which on the face of exactly what we want district courts to be making decisions of and as we said they are not for us to be nd guessing well i think judge because they state that the way that the sentence was