in the record when the case went back down to the court three sentencing the government conceded that it could not prove that fact and present and no additional evidence on that issue so the record as it exists now is the same as it  nevertheless at the most recent resentencing the judge continued to express its belief strongly held belief that contrary to what this court held real minors were involved in those internet chats and moreover it comes reflect significant factor in its sentencing decision the government doesn't dispute any of that but it nonetheless insists that the district court didn't violate the law of the case of the rule of mandate doctrines simply because the district court didn't reimposed the seven level adjustment that was struck down the first appeal right but so right now we're dealing with what section one b one point three eight to right correct right which a number of images are just right and that provides that multiple counts from anything your honor what it is is that the fact is he was not convicted of possession so the question is is the relevant conduct i mean is the possession relevant conduct to the distribution and the fences that that's enough to show that they should all count together but both the amendment the made those guidelines group of bull and the one point three one point one point three itself says that that's not enough you have to then prove based on th particular facts of the case if it was a common court a common course of conduct or a common scheme or plan and that's i think what the government of the district court failed to appreciate the district court here i mean i guess the commentaries say though to the guidelines it it seems that the commentary favors that argument well the commentary sets forth factors that you look at when you make this judgment whether there is or comes scheme or plan or come a course of conduct but but i think that that that the way the probation office with advice from the sentencing commission said that guidelines should apply here is the correct one there's no dispute that the government ever prove that he actually distributed anything more than the sixteen images the question is then so that in the probation officer said well he those images still might count for purposes relevant conduct but the government has to at least prove that he intended to distribute it quantifiable portion of his collection such that the number of images adjustment could only be based on the quote the approved quantity when i went out what about his bragging about his collection and his solicitation  of the materials well you are on the as a point on the priest the bragging is he never bragged i've distributed tons and tons of images he frank that i have all of these images and you can have them if you want i disagree with that second part of that sentence he does suggest that he is willing to send in those chats certain images and then as i've pointed out in the probation pointed out it's never been proved that those images are child pornography but his bragging the bragging that the core pointed to in the government points is primarily i have this large possession of images and that's not disputed the f b i found that when they searched his home five months after the distribution so that really adds nothing to whether he had is that possessed images the mere possession of images is always part of the same course of conduct for a distribution because purportedly the possessed images are part of an inventory which are used to distribute but weren't these images commingled with those that were in fact distributed that's apparently true your honor but again it's the fact that they're there in the same time the same place does not reflect an intent so i get that's not ever how you prevent tent i mean there's a few people that admit their intent just like it that tracks the statute but that's not the only way you can prove it th i would not exclude the possibility that in some cases co mingling of the images combined with several other factors might be enough circumstantial evidence fine but this bragging again bragging about possession not distribution offers to share the offer to share this great collection that they have the government points to a couple of statements in the chats where he says i can send you more of these write and write but that is just again it's about quantity because what we're talking about is a number of images adjustment that has different levels depending on how many images were distributed so the so to get above the two level unhandsome that we think is apply the of images does not mean that he is going to distribute all of those images or even and have had self yet if you you know if you take everything out in and of itself but if you put it all together why isn't that sufficient because i think it seems too much or it could create it's based on an assumption that somebody with a large quantity will distribute a large quantity and not just but it's not just someone it's someone that already has distributed some there's someone that's bragged about it there's someone that there's actually evidence in the record that what he smelled lasted what simple ain a nice at a very young age at it's your client it's someone that has all of these qualities again the things you point to do not indicating intent to distribute them indicate intent for other things but not to distribute and i think that the point i made in the reply brief about the record where the government did submit the the investigation report submitted the analysis of the hard drives the interview report which indicates that the f b i after getting permission from a o l and yahoo to subpoena these records of le spars in the first place seized his computers did a full analysis they got his permission to assume his online identity and go on and do additional things the only thing they were able to prove is he distributed sixteen images and i think that strong evidence that not other images out there i see that i've gone past two minutes but i'd like to answer more questions court has he would serve the time good morning may it please the court my name is tricia you're in for the united states and the primary issue that this court is considering today is whether the district court properly found that the enhancement for number of images applied where the defendant possessed over eleven hundred there is no proof that there was a distribution of more than one hundred fifty which is a threshold what's your response when your honor for the relevant conduct to apply government's missa he did not need to have distributed or even intended to distribute any of the images all that is needed is a common scheme or plan so one common factor to exist between the two offenses now in this case either you should hear it with there's no question about he had to have distributed them in fact the only thing that he supports for this argument is the probation officers comments in the pre sentence report well that this is the third time this is here or so at i mean clearly what you can clearly see from this record that the judge had a concept of the defendant in as but there were a lot of negatives and you know not only i mean because he had actually molested two really young children plus the possession and all of that but this court twice is said he didn't get it right you know the judge clearly wanted to give a more then just what he was charged with based on all of the other conduct whether it be the other you know this repast atory of other photos and all of that and so this is so it you know i can see clearly that the judge thought that he this defendant deserved more time and was looking for a way to get it and two times who are already said well you didn't pick the right you didn't pick the right enhanced spent so this is our third time on another and handsome right yes your hon three so how many how many how many times can we move this target yes your honor but each time the government has also argued that a two had applied but because the district court had found other enhancements the district court did not rul two until this last sentencing and i think the record is clear that the district court made the proper the proper finding because the a key factor that distinguishes this case factually is the temporal connection interconnected between the possession and distribution offenses he possessed the images at the same time that he distributed the sixteen images and those sixteen images he himself who admits were intermingled with the larger collection of over eleven hundred images so give me your best circumstantial evidence of intent what are all the factors in the record from your perspective that establish intent this is a defendant who admitted that he participated in sixty five seventy yahoo and these were groups for individuals involved in child pornography or online forums for people who choose to join to discuss and trade child pornography in the course of his being involved in these sixty five to seventy groups he uploaded he distributed at least these sixteen images and they are part of his collection and this is what is the common purpose of his crimes is that p individuals who are interested in child pornography they maintain these large collections and distribute images in order to grow their collections to get more he's in these groups not just to discuss child pornography not just to share his collection but to receive more images in turn it's deeply interconnected and particularly in this case where the district distribution happened just five months before the search that found images that were possessed on the this and where he himself admitted and that the images he distribute were commingled in the floppy disk collection that he had what all right what about the bragging what sure what type of case this type of defendant he is doing this in order to get more images from others in the group and to also as he shares his collection he receives more so he grows his collection and it feeds his predilection for his enjoyment of child pornography you know and i do want to address i believe the court's comment that in questioning opposing counsel about what the internet chats with minors and whether the district court improperly relied on that the district court only discussed this the chats with minors when she was addressing the thirty five fifty three age factors and it's important to factually the defendant believed that he was chatting with minors at the time of those chaps and the government could feeds that we cannot prove that they were actual minors and therefore the plus seven enhanced meant was not applied by the district court  this round of sentencing that indicates that the district court did not make any make an error in the factual findings understood that it was not proven that the charts were with real minors and this is further reflected in the change of the district court sentence from the first sentencing to the most recent sentencing when the district court found that the chats were with actual minors the district court imposed a two hundred thirty five month second so remind me of the first sentence what it was a second sentence  then found that the number of images enhanced met under subsection a one applied and imposed a one hundred eighty month sentence at the latest sentencing the district court found that the number of images in him and hanson appl under one subsection eight to and again apply to one hundred events sentence and that's consistent with the court properly applying the law of the case and considering the facts and  record in finding that when based on the number of images but not considering a factual error of chats with actual minors the sentence was the same it was one hundred eighty minutes and it was a within guidelines your argument be the same if you could instead of proving sixteen you only proved one hypothetically it wouldn't be weaker because you could not he could argue that he just made it's really his personal connection and he just made an exception in one case to share it i mean don't numbers here i understand the court's point but i do think that to tell the of the circumstances and the facts of this defendant the number of yahoo groups he participated in the size of his collection the period of time over which he was chatting on these groups and discussing his collections that all shows his intent you wouldn't be precluded it you wouldn't be precluded from making that argument but as is it weaker if it's down to one as opposed to sixteen yes your honor i do think it would be weaker but you have to look at all of the facts and other cases for example the make the case from the fourth circuit there is i believe the two year gap between when the distribution and possession occurred and in that case the court still found them significantly linked to  counsel sit with regard to the second this your counsel suggested that the district court could properly consider the fact that mr sparred with engaging in chats with people he believed to be minors two things about that one that's clearly not what the court was doing if you look at what the court statements were but b it couldn't do that because there's no evidence of that in fact this court's ruling in the first appeal the reason it found the factual finding that these involved actually to be  clearly plainly erroneous was that a it's facially implausible given the words used by the other participants in the case the it ignores the way chat rooms really operate where there are fantasy players involved and see the fact of the government never never even requested that it has been the first place it just that it didn't really think real minors were involved so what i don't think that the court could find that the clearly it didn't and i'd point the court to the long history of the courts factual pronouncements on this in the opening brief in the section requesting remand to a different drug where you can see how strongly this affected the judge and to answer your question about the change in the sentence did go down between the after the first appeal but that's because the seven level enhancement was rejected which means that only a two level enhancement was applied and therefore that five level just meant is the reason for the lower sentence it wasn't any kind of of change of heart by the court in fact again if you look at that section of the opening brief you'll see the court consistently suggests that it's sensing mr spars of based more on the quote deprived acts in these chats rather than the crime actually committed and that goes straight through the most recent reasons and what the court has in for now for the questions thank you and also a case just argued will be submit