good morning may it please the court i represent the defendant michael bornemann mr boreman pled guilty to sexual exploitation of a child and possession of child pornography he was sentenced to six hundred months of imprisonment to be followed by a twenty five year term of supervised release he raises several challenges to a sentence today i will focus on his restitution challenge the restitution order of three thousand dollars to the victim pia was an abuse of discretion the one over and method used by the prosecutor is inconsistent with the u s supreme court's directives and parallel universes united states even if this mathematical formula were sometimes appropriate its use here was inappropriate and finally the failure to desegregate the harm caused by the initial abuse from the harm caused by the continued trafficking and possession of the images requires reversal for a new restitution hearing turning first this circuit should reject the use of the one over and method and child pornography restitution cases paralyzed laid out several factors to be considered by district courts when attempting to determine the correct restitution amount and that what the u s supreme court didn't want  hard and fast rule or equation to use in every single case and said there are several factors that could be divided into two groups the first group relates to more of who a that defendant relates in the broader scheme of the harm caused by the continued trafficking in possession the other factors focus on the defendant specific conduct how many images or videos of people steps did that defendant distribute or  was that defendant involved in the initial production well this court didn't want a hard and fast rule the court was clear that district court shouldn't convert these factors into a rigid formula was that was the was the one over here and the only consideration the court used to reach the three thousand dollars i think it's hard but it's hard to tell because the district court didn't say very much when granting the three thousand dollars in restitution on the court didn't discuss the factors at all  the government used this equation and then there's just a general listing of the factors but there is no discussion about what if any impact those factors should have on the eventual number and in the end just rounds up to three thousand dollars which is what is often done in these situations when the one over and method is use the new beds in three thousand dollars on a line with what's been in the other cases at least though and it's also hard to tell because even looking at the circuits case  i couldn't find any prior cases of where the circuit has discussed restitution whether it's appropriate but looking at government's exhibits three and that was part of the problem with the one over and method there's a discussion of different restitution amounts five hundred dollars mark three thousand up to five thousand dollars but there's no indication of what the defendant specific conduct was in those cases it could be possible and defense defendants more often than not don't have a way to check because this information is sealed it's possible that some of those defendants distributed and distributed a large number of images or videos or maybe that defendant possessed a large number of videos which is the major problem with this one over and met it does not require district courts to take into account a defendant specific conduct which was the whole basis and the main point of the palin decision and stead it just boils it down to the simple mathematical formula and there are three major problems with this formula the first is it's difficult to determine at first glance it seems like an easy solution an easy way to determine restitution amount but as has been noted by other prosecutors and illustrated by cases where restitution has been ordered in p s subject to air it's hard to determine how many defendants have been previously ordered to pay restitution and in this case there's a discussion of other federal restitution orders but there's no discussion of state cases and a defendant likely doesn't have access to this information to confirm whether it's true or to see if other defendants have been ordered to pay restitution that have simply just  but also as i've stated doesn't take into account a defendant specific conduct but most importantly it's arbitrary and that's illustrated by what happened here when you're taking it just based off the number of defendants who have been ordered to pay restitution different restitution order than a defendant who might be sentenced on april thirtieth not based on anything that has to do with the defendant's conduct just simply by the fact of when he was sentenced and ordered to pay restitution it's also telling the problems with this method by reading the cases in the courts that have adopted it mainly the stains case of the seventh circuit the courts mainly focus on the fact that restitution is a difficult answer to reach and many of the factors discussed in parallel line are hard to determine specific lee how many defendants might be convicted in the future or how many people are viewing and possessing these images who may never be caught and may never be convicted in order to pay restitution that kind of thinking gets close to burden shifting because the problem is that to state the district court the prosecutor only can rely on this equation that's fine because these other factors are hard to determine it's problematic because those are the factors that are likely going to lead to a lower  and to that state the government doesn't have to prove it because it's difficult to prove that will put the burden on the death defendant to say no this makes the restitution award lower and should be taken into consideration and also here we  indication that in the government's exhibit one in the request for restitution there's a discussion of five hundred defendants who have been convicted of possessing or having these images and that so it's here in this case but it's not taken into account in that three thousand dollar world award and even the same court noted there are a lot of problems with this one over and method and it's likely not appropriate in this case are there cases  has or evolve sort of a presumptively reasonable amount and do you think i don't think so and it's hard to gauge but there have been a whole lot of restitution cases out of the circuit and a lot of times there are district court cases but they seem to rage and them out for like five hundred dollars up to a couple thousand dollars that seems to be the general range at three thousand dollars even looking at the government spreadsheet is the higher end of restitution awards which doesn't make sense in this case because looking at para line in the factors that should be considered mr boardman was only a possessor he did not distribute the images he possessed two videos and the videos rights advocate and he was not involved in the initial production of child pornography the government instead focuses on one factor that does the amount of harm to to the defendant may increase it and that's the point i wanted to make and some of the other cases cited by the government which is kind of illustrates the problem with trying to say well three thousand dollars sounds about right that's what usually given in restitution cases for example in the now case one of the cases cited by the government there's three thousand dollar wards twenty five hundred dollar wards but the loss amount in those cases were much higher between a million to two million so that's kind of a problem with trying to go with just this sounds like a reasonable now amount because it doesn't take into account the actual law says and the defendant specific conduct if there are no immediate questions i reserve the rest of my time for  obviously the restitution is a difficult issue because the numbers as the course of set are difficult to determine with precision but one of the factors in peril line was the number of past criminal defendants found to have contributed to the victim's general losses and so one way to factor in the number of past defendants is to use that as a denominator and there's no question when there been fewer defendants convicted in the past and that denominator is smaller and then that changes the number that there is which is why the courts have several factors to consider and the government did outline of these factors in its sentencing m and also at the sentencing hearing of starting page twenty two of the transcript and we acknowledge that there are some of these things factors we didn't have an answer to and we noted that the restitution request had a  a letter to the attorney that said that mention the number five hundred but we didn't have an at the met on the number of future offenders we didn't have an estimate on the broader number of offenders and we also emphasized aggravating factors such as the harm to this victim as a result of this video was greater because of the egregious nature of the video the defense sites the now case and the nap case and listen to those arguments and considered those in reaching its decision the desegregation argument caroline didn't resolve the disaggregation issue and there are two circuits out there the ninth and the town and the go on in the done cases which have held that because there was no specific desegregation calculation that they sent it back other circuits look the other to courts of looked at that and basically said that's that's one factor to be considered here we acknowledge that the court could factor laurette by desegregation but down to raise it again because of aggravating factors part primarily the nature of the of the video  in this case so in balancing all these factors together our main points the court didn't abuse its discretion and it was not of line in some of the other cases that this court has decided backman case  there were asked the mets because of from the formula that came in at six hundred seventy five dollars sixteen hundred twenty four hundred dollars and the court reached three thousand albums thirty to fifty funky three thousand five hundred funky did involve distribution which is part of the reason that that that is higher so this is not wildly out of line it's very consistent with other with other cases and based on this record court used the term reported abuse and this is a defendant's abuse as a child it was accurate to say that the defendant did report abuse his reported abuse was corroborated by other factors for the abuse biased father but the information in the p s i i or regarding his mother was based on his self report and so that was accurate in the court actually said later on in the sentencing the defendant was victimized by his father and that his parents both went to prison and so this was considered by the court there was no procedural error in using the term reported abuse on the cause and effect the courts of there is nothing in the record in terms of his  prior abuse having a cause and effect relationship that's correct there was nothing in the record showing that and we would also emphasize that if being abused as a child causes a person to have sexual interest in children that is not the same as causing him to decide to take acts out of his free will which is in the last another child which has produced child pornography and which is distribute the child pornography that he produced and there was nothing in the record to show that because of defendant's child somehow that what have compelled that the court did not err in discussing that issue the court also did not plainly air given its own statement on page thirty six of the transcript that he was victimized to defend it was victimized by a father as a child in his parents went to prison and so the court clearly knowledge this on thirty five fifty three a the defendant guideline to forty eight before the maximum forty three is reached this victim was victimized over almost a one year period and we would also note in the record this is not isolated conduct he did have threatening behavior towards others as outlined in the pre sentence report so based on all the facts in the record the sentence was not substantively some as if only unreasonable briefly wanted to alert the court the third issue in this case an issue to which the government devoted the smallest amount of space was the was the special condition we would note that there is another case pending the case that's seventeen dash two seven seven one where the same issue on the pornography and erotic and in just the right respect to special condition three why isn't that over i guess the question is where do you where do you draw the line how can you literally how can you enforce that and someone function and society well i guess it your honor it depends where you are you draw the line in this court has drawn the line that the newsstand at the airport just it's would be a sin to be a difficult prohibition to keep someone out of places that should be open to the general public and i don't know your honor if you determined not to be enough if that section of the store had pornography then the court is right down the defendant would be prohibited from entering into that store because there was progress there and i don't have  an easy answer as to how much of the store's content would have to be wouldn't be not probably how well the probation officer how would the probation officer enforce and i i don't have that i don't have an answer for because that that issue hasn't hasn't come up for example of someone who went into a store where there was pornographic material being sold but also non pornographic materials beings being sold well the objects miss argue suggest airports i mean you walk past any of the newsstands you can find magazines so then that then the question your honor would be what an establishment is and if you if you i think part of that would be as if you're in an airport and you walk into one carol in an airport there could be analogous to as to what whether you know it's  of an establishment where the primary source of income is from alcohol so you could go to a restaurant that might sell drinks but you couldn't go to a bar where you why not we should say where the primary source of income is from the sale pornographic materials then you can lease if what you're getting at is that is the stores along the interstate we see the big billboards why that's a primary source of income and that would that what narrow it further than the way it is now  this quick your rebuttal i'll give you extra minute we i think i kind of got into some of your time that's ok we'll give you i'll start by picking up where i was just left off and special condition three when i was telling us looking at prior conditions that have previously been upheld by this court that are similar to this one and it's difficult to keep up because it seems like these conditions are tweaked slightly every time i turn around but in them mi birch case there there was a condition that prohibited a defendant from viewing or professing possessing pornography or sexually oriented material or entering establishes establishment support pornography erotica or adult entertainment is the primary product here all of those qualifiers and the narrowing language is not present and doesn't require it to be the primary product and it also does not have that extra clarification of adult entertainment instead  is just simply pornography or radhika erotica makes pornography which is a vague term and overbroad term in and of itself even more broad and more de is the definition of erotic itself is something devoted to or tending to arouse sexual desire nudity is overbroad in bag something like that which doesn't need to be a picture it could be a song it could be a book as overbroad and it doesn't go to the factors  of what we attempt to do with the special conditions of supervised release so there's no case law on point because these do change because i would indicate that this was overbroad and much broader than the prior condition i want to briefly address going back to restitution the idea that other factors were discussed there's a listing of the other factors after this equation is put forward in that twenty eight hundred roughly number is reached but it doesn't videos the government says well if they were aggravating that would matter but the fact they're not president means nothing and that's the exact opposite of what the us supreme court said imperiling that someone who is like mr boardman should have a