government at the plea hearing or in the record that another person actually downloaded the material that appellant uploaded to the website therefore the district court plainly erred by accepting his plea for distribution of child pornography without a sufficient factual basis appellants convictions and separate sentences for the receipt and possession counts violate the fifth amendments double jeopardy clause barton cannot receive child pornography without also passing the child pornography therefore he was subjected to double jeopardy for being applicability by a preponderance of the evidence when it dealt to prove an intentional exchange with a specific person as a result the trial court erred in denying appellants objection to the five eleven hansen for distribution and for the receipt or expectation of receipt once i know that i did these two offenses and the indictment doesn't say same day same images do you still have an ability to argue that there is going to be a multiplicity as punishment yes your  addressing the united states versus bros and against ok your gross talks about what is distribution but i'm saying do you have a sixth amendment ability to argue against the special assessments were applied on the there is not sufficient that factual basis and and that we believe it's the government's burden to prevent so far as the double jeopardy issue that there is not a double jeopardy problem i'm having difficulty with that if you don't ask for a billet particulars at the beginning and then you don't ask them to elect punishment at sentencing you wait until appeal and you say what i pled guilty to in fact is the same crime it would seem you can only argue that if the face of the multiplicity just the indictment it's not some government burden to unprove something i believe that in this case we have to look at the evidence and whether or not the evidence with would stand for both a receipt and  being different evidence which we do not have in this case ok that's fine go ahead with your complicated a little bit more or confuse it a little bit more you know route well  would like to address that just by referencing a few cases several circuits have distinguish between multiplicity of indictments which is actually referenced general twelve versus multiplicity as convictions and sentences and that's referenced in united states vs the pallette which is the ninth circuit case five zero nine federal court or third serious ten sixty additionally united states versus maxwell the sixth circuit in two thousand and fifteen additionally addressed a multiplicity of conviction multiples innocent meant and end standard overview and it was just race for the first time on appeal this includes the eighth circuit and mullen broke the third circuit and miller is on reminded narrative to the probation officer is that there were thousands of images involved correct evidence that you how do you show a miscarriage of justice even if we accept clean air or view because the images that we had based on the information that is formed in this case is that what he received on his extra hard drive was the information the same information that he received in the receipt out from the web site so those are the same images and additionally  knew your time's ticking in the sensing issue is a confusing one for me the district court said he was going to try to use the amended version that's right correct but the reality is he wouldn't have to use that book he would be using the this brief but he also raised an objection to the state of massachusetts and the vulnerable victim and hanson it that was pending the amendment as well that is an issue that was addressed by the district court and sentencing the court addressed that issue to the court also addressed the issue that we that's a really hard issue for me i don't i can't you maybe tell me the law says this but i can't imagine the commission can just say this is clarifying and therefore a racist circuit we would have to go through the factors that tell us whether it's well the court that unites the sentencing guidelines in the appendix did say that the amendment revises to g two point two b three b in the comment commentary to clarify that the five local unhandsome and applies if the defendant distributed in exchange for any valuable the verb clarify rick something retroactive and reversed this circuit law we would have to ask whether or not it was meant to be retroactive under a multi factor test and i think that its statement is a strong indicator that it was meant to be retroactive when they're stating that it was clarifying and this is the issue that the district court had with this enhancement was because the district court said that it didn't believe it to be a ticket for tat situation whereas appellant was arguing that somebody had to actually it had to be exchanged between two people or another person the district court didn't buy that argument the district court there was no mention by the appellant or the district court regarding the pending amendment to this guideline they did consider case going also to the ineffective assistance of argument of counsel claim is that if defense counsel would have argued this and hanson it it appears that the and the judge specifically stated that his desire was to sentence him at the lowest end of the guidelines  book that when he was sentenced he would have gotten handsome because of groups how could it be a miscarriage but he did raise in the pretrial motion the specific issues that are addressed in the him and although he didn't sta amendments and that's coming up in november he stated the basis that was underlying that amendment so those issues were before the court the court did consider those issues and denied it but he didn't have the understanding of the guideline that was coming into effect in november i believe based on that understanding and in this case are complicated points retroactively of guidelines and the facts you're quite richest the extensiveness of his involvement downloading taking donations i'm from not mistaken you didn't follow  and your honor back to the issue regarding it being plain error of you regarding the double jeopardy i did want to state that there are the other cases i did in life in the plain error of you based on the analysis of how you have to raise it at the end once you're convicted it there was clear air even once when it was a matter of first impression based on the reading of the statute in that case and based on the ball and the reading of the legislative intent and congress you know thirty five thirty two motions are being granted on this i don't think thirty five eighty two would be a political in this case because it wasn't mentioned one b one point one zero so i believe in this case the only a chance that my client has any relief would be in this court for it to be remanded under either the third fourth or fifth issue may please court your honors i believe that the most controlling thing that should guide this court is the this court's decision in united states versus richardson which was decided in two thousand and thirteen and judge on that panel since that decision this court has determined what distribution means and unfortunately for mr barton he distributed child pornography by making it available on a publicly accessible website all the words even if it's not peer to peer filing he hit what his conduct did by uploading and downloading was sort of like a big border exchange what he did we actually made it more accessible than what richardson and rowe cmdr and that whole line of cases so the difference is with peer to peer software an individual has to download a specific peer to peer program typically it's publicly available like an alert a bit torrent any of those programs then he accesses a network that other individuals with the same peer to peer software are using and at that point you search for what you're looking for whether it be music movies or in the case of these individuals child pornography so there are many affirmative steps in order to access peer to peer child pornography via peer to peer what mr barton did was a sensually just put it out there on the web for anyone to access you didn't need special software you didn't need to be on a particular network you just needed to go to the website that he created which was publicly accessible he did ask people to make donations and i'll get to that in a second but what he did was make it even more readily available than the individuals in richardson row cmdr and the whole line of unpublished opinions where this court has repeatedly ratified and followed the precedent it set in richardson i believe that as you said earlier your honor this record is very replete with facts that support that there was a ho sale distribution of child pornography here that's the disc whether there's facts to support the guilty plea distribution ok let's move on from there assuming that your honour's agree with that let's talk about the amendments well maybe just quickly on the double jeopardy  and double jeopardy your honor i agree with what you were suggesting and it is the united states position that the way we charged mr barton was very intentional and specific mr barton was distributing and receiving via this web site during a specified period of time per the information which was december second of two thousand and thirteen through august twenty seventh of two thousand and fourteen that left an approximate six month period of time where we don't know what mr barton was doing how he was obtaining his child pornography and the like and was then searched via a federal search warrant on february nineteenth of two thousand and fifteen at which point they recovered not just images your honour's hundreds of thousands of images and videos and as the judge pointed out some of the most horrific images and videos that he's ever read being described and this comes from a district court judge who sat as a magistrate judge and heard the next are very bad but what if the government knows that these may get my terminology right receiving on a particular day and then they say you know will do the search warrant the next day and they get the exactly same images would a day allow would that not be multiplicity this under ball only if you couldn't demonstrate that there were different videos or images so a day could be a lot harder but you're talking about six months and in that this case that clarifies whether it's drugs guns or child porn the government can show receipt on one day but it can't be that the government can then separately charge possession for the same thing receive just by waiting a certain amount of time is your position of force it would have to be a different piece of contraband raise your position it could be the same as long as enough time elapsed no i believe that you would have to demonstrate  certain instances both because there are some types of cases where depending on how it was obtained and when it was obtained you could demonstrate that he had because unfortunately in this area of the law duplicate scout so let's say we're talking about a particular series of child pornography and if we know that the defendant has the entire series and has multiple images within that series of the same one some of those could have been received on the same day and some of them could have also been received on a different day even though they're the same image so their argument is it's a little basic because if you don't understand the way the images are and the fact that the same image can be counted twice for guideline purposes that same image could have been written could have been received on many different occasions all this could have been etc is because there wasn't a motion dismiss and there was a request to elect correct and at that point there would have been a forensic review that would have clarified anything if it had actually become an issue your honor but we didn't get there because there are a it was charged on separate dates and there was a six dates in the way it was charged and there was no challenge and then we went on to say that while the multiplicities argument is foreclosed as to the convictions it would not necessarily be foreclosed as to the sentencing which i think  counsel was trying to say as well yes yes but if if we get there we still don't reach the third and fourth point prong of plain error review so moving on to the amendments if if the please the court  the defendant moved to have his sentencing put off until the amendments went into effect at which point i was actually the trial counsel i filed a motion saying we don't need to put this off your honor can consider the amendments and we can have the sentencing in a timely manner at sentencing the amendments the future amendments specifically that about sadomasochistic and vulnerable victim were discussed and we agreed that if we were going to calculate with the new amendment there would be a two level reduction because you you can't have sadomasochistic an vulnerable victim in this particular case there are cases where you can but under the new guidelines in this particular case she would not have been able to which would put us at two thirty five to i believe two ninety five and he was sentenced to two hundred thirty five doesn't matter what you wanted to do was to the future because the controlling guideline book meant he gets it under gross were we saying you did try to give him the benefit of the guidelines but applying them he doesn't get it which is the analysis i think the analysis has to be that votes current state of the law in the fifth circuit is you are bound by the guidelines as they sit the day you are sentenced the fact the judge hanks went out of his way to be fair and to apply these and to look also to the thirty five fifty three eight factors i think that in any sentencing scheme given the analysis that was performed this would have been the sentence that would have come out as an intellectual exercise i think that what was said was in error by mr barton's counsel here because under the new guidelines he would get the five level distribution enhanced meant because there again this would people paid him they donated money to this website and it can be argued that he profited for making child pornography available yes or so under if if we had put sentencing off probation would have recalculated in the p s r and either they would they would have found the five level applied or the government would have objected to their calculations and say no now it's not the two level it's the five level so he ultimately would come out with the same guideline calculation range under the new amendment which makes him a little different than most that are subject to the new amendment but we don't get there so that that's almost an intellectual exercise it's helpful to know because obviously this is a frequent area of prosecution it sounds like you know the area well what is your opinion on retroactivity i don't believe that the guidelines in this case these amendments are retroactive the government's position in the ninth circuit was that it is but we are not in the ninth  are the government in the fifth circle you are the united states government have you studied why they took the position that the guidelines are retroactive in the ninth circuit and you're free to argue they aren't here no i have i have no idea about what the rationale for the ninth circuit's interrogated the government can see its i'm sorry the ninth circuit relied on the government's a good knowledge meant that this amendment is retroactive so you're saying if you apply the hot factors in your opinion it's not that would seem to be inviting us if we go down the intellectual exercise to create a split correct and we're here arguing about the amendments because in a lot of cases there was a split and the fifth circuit lost essentially when the sentencing commission decided to amend one little nervous if we were to go there are you inviting us to lose twice no i don't think i'm inviting you to lose twice i think that the way the guidelines are amended to take care of a great many of the issues that were in conflict and that this would not i think that this particular factual scenario is is somewhat unique in that the new guideline calculation would come out exactly the same as the old guideline calculation he did because of his specific facts and when you look to the state of the controlling precedent it actually says under plain error with view when you get to these issues that you have to go to a fact specific and circumstances spit specific case an so unfortunately globally mr barton is a little bit of an anomaly on the high side in that he did so many aggravating things he didn't help himself in any way necessarily i believe that that would have been the first step and then from there you would go to the twenty two fifty five which were not at yet the point as far as the facts and circumstances of this specific case i believe that like any case under these amendments there the analysis really stops with the judge used the right died line we can certainly go forward and we did with the intellectual exercise but the controlling case on the fifth circuit is that we are finished i believe that there is a sufficient factual basis for this court to find that the defendant distributed there is absolutely nothing in the fifth circuit that suggests this has to be a tit for tat exchange that there has to be in a den of fide party that receives this information in order to move on we do not believe that there was a double jeopardy issue and we believe that the amendments though they did not have to be taken into account work and that there is absolutely no grounds under the fourth issue that is proposed by the defendant in this case that this should be sent back to reset and saying under the new guidelines the judge in this case followed the fifth circuit law and what we would ask your honor says that you affirm the defendant's conviction and sentence in this case those the words distribute here have the same meaning as the words make available or does distribute require something more than make available make available marlon's no i think you're absolutely right your honor i think that under the case law distribute is analogous with makes available it's like a library the library makes books available whether you or i walk in and check those books out doesn't change the fact that they are available for anyone who can properly obtain a library card or who can properly get on the internet and access these items the library doesn't necessarily keep track of everyone that comes in and browsers and looks but walks away in this particular case this the website did not catalogue who took what but mr barton was very clear in his statement to law enforcement that it is repeated in the p s r that what this website did was offer a platform where people could email chat exchange videos pictures and do whatever they wanted on that web site there were no restrictions and so yes distribute is analogous to makes available and that's the same way it is on the peer to peer network when it is in a shared folder in any of the peer to gold to other parties on that network looking to obtain whether it's music movies child pornography and unless the individual takes affirmative action use the court first i would like to start by addressing the richardson opinion the government relies heavily on the souping and richardson however that reliance is misplaced in richardson the court found that the lieutenant had actually downloaded one  so this is not analogous with somebody just making something available pacifically in shafer which is relied upon by richardson the court stated in smith which is from the tenth circuit analyzing its previous opinion  that the issue in shaffer was what active conduct on the defendant was necessary before the quirk of find that he had distributed it there stating that making the file of vailable is enough on the party's conduct just like they talk about making gas available at a gas station is enough when he was asked  guilty to there's no understanding in the record in this case the barn understood that somebody had to actually download an image that he uploaded now the government reliant stated that the government didn't catalogue what was taken there is no evidence anything that barton distributed was actually taken and if you were to argue if you were to find that simply making it available would constitute distribution you would be creating a circuit split as recently as two thousand and sixteen in the opinion and that's in the tenth circuit the court found that no circuit has found there's currently no circuit split on whether an actual download is required for distributing saying that no circuit including the tenth circuit in shafer which is relied upon by richardson that that the government's arguing has held that a defendant can be convicted of distribution under twenty two fifty two in the absence of a download or transfer or materials by another person in fact hussman in the third circuit cited richardson for its finding that there actually is to actually be as download the court said several circuits has made clear that distribution occurs when pornographic materials are actually transferred or downloaded by another person citing richardson stating that uploading a distribution connection or a law enforcement officer actually download it child pornography so the other circuits are not interpreting richardson to be a circuit conflict that's from two thousand and fourteen and huston also said there is no circuit understanding of what was required to distribute for him to upload those images and make them available but that is not what the circuit status requires so he's not a knitting that he distributed in the way that it's required he didn't admit that somebody actually downloaded image and the government has no evidence that anybody distinguished there the government had argued that the time the time requirement was sufficient that there was a different time and that's been an issue here where you had stated the allowable unit of prosecution was material or the medium and that the court was court also to e o which stated that downloaded and kept during his time frame what was found in his possession april two thousand and sixteen the government does not claim receiving in possession are based on completely different child pornography and that's the same issue that we have here