the end of the case with the district court's afterthought assessment of five thousand dollars under the i just i'm strictly to strathcona get him to understand why this in here that requires the court to send the case fair need to tell the court a little bit about what was in front of the district court in making that decision according the pre sentence report which was undisputed mr goulden was thirty three years old he drank daily and had started drinking leach three of the word alcoholic was not used in my mind what was described was alcoholism he was drinking a bottle of vodka daily he lost employment because of his drinking he had last held employment over eleven months before the d sentencing he was a person had suffered significant childhood traumas he did witness violence against his mother as a child he himself had been in foster care he'd been sexually abused as a child he had behavior issues which more unspecified but what was set forth without dispute in percents report was that he had serious behavioral he was in classes because of a severe behavioral issues handicap classes the man had twenty dollars in a check income owed twenty four thousand dollars in child support he had a verified dead of one thousand two hundred and seventy one dollars he was being supported by his imposed my client is indigent the law says the judge has to give employers assessment on a person is not indigent there's nothing in this record that says that this man will be anything other than seriously improv an employee a bull and one would hope although one can never be sure that his term of imprisonment might deal with his alcohol problems might get some mental health counseling he might emerge substantially more stable and employable and he was practiced in it see her all the wonderful hopes and wishes that i share with you from one client however i understand that that may not be the reality i'm just saying that prop those are probably appropriate things to be considered the decision maker yes you're right they're very appropriate to consider and you wish those on all of our clients incarcerated support doing that as well the court has published opinions but even the pins this court has published we're bound by them but even those opinions are distinguishable in this particular case and every single one of those cases the restitution work was significantly less than the work in this case the work in this case was one one hundred and fifty five thousand dollars that's something that has to be paid which come which comes st though i thought restitution comes ahead of the j not absolutely critical although that that's a much stronger argument than your than your others perhaps but on the other hand then what kind of what what harm what fall does he get he doesn't get real improvement for failing to pay the j t you're ok thank you so what harm would fall to the court to decide but it was not done correctly and i think we can say from the record that when counsel says my client's indigent the statute says you have to determine whether or not the person is injured and i'm indigent that the court should do it and it wasn't done does but there's absolutely no finding of that so that's my issue regarding that aspect of the case turning to the restitution or it won't be a surprise to the panel since it's in my briefs that i disagree with all the district  of restitution again there was no objection in the district court but i do think this court has an obligation to make district judges follow the rules and do it right we're talking about something that's going to have an impact on a real person that's going to have to pay money back and this is something that that carries with them once  and just rubber stamp what's in the percents report i think is wrong in the way the restitution was presented if you look at the supplement to the percents report all the probation officer did was say these victims have made these claims have these images did this defendant reproduce distribute these images he did not how many images of the defendant have other facts relevant to the calls a role in all these are these are not hard in fairness to guidelines but this this problem of how to determine restitution when someone has possessed an image of someone is not a new problem it's a manner that was discussed by the supreme court and i just think it's wrong plainly wrong to just rubberstamp with the police officer sent particularly one upon inspection all you have are self serving declarations and i'm going to have five hundred thousand dollars a one million dollars of damages going to the future and i want to order the sp n i just think i understand but so that's it grates on me and i think should read on the court to have orders entered with real consequences that are  needed to look at it the st seventy pages of it i just wanted to look at the listing which is at the end is that would that be right it's toward the end i think where we would know that these are maps do not represent certainly not the total number of victims here because this is a matter standing of the facts and maybe that this was not could not be in a matter of restitution requested for each person individually not be considered a victim is that right the right these are these are the  good morning may it please the court james ewing for the united states mr goulden preyed on two children ages twelve and fourteen and convinced them to produce child pornography of themselves and send them that he also had the equivalent of thousands of images egregious child pornography including sexual abuse of infants and toddlers beastie ality and some of the most egregious images that you can imagine federal law mandated that the district court impose restitution and the five thousand dollars special assessment in this case and the court certainly did not air much less plainly air in so doing i'll turn since we were talking about it last i'll turn to the question of restitution st eighteen and fifty nine mandated restitution in this case to the thirteen identified victims and of course mike my colleague was correct those are the thirteen identified victims that were identified by the national center for missing and exploited children there were thousands or hundreds at least hundreds of victims in this case including a number that were obviously not identified pre sentence report calculated loss amount as just over one hundred and fifty thousand dollars and gooden did not object to that amount and if we same proposition that when the pre sentence report sets forth a precise amount for restitution and there is no objection then the district court does not err by simply adopting the pre sentence report  also recommended a specific restitution amount there was four hundred and twenty five thousand and thirty dollars of course then on appeal scudder challenges that amount but this court said any objection to these findings should have been made at sentencing because sc case but we think that even even if this were a preserved error case if you look at the five hundred dollars plus pages that these thirteen victims presented to the core ten of the thirteen of them cite the parallel and case and what caroline stan carolyn stands for the prophecy of course caroline came to the supreme court not as a plane or a case but when you know the district court in the th out of the th circuit had found that that there were in a child pornography case that there was no restitution o essentially disagree with both and they they crafted a middle ground where they said you know it's an approach an amount in recognition that the defendants one of many pedophiles who possess the images and that's what this was if you look at the if you look at the that that's why you could say this man would represent only a fraction of the overall harm that was a small fraction of the harm that was done of the the individual been known to fit the known victim who goes by the moniker marine and i'm looking at page id seven hundred and fifty three dollars marine talks about her overall damages being on the order of one hundred and ninety two thousand dollars she's asking for ten thousand dollars from good  so this is the type of thing that para one was was describing so again i don't think you need to get into this argument but we think that it's not the one hundred and fifty thousand dollars didn't fall out of the sky there was a there was a rational basis for it and it was the aggregate total of these and it's on page twenty six dollars of our brief we have a table that has each known victims overall loss amount and what they're asking for for good and if you look at it you know what the last amounts are a of in the hundreds of thousands and they're asking gooden for five thousand dollars ten thousand dollars that sort of thing so there was there was a basis for that number it didn't just kind of come out of nowhere but again we bring you back to scott or we bring you back to sexton and it goes to the overall concept from cases like mcgee where if there's a if there's a fact in the pre sentence report and that fact is not challenge or not controverted then the district court doesn't error by simply relying on it and so that's what the district court did here you certainly couldn't say somehow that it was plainly iranians who clearly and obviously erroneous in the absence of an objection to rely on this this this figure that was in the pre sentence report sexton involved a restitution amount of over two million six hundred thousand dollars scudder was four hundred and twenty five thousand dollars so this is it's in the pre sentence report and it's not objected to the district court judge does not care about realignment turn to the five thousand dollars special assessment issue it's st it's important to understand the the intent behind that five thousand dollars special assessment it's called the justice for victims of trafficking act and the idea behind that it goes into a fund and that fund is used for all of the unknown victims so the hundreds of unknown victims who maybe ten years fifteen years from now twenty years from the coming forward and realize you know hey this happened to me there's images of me on the internet and so that's a way of course we know thirteen of the victims so we can order restitution as to those the five thousand dollars special  gooden owed some aggregate about twenty six thousand dollars in debts at sentencing want to say go thirty thousand dollars gooden had had a prior job as a mechanic making three thousand dollars a month at made more than ten dollars an hour in his own his wife so you know if you look at him wanted this court found that one to say that was not indigent for the purposes of this five thousand dollars special assessment so says you have twenty years after you get out of prison to pay it so you know want to say go would have a total of me mr goulden would have a total of forty five years so it's twenty five years of incarceration plus twenty additional years the restitution amount becomes d that if you ever tried to collect the fact that he had been able to pay the rest somewhere out in the future would be a sign that he was any any discussion of the j j v t a indigency looked at the interaction with restitution it doesn't i mean this court did so in again in the sheppard case where sheppard had a shepherd had a twenty five one thousand dollars restitution order and a thirty thousand dollars child support order so he shepard was in the hole for fifty five thousand dollars before you started in this court did consider in that regard even if you look at that so now what they considered it what well well they said the shepherd was was not indigent for the purposes of the five thousand i would like to address to that my colleague's comment about his about mr goulden trial attorney saying that he was indigent at sentencing that was in reference to whether by the way was retained in that that comment was enraged in regards to whether he needed appointed counsel for appeal so of course that's not it that's not a claim that he was indigent for these purposes because we know from want to say that the standard is you look at the person's monetary situation at sentencing and also their ability or inability moving forward to make money so again this is someone who was a mechanic making three thousand dollars a month at one point had a series of other jobs including one you know making seventeen dollars an hour if he paid roughly seven thousand seven hundred dollars a year for the twenty years want to get out of prison he would pay off both  the restitution and then the special assessment so and also we know that the special segment should have been fifteen thousand dollars because it should have been five thousand dollars per can all and the  circuit addressed that in a case called johnson last month that it's actually perk out so he he got he got ten thousand dollars less special assessment than he should have this is someone who had a galaxy s eight cell phone as e phone in a certain laptop and an h p laptop in his residence so this is not someone who particularly in light of this court's decision and want to say good should be considered interesting for the purposes of this important special assessment i know there's a couple of issues in the appeal that we haven't discussed this morning i'm happy to answer any questions about those or any other questions about any aspect of the case thank you very much you know for the questions we would ask you from the district court brief if it's not in any way in conformity with the supreme court suggested the court should do in the per line decision for the end of the pre sentence reports that the restitution now is not objected still maintain the district court has that wording obligation to do justice in each case in this is an injustice you know the row the defense lawyer is to admit that as the court if there's incorrect authority no they can't but this is a recurring issue in child pornography cases in this particular case you can look at what happened here on wants one hundred percent of her loss from my client and it was awarded on it's face they can't be so she's a person that's a done a fight by the center for missing and exploited children there have to have been she can't be the only one he can't my client can't have been the only one that ever possessed an image facially that's warm in the whole thing here speaks of the type of error so i sympathize with the district court it's a difficult job council supposed to help the court the ultimate responsibility in my mind is for the courts to justice this was not a correct result the courts on notice from pearland case the government's on notice there's no statement in any of the government's pleadings about how many other offenders were there how many other words were there this is these numbers are picked out of thin air and it's not that huge a burden to say there have been fifty other words a five thousand dollars each or a one thousand other offenders or one of those numbers  forth my reply brief the one to say could cases highly distinguishable and i respectfully suggest that an alcoholic unlicensed mechanic with no work history who hasn't worked for a year was presently