good morning please the court jonathan libby appearing on behalf of appellant christopher cheney your honour's christian is currently serving or peers to be the longest sentence for computer hacking ever imposed in the central district of california and one of the longest ever imposed in this  one need to be compared against your typical fraud offense regardless of the nature of the crime but of course that guideline section applies to more than just fraud offenses that applies to theft and one that forgery counterfeiting insider trading and computer hacking it would not seem to make sense to apply those crimes and what happened in those crimes to your typical fraud offense a sense that what the government fears argu ment you've got an extensive period of time you've got sixty victims involved you've got use hi my ip software which i suppose if you if you know about it may not seem terribly sophisticated patel a lot of folks there's a level of sophistication there the use of multiple email addresses the attempts to conceal the crime why aren't all those obvious but to the average person who doesn't know anything about this software program doesn't require a certain amount of sophistication i mean we keep talking about being so much ahead of their elders and that's true so i take your point but what's the frame of reference well there are certainly going to be some people who are not very familiar with computers that's certainly the case but i think in well they may be familiar but now with the techniques of using the software program the do you can download software it's there are hundreds if not thousands of similar programs that are available would it take someone to look into how do i hide my ip address from people to protect myself from those trying to find out who i am when i'm searching web sites yeah not everyone perhaps is aware of that but it's something that is not terror requires any type of sophistication was someone who and we cited to a number of articles and our libraries with which talk about how this type of computer hacking is in fact the least sophisticated way to hack into a computer a sensually  mr cheney guessed at various individuals e mail account names or was able to find them out through publicly of salable means he then used the forget forgot my password feature that's available of my all internet service providers if someone forgets the password when they're trying to access their e mail account and i mean that happens when anyone tries to type in a password and it comes up that it's wrong it offers you the option of changing your password he then use publicly available information to answer the questions that the individual had used again nothing sophisticated about this this is not someone who welcome compared to your typical computer hacking offense which typically involves and the government cited similar offenses to the court below it involves often using malware installation of  the my handles case that the government cited in the individual psychic hundreds of victims computers set it up three uses now were so that she could actually turn on the victim's web computer hacking and of course there are some computer hacking that's way more sophisticated than that which can involve you know hacking into say sony pictures and millions of people's account information becomes available that is sophisticated here by contrast nothing particular sophisticated involved here i would also add a computer in the there are in fact additional hands meant that applies specifically to computer hacking offenses to levels if it involved and attempt to obtain personal information for levels for anyone convicted of trying to access the work or damage a protected computer that's under to be one point one d now seventeen and eighteen so that's six level hansen's the sense commission's already provided for when you involve a computer hacking case so clearly sophisticated means the present report indicated that's eight films containing child pornography were on mr cheney's computer now at the sensing hearing he emphatically denied that that to the point i've been he didn't seem the lawyer who's representing him didn't seem to dispute that there was a child pornography on the computer there was was that is that  don't see worry disputes that it sounds i read him is saying it's it's on there but there's no evidence and we deny it that cheney was responsible for it  that's not exactly disputing that it's on the computer and i will certainly can see defense counsel who obviously we have suggested provided ineffective says of counsel was perhaps perhaps not as articulate as suggest that the court did not take it into consideration certainly there's nothing in the record in which the court expressly indicated it was not going to consider it and of course what we have here we have a court that imposed a well above guideline sentance than seventy one month sentence so can't can we say the court did not take these allegations of child pornography which the court stressed at one point in the sense that it's not take that into consideration we certainly can't do that and would certainly nothing in the record the catering expressly that the court was not going to do and given the fact that the court did not then resolve that dispute which meant that there was a higher sentence available to the district court it just chose not to impose it and then working backwards the government agrees entirely with judge fisher's analysis of the record which is that what the defense counsel objected to was the inference that was drawn from the statement in the p s r the statement in the p s r what that the eight films of child pornography were found on the computer what the defendant objected below at sentencing was that he was responsible for those eight videos on the computer as such this court is held in cases like petrie i believe that the automatic reversal under rule thirty two does not apply that situation this was not an objection to the factual statement in the p s r that there was in fact child pornography found on the computer this was an objection to the inference that the district court  drew from that statement as such it's not liason it tooth and under the facts of this particular case because the inference matters you know the the allegation in the p s r was extremely serious child pornography in the court reviewed it as very serious and he's saying look it wasn't mine essentially is there anything in the record that we can look to the say well given that objection the denial of responsibility think that the government would would argue instead that the that should the court find that the district court had a responsibility to resolve that dispute it did so it was clear from the record proceeding that the district court with holding him responsible for knowingly downloading and possessing that child pornography there was no question in the statements that the district court made in the two pages prior to the defense objection and then the defense makes the objection  and concludes with he has been charged with child pornography the district court says he hasn't been charged yet with child pornography and then moves on to another issue i think what so it's clear that the district court found that the defendant was in fact responsible for knowing possession of child pornography but what the defense is asking here is that the difficult had go beyond that and that after the defense raising argument with respect to that the district court would have to go back and say i haven't changed my mind i don't think that's what this court case law suggests did the district court clearly held him responsible for that it is not clear from the record whether or not objection and christianson is not the only case that this court has decided on that point christiansand has been followed for example in rain acevedo which is five sixty two federal appendix five eighty two that that's another case where substantive objection was made but no procedural objection was made and there are other cases as well so where did you say that the court i'm looking at forty three were killed sources there's no record of them in placing them at the computer when there's actually a clerk curd assume that it's referring to downloading he's not the only  thirty three line ten as he starts out by thing of great concern here separate and apart from all of the conduct that mr cheney engage in when his computers were searched and sees on february eleventh february two thousand and eleven and then search they contain child pornography maybe the court needs to hear more about that from the government this from the government for the trouble or not a fee that was seized from the defendant's computer included children as young as eight years old and were running who was responsible for being on them well i'm sorry and maybe maybe i misspoke i think what i was trying to suggest is that it is he didn't resolve the specific objection that the defense counsel made i agree with that but what is what the government which matt is clear from the record is that the district court was holding him responsible for that child pornography maybe i'm still not being clear  defendant so meaning that he not only resolved the fact that the segments computer had child pornography but also resolve the inference that the defendant was responsible for that possession is what you're saying exactly correct so because i thought from looking at what the court said about ok you have checked that were done with the cash guideline calculation and did it just the offense level and he talked about lifetime releases defendant was responsible but that the court didn't resolve it or the record at least as murky as to whether he was going to take it into consideration in determining the proper sentence no yes i guess i would agree with the last statement that the do the record is mark yes whether or not he  ultimately included it in the in imposing sentence but i guess for example on the bottom of xserve record page forty two the district court in talking about the child pornography says the children mr cheney when you have this type of pornography the children are the victims here there's a whole market for this and you perpetrate an assist and support that market by possessing this type of material so you have the right to a good position create your position is one i'm clear whether he took it into consideration in sentencing i think just too i agree with most of that same and i just i want to be clear the government does not suggest that the defendant raised a specific objection and the district court resolved that specific objection my point is that based on the record that leads up to the objection what i'm trying to say and apparently not very artfully is that it is clear that the district court up until this the objection was made believe that the defendant was not responsible for knowingly and possessed no one like that in the child and having downloaded it correct or not yes or the interpretation is you and i thought best so you answered my earlier attempt to clear as to whether had the difficult had made a clear factual finding that he had knowingly possessed the chopper not be on the on that was found on the computer the defendant then makes a specific objection to the inference that is drawn from that which again suggests when taken in full context that the district court had resolved that against the defense roads enough a few f i'm trying to suggest and it's worth in conclusion that this was not a this was not a guideline space issue this is because it was not the child the child pornography guidelines that work like we've spent a lot of time on this i'd still like to hear not to the do you look to the underline conviction to then compare to access to computers you're not in compassing the whole universe of crimes that can be committed to this you have whether the charged offenses illegal access or unlawful access of a computer and average and and wiretapping you look those crimes and then you decide is this more sophisticated than is normal in those kinds of crimes that you're base for well i think the basic point that that that is one based point i would argue also that it is not clear whether or not this particular crime a conviction should be compared with all of the crimes that are final two to be one point one or whether and in terms of sophisticated means in other words a paper fraud or are bank fraud conviction then the computer fraud is inherently sophisticated than a number with all the other crimes no honor i just think that with this one i'm ok i'm not sure what your position is but if you accepted it as it has to be compared with means other means in other crime  the forwarding e mail addresses in within this into account so that even once the victims regained control of their e mail accounts he would still receive every email that they received he would receive a copy of the forwarded email address and i can you can love me and but i think part of it is be the awareness that i guess using the internet can be tracked like how it can be tracked like i have to admit i'm totally lost i don't know you know to begin to download something like hi my piece oh isn't that part part of it is the understanding of how things work and then taking the steps to a factually the concealment that's exactly right your honor it's understanding how internet protocol addressing what could lead the government to the defendant and the techniques that you can use and the available programs that you can use to hide your internet protocol address in ira two i know you well over time but i wanted the government incredibly impactful victim statements that it appears the district court relied heavily on them so how should the spam a look at those issues and the courts have a reliance on statements that are dispute the defendant i don't think well the obviously the the precedent of this court is that only a minimal indicia of reliability is required for the district court to rely on by the way in which this the crime of conviction was performed and they were also corroborated by evidence that was found on defendants computer that was submitted to the court through an age e in addition to that i think that because they were so consistent with the with the crime a conviction and given the lack of motive the statements the government would submit that the district court was entitled to rely on those and to consider those statements i do think that the district court while relying on those statements did have many other reasons for statements were insufficiently reliable where they are not subject to many of the procedural mechanisms traditionally used to test witness testimony to quote such as cross examination of the accuser in order to test the recipe and what we have here are been charged with any crime with respect to either of these two individuals and all we have are these two statements emitted by the government and then its own case agent in a paragraph corroborating these are what they said but we know nothing about whether what they fact have that are true they weren't subject to cross examination we don't know who they are this is exactly the type of unreliable information that the court has talked about in terms of there being a due process violation and as your honor pointed out the court relied heavily very heavily on these two statements in deciding to impose this well above guideline sentence which in fact was  disputes until a dispute is made and the case law as we've outlined in in our briefs makes very clear it must be an express resolution and if it's unequivocal the case must be