court i represent joe ross the appellant in the middle of last year mr ross was sentenced in the district court under a scheme that required a five year mandatory minimum  guidelines that recommended a sentence between one hundred and fifty one and one hundred and eighty eight months in a different world however had he committed the same crime in the same way and been the same person with the same criminal history and the only difference was how the prosecution charged his act he would have faced sentencing with a minimum as low as probation and a guideline range that recommended a sentence fifty four to sixty seven months lower with no change to the offsets or the offender that arbitrary distinction it is our contention is unconstitutional in to get to that conclusion i think you need to cover two main topics today one is what the factual premises that underlie argument and by that i mean the factual overlap between the acts of possessing and receiving and nd the functional differences in the outcomes depending on which charge the conviction falls under and then the nd topic i need to get to is the legal basis for invalidating the scheme so beginning with the st the factual overlap between the acts of possessing and receiving just as a matter of plain meaning if you a complete identity of conduct shared between the two offenses there's an overlap to be sure they're not identical i would say that the government points out one way that they may be different it's hypothetical is that a person that produces an item  those defendants in the district court quite often but when i will note is it's a hypothetical in this sense the government has not presented any real world example of such a producer where the united states chose to prosecute under just possession where the possession statute and guideline based office level would be determinative in any way in fact a production offender has a different statute with a fifteen to thirty year statutory range and a different guideline with far harsher penalties well the russian out as i understand it is it's far worse you know the only expression better to give than to receive it's far worse to receive than to simply possess because it's generating or helping to write this terrible industry and i would say that because of the nature of the two acts if a person possesses they did at one point either receive and have the same harm it's traumatizing a child i think this court and numerous other courts would say that just the act of filming it in closing not harm that doesn't mean that that too offenses are committed in that they are separately pensionable right and this is not a double and the guidelines for production that would take effect and so the government hasn't posited an example or presented a realistic probability of how we get to possession matter if it's such a scenario do you do you think the knowledge was the knowledge requirement to prove receipt so with the knowledge you don't slip just briefly if you allow it to the statute is knowingly that it must be knowingly received ok you know it seems plausible to me that someone could hand another person a flash drive that includes a number of images person doesn't realize doesn't know that he may be receiving child pornography and realizes later and keeps it now wouldn't that satisfy possession but not receipt i think  particularly under the guidelines were it's only a preponderance standard across reference to production then we have to determine if court finding that there wasn't critical you know you're saying there's no reason to charge both and i think there is because you might not be able to reach your proof where you are alleging both creation and possession the jury might acquit on creation but convict opposition so there are reasons to charge and then he would be sentenced to the just to the for the possession up for the cre see you didn't knowingly receive but you do with possess understand so there's reasons to charge both crime and i apologize if i spoke poorly i don't mean no reason to charge no reason to sentence under the possession scheme there isn't a scenario where we get there we're pretty certain that was what i intended it to be i apologize if i support i will know that in the government's hypothetical in those posed by your honour's these are not mr ross and they're not the mine still have acts of receiving in business and even if you get it from your neighbor you have received but you've also downloaded and i'm just saying there are various ways and i just have a hard time what's your bottom line point here that constitutionally what what is your point yes you are jumping to the constitutional infirmities i think there's two the st is the arbitrary nature of this scheme and in the language of the void for vagueness doctrine it's the nd prong that these laws this law is so standardless that it invites an arbitrary enforcement you get a room but i childer i think isn't that a big obstacle i don't think it is i see the natural analogy that can be drawn but i think it's different for a number of reasons that is not the prong explicitly in the district court mr ross said we're not challenging notice so batchelder didn't reach an arbitrary enforcement question in fact colin or which dealt with and revived the arbitrariness doctrine came four years later that's the  distinction is it didn't question is there an arbitration foresman nd is that that dealt with only increasing a maximum punishment it did not deal with an increase to a statutory minimum which years later we know through  book or in a lane that increasing mandatory minimums has a constitutional effect and it did not deal with sentencing guidelines as they were not yet in effect i mean at the end of been a children the court is talking about the discretion a prosecutor exercises when deciding whether to charge what sounds like an arbitrary and who is or isn't and i think that reading context we have to look to a preceding sentence in batchelder that also says this does not empower the government to predetermine ultimate criminal sanctions it rather merely enables the sentencing judge to impose a longer prison sentence but with the court's point i would say that discretion is different in this scenario for a couple of reasons our assertion is that this scheme is so standardless that it does not provide clear guidance to a prosecutor in the typical context of prosecutorial discretion and congress has rightfully prescribed certain crimes and said for more culpable conduct more severe punishments attach and so we can look at acts a murder and congress will set a maximum punishment often life or death within that or many lower levels that the government charge and so we talk about discretion in most cases it is government discretion to charge less serious acts within the conduct they're essentially doing down from the maximum congress has established but it's tethered to the real world honda versus here where our position is that the acts are receiving  possession don't do that especially mr ross's case where it's the same act for both of the offices and i would also note that with the text of the due process clause it's a violation of the constitution if we're arbitrarily depriving a so what in the record might indicate why the two different things i don't know the record speaks very clearly to it if the court wants to answer all the record of the want to hand oh i don't want you to but from the record the government can do it from the levels of proof is different in the series of conduct of sentencing is supposed to be tied to the degree of the often it's not to the degree of proof especially when we have possession or you know the possession is either through receiving or producing items so it's a levels of proof is different than the severity of the all phones in terms of the functional differences in the outcomes i think it's significant that the sentencing commission has found that the average sentences are thirty months apart for these two offices nationwide in particular the average sentence nationwide for a possession often it's is fifty five months that's not lower than the statutory minimum for a receipt office meaning by a prosecutorial decision to charge a receipt rather than possession the so standardless that it doesn't offer guidance to a prosecutor just because of the signal is that what you're saying that is a bit you're saying it's arbitrary simply because the sentencing disparity disparity no your honor i would say that it's arbitrary because it's of standard with about i think i can prepossession but i don't think i can prove or seat knowing receipt the standard is how to look at the act that constitutes both and decide which to charge you know usually when we talk about vagueness we're talking about beg to be independ you're talking about vagueness to the prosecutors that's what you just said it's vague to the prosecutor not to the defendant and your honor i would submit that colder is a good example that it's not just to the defendant in cole and or they're talking about a statute that gave permission to the police to stop and it was a crime if the person refused to give credible and reliable identification that was struck down as void for vagueness because it didn't guide the police officer sufficiently and it let them arbitrarily enforce the law i don't think that the v apt where it's looking at a scheme for l s d punishments in there that the weight was the determining factor in what they did with the weight is involved the carrier the object or the substance that carries the drug in the weight says it's based on an arbitrary distinction there was an arbitrary because the weight gets at the home this distinction is arbitrary because of what we've postulated in our factual premises but then the nd thing that the court did the supreme court in dismissing the denying the claim is point out that the defendant had not presented any examples of an arbitrary or a of sentences only hypothesizing that in the future it might become arbitrary in noting that even in those hypotheticals the defendant wouldn't be affected and so i think this is very different for both of those reasons i see i'm out of time i've reserved five minutes and was it and excuse me this john ross was sharing child pornography that's what those st dates are and they represent a receipt count the nd date is when the agents went out and executed the warrant the receipt counts apply to three different videos with children eleven and four years old the possession counts relate to over seventeen thousand images of child pornography over five hundred dollars videos and several davey d s which means of course that he would have had to have transferred child pornography on to the videos so he was in possession of that amount of child wanted to prove receipt what would you have to do we would have to prove we would have to have an agent on line the new way the old way of course would be it involves the post office but that rarely happens but an agent would be observing and the peer to peer network and there are a whole bunch of them and they would be able to use the ip address and see that he is sharing and distributing receiving except for it and the agents are able to do that and a lot times quite frankly it's the forensics that drive these charging decisions for example here there were some blocks put up and so and criminals will often do that and so you can't necessarily prove up the distribution of what harms you because of the sophistication of the forensics that are going on and we obviously have special people that go through these computers and what have you and that's over my head but i do know that forensics often drive it therefore you might have possession but maybe if you had been on a peer to peer and it caught the person you would be able to prove proceeds and evacuees right you would make a choice on that but that's not what happened to go out the peer to peer i'd get going on the peer to peer makes it i guess easier to prove receipt but i'm i mean what i was thinking of is if you find stuff on the computer and then you want to received child pornography on such and such date that's our burden of proof and sometimes we can't do that and for example if there are walls up on the peer to peer maybe we can show somebody is receiving but not and rejected it the court has found that there is a difference between receipt and possession someone can possess without receiving while it's true someone who receives is possessing but you have to make those charging decisions and the supreme court batchelder of this court numerous opinions have recognize that prosecutors have a certain amount of discretion and they're supposed to exercise it within constitutional restraints and there there's no evidence that anything was amiss abuse here of course and the other thing is we have distinct harms threatened for example in possession i realize that sometimes it is the child pornographer who's possessing but some time somebody can possess and use that information to try to groom children to say look you know this is fun why not do it that type of thing this court many other said however when you're receiving when you're distributing when you're doing those active type computer crimes you're increasing the demand for child pornography you're in the market and it's a much much stronger situation think the key example here is i understand the palace argument is suppose you have conduct that the prosecutor looks out and says i could i could charge that is receipt i could charge that is possession and i could prove either one so i'm totally left up to my own devices to decide which one to charge what is your response to do that create an orbit you're in this problem absolutely not and i think that's what batchelder tells us that cha says that you can they had the gun right the felon could not have the gun you had to stop cheats and the prosecutor exercised its discretion batchelder also told us that if the prosecutor is influenced by the penalt if you will in that in this situation and if you take their process argument to the extreme then you could never have a mandatory minimum you can never have a mandatory minimum sentence where have some type of overlap and that's not the law and that's not what congress has directed and of course the sentencing power starts with congress right i mean they're the ones that passed the various statutes they're sometimes involved with the sentencing commission and here there been various opinions complaining about this disparity in child pornography guidelines but congress has done nothing in the smith opinion that they twenty eight j last week the smith opinion goes through that history of that philosophical disagreements with congress but the reality is in a lot of these discussions what isn't mentioned is the violence against children these are violent crimes they're often with babies bonded rape toddlers and that's often missing from this discussion and another example of that that i gave them my brief obviously a little bit more sanitized is where somebody had a case there's even fraud cases the list goes on and on and they make these decisions and for one thing i would like to think that most of us would do that trying to uphold justice and not for some  personal spoil or whatever that some of these cases state when there's no evidence of that and the courts that have looked at those the six the th the th they do find that there's a significant difference in these crimes at  blush maybe they don't look like at the receiving position but when you do the little further you can see that they are significantly different and if we were to charge for example somebody with just for  eight and maybe they only had two videos that might have a totally different effect on a judge when we see that he's in possession actually though of seventeen thousand images and here the judge the district c judge complained about the guidelines as some people do but what he did is he didn't like to go to the mandatory minimum of five years instead you look at the defendant who was standing in front of him with all these images who said that he used to you know touch children and then one of the women i mean she's only the bathroom and what have you and his that means ten initially one hundred and ten months which is almost double of that mandatory minimum one hundred and ten months and i think that's important to bear in mind too because as the smith the twenty eight j a judge said smith as this just recorded nobody knows better than a district court what a defendant actually has done they've read the percent in singapore and all that type of thing and they have to weigh those decisions we all know that district court judges do the best they can and sad to say and it's a very that's their role is it's their roles to the extent they think something is wrong to change it and as smith pointed out what congress has done is dad has continued to increase these penalties and so this is what we have but again as i said just a moment ago at the end of the day the district court makes the decision i realize the court is is hampered or whatever you want to call it by the mandatory minimum but the court does have the opportunity to go downward and that's what the court did here the court didn't sentence him anywhere near what he could have and of course he's not challenging his senate seat so i think i've pretty much yours i want to address a couple of points that just came up the st is the comparison to drugs and other scenarios where there's mandatory minimums as i mentioned earlier there are some differences but one that i think needs to be pointed out is that in all of those cases the guidelines are still tethered to the real world conduct for drugs the base level is set by the weight of drugs not the off chance for fraud the guideline is set on the amount of fraud not the office there is no plea bargaining to change the guideline level there is no prosecutorial charging decision that changes the level the way there is here and that's significant i want to just briefly mention that in booker in the part where they were the court rejected a jury trial requirement it did so for five reasons but two of them are very germane to this issue the st is that the supreme court said that congress has basic goal with the sentencing reform act is uniformity that does not consist simply of similar sentences for those convicted of violations  the same statute more importantly it would be a uniformity that is consistent between sentences and real conduct the nd is that that same court gave another reason saying that such a system where the prosecutor chose which and had to be proven to a jury before the judge could consider it would have particularly troubling consequences with respect to prosecutorial power different cause but we have those same two effects from the system the  dictates what the district courts guidelines or and if had mr ross challenge substantive reasonable miss on appeal to this court as it stands this court i precedent would have to presume reasonable one hundred and fifty one dollars to one hundred and eighty  discretion permeates the entire process from indictment through appeal that is a problem that is distinct that does not exist for drugs and fraud where the judge does what the sentencing reform act puts in his hands or her hands  defender and the office here the guideline is set by the prosecutorial decision and then the judge has to move from there i will also correct what and maybe i misheard but in smith the district court did didn't say these guidelines are appropriate in this is that penn state six in the opinion i twenty eight jade the court said this court finds that this case falls into the category of cases where it's difficult to discern whether defendant should be sentenced under receipt rather than possession and near the end the court struggles to see why the large quantities possessed in another itself supports the significant disparity in the guidelines range and the final sentence in smith was seventy eight months half the guidelines and then beyond that in terms of this being a one hundred and ten months intensive mr ross's case and that that is not to the mandatory minimum and it is below the guidelines this court in hernandez monteux has three men did even though in that the supreme court did the same and when it's over us i will note that i didn't get to say it in opening but i think the dissent in the barrel decision is important where two justices dissented saying that the court's two a despite the fact that the issue was never raised to any level of the proceeding should take up the issue on its own and strike down a system that would allow this degree of control to pick felony or misdemeanor based on the same action that was even though it wasn't briefed argued never exist in the record they were so offended by how that would implicate our system of justice that it should be dealt with i think it's incredibly significant here that there is no standard telling the prosecutor how to choose between these in the mind right case in mr ross this case as applied in then that controls the guidelines that affect the district judge but also this court i think that this court could deny or challenge us to the statute and agree with us as to the guideline that is imprimis civil arbitrary in a separation of powers violation for the prosecutor to have that much control over the guideline process that is understood you conceded that your god line challenge w