argument thank you good morning your honour's and may please the court as i just indicated my name is william denton and i represent the appellant richard haas probably this appeal concerns three issues  the st issue concerns two search warrants that were upheld by the district court despite the case agents intentional a mission from the affidavit of critical and damaging information about the informant credibility the nd issue concerns lack of evidence showing that mr ross took a substantial step in furtherance of sex trafficking to support the attempt conviction in this case and rd we've raised two sentencing issues the st concerns the district courts contrary to the application to the person that was representing the age of the minors was not a law enforcement officer the nd sentencing issue that we raise involves the district court application of a five level enhancement under the guidelines section four b one dollar despite what we believe to be a significant ambiguity regarding whether that enhancement should apply when the primary guidelines provision was calculated was not covered sex crime and if the court doesn't have an objection i'd like to start by addressing the sentencing issues st and in particular the guideline enhancement imposed under guideline section two g two point one b one for  fictitious minors the facts in this case disclose that it was the confidential witness which i'm going to refer to as c w rather than  actual name or the term confidential witness that's how she was addressed through the case below and in the briefing in this case so in this case e w who is not a law enforcement officer represented to haas that the ages of the fictional children were eight dollars twelve cents however plain reading of application one discloses that in order for the enhanced meant for attempted trafficking of a fictional minor to apply under that provision to g two dollars being one the age representation has to be made by law enforcement so no one states has three different subsection section a defines a minor and no one is the definition of a minor and it indicates that a minor is defined as an individual who was not attain the age of eighteen we don't have that in th e be an individual fictitious or not to a law enforcement officer represented to a participant one had not heard a teen age of eighteen and two could be provided for the purposes of engaging in sexually explicit conduct or see an undercover law enforcement officer who represented to the participant that the officer had not attained the age of eighteen the district court in this case applied the enhancement under subsection a reasoning that an attempt crime turned on the understanding of the defendant what he believed that the an individual had not  all the whole reason of the defendant's relationship to the confidential witness was with one purpose and  and that is to procure under age girls for himself either produce child pornography or for himself but on the other hand c w was very explicit and clear in her representations that these were minors because that was seem to me that if the purpose of the enhancement is to have some awareness and not apply the enhancement where there's some reasonable doubt but here whether you take  eleven year old model of station or the procurement efforts neither one of those cases because there'd be any any doubt and you know it seems to me the phrase that the courts most quote not read the guidelines in a way that makes the sentencing commission look  and we would make the sentencing commission look foolish would we not if we said all of the sentencing enhancement applies when the officers themselves offer a fictitious manner to an individual but oh no it doesn't apply when the same a delicate all offer is made by a witness not only cooperating with but directed by law enforcement to do  we're just it seems nonsensical to the want to do that because it couldn't be what happened here is very depressing and and you don't want to be unfair to anybody but sexual abuse of a very young children i don't get it your honor so these cases are often made through the use of  law enforcement as the coordinates and when law enforcement officers are either representing themselves to be under the age of eighteen or when they are representing that they have someone available for the participant the defendant who's under the age of eighteen they also are crystal clear about the age of the fictitious individual that they're offering and we have to presume that the fine lines commission when they wrote this understood that these cases obviously they did because they are referencing law enforcement they know that how these cases are often made and they clarified that an individual fictitious or not which would go to the attempt to if it's a fictitious it's an attempt because you can't have a completed crime if there's no actual child  but they didn't they didn't create a separate category which they could have to say that that any individual fictitious or represented a participant fictitious   you would agree as soon that the district court could make a decision to vary upward based on the purpose of this guideline provision even if it did not technically apply that that would be at least theoretically within the court's power to do it whether i know you don't think it's a good idea but that would be within the court's power to do fair that i agree and the question then becomes whether if it is  harmless or not i don't know how this would affect the district court in its analysis it reduces what happens is that the each child represented becomes a separate they call it a pseudo count within the guidelines or it reduces the guidelines for both of those because one was represented to be eight and that's a four level four levels lower and then one of them was represented to be twelve and that would reduce it by another two points sounds was it your position that that would actually change the guidelines calculation because i'm trying to do it and i had some trouble because it's complicated and i thought forty three right then he's right and you end up in the same place so yes i think i reach the same conclusion after doing this and trying to come up with a different conclusion last night but yes you come up with forty three because if it would be lower  speculate as to how even the internal calculations changing and coming out lower before the final line lowers it may have affected the sentencing judge but yes you're right if the this question of whether we can treat the c w as a kind of designated law enforcement officer doesn't matter to your argument that she made up these fictitious baltimore girls on her own before he ever talked to the f b i about the case that she was argument to some degree she's not acting at the direction or as an agent of law enforcement she's doing that on around in essence law enforcement comes in and adopt her position moving other place in the guidelines and related to this to say that there are times when a government official is as viewed broader to include people acting as an agent but really what that points out or point up is that congress when writing a statute and the sentencing commission when they're writing a guideline they know the consequences of their words in that they pick them carefully and they didn't use the word agent here and we have to give that some meaning that they didn't put it in there but they did use the word fictitious they did and that's why i think it's important that they knew to use the word fictitious but also did not say a law enforcement officer or one acting at the direction of a law enforcement officer so the my just i guess my point is by using the word fictitious that's make it as a pure matter of law but i'm not sure that a little deference isn't due to the district court because again it just put you where you are at sentencing and you're applying the guidelines the common sense of it asked to enter and somewhere and and the the purpose of it is to make sure that somebody who's attempting se trafficking of children is not in the dark about their ages and if and to make sure that they are that yes he knows that they are are minors and it's crystal clear what he knows here and it still seems odd to say the well you know the sentencing enhance apply applies when the offices in sales offer a fictitious minor to an individual but oh no absolutely cannot apply when the very same offer of for sexual molestation is made by an agent of law enforcement or witness cooperating with us and directed by law enforcement  seems a logical result in terms of what the sentencing commission was after which was to apply the enhancement when there's a none awareness you have from law enforcement or it's agent under the address the definition of minor for the application of the enhancement have come down differently united states versus fall for the th circuit and united states versus vasquez in the  circuit both concluded differently in the words of fulford they said quote where the defendant is not dealing with a law enforcement officer the enhancement applies only where the minor actually is a true real  live sure enough minor and so common sense they were looking at the guidelines that were in front of them how they were written and applied them that way and that's what i had to ask i would say one thing to you and that is that you you've made all these different arguments in your brief and the fact that you haven't been able to cover all of them oh that doesn't waive them in any sense you still do still of course have preserved all three day period trial the defendant in this case was convicted of three counts relating to his receipt and possession of child pornography and one count of attempted sex trafficking of minors and he was sentenced to a guideline sentence of life imprisonment and this court should affirm the defendant's conviction and sentence because the district court committed no legal error and its rulings and this case and so i will start as well where the defendant did which is with the sentencing issues in this case so turning to the st issue raised by mr haas that the guideline enhancement under to position with the district court that agency of principles should apply in this case based on a commonsense reading of the guidelines and especially in this case i would point to the factual record here in the record at trial as that although that st meeting between c w the confidential witness and mr hasse was not done at the direction of law enforcement that was in her capacity as an escort and she subsequently after that meeting with mr haas raised the issue of getting children to use to produce child pornography for profit i she subsequently went to lawn forstmann who then directed her to continue in this ruse that she had begun and to continue gathering information and seeking to offer these children eight and a twelve year old to him for the purposes of producing child so i think we're going i just want to make sure that i do understand the record right so these on fictitious miners were st represented by the confidential witness to the defendant is not yet eighteen before she was an agent of law enforcement but sort of retroactively that comes in because she was later designated as an agent of law enforcement is that is that how this works yes or no that is a factual record in this case that they were initially represented by her to mr hasse at prior to her reporting to law enforcement and then they went in line for him and ratified that and in fact then did again directing her to continue  that language allow for the application of of agency principles it's clear that you have a very very strong argument in terms of the common sense of it all  and the purpose of the enhancement is absolutely plain and it was absolutely satisfied here and so the the one thing that i would appreciate your dressing is just how the word law enforcement the way the th circuit interpreted it how the language permits the application of agency principle yes your honor i believe in it because agency principles are recognized in other places in the guidelines but as well as specifically as applied to law enforcement at other places in the law where law enforcement directs private individuals to act on their behalf and indeed as the court is aware certainly there can be a th amendment violation when it as an individual is acting at that behest of law and forstmann to engage with a with a defendant and i you know i don't want to belabor the point but i think taking those principles and where they appear in other places in the law as apply seamlessly here where law enforcement is referenced and to go again back to common sense that it's simply with books fullish if the agent had been the undercover c w and represented i that exact same scenario a phone yes i mean just as a matter of common sense it doesn't strike me as that absurd that the sentencing commission might want to sort of authorize actual law enforcement officers to sort of engage in these sting operations without sort of putting its imprimatur on a bunch of other people who work and sleep with the police running around and trying to entrap people into fake children pornography ring it's not that crazy to me to think that the commission might have picked its words with care and so i want to ask you what is the best you know you alluded to other areas of the law where we can see principles into this is there are just a particular statute you can point me to a guideline where the text is one force from the official but that has been construed to mean an addition to law enforcement officials also people working with in the guidelines your honor there is no i we were i never f any specific case as to that effect where i did not say agency we pointed i know in our brief to the definition of public official but if that definition does say an individual working on what i advise that seems like it cuts the other way to why they need and also people working with the officials they say that i think as i said that your honor i understand your point i do think that the th amendment case law on agents of law enforcement does nothing i can i'm a crude but that's that's not really text in the same way like is there anything that looks at the forty law enforcement official as it appears in sort of a comparable guideline or statute and says that language includes people working with law enforcement error that was made by the district court does not affect the guidelines in this case it reduces simply put them back to forty three dollars we would look at the grouping and handsome and under chapter three which again  is a guideline range of life and i do think i we can read that as to be a harmless error in this case when i motion for a variance was made in the district court and the district court considered that   it can in your view can we should we do that when the government did not allege how much there well we did we did not argue that in our brief your honor i think that you know based on the questions of the arguments made today i do think this court could look at that and this came sort of course simply i meant the court disagrees with the government i'm reminded for a resentencing in which case i would not it would not affect the guidelines but i did not i will make clear to the court we five we started we start st with the sentencing guidelines and their instructions as to how we calculate sentence in the courts is to move through the chapters s with our guidelines calculations for each offense under chapter two then moving to chapter three to determine how we decide which of it is to use and which if any grouping and handsome and should occur and then moving to chapter four to see if any additional enhancements and so in this case going to ask for b our one dollar b i would read and any taste and which the defendant sent offense a conviction is a cut of covered sex crime and neither for b one point one nor a of this guideline applies and the defendant engage in a pattern of activity involving branded sexual conduct we apply this enhancemen commission intended in a case where there are two offenses of conviction and one is a covered sex crime but one of the specific lee excluded how can you impose this penalty without effectively imposing it at least in part of the excluded me basically to mean any case in which one of the defendants instant offenses of conviction is a cover sex crime yes your honor and so we once i've been reading it that way then it does not look at you it doesn't matter which is which we are using reason you're saying that in essence is because we go to this sequentially and so by the time you get to chapter four all of the convictions are combined to the point good thing it's happened in chapter three oddly singular wording when of course defendants are convicted of multiple offenses at a time i quite often and so i'm reading it yes the government's argument is that reading it kind of as in combination with how we apply the guidelines that it simply refers to refer to any offense of which the defendant has been convicted and in the case we side of the th circuit case create a act coming out and doesn't directly address the argument although it appears that it was raised by the defendant you know coming out of his guidelines calculation of the child pornography offense and driving his calculation as well and not quote covered sex offense as defined by the guidelines and the th circuit found i find the enhancement proper in that case and again it doesn't really have all an extended explanation of that but the government believes that the explanation is simply the way that we we calculate the guidelines and through the different chapters that when we get to chapter four it essentially referring to an offense conviction that the defendant has been convicted of and that's in line with the purpose of the guidelines as well which is to put this enhancement to give an additional tool to district court judges to put to i impose its enhancement on particularly dangerous mind itself sort of impenetrable and i feel like the one thing we sort of know about the purpose is that they did not want to include child pornography offenses those are specifically excluded pulled out of the category of covered sex crimes and so i do have and i have a real concern that in a case like this where it's the child pornography counts that are driving the whole sentence they're the ones that get you into this range anyway but to then appl enhanced which is not supposed to apply to child pornography offenses it's not clear to me that it's consistent with the purpose well that's i believe it is consistent with the purpose and given that that the defendant was convicted that in fact of how they covered sex with them he was convicted of attempted sex trafficking of children and and despite the fact that that coming out of chapter t does not drive his guidelines convictions when we get to chapter four that that's that's the case that he has that a sense of conviction as defined by the guidelines and that applying the enhancement then in that circumstance it's proper under under the guidelines i certainly understand the court's so i understand that that's also part of your you know chapter four is about the person chapter t the danger they pose and bring to the court which is why these enhancements have been put in place and so it doesn't matter again it doesn't reference and doesn't matter what is driving the chapter to calculation and which offense we're using for that guidelines so why is that i think your honor it as simply is that while again it's defined fairly singularly a sense of conviction but there are multiple in this case and that and it is it is not  and you don't think we can put any weight on the fact that the government just position on that you know that the government when the government submitted its st sentencing brief you can't apply this well here and i think that once i you know i certainly understand the court's concern about that i think the government consulted with probation did the research and i think looking at specifically you know the dow the dow the double counting case and the creek cases which don't know i you know the government of course trying to change its position and try to get the position that it felt was more it was and was consistent with how the probation office had determined to apply the guidelines and consistent with the law on that point  supporting a probable cause determination and the purported of missions that the defendant points to are neither the type of the missions that are designed to mislead nor are they material to a probable cause determination and when the information not only did they corroborate the details about the defendant that the confidential witness had given to them they actually gave her a recording device and had her and dates and recorded phone calls with the defendant in attempts to his contact information residence phone number address and the color and model of haas's car and then the question is  the receipt and production of child pornography and the agent the affidavit says and i don't think this was wrong that agents actually verified this testimony by if you if you start down the road and have frank's hearings with with respect to every affidavit that could possibly have included more information you are disturbing the calculus of incentives and discouraging offices problem actually realign in getting warrants and the supreme court has made clear many times that you want to structure incentives in the direction of getting a warrant and innumerable d frank's hearings over omissions they seem to me to go in the opposite  direction say the district court said at the end of it what more could they have done yes your honor and i think the physically here where there are recorded phone calls that one person reviewed in the course sum of conviction even means it is hopelessly confusing what as judge hears pointed out what's driving the guidelines in this case for what are driving for the  child pornography convictions and that is obviously because of the grouping the guidelines all the way through chapter two are multiple plural  and there are off senses of conviction and then we get to forty one dollars b in the commission uses the term instant often of conviction and the very provision that drives this guideline range is excluded from the definition of instant coffee i don't know where to go with that i was hoping i could come up with some kind of argument danger to the public and if we sort of clear away the brush and and understand that that is that you have  dollars covered a phalanx and then you have the question of does the criminal president who has the cover to fans present a continuing danger to the public the assessment of a continuing danger to the public isn't that the kind of thing applying that sort of standard the kind of thing that we would give some respect to the district court's finding on because the district court is likely to have much more of a handle on whether the particular individual all is or did not present this continuing danger so what's wrong with looking at it that way it almost presents i mean as you put it that way who do we give deference to is it the district court judge or the commission that wrote animating purpose of chapter four can i ask can i ask a slightly related question so when we look at another i don't know said that i've looked at all of them but if we look at chapter four as a general matter you think about  that in for a for example for like the fifteen year rule for a look back we don't we don't pick one of the offenses right we look in whether it's within fifteen years of any convictions convictions and that's consistent throughout chapter four not just it's not do you need to this provision right now i agree with you but i think in every other instance in chapter four we're going we're essentially going back through somebodies criminal history for the most part and we're looking at them conviction by convictions and we're looking at does this instant often have conviction to happen more than fifteen years ago and we're going on to the next driving the guidelines we say that since that prior conviction is within fifteen years of either of those two distribution offenses it counts for criminal history which runs  it does look back and it does specify which is which of the offenses that you're looking at but i don't know i think that the confusion on this is  the fact that the child pornography is explicitly excluded and that makes it confusing when when the court uses the singular instant often of conviction number one that's the an individual who made least it seems to me in light of his sexual molestation of eleven year old and the attempted trafficking in prick your money from the of the young under age girls  to represent a clear continued danger to the public and i wonder when you take these arguments you are making cumulatively are we not of this are writing commission is trying to do is to take an individual with this perfectly sorted history and makes make sure that he gets an appropriate sanction and and here it seems to me that  that don't think are compelled by the the text and maybe the confusion about some things found somebody to be a real continuing threat to other minors who may would attempt to molest or traffic or abuse in some kind of way i just worry about the cumulative effect of these two enhanced months that you want to you know chop chop the sentence why dale i'm sorry it just makes me end up in an uncomfortable makes me feel uncomfortable about that when you take the totality of this and what it involves judge what you know i completely understand the impulse i have very bad facts  at that point looking at facts like this is to where i think on its face the guidelines don't apply to then look at the animating aspect of the guidelines rather than the words and in the case of size from many other things and there is a large factual component here and district court started to be given some discretion in applying that and it's supposed to be in individual law isn't it supposed to be supposed to be factual and when you ask me to ignore the clear purpose of things all and agency principle you know i i i just don't know because i think sentencing is supposed to apply common sense and i think that sentencing is to apply facts and i think sentencing is to look at individuals and what individuals what they want and what they merit and that is why the guidelines give district judges the opportunity to  is to an extent the rigid exercise that you posit but it's not exclusively the rigid of the rigid approach that you advocate because to me it seems a mixed situation where individual as a nation applies facts apply purposes apply the textural rating was a slam dunk ok you know i grant you that but it is not a slam dunk and that is why these are the purposes of sentencing and things that and i think of the the life of this levin year old miner girl who'd been ruined by the us and i think also why what would have happened to those other wreaked on have a have a quick people's lives and wanted to wreak havoc on many many more and took substantial steps in that direction it wasn't so i don't just i just don't see it doesn't seem to me proper it and i may be the only one that feels that way but it doesn't  did not offend me you regard my respect here i would just say this to the panel regarding the sentencing issue his sentencing discretion is as you pointed out it's fact intensive and looks at both the person and the the facts but it has to start with the proper calculation of the guidelines and and then the court's discretion kicks in and it if this case is remanded i would imagine it's very likely that he would still earn himself with my client help a life sentence i don't know that though but that's where the the discretion should be at  sentencing after the guidelines are calculated quickly and so i won't go back through my arguments again but i would ask at a minimum this case be remanded for sentencing under the recalculation of the guidelines all right  counsel you haven't offended me in the slightest because i always appreciate a good argument and i think you've made one and both of you leave with my considerable respect i have a nice afternoon