talent in this case jason wheeler in this case the district court made at least four separate procedural errors any one of which would independently justify a reman in this case for  consideration first the court failed to take into account the flaws of the child pornography guideline which has been in large measure repeated by the courts disavowed by the since the commission and why the poor do you have that the district court it was required to take into account their purported flaws of the sentencing guidelines in this arena well your honor i think is inherent in the sentencing process laid out by eighteen u s c thirty three where the whole reason that we have guidelines is were an expert body the sensing commission to provide guidelines to the court right and so and and so there is no case law support other than it declines to at least acknowledge and take into account some of the failings that have been recognized not just by the courts not just by the academics by the sense you commission itself well this is the sentencing commission has the authority to not to leave the guidelines as they are due to your argument if the authority in this area has not seen fit to change the guidelines yet why would a district court commit disagree with the harshness of a particular sentencing regime that has often been the case even with areas like the crack cocaine disparity i'm not sure i'm a little uncomfortable and perhaps you can help  well let me say this i think the obligation certainly arises where the parties present those flaws to the court or its consideration and i know the government disagrees with our position that but to get back to just talk is question when a party brings these flaws to the attention of the court and i guess it's a decision by the court about whether in this particular case that was brought to the court's attention in a full enough fashion but in a case where the parties bring these flaws to the decision of the court i believe it is at that point incumbent on the court to address them to decide you know you're right i believe under the circumstances these cases these flaws do not operate in justice or they may say you're right i agree that in this case i can't put put the same degree of trust in the guidelines as i would perhaps another more empirically well founded guideline factors but i think i can make it hopefully maybe a little easier for the court by saying i don't think the court necessarily even needs to reach this issue about the degree of consideration a court must give if that's brought the parties attention because i understand there is it might mr wheeler who were had been convicted of receipt of child pornography and who had were in criminal history category one but to all shop or not to be defendants both producers and the defendants with much greater criminal history categories so not only did it justifies every man in this case now i understand this case will go back to a different judge as fox is no longer on the bench but at least it would allow mr wheeler to be sentenced based on her a proper understanding of the universe of defend procedural error is that the core the only grounds that the court gave for imposing the sentence that it did were the need for deterrence and the need for mr wheeler to receive the needed truth neither one of the is justified by the court's record can we just go back and your argument with respect to the comparative or you have grouped together with your second argument is that remember here i think i think one they relate to each other i think they can be either as an independent argument that he should have under thirty five fifty three a the need to avoid a more disparity should have addressed the party's argument under carter that hill year was the proper what you need  that it compound of that air by not comparing it to the proper court and that had a very significant effect on mr wheeler senates because hundred thirty seven months was that compared to or the judge fox use the proper compare tour would be wheeler i mean i you know i'm probably too close to this case but mr wheeler does not the worst of the worst he it's hard to see any fact in this case that the judge fox could have pointed to it would justify senates twice as long as the average defend and three times as long as it's because of the but he never even he never attempted to do so so we can't now try to guess at what that reasoning would have been but i think again that gives  a totally independent basis for remaining this case and again the final reason is sort of related along the same lines it's very difficult to see how a fifteen year sen years was the sentence that was sufficient but not greater than necessary to specifically deter him from future criminal conduct as i stated in my brain the recidivism rate for category one criminal history defendants standing alone just in a vacuum is something along the lines of five percent for someone like mr wheeler i can only imagine magine is much much lower than that and these are the factors you present to us to overcome the presumption it says in the defendant's history of sexual abuse and the fact that he sought out creep you beth sent images and not just still images but videos as well correct well i less than the average variance in a case of this type which is forty percent according to statistics that we had at our disposal at that point so the court simply failed in its obligation under thirty five fifty three this isn't you are saying that this is essentially a very unusual case that should have justified a greater variance even though he received some absolute accord at least an explanation for why you didn't was particularly concerned when you go from someone who lead to quite clear to someone who is looking at images that involve sadomasochistic acts in bondage and the court asked several times is there some way he could have gotten this far in inverting he did the district court did pay particular attention to the circumstances he did to that one particular circumstance and i think that the reason he asked that question because there's only two of those images in the entire i think i think the record is fairly plain to the extent we know that this was not something that was in his particular area of interest that there were these two images indicate deception on a polygraph exam he did though no one and i think no one either on the government or the judge made too much of it really i think the government maybe  mentioned in passing it at the sensing that the reason for that is we don't know what that means they didn't call the police or for we don't know what the deception was the judge never mentioned it i don't think at all in the course of passing sentence and again i think it goes to judgment as point had to just said i was very concerned by this factor and therefore it outweighs the fact that you've never committed a crime that you successfully could treat complete a treatment that you have a stellar work history and a supportive family but he didn't do any of parties and his interest in whether or not this defendant in gauged in it i mean i think that's where i think you and i only and i know that there was also an argument i'm sorry i thought there was also some testimony about him a racing listed thirty five fifty three factors which is to avoid disparities in sentences and i just think he didn't follow the procedure set out when carter which is that when a party raises a issue that is meaningful such that the court must address it even if its other grounds for decision would otherwise be reasonable i have a quick question for you sit down is the transcript of the sentencing hearing that is in the record is is that a clean final sentencing hearing transcript that may be the reason we can't understand the explanation because this is not a final sentencing transcript in the record i mean i hate to say anything out of school judge fox was difficult to court i'm barbara kolker on behalf of the government in this case the first argument this morning began with the comment that the council had last been here in one thousand nine hundred eighty seven and i found it interesting reflecting on my own appearance here and  being here with mr we actually opposed one another in one thousand nine hundred ninety four was one of my first oral arguments before the court on whether or not the district court could do mental commitment hearings over video conferencing i bring that up because it occurred to me that in all these years that have passed and alan and i have mr de botton i have opposed one another i don't think we've ever tried a case together i don't think we've ever had the opportunity to present a case before a jury to do the closing argument in two to do the rebuttal as it were this case makes me one very glad actually that i had not opposed him in that regard the brief i think was very well written and  certainly has persuasive value to it to raise concerns as judge duncan has mentioned however what stands out about the case is that there is no  to that point well you have to deal with carter all right so he raises the argument you know i'm not sure that's ok all right let's turn to arthur then first the allegation was made that mr wheeler needed to be compared to mr hilliard the fourth circuit does not in fact it's the opposite comparing co defendants are coconspirators if that's not what similarly situated defendants means do the same thing the difference is and it was in the record that mr hilliard received a five k and it is very clear that that is apples and oranges pursuant to the court's decisions here so images to mr wheeler for which he was committed what i believe the record supports is that mr hilliard was caught first his e mails i think it's a it's a little bit more generic statement than that in that mr e mails indicated contact so did mr distribute images to mr wheeler your i would be speaking outside of the record but although in the public record i have read the sentencing transcript mr wheeler yes or no and i apologize i don't know that specific my just learned facts that are helpful to you if you were gracious others might my understanding is that it is it goes d at the sentencing transcript page forty nine and judge back or get believe it was the you that asked a question about the possible deletion of the files it is there in the record that he was is free to say no they're really not they're not similarly situated there's no disparity here the only disparity is one gave assistance and the other one didn't this man should go to jail for a long long long a less full record but none of that happened here and it may have been that the argument as to the sim it is true that the argument was made the statement was made but the argument was not perhaps robust you about this record and there isn't any indication that he weighed that is there the not specifically no i believe your honor that overall that the court's looking statistic assessing and imposing a sentence well above the average sentence at that time would indicate that whatever mr hale your god did not have any effect on the judge just in from the counsel and he looked the wrong statistics yes i disagree with that your honor the difference is that in fact i would say that that was not raised before the district court to the extent that the second her argument that  defendant would now may is that the problem was compounded by comparing to the wrong cohort the judge was never informed of that there was no objection would they know that the judge was going to use the coper he did i mean i do believe that the statistic that the court used was not in correct it was in fact the median or mean average the average sentence for those convicted of child pornography expenses and in his exchanges with it wasn't just hit between he and mr hilliard it was with me and multiple other people that's correct in fact they also found evidence that he used a password protected peer to peer sharing program which is one of the higher child pornography community based things so you so yes there their conduct was different to that extent  so the statistic was not incorrect the statistic that the friend now brings before you is the specific statistic for defendants with a class with a criminal history category one and it just was not before the court at the time he used the average  which is not incorrect may not have been the most specific going to the player standard the defendant's brief so the only connection i'm sorry between  is in fact the fact that hilliard got caught first and gave wheeler and others that he was trading with and then wheeler standing on his own has a whole other set of people that he shares multiple images that is true i cannot even confirm though that hilliard had people other than mr wheeler right the only thing we know is that mr hilliard had some e mail how many here is the five k i'm trying to find out how much was there still you got credit i'm trying to account for what did the five k give mr hilliard and you're saying it wouldn't have given him the told me one of you told us this morning the reasons for the disparity was this departure and if you can tell us that that it would seem to me incumbent upon you to tell us so much of the disparity accounted for that that was all the only was i was asking if you don't know that's why i don't i'm not asking you to speculate but it's a little hard for me to understand why you're relying on something on quantify well i might not believe  transcript you don't know friends are questions correct and i do not have it at my fingertips the sentencing transects exists i would love the opportunity to further brief this as it relates to that florida sentencing transcript my overall impression of that sentencing transcript and yet no one seems to be able the district court didn't the government can't explain it surprises me that this is not reflected anywhere in the record before us that's what i'm so going back then to the plain error standard which doesn't apply to this argument we'll both know because it was raised for sure  that the fact that the coconspirator received sixteen months pursuant to a five k in the state of florida is the pursuant to a five k in here it is your own in this record it is in this case it is and that's why i bring up the i'll find it don't worry about it thank you the government i do believe that this is a harmless error because of the state of the law it because it is not a valid comparison to this individual who got a five k and that being aside the court gave very robust reasons for its sentence actually properly what he asked a lot of questions about the nature of the offense and then the nature of the characteristics of the photographs and the fact that questionable lie detector results it was very focused as to the nature of the files in the courts concerned in that regard yes i actually think it goes to the court's concern that he did not want that was the consideration of whether that guideline range over represented the conduct that he very close to being the district court very clearly wanted to have that  and upon learning that all of that that it was not inadvertent or mistake the court denied the variance on that ground and move forward with his sentencing to that extent the court did consider the specific characteristics of to the five k discussion at this insane transcript i see one place where five k s mentioned i'm maybe this isn't where you were talking about but defense counsel says we would urge you to consider something that is close closer to what mr you know in your gut implored i understand you don't have a five k motion in front of you that is that what you were far into i  right i again but would relish the opportunity to provide the court the specific citations to the transcript in regard to the knowledge that the court would have had in regard to the five k but believe that the clear regardless that given the context of the sentencing that that at worst was harmless error and would not have affected the sentencing forms in this case we do ask that you  affirm the sentence imposed by the district court ok thank you very much no there's case law that says that that's not a proper comparison they've not made that argument anywhere in this brief or below i would argue that that is raised i'm not familiar with case other referring to way it's understood that comparable defendants and i again finally i would disagree with the government's argument that the court's use of the one hundred thirty seven might mean centers for all than it was proper contrary to what the government argued the only difference is not just that it includes people of all criminal history categories it also includes that number also includes child pornography producers very much more serious class of defendants than mr wheeler the cohort that identified in our brief i think is much more comparable bottom line your honour's all we're asking for is a chance to have our arguments address to make arguments and from the court i am very confident that if we get a procedurally proper  hearing that we will get a favorable sentence i'm not afraid of the remain and on procedural grounds because i do think if a court looks at the factors that carter says it's supposed to look at the thirty five base says it's worth a look at