next case on the calendar united states versus warner viewing he then takes upon himself to go down talk to the f b i the next day and lo and behold ends up disclosing what he had done to his daughters when they were ten months old or younger ten or twenty years in the past and  the first argument we have your honour's is that this should fit within the voluntary disclosure departure under the guidelines because an exception under five k two point sixty two the application of that downward departure  where the disclosure is in connection with related conduct correct and so that wasn't sexual abuse related conduct that is conduct related to the child pornography my client from our perspective i then have the last sentence which was not raised below the judge went off on it not being you know that this is only limited to federal offenses which we assert is wrong i think we have the better of that argument the language in the end  think i can try to make policy arguments as to why that makes no sense but i know from this course jurisprudence the commission sets forth the language of the departure ground and because this happened in the context of the f b i investigation  can't get around that language and where is the where is the plane error in applying an enhancement for a pattern of sexual of use when your client admitted that he engaged in sexual and the fact that the stuff happened a long time ago is not going to take it out of to do to point b five the fact that mitigating circumstances may be present or not going to take it out of two g to point b five but i do look at wrangel which says listen this enhanced men is directed towards recidivism and when i started out sargon i purposely use the strange case language because the actions that mr warner undertook with regard to ten years old children and only his three daughters and only  age of ten months and he has no additional daughters the idiosyncratic nature of that in terms of assessing recidivism are we going to add an additional five points for that if it's consistent with the first argument if it's the language of t that somehow all review is forfeited by virtue of being in the plea agreement of the if you if you in connection with the guidelines calculation agree two parties the government and the defense are trying to arrive at a plea agreement is is going to be guidelines maybe a few other things but that's central dispute so what's the use of having a plea agreement if you can if the defense can balanced negotiation process the government holds all the cards and we're trying to get through to acceptance of responsibility on the defense side a plea agreement as the second circuit is also recognized is an agreement between the two parties but the court has an independent obligation to make sense that  only way a defendant is going to forfeit his review of potential issues is through an appeal waiver an appeal waiver is enforceable absent being out of the extremes you know in terms of there are some things that are outside of it but you know i went ahead and  cited to the case where there's a plead remit and one aspect is what's the amount of the loss for purposes of restitution and the court itself said we're going to play in our review that even though the two parties end up agreeing this is the number they recognize that there is a disparity in the bargaining power that exists and if the court has any kind of obligation to make sure that it's right so i appreciate this is just right and the notion that plane air or virgin over again we see these we see it but we have as we also see an agreement with respect to a particular application of a particular enhanced and and yet it's being argued again it would be and i'm i'm not on the strongest footing on this if you're honor and i don't want to create bad review analysis that would go ahead and play future years of how i'm going to deal with this but just imagine the case where they really do get it wrong i mean there is a plane error that adversely affects the ministration of just a successor and to somehow say that's point b five a is limited to what he did to his daughters because it can apply to what happened to be his daughter's friends and wrangle decision makes that clear so it is limited to what happened to his daughters and my argument is what happened to his daughters was ten or twenty years ago only applied to a daughter and there are no more daughters and so the recidivism aspect of rheingold doesn't apply is that going to convince you that is plainer i don't know but that's the argument role related conduct forecloses the availability of the five key two point one six departure you do you can can see that even if the district court didn't commit pla error because mr warner admitted in gauging and sexual conduct contact with his daughters that it did or in applying the enhancement for the pattern of  sexual abuse that was based partially on werner's conduct with respect to the daughter's friends yes but with respect to the argument that enhancement was inappropriate because it's really designed to ferret out if you will a likelihood of or citizen you know some weeks before mr warner's arrest as he disclosed to the f b i he he engaged in this conduct that he called molestation which is not sexual abuse and he said the only region reason he did not touch this young girl's vagina was he was in fear of being caught so he's he's teetering  with respect to these older children whether or not that would have occurred in the future and it clearly concerned the district court that would help would you differentiate this case from  jenkins well here there is actual abuse in both of those cases there was not endure v there was a procedural error related to the district court's misapprehension about whether the court was imposing a guideline sentence it was no such procedural error here in jenkins the court relied in part and imposing a substantial sentence that's the defendant had shown disdain for the law and there's no such type of consideration here with respect to m and again unlike jenkins here there was conduct that clearly troubled the district court in terms of predicting the law a possibility of recent of this and finally indoor v the for this court was concerned the sense that was imposed by virtue of the application of the two g two point two i believe that was the right section enhancement resulted in a sentence at were near the statutory maximum and here the sense that was imposed was just above the halfway point toward the statutory maximum but i think the most distinguishing characteristic here is the actual abuse that resulted in the five level one has been and there's no question but that here the door v type argument was raised clearly and the district  not and i made an argument very poorly in my brief when i referred to section one b one point one age of the guidelines and i was trying to show the court  that five k two point one six refers to offense you have some sort of things there that refers to fit it doesn't refer to offensive conviction or instant offense which would have been more clear as very similar to relevant without the temporal restriction it's nowhere clearly defined but it seems to me that this is relevant conduct one almost ipso facto  the drug dealer is busted at the federal level or twenty kilograms of whatever cocaine and then in the course of proffering confesses that twenty to thirty years earlier he had engaged in another drug deal with that the relevant conduct no no it might be related although the so what's the difference is the temporal part of it you're conceding that yes no i think that's that they seem to be first cousins if you will but there is no temporal requirement when discussing related conduct at least as we're talking about here but i think it's clear that and it's conceded here that the earlier abuse is related conduct to the child pornography possession i would say it's all fact of the related is  yes you would concede that it's not relevant conduct because it was ten years before and nothing to the child pornography maybe but was sexual abuse of his children and that was ten years ago it's not relevant conduct but it is related  how do you define related the best way that i can is that it has some well let me back a relevant conduct is generally defined as conduct that is committed in the preparation commission or concealment of the offense certainly this prior abuse does not fall within the concept of related conduct here i would say if there's a guideline and handsome and as we have  e for this kind it's necessarily related that determination has been it is related it's going to be used to determine an offense level because   i don't want to say it's a broader relevant kon the definition there are certainly very similar but i would say i would say that the abuse here is not relevant conduct but it is rote related can yes by virtue of being drawn in by the guideline enhanced which is designed to act as a predictor of recidivism and dangerousness which makes it related to the youth and it's the best i can do  in terms of the last inquiry the five k two point sixteen and whether the offense is broader than the offense of conviction as it indicates and one by one point one if you're going to limit it to the offense of conviction it should say the offensive are probably because they sweep to related conduct beyond irrelevant conduct that i think that ends up supporting the notion that at least in the child pornography world here he end up getting a five point additional enhanced meant for what is not relevant conduct what was related conduct and when you have a broader guideline then when you're looking at when you should get credit under five hundred two point sixteen it should sweep more understanding the contract offense which added plus five and if we get a substantive unreasonableness obviously we're not able to argue about the plus five already got there so he's got an additional fifty one months for what happened on that front it is one of those quality and quantity of his collection and because you have the you have the ten plus enhancements that that door v and jenkins and their commission accept or a question you have the so the silver think his response is this is a little because the actual sexual abuse why doesn't that take it out of dorothy outside of the scope of what dorothy was concerned it is a factual differentiation with dorothy absolutely that is problematic in terms of me arguing substantive and reasonless dorothy jenkins they all like to rely on the fact that we have no contact offenses some of their for off we go on a reason reason why this is a challenge on that front but what's i think important to recognize is the relative increase in his sentence based on not the child piece which already gives you the plus five if you want to dish it all months but on the number of images p p doesn't use of computer and sadomasochistic he gets a plus ten he gets he triples guideline from what would be forty one months absent such a remand men one hundred twenty one months and so yes it's more difficult in the context of having a contact offense but it triples so it's relatively frankly more onerous and sorry garners in terms of in terms of thirty five fifty three in a tight argument all that was raised in terms of mr warner sentencing memorandum all of these ameliorating facts were raised in terms of thank you thank you thank you both for your good arguments the court will reserve decision final case on the calendar dall versus huntington union free school is on submission