good morning your honour's john bellison behalf of robert smith from the time reserved two minutes for a bottle there are two challenges to the conviction here one of four of four be a question an issue but given the limited time we have subject any questions the court may have i thought i'd start with and focus on the sentencing issue and that is whether smith's statutory maximum two hundred forty month sentence is substantively and reasonable in light of the unusual nature of the child pornography guidelines as well as all the thirty five fifty three a factors the the rule is that a sentence is substantively reasonable if it's sufficient but not greater than necessary to satisfy all the purposes of sentencing in this case our contention is that the statutory maximum sentence was substantively and reasonable in light of all the thirty five fifty three factors in particular smith's offense and his background there was no production of child pornography here there was no for an average week for security or again the defense attorney presented a number of mitigating circumstances  employment history some of his mental health issues he suffers with the fact he has a supportive family was out on release for twenty six months on home detention and also that  the important thing was the need to avoid unwarranted sentencing disparity with other individuals that are convicted of similar conduct in the opening brief i cited statistics that believe come from the jenkins opinion that in two thousand and thirteen the mean child pornography sentence was one hundred thirty six months and the median was one hundred twenty months that includes reasonable category but i think it like for example the vulnerable victim as well as the the prepubescent minor are essentially overlapping to the extent that they are going to apply one applies the other one's going to apply and the vast majority of cases and this case the use of the computer as well as distributions with the peer peer software applies in almost all child pornography cases so as a policy matter it may be that that use of the computer enhanced that since it's in every single one of these case we're dealing with computer images it seems like you automatically get enhancement maybe as american policy that's wrong but where do we do with that when it's written into the guidelines well i think what you do with that is is you take the position of the second circuit and also judge birdseye and in henderson that due to the nature of the child pornography carlye that almost every case is going to be at or near the statutory maximum you have to give the case paschal care and you have to look at all the factors because what happens otherwise is essentially everyone's out the statutory maximum and the thirty five fifty three factors don't do the job there so maybe that's to tell everyone they shouldn't be all real children and here we have all that prepubescent children yes but if you look at if you want to look at the range of cases this one was more in the run of the mill cases i don't know about that don't  recognise that this court in the mire decision found that a two hundred ten month sentence was not substantively a reasonable and i think that that would be distinguishable here for a number of different agent presented a sentencing statement that he had been involved in over two hundred cases of child pornography and that case involves some of the youngest images he's ever seen and some of the most and sexually violent images and that's there's no evidence of that in this case not saying obviously this case was deserves a serious penalty and a severe penalty and the nature of the offense was severe but in the overall scheme with the owner's our standard of review here i mean the the judge relied on the volume and content of smith's child pornography his perjury and his continued failure to the sentence here it would be in direct conflict with the second circuit and its decisions and dorothy and jenkins in door very found some pretty similar case substantively under reasonable weather was a two hundred  his desire to sexually abuse children and then with respect to judge catchments question about whether or not the district judge statement was sufficient and within his discretion the secondary argument here is that the explanation was not really if the court doesn't find a certain substantively and reasonable it should in the alternative at least find that the district court didn't make enough explanation to be able the court to make that kind of determination in light of the nature of the guidelines and other factors and if the court doesn't have any questions i want to reserve my remaining two minutes all right thank defendant's situation and gave him a guideline sentence after looking after carefully applying the procedural requirements and of sentencing and looking at the defendant's characteristics and especially the defendant's conduct at trial the fact that he had never admitted responsibility for us actions he had he had perjured himself at trial he also core and i just had to clarify there was no storage locker in this case however there was a laptop computer that was the charge to conduct in the case there was also an external hard drive that had hundreds of videos on it that the defendant also kept and the court in sentencing the defendant recognized that he is not emitting responsibility combined with this large collection which the defendant had gathered not just in the time period of the indictment but also for several years before you and you can see that if you look at the at the at the file creation dates and that's an exhibit in the supplemental excerpts of record the the judge was well aware that he was required by the sentencing laws  start with a accurate guideline sentence but then to look at the defendants the defendant situation under thirty five to three a factors and that he had the discretion to vary downward  if you if you look at how the sentencing hearing progressed you see that the core the core accurately calculated the guideline levels and you see  the court rules on all of the defendant's objections notably one of these objections was had to do with the defendant's perjury trial the core noted that it was more than just a blanket denial it was quote a creation of a defense essentially that was rejected that's an e r twenty three through twenty four the defense listed different reasons why why it thought that the defendant should receive a lesser sentence under thirty five fifty three and ask for a sentence of one hundred sixteen months before goes on to state that the guideline range would be three hundred  right and the court recognized that the new guideline range was two hundred forty months so it was it was different from the door of a case where the core seemed to seem to think that he had to depart all the way  regarding the sufficiency of the judge's explanation for the sentence as you heard your brother has has argued that the judge's explanation was it was not sufficiently detailed the name of the case but there's case law that says that for a guideline sentence where the core makes clear that he's considered all of the factors he does and the court does not need to give a detailed i detailed breakdown of every single argument that the defense makes however in this in this case i do think the judge went beyond what he was required to do procedurally for this sentence you see that reasons why the defendant was asking for a lesser sentence and then the court again asks asked defense to two to argue the thirty five fifty three factors and  reasons and then the court just goes on to reject those reasons when when it when it pronounces that sentence and the reason why the core rejected the reasons was the defen perjury trial the amount of child pornography and the content of child pornography and those are valid reasons to sentence that if and into a guideline sentence in this case possession case where the defendant had a private collection of child pornography but he happened to be on the border with canada which raised his his maximum sentence to two hundred forty years the court the e the court they're just seen wish his situation from a situation where there's distribution for example and in this case we did have distribution the defendant was sharing these videos through pe government but also the court had made a number of procedural errors in the sentencing that just didn't that didn't occur here the judge here was careful looked at all the requirements that he was supposed to look at and  i'm just a minute on the second circuit decisions and the door v case it's pretty clear from that decision it was in the procedural errors that led to the holding that the sentence was subs no indication that that decision would be any different if the client had testified falsely in the jenkins case the defendant actually did testify falsely a trial the judge found the testified falsely he of struc