a twenty year prison sentence for a single distribution of child pornography by a person having no criminal history reason i would disagree your honor with that that reading of this case is a they seem to say that it's more likely than not that a guideline sentence might be reasonable but there's no was leaning in that direction i think the court basically from some of the other cases indicated that that's a good starting point it might be reasonable but we're going to look at the explanation that the trial that the sentenc court gives for a particular sentence and work from there and determine whether or not the the sensing factors are adequately addressed by the sentence what's your real problem with what the district court to hear i mean you have a sentence it's a first time offender well the guidelines take that into account well and this sentence is within the guidelines of what's your what's your real problem i would say the district court she got wrong the real problem is there's absolutely no explanation for five years versus twenty in this particular case and also the first twenty five years was the mandatory minimum on all the sexy months as well below the lowest end of the guideline range indeed it was in fact the guidelines were two to seven years as initially calculated were two to seven years in excess of the statutory maximum again for first offender basically puts a first offender in the same position as someone who makes a living doing this as a criminal history category  six if we're going to say a first offender deserves twenty years under these circumstances when we give the professional photographer with a criminal history category six for similar fats are a real problem with the judge's explanation or lack of explanation for giving an identical sentence that she gave to mr feilding there was a or multiple differences between the two the defendant mr phillips was abused the judge even accepted that i believe that film and the judge got other people involved in this the judge even cited that as a reason for giving thielemann two hundred forty months and then turned around and said what is no difference visa v this particular conduct between you and mr feelings and we'll give you two hundred forty months as well  she she actually did look at it and and when she looked at it she apparently came to the conclusion that for reasons that are unique to making a decision what is that about our role as appellate judges would prompt us in light of golf to say that's a wrong assessment you can look at that and say that's that's bad enough to warrant it within the guidelines i would suggest one of the that this court's role is essentially almost out of a last last resort if you will  everyone is upset about child pornography i don't think you can find anyone who would say this is a good thing that should be promoted and that you are be hard pressed to find somebody who would however we have to basically step back if you will from the  required under the under the factors then aren't don't you have to make the argument that not just judge roberts is wrong but the sentencing commission in the united states congress is wrong because judge robinson seemed to suggest that in some of the comments that she made in her opinion bases i certainly believe that there should be a legislative or a higher court adjustment in the sentencing guidelines in this case but i declined to do that here so she's so even if she's in your camp and i guess if your if your argument is that the sentences  out of line with what they ought to be is that a problem with her sentencing or set a problem the that your client has with harsher sentences for child pornographers i don't know is that i think that i mean i i would submit that they're probably our us who engage in similar conduct who would that would be well deserving of a twenty year sentence but when you when you take a take a first offender i'm not even aware this man was ever arrested for anything and he goes from zero during maximum sentence i think there has to be some reasonable explanation offered by the trial judge for putting in there and not just to say well it takes two to tango you and feel in boasting get both engaged in this web transmission i can't see any reason assessing whether or not my client was worthy of a similar sentence or deserving of a similar set problem is under the guidelines you started the thirty two for the initial violation then you add four for the age of the child you add to for that touching and sexual contact you add to for the fact that it was his child and then two for distribution beneath the aspect that apply to him strictly and not to tilman get him ten points and get him up to forty two before the acceptance of responsibility and i think there's a distinction between you know him and them him in terms of what he did well i think that's the bigger distinction between i mean he obviously engaged in one horrific act ok probably a worse set of circumstances combined but when you put in the scheme of things it was a single transmission they found they didn't find one other any other evidence of any child pornography on the defendant's computer he immediately repudiated the action said he'd never do it again in the three or four months between the time this offense occurred and the time he was arrested in gauged in no other  just my god an errant eighteen minutes in line well there were does it lead up to that he had a relationship with a woman family kept in treating look do this do that and so forth and the defendant in this particular case had a psychological vulnerability given his background reported by dr turner confirmed by the defendant's own sister that he suffered it six or seven years of a cyst systematic forced sexual abuse at the hands of a stepfather and physical and emotional abuse at the hands of his  was the obviously you would think that and there was the attempt to show that this person is far less culpable than the omen but looks like the court didn't buy it now and the one thing that you're quoting is i certainly believe that there should be a legislative or higher court then something roman water where adjustment in the sentencing guidelines in this case by the client to do that here so are you saying that for why because your fellows belong in the same boat with your minister or the senate was concerned you say in the same boat it maxed out under the statute which is now isn't that a function of where they where they set the maximum i mean suppose the judge said i thought i'd like to give the only forty years but i can't get a given twenty that's the most i can give i mean does the fact that me from one perspective you could say the punishments are make her determination that your client deserve the maximum innit sort of per se and reasonable in line with the only god well because she explained why she sentenced the omen to the maximum one week before she says i'm giving you th sentence not just because of the offense conduct which was that the web transmission of my client but because you brought all these other people into this is was your this was your thing and she and she said your client in effect you get this sen because you were you were in effect molesting your daughter for the pleasure of other people that's not something that she could look at and say that deserving of a max i don't i don't believe it can when you look at when you look at the offense we're talking about in the realm of other offenses that could have occurred i mean the actual sexual contact if it in fact had occurred would america did at most two years under delaware undergo or is unlawful sexual contacts that you mean i don't think we have judges their job is to of is to take whatever the guidelines are and say ok this is my starting point let's look at this case and see why this should not protect not  guideline censure not apply i think in our case the reason that the judge granted the the granted our one objection to the distribution has been was to bring the sentence down to a guy law range and then take comfort in sentencing within the guidelines i mean i i basically think that's the biggest problem that that the dissenting judge had to try to stay within that safe harbor so to speak simply because let's face it there is somewhat some one certainty as to whether or not a sentence outside the guidelines is going to be received properly and i think there's a there's a natural hesitation and comfort for sensing corporate present were to stay within the guidelines which you know that's why we have courts you're hearing the reason which some reader that might explain why people think that way it says both the sentence when both the sentencing judge and the sense and commission have reached the same conclusion as to the proper sentence that double determination significantly increase a likelihood that the sen reasonable one that's a circumstance we have you're right the sentencing guidelines call for a sentence with in this race the district judge looks at it as i think it calls for sense within that range reduced says that double determination significantly increases the likelihood that the sentence is a reasonable one what what do you rely on legal authority if anything to tell us that she's outside that zone of reason the reason or the legal authority is the fact that you've got a guideline calculation it's two to seven years in excess of a statutory maximum i'm not sure exactly how the guidelines were arrived after this particular offense but if you're argued that the district court failed to consider the fifty thirty five fifty three factors and then felt compelled to issue as a thirty five fifty three a six the court did say that she had to take a look at how she sent the other co defendants in this case but s d you be really be looking at how you how you sentence other defendants nationwide that's part of the mix that's part of it isn't it isn't that what she should have done but other she said and i quote i have to look at the way i think everyone else in connection with her conduct is we the sentencing guidelines it was pretty clear that she's referring to the other co defendants in this case yes and good and but isn't that incorrect you're supposed to take a look at how well wait a minute i've got something you know remarkably higher than my co defendants and what we said jackson is you have to look what you do nationwide want to do the same thing here well there is the defense didn't place any cases in front of the court to argue that number it isn't up to her to take a look at what you do that's why it's in the words if it may support you right when i take a look at i mean there is some support if you take a look at the nationwide statistics yesterday that we did not become part of the record at sentencing the government the defense did not bring that to the to the court's attention but i believe the cases also worse he clearly was getting all these other people involved in criminal activity some of them not well it's a look at philips he was somewhat reluctant but then again not how could she say i cannot sentence you to anything less than mr jones because the difference in thoughts and the other was that there was only one episode of production that was one of the only one so where the child pornography which was distributed which was distributed was created was produced by the defendants the other seven people is that was is that example i'm sorry was this that example something produced for distribution this disc was produced food distribution yes record that was put out for sale or distribution to others was it but doesn't have to be a permanent record it's gotta be a recording and it was recorded on one camera one way you can and it was transmitted to the next but further said in eighty two when it talked about this was that one of the real problems with this is that you have a permit recording that the permit signal for the for the victim of a crime yes but there's no argument and hasn't been appealed that this is not production for the purposes of the of the production guideline to the two point one other which the defendant never argued in the district court that this is not a matter of production which was a plea to production or or it was  transmission the plea was to the distribution of child pornography no no he didn't say distribution that was production the depletes the guilty for the original charge to phillips was to production  that's correct but if you if you have a crime that something doesn't fit you can you could you could come back later like a lot on hate years or whatever for example here a sexually explicit conduct involves the serious exposition exhibition of the pubic area or genitals that happened here no there was simulated sex acts they simulated masturbation actual simulated masturbation of the of the child and in this matter of fact at sentencing that it was not simulated that it was actual and she denied it and its request to remove those two points from the defense of accordingly the the it was that the defendant's actual sex contact with the victim the constituted the child pornography and i get back to what other people this issue i can't were within the guidelines there were two that were below the guidelines the sentences were one individual for distribution of child pornography that he had on his computer received twelve and a half years there was  individual to go to the receiving chalk or not or he got five years the lowest of the individuals was a person who was looking at thirty under the guidelines he got twenty two for possession one of the possessions was looking at thirty child was in his control the defense counsel has indicated that sensing that the child was betrayed by the defendant that the sense defense counsel would indicate that this with this sentencing the defendant's adieus no gilding the lily here this was just an awful offense those words speak volumes about the nature of the offense and why a sense that the statutory maximum was appropriate based on your understanding what how does one go about the sliding scale five twenty years roughly what one gets you fifteen will get you ten will get you only five but i think what child the i think it's obvious that the less the child fend for themselves and is more trusting of a person who is the custodian and and then whether or not there was a sex was that actual touching the judge found her actual touching the the transcript of the that the where we're not sure from the transcript i can i wasn't sure from the transcript whether there was actual touching or not there humans in the room isn't it is and i believe part of the problem the congress is having the congress as is that use in the world of child pornography is that prior to the age of the internet this could not happen and now  something like this can happen if there was no internet this episode may not indeed have have occurred the defense indicates that given the defendant's condition that indicates that he was likely to the susceptible to influence because of this condition but in this case the defendant three times refused him rejected the overtures of of it wasn't until the fourth time when the defendant was that he says he says i'll give you one hundred dollars if you do this work i'll do whatever you say if you do this for me the defendant only then  did in fact do this go back to judge and else question the element sounds like the bad actor he was the ringleader here and he gets twenty years person does one thing once being asked for the fourth time the first three times saying that also gets twenty years how do you explain that well he has to ring leader i don't think i don't do drugs and indicated there really wasn't a ring h tilman he was talking to other people and he was distributing child porn to other persons bitches robinson indicated what she sensed seventy and she senses the defendant phillips indicated that she has to keep in mind that this it that it was thoughts that had control of a child and that this was not an unknown child who was being exploited because the because the child's pictures were being distributed across the internet that essentially was what tilman was doing he was taking the images of another persons unknown to him and he was promulgating that exploitation by distributing those across the internet and he wasn't creating them right that the defendant here was in real time creating the pornography that was the distributor you know with his own daughter yes and and  that is the crux of the matter and that's what makes this despicable that's what makes it her effect that's what makes it appalling and lose all words that have been used in the record below  i would submit that it's no less despicable if you did the same thing with a stranger's chop indeed the enhancements that applied to bring mr phillips to a guideline range of two to seven that it doesn't in fact it is one of the factors that what you in the guideline range that result in this case however let's look at it from another way perhaps a graphic way what if he had literally rape the child in this in this video transmission would he want to get more than twenty years now he gets twenty years for that and that that basically is a sliding scale we have to deal with the explanation for five versus twenty what if the child but if he had killed a child under delaware law and it was through abuse or neglect he's looking at two twenty five years let me ask you the same question as an issue of what would be your sliding scale that that's true when you go from five to ten to fifteen to twenty i think the s scale is to basically look at this step back from the frenzy of child pornography which is admittedly a horrible thing stepped back at it and take an objective look does this crime merit twenty years in jail which is a long time first guideline since i handled in one nine hundred eighty eight bank robber received forty eight months one of the court bailiff says man that's a long time yet five years is a long time in jail i think under the guidelines we've gotten a bit callous about was a long time in jail wasn't at one point this was was six years and then with the twelve years and with the twenty years it may very well have it may very well i have no doubt about that your honor that these offenses are taking very very seriously more there's a decisions than they that this admittedly horrific thing which everybody agrees can get you up to a maximum of twenty years i don't think that's so much your argument your organise he didn't deserve twenty years here but why if you look at his particular situation it i think takes him out of the threshold of twenty year sentences an individual who was abused the way he was from five or six years of age who developed this dependent personality who was psychologically i think that the psych psychology that he was destroyed not just damaged mating susceptible to people like the i mean like field and they prey on their victims and they prey on the people that they solicit for these types of things they know who to approach who is going to be responsive to their overtures what makes and what makes christopher philips different heat heat to some extent is a victim himself in the sense that he has been victimized as a child he doesn't even know the connection between him being victimized and him