good morning good morning may it please the court my name is cheryl lowe and all i am appointed counsel for the appellant ralph fox we are here today following a guilty plea and a sentence to the statutory maximum of three hundred and sixty months in prison it is our position on the appeal that although the trial judge indeed had the power the authority and the jurisdiction to impose a sentence of three hundred and sixty months that it was not reasonable and the reason it was not reasonable is that the prosecutor was a seasoned and accomplished prosecutor he even had an l l m from the u s court of military justice from the judge advocate general's school  he probably had at the best understanding of the facts in the case that he had better than anyone else and he recommended or he said in the written plea agreement that he would not request more than two hundred and forty months and he stood by that and it was in the plea agreement that the government would recommend not to request the sentence greater than two hundred and forty months the individual defendant that we have today is over sixty years old he has a health condition as his counsel argued at the sentencing the chances of his surviving a two hundred and forty month or twenty year sentence were small three hundred and sixty month sentence is surely he will you know i'm i'm not the life i don't have life expectancy tables but for a person of his age and in his health it is likely he will not survive a three hundred and sixty month sentence in custody  the facts of the case are are unpleasant and bad however when a person enters into a plea agreement and it seems that for public policy reasons and so many cases in the federal criminal justice system are resolved by plea agreement and so few cases go to trial if if people charged with criminal offenses in the crib in the federal criminal system understand that yes i could plead guilty and the prosecutor could even say i would recommend not more than two hundred and forty months and indeed it is that his that it must be a recommendation it must be based upon his understanding of the facts and the case and yet the judge goes ahead and imposes the statutory maximum on a guilty plea why why would anybody enter into a guilty plea when they know they risk getting a statutory maximum and that a prosecutor's recommendation or his evaluation of what he thinks perhaps would be a reasonable sentence is just completely overlooked i have again there's no doubt that the that the judge certainly had the authority to do it but whether it was reasonable on the fed and on the facts of the case given the who the defendant is and  his is aging his health and then we have a in addition to the reasonableness of the sentence we had a five point enhanced meant a five level enhanced meant under sentencing guidelines for actually life but had that five point enhanced been not been imposed he would have been within a range a sentencing and visors sentencing guidelines range that would have been that the two hundred and forty months would have fit within there in the sort of in the middle of it would have been i think to thirty two to ninety six so that to forty would have fit right in there it was the the the trial lawyers position at the sentencing at the  phone and they had been then deleted from the i phone but of course they were able to be recreated or or discovered and and the fact that there were multiple photographs in the photographs head  different clothing indicated that the acts occurred on different days that they said that that was enough to to to support the enhancement for a real repeat and minors and i would just remind the court of a a dissent a concurring and dissenting opinion that was entered by a judge of this court in in february the judge was knew some cases can f and the judge indicates that as as distasteful and unpleasant and horrible as these cases may be we do have to remember that the law sometimes requires us to do things that are not what we would prefer to do and that our distasteful and i did not cite the sgt this case in my brief and i didn't provide a supplemental story and i'm not relying on it for the for the merits of the case but just for the fact that that the judge wrote in his dissent that it's an unpleasant case and we don't like dealing with these things but that we have to remember to to follow the law and be reasonable and i think that anyone plea agreement the plague in the plea colloquy made it clear that the district court was not bound by that the district court considered all the three thousand five hundred and fifty three dollars x factors imposed a reasonable sentence in addition to the crime of conviction the production of child pornography you have the fact that the defendant repeatedly raped his granddaughter for a year period and then he repeatedly raped his younger granddaughter for at least a month both girls were under twelve if you read cheapies testimony at the sentencing hearing which is at pages twenty two dollars to twenty six dollars it documents seventy you see that the defendant year long abuse of her and breaks of perth for a year was devastating to or now it continues to be devastating to our considering all these factors the district courts guideline sentence was in the range of reasonable senate says it could impose and it was proper and the court to ferment with regard to the nd issue about the four b fourteen dollars b one dollar b enhanced meant the district court properly impose that enhancement st of all it was proper because of the guidelines and the commentary is plain language in addition to that you've got the nd eight in th circuit opinions that all support the district court this court's opinion a rotten supports the district court is court's unpublished opinions and johnson workers and carter support the district court support the district court the defendant here darryl argument mentioned a double counting argument i honestly don't understand what she's talking about that's not in a brief scene where there was no double counting here the district court properly implied in sentencing enhancement the district court imposed a reasonable sentence this court should have from the district court if you don't have any questions i assume we'd hear from just one final comment and that is that this is a defendant who had a th grade education he left school the th grade he was in the military when a person pleads guilty they're giving up a whole pan of rights and they expect to receive some benefit in exchange the lawyers probably often tell their clients you know if you go to trial you're likely to get convicted you would be much better off to take a guilty plea now and perhaps the judge will be more lenient at sentencing and if defendants determine that there's actually no benefit to pleading guilty that they're not going to get a lower sends and can get the statutory maximum it really may encourage more jury trials which will then you know not to enter traditionally khana me but will take up more of the court's time and more of the public defender and court appointed lawyers time and i'm actually for more trials and  are many defense lawyers but it's just the way the system works at the present time so i'm fonder san thank you your i q for your presentation