to which was receipt of child pornography from may two thousand and fourteen to august of two thousand and fourteen to briefly recap t w involved production that occurred in two thousand and ten when both t w and mr waters were seventeen years old then there is later production of a o l which occurred in two thousand and thirteen based off of this conduct mr waters was convicted of lots of use acts of with a minor in two thousand and thirteen after this conviction is when the conduct which form the basis for the federal offense began specifically in two thousand and fourteen so for these two earlier victims to fall within the scope of relevant conduct they must me at least one of two definitions first the conduct must have occurred during the offense commission of the offense and preparation for that offense or in the course of the avoiding attempting to avoid responsibility or detection for that offense if not that soley with respect to offenses which require grouping for multiple counts it would include all acts or emissions that were part of the same course of conduct or common scheme or plan turning to the first definition the production involving t w n l does not fall within this definition it could the the videos or whatever of the through victims was then continuously possessed by him through the the fence period and therefore the government argues what's your response under both your view and plainer so the guideline at issue wasn't for possession offense and if it was her foot yes it was while the guideline was for production because there was a cross reference he pled guilty to and you would you would it would have to be in preparation for the receipt or the guideline which applies here which is production the reason that t w n a are being considered a victim and the guideline that mr waters was sentenced daughter under was a production offense and looking at the plain language of the guidelines themselves it states if the relevant conduct of an offense includes more than one minor being exploited so the question is when did that exploitation occur when did when what was the production and when did it take place and does that production fall within the scope of relevant conduct to the offense that mr waters pled guilty to which is receipt of child pornography and during that several month period in two thousand and fourteen so a later possession or continued possession of a production that occurred years earlier doesn't somehow conduct there is no case exactly on point the closest that i could find to specifically address that question our position of course first is that it's clear from the plain language of the guidelines which i just cited and that it requires that the exploitation occur during the relevant conduct but the the don case out of the seventh circuit there's a foot no where discusses this length of time and whether that can be considered relevant conduct but as far as an eighth circuit case directly on point with this exact argument i was not able to find  no i was not able to find one exactly on point your honor and i think it's because it's clear from the language of the guidelines itself he is under the production guideline mr waters is being held responsible and being sentenced for production that occurred that's a cr t cross reference that they were dealing with so the relevant question is when did that production occur or does that production fall within the definition of relevant conduct and clear and here it does not  and turning to the idea of emperor in preparation if he's being if he was being held responsible and that if t w n l were being considered victims because he possessed it and if that's the reason that they were considered victims that might be a different issue but he's being held responsible and these two miners are considered victims based off of the production conduct so the that the production occurred years earlier and is somehow in preparation for a later possession he's not being held responsible for the possession that's not why they're being counted as victims so the in preparation for portion of the relevant conduct definition does not apply here and i don't think it's in dispute but i want to briefly address and also does not fall within the second definition because it's clear that production offenses are not grouped and that's the only way we get into whether something is with the same course of conduct or part of the common scheme or plan if there are no further questions i would reserve the remainder of my time for  incorrectly calculated was waived there was no mention of this issue in the objections to the p s r prior to sentencing counsel filed a sentencing memorandum but did not object to the base defense level calculation and sentencing counsel did not mention any issue with the base offense level calculation in fact  she didn't object to the court's calculation at the sentencing hearing so it wasn't even a situation where oh all of a sudden he recognizes that there's a problem and then he doesn't object that that didn't happen so i don't even think we're looking at a plane error standard because this issue was weighed because it wasn't raised before the district court  held that that does qualify for the and handsome and because of under the sonnenberg case and then crabs which was a more recent case counsel argues in her brief judge politan rejected the argument that counsel is making in her brief that the supreme court in the lockhart case somehow requires the court to rethink abuse sexual abuse and abusive sexual conduct we see no warrant in lockhart to reconsider sonnenberg so it's the government's position that pursuant to sonnenberg and crabs mr waters prior conviction i am a conviction for libya's acts is does qualify for the enhancement if there are no further question position that that is in fact relevant conduct the court has held that relevant conduct includes activities that occur before the date identified by the indictment as the starting date of the offense and the prior production facilitated the possession of the images years later in two thousand and fifteen and i don't think that just because the cross reference talks about production is necessarily because when you're the guidelines are are looking at and it seems to me that the force of the guidelines in this area is looking at the multitude of victim the commission seems to be very concerned about the the number of victims relating to an increased sentence and here we have two individuals  granted the production occurred earlier than the production in the indictment but there are still victims and i think that the guidelines are broad enough for this court to find that you can produce it and if you later possessed it then that counts as relevant argument yes thank you was it is what judge logan articulated and that these two victims are being held are increasing mr waters adjusted offense level they're being counted as victims because of production that occurred we're dealing with that cross cross reference to that guideline and the question is whether that production continued possession of it that somehow brings the earlier production into it but i don't our position of course is that doesn't have anything to do with whether it's in preparation for and doesn't answer the question that's discussing case law earlier and i went back and looked at my brief the closest case one point cited in the brief is the winner case out of the it's not out of the circuits out of the six circuit and out again dealt with exploitation and whether victims that were pre charge conduct could qualify under the relevant conduct guidelines and could increase the defendant's offense level and six six  of relevant conduct and how we calculate the guy guidelines when determining what counts as relevant conduct and to briefly address again this question of waiver  that there isn't air the air wasn't preserved the government's argument it's a waiver because there's a failure to object well if the court does find there was a failure to object that's where the plane or rule comes in waiver occurs when there's an intentional relinquishment of a known argument or a known right the idea that the failure to object somehow isn't intentional relinquishment just is not supported by the case law generally a waiver is found where a defense counsel will stand up at sentencing and say well we're going to withdraw that objection we're not going to challenge that anymore or if a defense counsel agrees to something in a plea agreement and then tries to come in at sentencing or on appeal and say no that's