the morning around it's matt campbell from the federal defenders of eastern washington and idaho on behalf of timothy carlson i'm going to attempt to reserve three minutes for a bottle right at your time there but i'll try to use i'd like to first address briefly whether the prior convictions qualify for enhancement and then dive into whether mr carlson should have been sentenced for receipt or possession in regard to whether the priors qualify we continue to hear to our position that the scenarios case was wrongly decided and we continue to adhere to the position that the federal offenses specified in the statute should be the guidepost for state offenses as well in doing so we recognize that the sullivan decision from this court is post  can't and johnson two thousand and fifteen and that's old in case it hears to the scenarios framework i'm also mindful of the court's order of july satellited of that do you have any leeway in your argument is there any given the hundred forty four zero eight six which is the second degree child molestation at issue here is that sexual contact as defined under washington law includes touchings for the purpose of gratification of third parties and in medina section two eighty eight a only involved gratification of the purpose of the minor or the defendant that is frankly the only difference i can find between the two statutes so we would argue that there is that does create some broadening of the reach of the washington child molestation statute visa v cal penal code section two eighty eight a in all other respects we recognize that a panel of this court cannot overrule a prior panel under miller v gammy and we would preserve any additional issues for further review either by panel or by the supreme court but other than that i don't believe i have any additional information in response to your inquiry but turning to the second issue whether mr carlton should have been sentenced for receipt or possession the district court procedurally erred by sentencing mr carlson for receipt and not possession and in this regard it's undisputed that possession is a lesser included offense of receipt under davenport and mackel murray as we cited it's also undisputed the sentences on both receipt and possession are multiplicities and in violation of double jeopardy under davenport so mr carlson was entitle to complete dismissal of one of the two counts case the district court was obligated to exercise its discretion and vacate one of the convictions under hector and the district court agreed with that we see that in the sentencing order memorandum at five sixty nine now under exercises discretion and vacate the lesser offense what's wrong with that under the my own case the district what was required to exercise its discretion by consulting eighteen u s c thirty five fifty three say here the procedural error that occurred the district court in effect conducted two separate thirty five fifty three a analyses one as to whether to sentence for receipt or possession and then the second as to once the court made that decision what was the appropriate sentence and that is where the procedural error occurred doing so led to a contradictory conclusion that the thirty five fifty three factors required the sentence on receipt but then recognizing that under the thirty five fifty three a factors one hundred eighty months was greater than necessary under the thirty five fifty three a factors now if we look at meyer meyer makes it clear that quote the choice of which count to vacate is fundamentally a sentencing decision end quote in which the district court quote must choose whether the defendant's transgressions warrant a lesser penalty or shorter term of imprisonment for possession of child pornography or greater penalty a longer for a longer term for receipt distribution and quote that's my read eleven fifty four so what that stating is that this thirty five fifty three analysis is unitary and is based on what is the appropriate ultimate sentence here the district court first determine what we are we do you get from the proceedings at that the district court engage in that sort of separation of three five five the first charge receipt or possession was appropriate under the thirty five fifty three factors that i'm looking specifically five seventy one where the district court says it has evaluated the factors in determines that it should sentence for receipt then if we look to five seventy two the district court says however i find that this sentence is greater than necessary so the court's own analysis shows that engage in this two part or two stage review of the thirty five fifty three a factors so and the court had another option the court clearly had the option to consider everything determine what the appropriate sentence was one hundred twenty months one hundred  forty months and then sentenced to possession as opposed to receipt and frankly that's what the language of meyer at eleven fifty four says the district court should have done the fact that this led to a contradictory result a result in which the court determined that it would sentence to receipt but said that that result is greater than necessary means that the such that a procedural error occurred and that the result was a substantively on reasonable sentence and the district court admits that the district court says it's sentence is greater than necessary under thirty five fifty three a so we have a clear admission eighty five seventy two that this is a substantively unreasonable sentence now the government in its brief had characterized this to some extent as the district courts disagreement with the draconian nature of the mandatory minimums but frankly that's that might be true had mr carlson only been charged with a distribution and there would have been no other option you might look at your time  carlson's prior convictions was appropriate or sullivan and shouldn't be disturbed by this court at this time and the parties of it amply brief that i'd like to address now that the double jeopardy issue  ut i am saying mr campbell i think accurately represents what the government is and the government is saying mr campbell's entire argument is based on the district court's comments about the nature of mandatory minimums in these types of cases mr campbell and i have heard this criticism from the district court this district court and many other dishy courts in our district repeatedly it's a common criticism but that does not mean that this your court here did not do a proper analysis under mayor and after the district court did a very detailed analysis it felt it needed to provide a supplemental a memorandum the detail that analysis it was proper of the district court went through thirty fifty three factors determined that and  followed the law that absent compelling circumstances if the lesser included offense in a situation like this that should be dismissed and then did so dismissing the possession charge the fact of the district court did not like the functional result of that   congress did not narrow the class of sexual offenses the trigger tha district court i think made quite clear it knew the bounds of its authority it knew its discretion it knew that it could if it had wanted to well if if if the first issue is that it's a sentencing issue doesn't that and it still refused to dismiss that the martin charge do you see any potential for inconsistency the way to approach the issue on the way well had the district court stop there and said you know i'm i'm concerned about the draconian mandatory sentences and i agree with the judges have expressed that view i don't think the defense would really have anything to talk about but but i think  the reliance us really on than the district court concluding with the fact that the mandatory minimum sentence that it had to impose is really great at the necessary to comport with the purposes of three five five three what about that i think that's meaning was after that analysis about is there a compelling reason to follow hector marte is there a compelling reason to go with a lesser included count over the receipt count and the court did that analysis and found its found there was not a compelling reason to follow the case laws laid up in the circuit and found that there was no compelling reason on the facts of this case to do so so i think that then following up with a comment as an effect of the  more for the question of the court of little thank you then thank you simply to clear up the record i think it's the government's stated that we were conceding all three of the prior convictions i think technically one of the prior convictions statutory rape frankly is not really at issue here  honestly conceding the other issue i do offer of the slight distinction with baron medina but i'll leave it up to the court to determine the importance of that the government speaks about that the district court determined that there were no compelling circumstances and i think this underscores the difference between the government and our position which is there must only be a unitary evaluation of the thirty five fifty three factors the compelling circumstances that warranted a sentence for possession are the analysis of the thirty five fifty three factors which leads to the conclusion that a sentence of receipt is substantively unreasonable and that's what the district court found and the government certainly hasn't shown that it was an abuse of discretion the district court or clear air for the district or to conclude that one hundred  was longer than necessary so that is the compelling circumstance that warranted sentence on possession the lesser as opposed to receipt greater would it you argue then in the district court that you could have a ten year mandatory a as a sentencing matter what i argued in the district court was that ten years was appropriate but i didn't argue that somehow almost an eleven c one c context ten years was compelled i argued that a sentence for possession was appropriate and that in our opinion the appropriate possession sentence was ten years i hope that answered the court's question a comprehensive thirty five fifty three analysis which the which the government claims occurred simply cannot support a result which was substantively reasonable when another option exists again had mr carlson had the only option been fifteen years then i would understand the court's remarks and even the court citation to this court's opinion in hard wreck talking about how these sentences are draconian but that's not what we had here the distort had an alternative choice to sentence to ten years or something in between and i think it's important when we look at the to get to just a judge w questions in points when we look to the memoranda when the court is discussing the receipt versus position discussion the court never mentions ten years versus fifteen years in that point the court mentioned some of the factors but it doesn't discuss in that section as to whether to sentence to receipt or possession what the ultimate result will be it simply is analyzing this in terms of sort of abstractly which offense it's going to sentence to but it never mentions one hundred eighty months or the guideline range of one hundred eighty eight to two hundred thirty five months until it's already decided that it's going to sentence on receipt so i think when we look to that portion of the order it gives us that issue i see him over time i'm happy if you know the questions but i don't think there are any thank you i think both counsel for your argument this morning and also coming over from spokane case just argued united states versus carlson a submitted