because the district court should have applied it to point reduction to has often slow bill under the sentencing guidelines there are three reasons that it should have done so st the actions on the part of law enforcement taking material out of mr milters computer should not be included in his relevant conda nd the structure purpose and history of the guidelines as well as anal cases from this court suggest that any distribution that would disqualify the defendant from the enhancement has to be knowing and then rd the government's argument does violence to the structure purpose of the guideline by rendering part of it's a perfectly us in that it would never apply in the case involving a peer to peer network so st turn into my realm of conduct point u nintentional actions on the part of mr milt here should not be included in his relevant conduct what we really have here is conduct by law enforcement to take material out of his  computer this court has squarely held the language as is black and white that relevant conduct under the guidelines must be criminal conduct and hit the government's action taking material out of his computer is not a criminal activity on the part of mr milt here and if you look at guideline one b one dollar the relevant conduct guideline the language that he uses or words like committed aided and abetted counseled commanded procurer willfully caused all of those words even if you include omissions all of those words imply some sort of intentionality and conscious choice on the part of the defendant that we don't have here it's really no different then if hackers outside if you didn't have any peer to peer software at all and hackers had broken into his computer and taken material out that's not distribution on his part so it shouldn't be included in his relevant conduct at all judge he had a stir mr bright can i ask a question so that i understand you to be arguing that were duction should apply because to the extent that there was any distribution or your going that it was unknowing but then you seem to suggest that because at the distribution of any that occurred in this case was at the hands of federal agents but that's yet another reason why this reduction should apply but i don't i didn't take your brit to have made that nd argument well are our brief argues that it has to be relevant condo and so we've made arguments premised on the dove case from this court in the euro case from the rd circuit that it has to be criminal conduct on the defendant's part in order to be relevant conduct to be considered for purposes of the guidelines at all so we believe that is in the brief i'm perhaps offering a different analogy for the st time today but we certainly have made the argument in the brief that the relevant conduct has to be criminal conduct on mr milters are in order for the him to be for it to be for actions to be considered in the guidelines at all or certainly in disqualifying him from this reduction because the only way he would be disqualified from the reduction is if his conduct is not limited to receipt or solicitation that is premised that there has to be some conduct on his part and the the way that we determine that is to look at relevant cause so i think that is in line with the argument that we've made in the brief if i've perhaps clarified it this morning i'd be happy to the answer any further questions you have but i think i think it is consistent with arguments that we made both below and in the brief that it necessarily has to be criminal on and nothing and the only conduct that happened here in terms in terms of distribution was really the government taking it as receipt of this material and then it's relevant that as part of that crime he made it available to others he doesn't have to be convicted of distributing it guideline doesn't earn distribution  this is not a case like where it's a completely separate you know context that happened on a different day in a different place we're talking about exactly what happened i'm sick of a crime and a relevant part of that is that he ma is truly limited to receive a solicitation so all of his illegal activities his knowing illegal activities are already considered as part of the guideline that's the whole reason that we're under this god long in the st place excuse me so there is a general presumption in the criminal law in favor of a mens reya and against strict liability so that's the st proposition for why this should require knowing conduct on his software but did not actively send it would generally fall under this reduction in and get the reduction that's because the commission in said very clearly in the text of the reasons for a moment  sixty four dollars were that it wanted to more normalize the sentences and to draw distinctions between categories of offenders and so in the commission's view people  who were convicted of what it called simple receipt were closer to defendants who were convicted of simple possession then they then defendants who were convicted of actual distribution and the commission that this reduction in order to make that happen and to to draw those distinctions and then next to the government's position is inconsistent with this court's holding of late and l with the distribution enhanced meant and said that that distribution had to be no and while that's a different provision reading all of this reduction would treat the word distribution the he be that's correct but the the basis of the district court's decision was that mr milt here in gauged in distribution simply by having the software on his computer and so that's the reason that the court gave for denying that the reduction was a finding that he had engaged in distribution so that's why it's relevant but the more fundamental part of why l relevant why the government's argument is really inconsistent with labeling is that what this court in the commission of both recognized is that the facts matter in these cases and that all of these software programs are different and technology changes over time and so it's really not proper to apply a blanket rule that the mere presence of this software on someone's computer a renders them liable or takes them out of this reduction or in lightning made the distribution enhanced by a pleasurable and so what the courts what this report have to do is to look at the facts and see what the evidence is about whether the defendant actually didn't gauge in some activity beyond mere receipt and it's not enough that this program is simply on the computer if there's no evidence that the defendant took some additional steps or engaged in vishal activity and so the reason that the government's argument really is in it doesn't make sense in terms of the overall structure and purpose of the guideline is it renders part c of the reduction completely completely like i said the government would apply essentially a per se rule that anytime a defendant had a peer to peer file sharing software that they could never get the reduction and then that would make c irrelevant because it would mean that the defendant you send me material i will i'll send you some but the defendant if they find it advertises i have all the stuff but net doesn't have an actual intent to do it's so to speak a false advertisement that would be a situation where even though the defendant lacked the intent to do anything more than receive or solicit the material that per that definit would be disqualified from the production because his actions would be more than receipt or solicitation another example would be an enticement case so one of the cases the government cited which i forget at the moment is one where the defendant sent new damages of himself to a minor and the court found that that was enticement even though the it was not child sexual material and so therefore it was not not actual distribution of that material it was enticement and so there it would the defense conduct was not limited to receive or solicitation so that's a situation that under our reading all parts of the guideline would actually be doing work and would matter whereas under the government's reading the intent prong would never matter and it would it would collapse the the stress of the entire structure of the guideline and really go against what the commission intended that to make these kinds of does some necessary work because without that intent element there would necessarily cancel out the ability of the government to apply the had there the comparable key level and has been that would otherwise  that in reality even if there might be occasional circumstances where under the government's theory it might apply in the run of the mill case which i think  the run of the mill case where a defendant has the software but is not doing anything more than receiving if it really would make the intent wrong irrelevant so the last thing i'd like to turn to before my time is the government's for example you refuse to say you know it's an absurd isn't the what i was looking at the paragraph i was looking at his page is a page fourteen and fifteen other governments prove so when you sit down take a look at that and and then you proposition and i would urge the court not to treat those as very persuasive for a couple reasons one none of them have any real deep analysis they're pretty bare bones nd a lot of those are are distinguishable on the facts because those defendants either admitted to knowledge of the the capabilities of their peer to peer software or there was some other evidence in the record about things that the defendants had done  that really indicated that they their actions were somewhat beyond receipt but then finally a several of those cases i think the the one that probably has the most analysis is a shepherd from the  circuit where the problem is that those cases predated the amendment that resolve the circuit split that this court took sides in with late and what those courts were saying is that merely having the software equal distribution and that therefore his actions were not limited to mere receive his conduct was was something beyond mere receipt and so because those courts apply the definition of distribution that this court rejected and that the commission later rejected those courts should not be persuasive on this question in a different guideline unless the court has more questions now  defendant the court i'd like to bring to the court's attention the fact that the nd circuit in below the th circuit in aberdeen and the th circuit in the haney all up held denial of the reduction based on identical fact patterns where the only evidence distribution was via a peer to peer file sharing program where a law enforcement officers were the ones who were downloading from the defendant's computer  further the guideline makes no distinction between it at all as to whom the recipient is of the conduct that exceeds receipt or solicitation so that really has no bearing  now to go into the issue of what was the defendant's relevant conduct as judge rushing flag we start with the defendant's offense of conviction here he was convicted of receipt and possession and so one b one point three looks tells us that we look at the acts and omissions that constitute that offense specifically he used a peer to peer file sharing program to download images of child pornography and as a properly considered as relevant conduct so there is no dog problem in this case of the circumstances by which the transmission occurred so for example let's say a defendant didn't receive the pornography via peer to peer network but instead simply received it locally and then downloaded his computer and then his computer gets hacked and that hack result in a transmission or distribution of the pornography that that would be the same result yes your honor our position is that even unknowing or in an unintended distribution causes an additional harm to the victims the children to be given these images such that that is conduct that exceeds receipt or so and what triggers all of that is the fact of the initial offense right because it generally the government wouldn't prosecute a individual who for example someone hacked into his car his or her computer and inserted child pornography in the computer without the defendant's knowledge that's different right but answer a juror the yes go ahead i apologize for interrupting essentially what this court has said in other contexts involving guidelines that don't require the defendant to have knowledge of some kind of aggravating circumstance in order for the in and the enhancement to apply is that getting to my colleagues discussion of the presumption in favor cmdr essentially the concerns animating that presumption are not implicated when it comes to the guidelines because the guidelines only come into play after a defendant has already been convicted of unlawful conduct right so once a defendant undertakes some unlawful course of activity he assumes the risk of the unintended consequences of that criminal behavior so i can turn to a discussion of the commission's intent if that would be helpful to the poor at this point my colleague of course flagged the statement in two thousand or reasons for the amendment however the commission's later in time conduct our conduct in amending choosey two two illustrates that the commission in fact did not intend for this reduction provision to carry an additional mental state requirement and there's a the court is well aware further the commission actually went outside of this particular guideline and it amended to general distribution and hence went into other guideline provisions specifically those were in g two point one and two g three point one those also provide for enhancements based on conduct involving distribution and there the commission elected to add a knowledge requirement but again it did not impose any knowledge of here finally the commission made those conscious decisions after the th circuit had reached it says its decision averaging and the th circuit had reached its decision and right the commission specifically mentioned and discussed re in its reasons for the two thousand and sixteen amendment so we presume that it was aware of that judicial interpretation of this reduction when it elected not to add a that's a different provision there is no indication that the commission intended for the enhancement and the reduction to operate as reciprocal provisions they're structured completely differently such that it is not a case where one statute or one provision is parallel to another and it would make sense to carry over an interpretation and they also as the court is aware reached different forms of conduct the distribution of handsome it covers only distribution but the reduction reaches beyond that it covers any conduct that is not limited to receipt or solicitation and finally i'll flag that my friend on the other side suggested that by imputing a knowledge requirement into b that would somehow make a consistent reading all of the distribution provisions into g two point two but that's actually not correct because if we look at the general definition of distribution in the application notes there is no knowledge requirement there the commission has not has left that in place over the course of several amendments so it would actually be introducing sort of an irregularity by requiring see is assessing the defendant's intent but pronk b is looking at the scope of his conduct and by implication that the amount of harm that he has caused so yes the defendant is correct that failure to satisfy all three prongs if if a defendant doesn't meet one of those problems that's enough to defeat eligibility for the reduction but under the defendant's reading what would happen is that so long as he satisfied either  b or c he would be entitled to the reduction and that just it's clear both parties have agreed that all three prongs must be satisfied and there's no suggestion that the commission intended for  be interchangeable or collapsible in any way unless the court has any further questions we ask that you know firm thank you very much appreciate your you counsel do you have any but i think that what the government as i understand that argument is that is saying that is that part c would apply the reason the party is in there for the government is that someone who tried but failed to distribute material would be disqualified because they still met the intent prong the way that i read it i think that that person would would disqualified even under b even if c didn't exist because under b that would be conduct that is not limited to receipt that sort of attempted distribution or even perhaps possession with intent to distribute even if they don't actually intend attempt to do it so i think that's the best answer i could give them the time i have i do want to very briefly just respond to the cases that the government mentioned with without really getting into the weeds i'll just say that the haney case was a tensor to case that arose in the twenty to fifty five context so i think it's just so removed because it was an ineffective assistance of counsel argument that it's not really that analogous the mirror presence of this peer to peer software was enough to relate to distribution and that reading i think is so broad that it would apply to mere ownership of a computer the mere ownership of the material sharing function of the peer to peer software program so that events is a knowledge on the part of the defendant about the capabilities of the program and what sharing in downloading industry was going on that is not present he so the last thing yesterday afternoon the government sent a case to me called taylor which i'm i'm afraid i don't have the cite for because i thought the government was going to rely on it i can find it if you give me a moment but that taylor case that the government suggested it might rely on was a a four circuit case in the citation is  and the court said that it doesn't matter if the defendant knows that the firearm is stolen but the firearm guideline has an express provision that says it's irrelevant it applies regardless of whether the defendant knew and so we think and this may be why the government didn't mention it in its argument we think that case actually helps us that the commission knows how to write a provision that said that applies strict liability and says that and enhanced manner or a provision applies regardless of the defendant's knowledge and he chose not to do so in two g two dollars so we think that that is an additional argument in our favor and i think the government for bringing it t provision but what this court should do is read the guidelines as a whole and treat like concepts a like and not apply a narrow restricted definition of distribution there but then apply a definition so broad that in this context it would really it would really defeat what it did in lane and what the commission did in response to layton in adopting it so unless there are any further sign it die god save the united states and that's honorable court