conceded by the government in accepting the guilty plea to one of the council was related to a description of related to a description for an offense of production of child longer sentence if he had murdered and want instead of just taking pictures of her well in addressing the substantive and reasonable is of the sentence he the a life sentence was the was the guideline sentence in addition to that advisory guideline sentence because of the interaction with the guideline five g one point to be the sentence was then stacked based upon counts one through thirteen or the statutory maximum sentence for for murdering the victim i'm having to say he was thirty four years old at the time of the offense and he had a forty year sentence and he received it was forty years and he in essence because of the the amount of convictions those convictions were then stacked under the five he won't point to application which increased the sentence to that amount then just a simple guidelines sense of life became life plus of term of years so when the government argues that there's no remained necessary because his criminal history was minimal he was a crime it was a first time offense for him and for and unfortunate because of the amount of conduct and the way that this guideline has been put together by the sentencing commission he ended up with a significant with a life sentence because the interaction of the specific offense characteristics the grouping of the offenses and the number of counts that were charged now the one count that should be vacated by this court requires re mand to his sentencing should be conducted which this court kno reaffirm the stiefel rule but would allow the court of a regional jurisdiction in primary jurisdiction discretion over sentencing to resentence him with consideration of the constant constellation of offenses that were actual just a technical error at sentencing it actually is a plein air of the the amount of counts that he was convicted in may appear technical because of the  exposure be changed his exposure would be changed because the sentencing calculation would go from being the four thousand four hundred forty month sentence that was calculated under the sentencing guidelines down to a four thousand and eighty month sentence guideline calculation under goby and a number of other supreme court cases going to be a great victory it's not going to be of a great victory for us but it will give the court just took pictures of her no he could not have he could i'm sorry he could have yes he could have gotten up to three hundred seventy years yes he would have received less of a sentence if you were talking about real differences the real difference hundred and seventy and forty well the real differences is that if this court exercises it's just scratch or reason i'm sorry if it remains for resentencing as is the default rule in cases where the sentence is impacted the consolation of facts and of the set of offensive conduct is impacted by the dismissal of the count which in this what you were is all the game when you get back down to record could could revisit its sentencing discretion under the application under pepper and the post sentencing conduct could be considered and part of that consideration is the fact that mr powers has now been in prison for a year and has received significant sex offender treatment we would supplement the record under proper which is the recent supreme court decision which allows for post a fence conduct to be considered by the court of original sentencing discretion post offense and allow that court to examine that information as is its jurisdiction after reset and sing and determine whether or not that original sentence still is sufficient to meet the needs of the sentence as mr powers stands before the court at the time of of resources there's a court is free to ignore any additional material that you put before hers in their career that is within the court's discretion to do that but that's not great relief and that's it is not great relief but it does give the court the opportunity to consider that information as as the court of primary sentencing authority which is continually been recognized by montenegro both in both cases where there was a merger of the offenses so the sentence would was i'm sorry was i'm sorry i would have had no impact on the sentence and the other was a may please the court stephen kleiner for the united states i'd like to begin by talking about the remainder issue and turn to the question of the substance and i'd ask about how you got to four hundred eighty months didn't wasn't this person charged twice for the first fo and the next day you honor august fifth the defendant took seven photographs of the victim four of those photographs he sent to the undercover on august seventh so we have now the first eight finally he was charged with producing and distributing pornographic pictures right here the charge on a sexual explication for the purpose of producing child pornography those that was counts one through eleven and that sequence who are murder a guideline work for hours if the statutory maximum sentence on any individual count cannot achieve the life sentence the instructions and five g one point two d are for the district court to stack the sentences consecutive so in order to the guideline sentence life defense counsel or brief says the guidelines and changes with the reversal of concepts that's not true the guideline sentence is life consistently year the district court under the guidelines would have had to stack all the sentences to achieve a four sentence here the district court departed below the guidelines and gave mr powers an opportunity to be released from prison after forty years or it with good time credit thirty four years correct and i understand to the court may be concerned about the length of the sentence the only suggestion i would make is i am not sure this defendant to be concerned about with respect to the lankans this is a defendant that throughout his life has put himself in a position where he has ready access to minors this is a defendant too in addition to the crime here where he betrayed the trust of a family who hired him for years as a babysitter to do these things which he got extra sentencing points because she was in his care and he had to know she was vis defendant appears to be a predatory pedophile who takes opportunities with people who trust him he's in positions of authority with children he's a babysitter with children and he abused this seven year old girl who sentence i think it is wrong to consider this a substantively unreasonable since this was in the district course discretion she believes and she had a very careful review of the record including aspects of the defendant's character including the report o be true your honor and i might i would suggest to the court that was not a substantively and reasonable thing for this district court judge to do i believe would give the district court that discretion i believe the judge here properly exercised her discretion as h as another time counsel will talk about what the powers of your office were to separately and died on every photo you want on this defendant that many more images of this fit to me over a hundred  had of other children on his phone of young boys or young women being anal the rape by man we didn't charge every single photo in this case we charge three additional photos beyond the ones that he transmitted to the undercover officer we charge one the principles of readers what's the big deal it sure it's the biggest deal you want is one that's not mentioned in our brief and i apologize for that if there is a plenary sensing here the victim's family feel compelled i think it to get what you can tell on you shouldn't feel compelled i know you're in a situation you already have your views in them and the judge certainly understands as she is it's not as though she's been terribly lenient she understood the whole thing she obviously understood their views and took them into account so why would they be exposed to to reprisal of this painful experience the mere fact that they're told that this defendant will say you are your numbers i'm just cute when the court says this this sentence is three hundred years and you point to any sentencing regime and civil laws jurisprudence that ends up with a result like that your honor i cannot and if i can't do you may be a function of my ignorance about other sensory regimes not the fact that there hasn't been one i will say this to the court as a practical matter this is a sentence of forty years with the possibility of going on to thirty four years and i will again reiterate under the facts of this case if we are to give district court judge's discretion to look at facts like these i believe this is a substantively reasonable exercise of this district court's discretion i think this court does great damage to the sentencing regime that we have to tell a district court under these facts of this type of predatory pedophile who is willing to molest a seven year old girl who is babysitting for that the judge is not permitted to do just a quickly address judge fuller's understanding of the facts august fourth mr powers was babysitting the children and he babysat them into the night and then either return or the period of time overlapped into august fifth now there was a question as to the friend's ex of the amount of photos that were taking because of the type of social media application that was used so the charging of this of these offenses of the eleven offenses was really questionable and was taken to the sentencing commission at sentencing because it was disconcerting the amount of time that that the defendant was facing for a first time offender unfortunately it was charged the way it was and the three groups and it up in are playing with five g one point two so that the offense because of the calculation the guidelines a total offense almost forty three and even with a criminal history of one with no other significant criminal history he ended up with a life sentence which then translated into this four thousand four hundred forty year calculation guideline calculation that guideline calculation is now in correct because the count related to the child a photo of the child bare chested which is not child pornography was involved in that calculation that is part of the mosaic of facts that this court has always been concerned with at sentencing that needs to be readdressed by the court of original jurisdiction and sentencing just rush occurred so that impacted the grouping and then that grouping impacted and drove up the sentence and as far as the additional count of the two distribution counts one of the photos that was taken i believe it was in count twelve was part was also arguably part those photo sessions so whether it should have been charges edition or that distribution wasn't compassed within the actual act of taking the photo sharing it very you know during it the use of the social media is arguably was was questionably an exercise of if you tauriel described have one more just one more yes or no question