remand to the district court of thirty five years on the grounds that the district court committed both procedural and substantive errors requiring reversal eroni asli concluded that he was subject to the state of ohio as the sauna the sexual orientation orientation registration and notification act that was reversed because he was not ever a jet never deemed a sexual offender on remain and the district court using the same criteria of his being a sexual offender increased his criminal history by two points based on a two thousand to two ohio state conviction for failure to register as a sexual offender however although the government argues that that two thousand and two conviction is valid that position is not still a collateral attack that's not permitted at sentencing not not in this particular case because under the recent u s supreme court case a class versus united states and blacklegs which we argue with in our briefs a defendant is not foreclosed from attacking on appeal the constitutionality of the constant the constitutionality of a statute under which he was wrongly convicted and he in the two thousand what the district court basically used to count his criminal history points right that's correct and you're saying it's error yes that's it's error but isn't the solution to that attack or attempt to vacate that conviction in state court proceedings no your honor because according to this to court rule us supreme court rule as well when a defendant is convicted on an unconstitutional application of a statute that conviction is void because as the u s supreme court recently indicated in class the issue becomes whether or not that court had the power to actually prosecute him on and unconstitutionally applied statute offense level the additional five point i think just means asking about the first heir it didn't change his sentencing guideline range no however under harmless error case law also indicates that because the u s sentencing guidelines are actually the lodestar of a sentence and the majority of sentences are within the guidelines range or below it if the court can if there is a five k one motion by the government but the case law is very clear that when there is a procedural error in calculating the advisory guidelines that is that is presumed to be detrimental to the substantial rights of the defendant so even when it doesn't affect the guideline range calculated and was would still be within the calculated guideline range so are you telling me the case law of cretins procedural error an error in  error in a calculation made even though the guideline range would be the same regardless of which way it came out cause you're correct counseled that the guidelines calculation is the starting point for the analysis but that's because generally a wrong calculation puts you in the wrong guideline range but in this particular an offense level of forty three and above is a life sentence the fact that the court put it at forty five didn't really make a difference well your honor it would make a difference because well we have and also it was corroborated by the d clarence girlfriend to during a police interview as well however neither of them testified at trial nor at the sentencing and on appeal the articulate identifiable facts that occurred after the original sentence to justify the same sentence notwithstanding the fact that he sent the ten consecutive years at sentencing position in the original sentencing the government fairly on in this case is presented to the court was in play negotiations for a ten to fifteen year sentence according to the transcript there is an overlap between the procedural and the substantive reasonability of the sentence because of the court failure to articulate any identifiable facts which occur after abuse or to the conviction excuse me after the original sentencing and of the subsequent se name please the court i am joey blanche on behalf of the united states defense counsel has raised a number of issues regarding the sentencing guidelines calculations and i'd like to respond to those if i have time but i think that we should instead that go directly to what i think is the heart of their complaint which is that the court sentenced the defendant to thirty five years twice they said she sentence to the defendant to thirty five and i think that can be explained by looking directly at the statute that governs what courts are supposed to look at when they're deciding the appropriate sentence if you look at title eighteen united states code section thirty five fifty three a it specifically instructs the court to impose a sentence that is sufficient but no greater than necessary to comply with the purposes of sentencing that are set out in the thirty five fifty three a factors at the first sentencing hearing if you look at the transcript which is in the record it's very clear that the court was looking out the defendant as a whole person she was looking at his criminal history she was looking at his prior conviction for receipt of child pornography she was looking at his behavior that he was convicted for in count two she was looking at his molestation of victim one his communications trying to exploit victim two online and then continuing to try and exploit him how he was in custody on this case in a recorded jail call she was looking at everything and in light of the totality of all of those circumstances she felt that the appropriate sentence was thirty five years now in order to get there with a twenty to sixty a conviction it required the court to parse that sentence between count two and count four it is appropriate for the court when deciding the appropriate sentence as to count two to consider  that she would also have to by statute impose a ten year consecutive sentence on top of that she had to consider in trying to determine a sentence that was no greater than necessary to comply with the purposes of thirty five fifty three day four counts two she had to consider that she would also have to impose a mandatory ten year consecutive sentence as to count fo what's the calculation the first time around how did the court split the twenty five years as to count two and ten years as to count four count four is a mandatory ten year consecutive the serious nature of the defendant's crimes as to count two the serious nature of the last like child pornography a message board that the defendant was not only participating he was posting child pornography that the members of the board were encouraging each other to find minors to molest them to take pictures of that molestation and share with others she looked at the fact that the defendant had molested victim one when victim one was a small child she looked at the fact that the defendant had molested or attempted to molest via webcam victim to one victim to less thirteen years old he went online he found victim to the defendant hosed as a teenager himself and sent gifts to this thirteen year old child to convince him to masturbate for him via webcam online the court looked at the fact that even after the defendant had been convicted in this or excuse me arrested in this case while he was being held in custody he continued to pose as a teenager and contact victim to who by then was fifteen years and he did this in a recorded jail call while he was kind of the charges in this case she looked at the fact that the defendant had sustained a previous federal conviction on child pornography grounds for receipt of child pornography in violation of eighteen united states code section twenty two fifty two eighty two and taking into account all of those factors the court again felt that the appropriate sentence for the defendant taking into account the defendant as a whole was thirty five years this time only as to count two and not as to count four it's  very clear that the court understood that the defendant had not been required to register as a sex offender under ohio state law in fact if you look at the trial court on its own noticed an error in the pre sentence report during the second sentencing where no one had found it or objected to it including the government or the defendant where the p s r had continued to say that the defendant had been required to register a sex offender and at the second sentencing hearing said wait a minute this is a mistake we all understand that he was never required to register as a sex offender so there's no question that the court understood at the second sentencing that he was not required to register as a sex offender but one of the things that the court had to take into account when looking at the appropriate sentence on raymond for count two was the fact that this time would be no ten year mandatory minimum consecutive sentence because there was no twenty to sixty application of the five is meant in the sentencing in the offense level calculation and the second is the calculation of the defendant's criminal history in this case looking at looking first at the defendant's criminal history in this case it is true that the court imposed two points for the defendant's two thousand and two conviction for failure to register as a sex offender that is absolutely true she did it without objection from the defense counsel and the problem there is that the two thousand two conviction was in fact sustained the defendant had not attacked his can on direct appeal and the state of ohio and the supreme court has said that the sentencing cannot go bath and all of the defendant's previous criminal history now i understand the defense counsel is trying to argue that the court committed error because the ninth circuit in the first appeal had vacated that two thousand and two conviction but that is not actually what happened  twenty two sixty a conviction was based on the mistaken understanding that the defendant was required to register under ohio state law the two thousand and seven soren a statute did not in fact require the defendant to register the ohio state attorney general's office made a mistake and required him to register and he did register under the one nine hundred ninety nine version meghan's law he wasn't required to register but in two thousand and seven that law was superseded by the ohio state two thousand and seven soreness statute and it was under that statute that also say that it can be harmless error if you are making mistakes in getting to the appropriate guidelines range as long as the guidelines range itself was accurately calculated and in this case the guidelines range was the recommended range was life regardless of whether he was in category one two three four five or even set the guidelines range what's the recommended range of his life which was then put down to fifty years because of the statutory maximum regardless of the criminal history calculation and that can be harmless error your honor and the case law for that out of the ninth circuit is cited in my it is considered error even if the ultimate sentence falls within both the correct and correct range when a defendant is sentenced under an incorrect guideline range whether or not the defendant's ultimate sentence falls within the correct range the error itself can be sufficient to show a reasonable probability of a different outcome absent the air and in response to the government's indication that there would be no change in the range of a life sentence that's true unless there absent of the procedural error of calculating his offense level at forty five rather than forty if it had been calculated at forty with a criminal history of one then the guideline range would have been i believe two hundred ninety two to three hundred sixty five months and on that i would