hearing the government's misrepresentations to the trial court detracted from the actual facts of this case mr rogers should have been allowed to rebut the government's misrepresentations so the trial court could properly weigh the sentencing factors and fifty three the government open the door to this issue by referring to the victim several times as an innocent child stating that the victim was unable to resist and for instance that force was involved several determin specifically said in the transcript was that it was it would consider using drugs with older men in the presence of older men not that she had sex with them so the entire context of the sexual nature of those cases that was left out that was excluded and that was relevant and trends ik to rebut the misrepresentations the the representation that she was an innocent victim that has a sexual connotation that could be presumed or could be inferred and so in order to rebut that presumption the other thing that is intrinsically relevant to the sexual nature of the other cases is that this victim had known how to seek assistance to get out of situations where there was the illegal sexual activity going on  this victim for the two other cases that were involved where she was at the homes of older men and had the sexual activity with them she had reported them to law enforcement and she had remained involved in the prosecution against fifty three dollars factors for sentencing one of the considerations for the trial court would be the impact on the victim and that would be significant where there is representation that she was an innocent child who could not resist and so for purposes of the sentencing factors under three thousand five hundred and fifty three a and fashioning a sense that would be appropriate and reasonable under the circumstances the court should have had all the information to be able to weigh continuum and where in the range he would be sentenced for it he faced a minimum of fifteen years imprisonment and he faced a maximum of ninety years imprisonment and forty years under the actuarial table would have been a life sentence so where the judge would sentence mr rogers in this range was a permanent importance representations that affected his considerations could have resulted in months or years in a different sentance of how the law would delineate the impact on the victim based on their age and i want to draw the court's attention to a few different laws where there is delineation of how the law is a fact and to a three dollars these are the guidelines for criminal sexual abuse of a minor under the age of sixteen and the commentary defines a minor as an individual who's not attained the age of sixteen under the commentary the guidelines use the word voluntary to describe victim activity that is not under forcible compulsion obviously that activity still legal obviously is still consensual but this is the guidelines language under the sentencing guidelines activity with a victim under the age of twelve and this is under two g the guidelines that are at issue in this case there is an enhancement for levels for any activity with a minor under the age of twelve and then there's a two level enhancement for activity with a minor under the age of sixteen under state statutory rape laws those are also laid out according to the victim's age and the victim's age delineates the seriousness of the  and this is so even though it's on consensual even though it's illegal there's still the delineation under the law and how a victim's age may impact the seriousness of off and that's  ok but two other circuits have decided that the enhancement can apply where the where what is depicted is humiliating and degrading even if there is no pain cause and i'm wondering why we should not agree with a circu rhonda in the way that the and i want to drawn back and piggyback onto the way that the law delineates age and the way that even under the guidelines there the notion that even if sexual activity with somebody who is underage is illegal and on consensual it can still be voluntary and i think that there is the question of whether a per se application takes into consideration the specific circumstances context and facts of the case for example and i'm going to make a hypothetical just and that is not the facts of this case but if there's a seventeen year old victim and a nineteen year old offender and they are in a on each other's feet this is disgusting some people may find it degrading but then there's the question of whether there should be the per se application of a four level enhancement for levels is quite a bit and it can add years to somebody sentence so in that context is a per se application correct is because trial adolescent children and that is you can see those cases and the government as well as in the defense briefs that that is the overwhelming case majority and the that that is a completely separate argument because it has completely separate take into consideration the context in circumstances when applying the s and m and handsome and to minors over the age of sixteen and i think that would allow the trial courts the opportunity to look at the specific facts and circumstances of the case before applying it and that's needed in order to properly assess that the specific case characteristics and for said that the hypothetical that you just gave us that's not the facts of this case and in fact we don't have a victim and defend that who are two years apart as your hypothetical indicated we have an adult male clearly and under a school and so you seem to be arguing if you're that because this was involving this victim are very significant to rebut the misrepresentation that there was any kind of force that was involved because for much of the case there was no allegations of any force and this did not come out until purposes of sentencing so for three thousand five hundred and fifty three factors any allegations force should have been considered by the trial court and when they were made by the government and the government open that door the defense should have had the opportunity question of voluntariness and again voluntary is the word used in the guidelines the even the trial court when it watched the specifically of the two videos commented i don't know where there is joint activity and what specifically you see the trial court said i don't know whether to call it reverse or joint activity for which each party is responsible i don't know and so the trial court seemed to question whether it could consider the voluntariness or the joint activity of the victim because in cases where the victim is  sixteen and this case and she engages in activity that if that was said throughout much of the case to be voluntary then there's the question if she is if she is doing activity to my client that would otherwise qualify sense and i am but if if she was voluntary and that then it raises the question of whether that application of the enhancement should be  per se or whether the judge should look at the facts of this case before deciding whether to apply it or i missed it always thank you very much we've taken you beyond your time but you've saved your four minutes  good morning your honor may please the court my name is tom haggerty on behalf of the united states i'm joined virtually by trial counsel carmen lineberger now this court should have from the district court sentence st of all the sentence is both procedurally and substantially reasonable the gist of core properly enhanced the pound sentence for production of child pornography that betrayed sadomasochistic content finally at the sentencing hearing the district court excluded it properly excluded evidence that the minor victim was image and four videos and all talk about each in turn the st image portrays the appellant with one hand his left hand wrapped around the throat of the victim she's nude her breast is exposed and from the the image there presumably having sex image shows appalling using force against the victim and restraining her i would turn to this court's decision in the united states versus hall where the court used the webster's dictionary for the definition of sadism and found that this term includes the infliction of pain upon a love object as a means of obtaining sexual release delight in physical or mental cruelty in the excessive use of cruelty now this court did not air nor did it clearly err in the application of the enhancement for this masochistic given that the guideline provision also refers to other depictions of violence and a hand around the throat i think can be seen as violent conduct would qualify as violent conduct because he's restraining her and the portrayal contained within the image betrays violent conduct so if you find that this image contains sadomasochistic conduct the court need not look any further to the other to the other images but turning towards the nd video the nd video for trey's the appellate urinating on the victim in the bath tub she's fully nude and on her knees you can see her factual would have to be painful that's united states versus fall from two thousand and two so what do you do with the language in that case well one thing well in terms of the pain without causing pain and so it seems to me that that's distinguishable so if you want to adopt a seven circuit view you're going to have to tell me how that comports with the language in our decision  hall that it the sexual act quote unquote would have to be painful i would ask this court to include conduct that is both humiliating and degrading in because the language in the hall is that it would have to be painful if you're asking us to add conduct that would not be paying for your asking us to vary from what all right or you're  not no respectfully no your honor if you look in hall refers to the webster's dictionary of sadism which also includes mental cruelty specifically it says that sadism includes the infliction of pain which we've discussed upon a love exclusively the need of physical pain or force i would submit to the court that the defendant urinating on the victim in the bath tub would qualify as mental cruelty because it's in a degrading or humiliating manner other criminal cases in which she was a victim the dish of course determination as to the kinds of information that it considers at sentencing is reviewed for abuse of discretion now the district court in this case struck the correct balance the court considered evidence that the victim was in contact with the state attorney's office a victim witness coordinator that there was other criminal cases involving older men that she was using  with the those older men however he excluded the testimony or did not consider the testimony or evidence regarding her being sexually exploited by other men in this case what was the time lag between those events and the ones that issue in this case i don't believe it's in the record however it appears that it was in or around the time it was prior to the conduct with mr rogers or the however it seems that it was in or around the time that the appellant had met the victim however it's the government's position that that that evidence is wholly irrelevant in this case the fact that other men sexually abuse the victim has no relevance to appellants sentence the st of all the government sites to rule for twelve but i would say even though the rules of evidence don't apply at sentencing the government cites rule for twelve quickly referred to as the rape shield law as a matter of good public policy the district court should not have and did not consider this evidence and he properly excluded the evidence because it has no bearing on the sentence of mr rogers now well how did how did how did the government part of this paid always argument although not all of it is that the the defense was trying to introduce evidence of her sexual activity with other men because the government was trying to portray her not simply as a minor who had been victimized but as someone who was a totally innocent victim and i know those terms are very difficult to sort of gauge and there might be slight semantic distinction but they were trying to she says they were trying to counter the depiction of the miner here as someone who would have never engaged in this sort of activity had it not been for mr rogers how do you respond t i think it was clear from the right from the record in terms of what was before the district court how the victim was actually recovered in this case was that she contacted the state attorney's office a victim witness coordinator so it was clear that she had been a victim in other criminal cases at the time that she was recovered from with a pal and that he was arrested and the fact is that the court the court considered that she was using drugs with older men that she was listed as a victim and other criminal cases so i do think that the court struck the correct balance and considered evidence that supported appellants position that that the victim is not a quote unquote innocent child and would never be otherwise you know have have done this type of activity but the district court did exclude i believe properly excluded irrelevant evidence regarding the sexual activity of the victim with with the men because in fact she could not consent to know the sexual activity with mr rogers the production of the child pornography with mr rogers or the sexual activity with with the other men in fact it was criminal sexual activity in those cases so that i believe the court the district court did not its discretion and excluding such evidence appellate panel inquire on that i wanted to touch on and one of them was the time lag and the timing of the other statutory rape cases in state court relative to the prosecution of mr rogers  spring and the case that bar was from the summer so that's the timeframe for the court and i only want to borrow to follow up on one of the questions that judge branch asked you during your initial argument had you been able to introduce the evidence of her sexual activity with the other men how would you have argued that or how would counsel have argued that to the sentencing court what difference would that have made in the way that you portrayed mr rogers or his conduct it would have been very limited and it would have been to the effect that the court should take into consideration all of the circumstances when determining the depiction in the representation of the victim specifically whether that the depiction of the innocent child you know with all the circumstances supported weighs in the factor as an aggravating factor in it was to rebut the aggravating factor of the victim status and the impact on the victim so it would have only been limited to that aspect regarding that representation as to the allegation of force it would have gone toward to say  the victim had the ability to be able to seek assistance while she was with mr rogers in fact she had been in contact with the state attorney's office the victim advocate there and during that time she didn't reach out for help when she ended up when the victim ended up making contact with the victim advocate the state attorney's office it was a status to check in with the prosecution of the other cases so the victim had not sought assistance to get out of mr rogers house or out of where he was at and she didn't make those attempts to get out of the situation and so the lack of allegations regarding force should speak rebutting the allegations and inferences a force that later developed in this case and that is the context of how it would be u d the defense did attempt to make safeguards to prevent any harassment of the victim the defense did not subpoena the victim it attempted to get the testimony out of the case  agent st of all the defense did not expect the victim to be present and nd of all it was also to reduce harassment it just it wasn't necessary to try to get descend from a shell to the victim so the way the manner in which it was done early tailored to avoid any harassment and the way in which the information would have been provided to the trial court to rebut the representations would also be narrowly tailored in on one  is that it was a still image and that in the image there was not there was not the appearance of any pressure and that to use the word choking was concluding something that the image simply didn't support so the