there are three differences i would like to emphasize between the selected it's the st one which i really think is key is the difference between the peer to peer software the pleasures bit torrent in this case it's  found based on the testimony of a government witness that users of aries are not prompted or notified during the installation or otherwise to choose whether or not to share files and the carol court also  torrent but not on the part of the user of the aries we've does not have a feature that notifies the user of this property i said i wouldn't fly wouldn't that have been in effect of assistance of counsel to not have gone into the distinctions of the software's well your honor this court in durham made clear that if a defendant can produce knowledge that he did fifty five i don't know what you mean it was called to his attention during the police wasn't read out loud it was read out loud and it was a lengthy factual recitation yeah and the are not bound by any plea but aside from that even if this court were to find that he admitted downloading here so the carroll court discussing this very same software said that the installation process does not prompt the user to my question why is it ineffective assistance of counsel for his lawyer not to have what did his lawyer not do that would have  show that you know of the more than a rudimentary knowledge of the program there's no evidence of he could have shown that he's not technically sophisticated he doesn't make he didn't make any changes to the false settings of this program  didn't use any kind of blockers or additional software is not he could have shown he was not technically educated he certainly could have shown that he never made any admissions of knowing out of their work and he only disputed the contentions regarding the notice of appeal he did not dispute that he was presented with information concerning the lack of knowledge of the peer to peer file sharing problems and he did not in fact  informed of and what he could have presented or and keep in mind also in terms of prejudice we're talking about only reasonable probability still he didn't object to the p s r statements is that this down the road and if there's cases going both ways i mean there seems to be cases going a lot of ways to get back to the chief's original question is counsel necessarily in effect to for failing to raise the argument could counsel for example decided you know this case is gone both ways it might be a loser argument and yet any obviously had better arguments because there are some arguments that were actually winners at something i think well st of all your honor i think there is a reasonable probability that this argument to work went and sentencing it's a cumulative i mean the more you win the lower the soundscape i mean if you win on two issues you do better than if you win one but again i would submit at the very least reasonably in other and i think our cases say that but let's assume that for a nd we wouldn't have met would have been object will be reasonable for the lawyer to say there was risk leave it i might put acceptance of responsibility at risk or even obstruction and i've got a good variance argument that ends up getting me a twenty five percent reduction as i and also isn't that right that's that's that's right judge although actually the bottom line is he should have put evidence to support or to oppose this enhanced that could have been didn't download that could have been doesn't matter if he downloaded that could have been the numerous other factors we've cited but because he would have had to run would present he would have had legal reasons not to do so or reasonable reasons because of the arrangement that was being made with the judge the case law an acceptance of responsibility and i can provide briefing on that if you want and i believe it's actually written right into the application acceptance of responsibility does not require admitting  he's not trying to go back on his plea even negate any of the elements of the crime so your honor i do not think that would have been a downside risk here i think that you know as in the mack case cited in the reply brief even if there varying case law there was a very good argument from mr haney that his lack of knowledge falls within durham if that argument would be it's grounded in in case law if that argument would have been successful he would have been described and then there's a separate intent required but the problem i'm having with that is your client committed back conduct knowingly or unknowingly and so the way that is phrased i don't think he gets the reduction no matter whether you succeed on your argument or computer i don't know whether they were on a hard drive a whether they were simply downloaded into a folder on the peer to peer software but there was no certainly no conscious voluntary act on his part no no conduct by which the threshold issue before the court is whether mr walters with all of his objection to the guideline enhancements associated with distributing child pornography was objective liam reasonable now we begin with the context of mr hanis use of peer to peer file sharing software the mere fact that he used the software that has in its title sharing creates something of a burden for mr hand that burden is made significantly higher by the fact that during the change of acknowledged at least tacitly that he was the one who installed this program on his computer now mr adelson makes reference to the fact that this was a lengthy we call it we i went through last night and actually we cited the factual basis it took me less than two minutes to reset the entire factual basis for this guilty plea i know durham talks about installation but what does installation have to do with anything unless installation indicates  that there's a sharing feature and that you have to turn it off well i think the important thing to know when you install a program that isn't titled peer to peer file sharing system it's awfully difficult to argue that you didn't know at least say he knew about the title and therefore he knew it was a file sharing system but i thought if you install the software he knew what the title of the software was well i don't know we really don't around i don't know how do you how do you install it well you need to download it from the internet install it on your computer and these are evidence that when you download it it says it's a file sharing system again i haven't looked at a screen shot and i know that that's not in the record since the record did need to be developed but i am have a good argument for the two or four level differential if we accept those as true which again i think is a leap and come back to that argument another argument in a nd but even if we and if there had been a hearing fairly confident that the forensic expert to examine his computers would be able to establish that given where these files were were stored how the program was used by mr handy to download child pornography it would be abundantly clear to the user that sharing was enabled and in fact bottles were shared but again i don't think that at the record in the record at this point it's in there was no hearing that is correct so do we need a hearing for you to show that i don't think so your honor because again we're dealing with what is with the withdrawal of the objection we're not dealing with with just an oversight or negligence on the part of mr wampler not identifying this issue the objection was made but later withdrawn and i think it's important to note that in order to establish that mr haney his daughter was the person responsible for downloading or installing this program should have been called to the witness stand and i don't know if the court has read the sentencing transcript but mr haney came to the attention of law enforcement in two thousand and eight by virtue of the very same daughter making a complaint about him showing her child pornography on the computer now a defense attorney i do think that it probably would be prudent to keep such a witness as far away from the witness stand during the sentencing hearing as possible clearly if she were called to the stand to attest to the fact that she installed this this software i think she could have also been questioned about that initial incident two thousand and eight when she should have just called the mother and put in the affidavit of the daughter and again that would be a bad realty call on the part of the court and again i think you do have this this substantial  overcoming the fact that you're using up what is called a file sharing system and not knowing about the sharing so again we get into and again we get into well my client again at least tacitly acknowledged installing this during the change of plea hearing do i want to undermine his credibility by attacking this particular guideline provision after all it's a two level to level increase whereas the rest of my argument and again i think that carried the day ultimately for m is certainly more compelling you know frankly when you look at the distribution and handsome and the the damage isn't done by the fact that you make these programs or these files available it's the fact that they're actually being just distributed to the wider world of child pornographers and that is precisely what happened so the damage was done whether he did so intentionally or not is there is on the file sharing point that judge politan was asking about you know some of these programs in general are a really complicated we have high tea people that help us figure out what they do and what they need to turn on and turn off for security purposes and things like that so those are differen where it doesn't tell you whether you opt in or opt out of sharing now the words some of these prior cases have talked about the fact that makes it clear on one of those introductory screens that you need to you need to click opt out and say i don't want to do it here we don't have that apparently does that make a difference obviously would be stronger evidence if you did have to have to opt in or opt out and to be perfectly honest i don't know if that's the case but there isn't a churning out in the record so i don't even want to speculate on that  but again i thought you start out with the proposition that you're using a file sharing system and i think as the sentencing judge you're going to view that especially with the with the person who had been downloading child pornography as long as mr rayney had that well well and two thousand and six his daughter reported him for having child pornography on his computer and then he gets out of prison in two thousand and ten and the search was executed i believe in two thousand and thirteen so you're looking at approximately three years between two million twelve thousand and thirteen but going back before his term of imprisonment we have the st report of child pornography in two thousand and six and i would point out that there's no evidence about a file sharing program no no no the police department you have evidence that he was shortly after he was released from prison and you and i could be incorrect on we could agree but going back to the credibility issue and i believe judge politan talked about the possibility of losing acceptance of responsibility judge catch mark during the sentencing hearing express said i don't believe you didn't know what you were doing so that at least i think to further into the district court judge was already dubious of this claim that he was unaware of the fact that he was chairing it always there was a conversation that wasn't there in the setting here that was after though that he had withdrawn the notice that is yeah i mean that would be powerful evidence if it was obviously before the he had withdrawn that particular argument i could see but why there'd be a i don't want to i don't want antagonize a judge here but she didn't have these affidavits yeah that's true although you know obviously this mr wampler obviously knew that this was in play and and again looking at the record we know that he actually obtained the services of a forensic computer expert to assist him in this case i would pursuing this argument have jeopardized the variance if at all it was the variance independent the arguments for the v independent of guideline just again it depends on how precisely mr wampler approached it but again i think all in mr cheney's daughter to the witness stand was perilous at best the fact that he has by claiming that he allowed his daughter access to a computer that he was using to access and download child pornography i think is probably not something that i would want to admit it before the court i think contradicting his statement or his acknowledgement that he was the one who downloaded this program would have hurt him so attacking this to a level increase and again we're looking at that back to us there's a possibility that involvement and of his daughter would hurt him there's a possibility that its credibility would be damaged and ultimately there's a possibility depending on how the forensic experts testified that he could ultimately lose credit for acceptance of when when we were arguing this case mr haney's guideline sentence was at or near the statutory maximum and i pointed out during my argument to the court that frankly the guidelines were not particularly helpful in his case because we do have and we do see numerous individuals who have had hands on contact with with with live children we have seen more egregious cases than what mr haney had committed and the court ultimately agreed with that assessment and that was the reason for her this is not a traditional what i would call a true variance from the guidelines that as there are numerous judges in this district who take issue with the two level increase for use of a computer because we see that in every case they take issue with the number of image  because almost all of the individuals in gauged in child pornography have over six hundred images which results in a five level increase so earlier this week i had had a sensing hearing with with judge karpal down in springfield and he always says i i'm not going to consider the two level increase for having a computer because that's just what people are not and i don't find that help on the on the prejudiced point you're kind of touching on this a little bit about the variance and things like that there's a lot of cases not only in effect of this in a council context but otherwise where it says that even if it's below guidelines starting with the sent the right sentencing guidelines range is important for prejudiced purposes and we're not going to presume that just because it's below guidelines changing the starting point point doesn't matter do you agree that the prejudice argument here is pretty weak or how would you distinguish those cases well i think the lead case in that regard and in that case it was a direct appeal of i believe an immigration case where the united states probation the district or defense attorney and the prosecutor all miss what the guidelines really were and went up on appeal of i believe brief i believe the defendant supplemented the brief with this argument that they got the guidelines wrong and ultimately the supreme court's interpretation federal rule of criminal procedure fifty to be  concluded that where the guidelines are the focal point of the sentence that a person is prejudiced even if the resulting guideline that was imposed falls within the new guideline range of imprisonment and quite clearly in martino's the court points out there may be interested as instant instances when this by the application of an erroneous guideline to range reasonable probability of prejudice does not exist and i would submit to the court though that we're in that realm the guidelines for accord to the record ever of because i think we would have we would been dealing with harmless error but unfortunately that did not occur but i think we can discern from the record the sentencing record that they got the sense in guidelines or of little or no importance and i think at the end of the day when we look at the tactics of mr wampler and not pursuing this particular argument which may very well have failed and may very well have been disastrous for his client ultimately his argument his focus during the sentencing hearing won the day this was a significant downward variance from the got the strain it was looking at twenty years as a guideline sent and he received fifteen i think to attack that's what is occurring today i think is unwise and i think it's it should be very difficult for us to go back and look at what was going through his mind on the morning of sentencing hearing and say well i would have done it differently and the rotters i would like to start with a couple of things in the sentence and colloquy on page one of the leaven of the record where judge catch mark says and so the implication that he didn't fully understand what he was getting into i'm not buying that takes place at the end the paragraph where he's where the judge is talking about his deshon and downloading child pornography that's the context of what he says that he knew he was doing there's nothing in that remark and again it takes place after as as or pointed out after all the objections were withdrawn but there's nothing in it in any event that says that where she is finding that he knew he was sharing now also what government counsel said regarding well maybe he doesn't want to bring this information before the court well it's already before the court that this is a peer to peer program and that share that files were downloaded from and in fact mr wampler mentioned that page one on one of the record on lines twenty two dollars to twenty three dollars says yes to some extent if he's on a file sharing then he's hooked to distribution so it would have gone to get it wouldn't have made things any worse it couldn't have made things any worse for him to present the evidence that yes the file sharing was going on but there's no evidence here that this is the hany knew of and i would point out again th sum i mean if you've got two compelling arguments you don't just want to rest on the laurels because you want to go as far as you can and reducing the sentence for your client the title of the software in terry's galaxy i mean there's nothing in the record indicating that the title had the word sharing in it or that something in the title clued in every user that the default was to share files with the public and in fact the carroll court made the contrary finding and so i would submit that all things considered actually no one more thing finally i will reiterate that mr had an opportunity to explain what was in him made an affidavit in opposition to the two thousand two hundred and fifty five motion if he had decided to withdraw the objection because he consulted with a computer expert and with bad or because there was some admission  the record he could have said that he did so i would submit that at the very least we need a hearing to determine whether as a matter of fact there was ineffective assistance in this case i'm out of time around