counts involving substantially the same harm shall be grouped together in the same group and in this case the two groups the two counts we're talking about are counts one income to  seems to me that household had a choice or could have argued under rule twelve of the federal rules of criminal procedure that this did not crime set out in the in the second count grouping grouping rule should be applied which would have the same effect more or less i guess as a motion to dismiss under rule twelve is that is that the theory here that's pretty much the gist of it your honor the government first phrase count two is production and we did move just missed that and then the government changed it to attend to production and it didn't look like we could get a ruling to depend on what was he intending and didn't look like we get a ruling before dismissal at a time also we're in a position of if we went to trial on that and we lost it three points for exceptions would be worse off than would be dismissed we made various offers you are hoping to get in the range of three sixty life at least and can get so then you could work out the government would go along with the plea all right that's right and it's all mr foreigners been asking for twenty five years which is a very stiff suns and the district court ruled against us on this grouping issue and i think another overarching rule i mean the grouping is went to different girls who are victims of this and what did this happen on different days i mean it seemed to me you didn't object to the pre sentence report which laid some of this out and so i thought the hiring of double jeopardy but for a relative being here you don't need consistency that ramps it up still further in you are two of the group rules as the secondary victims are not to be counted go there just that there are different days there i mean even if you focus on just one of the girls that this happened on different days and then it so happens on the second day there was of course a picture of another girl that i'm not saying it's what he daughter just imagine these photographs going out there it's pretty easy to imagine victimization and trauma down the road when these photographs are circulated all over the internet so it's are we got that trauma point this one end of the end of the day argument as for grouping for when you look at substantially the same aura that there has been identifiable sober arm but you're saying that and you said in your briefs several times that you something to make it look like child pornography so in the case law if a girl had been in a pose and it happened you get the picture of the right moment that could have been public on his job well are you dismiss it as failing to state an offense nor so you played guilty to it even though you didn't have to plead guilty did perhaps it's what can we do about that at this point where i three hundred twenty years which is a massive difference for a while why does it come about that if you get the grouping rules applied if we assume that he committed an  possession count fourteen and fifteen did not support separate sentences denoting support separate convictions for that matter because the indictment just as you're charged with receiving any child pornography income fourteen and fifteen says your charged with possessing any child pornography could be the same pornography you know there is no one you know there's a debate about whether this was raised  think you have a little bit of a response that while we weren't sure exactly what the judge was going to do until he issued the order it is it puts us in a tough spot that we don't have a record i mean when have anyone debating all this and i'm just wondering i mean partly one could say that's your client's fault because that was the time to create this record but the other point is ok fine we'll send it back and have everybody go through this is that going to be a productive exercise because i mean one thing i don't see is that you're  allowed to win on that today because i don't think we have the information to say you when i think it has to go back in a manner to figure out whether you'd win and i don't know whether that's a productive exercise well it would productive although i think the laws of elian rosenberger the rosenbergs are you the inquiries actually are restricted to the plea colloquy to the basis for the conviction because this is a double jeopardy sentences and the court refused to find waiver of the issue and there were you play in error because there was some discussion of this issue at sentencing in orc is the sentencing  was a surprise and we weren't told about the top of the parents but you could have seen this coming and one of the races no way good lawyer and you certainly fit that description wouldn't see the problem being so i don't think it's fair to say this was only became to remember there's two different things there's whether they're different photographs that's one possibility other one is whether it's on different materials different media and that's that will be the other thing that you want to figure out please the court i'm kerry daughtry on behalf of the united states and in response to the question that you asked just it's a very in here eally actually involves child pornography that was received during a period of time and then possessed at the end of that period and in our case what we have is receipt of child pornography that occurred over about an eight month period and then two months later he also possessed child pornography it is correct on the record below we did not but was also stored on it on an external hard drive so it was two different places that it was was stored and i get the idea from the government's position that from this is the best right let's just be done with this i understand that but you know on the double jeopardy point it really doesn't seem like you know i'm not going to forget who's to blame for this but it really doesn't seem like the district court had a chance to work through this yes your honor i guess i'm just curious why that's such a bad idea an incredibly long sentence he's obviously not going to have served it by the time the second proceeding was done so why wouldn't we just make sure that it wasn't a double jeopardy problem that they were really were different materials or if the theory is different received during that time period and that was possessed at that time the defense raised a lot of objections at the plea hearing but it was all objections that were related to sentencing hants meant and never about they do have the point the district court judge to it was only after all the everything was done that the judge says well i'll tell you what the sentence going to be later right right then it was too late to create record and talk about double jeopardy and  agree that that is that that is something that was not clear on the record at the time of sentencing it is the government's position however that the defendant has a waived the multiplicity issue as to the indictment and it it's a position of the government also that he's he's either waived or floor fitted that issue as it relates to sentencing because he could have been aware of that and should have raised it earlier than th a sentence of fifteen years and the possession of seven point five and run concurrently and we would have resulted in the same same amount that we've gotten at this point in time  out of the round there have been significant prison well it's not a life imprisonment senates but there have been other sentences that have been out of our district that have been similar to that there was one that was upheld by this court just last month for fifty years  we've had some that have gone as high as eighty an artist raped and in this case one of the reasons we weren't able to resolve this case below was because the defendant was not willing to acknowledge that there were that he had victimized two little girls not only did he take these debate but but he did admit and there is evidence in that and the little girl the older girl that was in the pictures and count to that child is somebody that he had molested years earlier she had reported it had gotten swept under the rug and then he's back i thought he little girl and asked him about it and he admitted at that time so this is not just one little girl who we took pictures of the two instances on the twenty four of the twentieth and the twenty first the earlier one and this problem with the grouping of the right right but this is not just a would deserve more or less life improvement but your honor i think you know if it if somebody is going to molest multiple children over the course of years and talk about grooming well we have twice you have to teach children you have two children you have one that you molested multiple times years earlier and this child that on july  twentieth and twenty first he took pictures of her and that second child do you think there's no redemption here but basically years go to jail for a life the whole system before the guidelines came into effect we had a parole system so you could look down the road and let the parole system operate so that if the parole board thinks that this guy has a bowl of living a life they can but the problem with these guidelines is you have to predict long in advance forty years or something what's going to happen well nobody can do that and the effort was made by a psychologist to come in and give three percent and four percent odds of this that and the other but nobody knows what's going to happen thirty years that's the problem we're facing here it leaves no room for rehabilitation none and that it really is troublesome and hear your honor but you know in this case this is somebody who has over years molested two little girls and has talked online to other p distributed some of this child pornography so this younger girl will never be able to get that off the internet are you with you that these people are murdered yes but that doesn't mean they're going to stay that way forever and you're going to put a ball in jail who are perverted i mean we're going to the taxpayers are going to take care of i just don't the system doesn't seem to me fire i hear where you're coming from but i think this is a situation where this is not just a one time offender that may be able to get you know get rehabilitated some point to offenses one some five or six years before and we're going to put him in jail for life your honor i just think it was just one instance five five or six years earlier i think it was multiple instances of molesting this child has been convicted of no he has not that is correct your honor and that is because nobody believed this little girl when she reported it back earlier and so he was allowed to continue and continued in the way that he did so and turning just yes about the counting would you a different situation than just having the sing the single victim there are two arguments he makes one that there's the same victim on the second day in two that there's no additional harm i think that you all have talked about  whether or not there's one or two victims and i think the record makes clear that both in the plea agreement also in the p s r and the judge all find that there's two victims on that second date so turning that into the no harm for years that there was no argument about below i think i think that it's that the defense has misinterpreted because it is clear both in uncomfortable at the time that these images were taken but not been able to articulate that to anyone because because they're just so young in particular that older child couldn't articulate that because she had reported abuse before and nothing had happened with it so there's no way to go back and say to the kids what harm did you experience here and i don't think there's any case law and the defense doesn't show any case law that requires that a victim know about the in the government's view is misplaced because there are a lot of crimes that happen when there's no harm in the sense that you know for example fraud happens often when somebody doesn't realize harm until later on  intent along doesn't but if you if you follow through with an attempt and you're not successful then you then you're going to have committed a crime as well and basically what the defense is asking for is a frame ri i shouldn't get punished for trying to produce child pornography on the second day just because i succeeded in doing it on the first day and you know there are a lot of different times when an attempt is charged and and credit is being harmful even though the actual crime did not get completely committed in this case the defense is asking for that free ride and also claiming that there's no harm here what if she doesn't know that that child pornography had been produced in that case however he also distributed that child pornography so that it is out on the internet and she will at some point you know find out about that and you know possibly that's unwillingness to admit certain things is that would you were saying is that why we got where we got i guess i'm trying to just figure out if we're still there yeah i understand judge merrick had asked about why it was that we didn't resolve this through a plea agreement and the government's position is because we couldn't come to an agreement about the facts of the case and you that's a problem with contrition and kind of facing up to the reality of what exactly you've been doing in the harm with what they're doing and even yes even if they spend their life in prison it's a pretty darn good start to figuring out what you're doing coming to grips with it and moving on and i'm just trying to figure out if that ship has sailed i mean i guess the obviously has in one sense you like this sense affirmed and that's the end of that except for hey be a spy yes your honor and i think a lot of what the argument between the parties is what is the appropriate sentence and we were able to agree to facts early on that we're going to dictate how this case was going to go forward in sentencing so while the defendant emitted to the police that he admitted or emitted that he had molested this other child multiple times years earlier he waiting plead guilty and be convicted of thank you willing to accept twenty five years or that's what he's arguing for as i understand it and then impose super vision they are after for fifteen years so that if there's any that's like setting up a parole system somewhat like the old system used to be so that reason that that i think that that's not the best solution has to do with the expert that the defense put on and that doctor said that she didn't think that the defendant was in a position where he was willing to participate in to be at this time what happens in the future obviously is not something that anybody of years down the road he's going to be sure but if he's still in that position and we don't know what prison is going to be and that's the point of supervision or list yes your honor but i think that twenty five years down the road he may still be in the frame of mind that that he wants to molest children and he certainly has a record of doing that and so it's the government's position that this is an appropriate and contrition i don't quite understand the government's statements about mr partner's contrition when he was arrested the police confronted him and so we think you did something to the older girl five years ago and they said we have the recording of it we played at the sentencing you are not going to get a break for this just do this to protect the girls we don't have to ask them is that ok did i touch her for six times five years ago he admitted the offer was going to be of a life range so i had to tell me why didn't you move to dismiss the county the county to as failing to stay a defense and you get rid of it that way possible we did your honor we did in both stages actually when it was just completed crime charge and then they changed at the alter to an attempt to george the government was arguing we could didn't decide that yes your honor they're saying it was it was turned on facts it turned on it turned on facts it turned on facts of the jury would have to decide about what his mental state was until fourth and or you didn't make the motion well i made the motion and then when his range would be much shorter but it all underscores the arbitrariness of this whole system one of the he would get you were god really was such a worse situation based on this charge when you know i mean to us in other cases i mean i know i saying to deal with the double jeopardy argument hypothetically to figure out exactly what was going on here has the ship sailed in terms of what he can say and what is that person can say about i mean we just pointed out that one of the problems was his own expert who was concerned about what he could do and i'm just wondering if that remains true and we would like to present more evidence on that although i think  overstating our experts testimony i mean she said use fatalistic he's depressed you know he's not showing any signs of interest in anything in the future now part of counseling as the experts do this to get people into it and give