and regularity and if the relevant conduct in question that which here is thirty five and more years old is temporarily remote then its relevance depends on similarity and regularity exist in sufficient proportion to one another so here where the old conduct is in one instance thirty five and in the other instance almost forty four years old the question is whether it's relevant to the offens the court didn't understand was that the finding that the prior conduct occurred isn't enough in other words this adjustment under b five doesn't substitute for the relevant contract analysis it doesn't do you think it should be before you consider it's going to be on a case by case basis and the reason for that is that the guidelines are a life that's the wrong word the guy dense under the expand under expanded relevant conduct factors in common scheme or plan where the events connected is there a common factor are the victims common so each case requires this kind of analysis there is no one answer i can't say ten years or five years it's got to be a case by conversation those conversations in and of themselves don't constitute the p five adjustment because it's not contact and second the conversations with the granddaughter are indeed part of what considered would justif roughly similar question you go ahead with your thank you but that weird what the district court should have done is make a finding whether mr garner's conversations with his granddaughter makes the girl's conduct more relevant th that it would be without the conversation and the best answer to your question is to say that the kids should be remitted back to the district court to make exactly that finding and to decide whether mr gundersen conversation with his granddaughter somehow makes those old well the government has the burden of proving the relevant conduct and so i didn't ask the court to do that in fact what what happened here was that the government offered the two let the letters from the the purported victims and the court made a finding by clear and convincing evidence that that was sufficient to satisfy the adjustment then the court said i mean cases that thirty five years is too far what we know from reading the guidelines there's no linkage requirement in the language of the guidelines but that doesn't mean it doesn't have to be relevant and that's what what's missing here in the district courts analysis it applied to the adjustment and then it said ok here's the guidelines happens after i apply the adjustment now i'm going to move on to something else instead of deciding whether the adjustment applied and then looking to see whether it applied within the universe of expanded relevant conduct and that's violates what the guidelines how the guidelines are were meant to be interpreted in this adjustment which i would remind the court is listed under specific offense characteristics which also suggest that there's a relevance requirement  that's what the responsibility of the district court is to determine whether or not there are two or more instances in the defendant's past if there aren't that makes it relevant here we're not talking about two or more instances of some sort of sense a conviction in the past and to require that would mean that there are lots there would be lots of individuals who had engaged in this activity and we found that it was not counted under the guidelines congress considered it important that that be considered it's five level increase which is noted is a large one but it's not necessary because people who have abused children and then go on to commit child pornography offenses are considered especially deserving the sister and characteristics of the use of his own family and the continuing danger to the community he presents were valid considerations for the district court in the district court took pains to go through the three three five five three factors and determine what the appropriate sentence is in this case the record is clear that the court considers those factors and the history in characteristics of the defendant and the safety for your argument the case just argued will be submitted for decision and will proceed to the next case only she was out on or about to use all our time is just argue would be submitted for just