for undue influence over the victim in this case it's our position that guideline to g one point three b to b does not apply in this case is distinguishable from the bivins case cited by the government  that the relationship between mr davis and the victim in this case was short lived it spanned approximately five days and givens it spanned i think close to a year the evidence  trial indicates that the victim and her sister con contacted renzo young after he had reached out to them two months prior reached out to mr young advising that they were interested in  getting back into the prostitution business and asking for his assistance in that regard the victim did not even meet mr davis until mr davis got into a car when they went to when the victim and her sister went to pick up mr young at his residence the victim and her sister thought they were going to be turning tricks in van wert ohio when mr davis and mr young got into their car they instructed them to proceed to fort wayne and they were actually currying on a night the following day the victim returned mr davis to live i believe they went back to fort wayne the following night more tricks were turned and i think it was three days four days later three days later when mr davis and mr young were apprehended after the victim had turned on the other trick in lima for mr  davis it's clear that the victim would have engaged in prostitution without mr davis assistance she thought she was going to be going with mr young to van work she was going to turn tricks regardless whether it would be a van wert four lane cincinnati san diego it wouldn't matter who she was intending to engage in prostitution that was search oist there's nowhere to live there let me ask you about that and i don't have any cases  why should the law deemed a person to have willingly participated well the guideline says in determining whether the and hansen applies the court most closely consider the facts of the case determine whether the have a legal capacity and doesn't have presumably doesn't have decision making capacity i would respond that that's merely a presumption the victim in this case was close to majority she had an infant child on she does not appear from the facts to have been influenced to engage in behavior that she was another not otherwise predisposed to engage in whether she is of majority or not the guideline says to consider the facts carefully and to consider whether the actions of the perpetrator compromised the voluntariness of the  mr as i said the victim in this case was going to engage in prostitution with the assistance of mr young and that's what she thought she was going to do but for the fact that mr davis entered the vehicle upon picking up mr young at his residence she was hurt in her mind she was going to engage in that behavior regardless so mr davis could never even entered the picture and the facts would probably be very similar she would probably have gone to fort wayne engaged in tricks and did the behavior that she did or according to the facts of them situation indicate about whether your client knew or realized a should have known that the victim was under a well probably by looking at her although again she was close to majority there was a female i forget her name who was assisting in fort wayne she was taking pictures of the victim and her sister posting them online  trying to attract customers and the female who was assisting very at first was reluctant to even take pictures and post them because she's thought that as s f the victim in this case looked too young so there were there were red flags whether he was there where she could've done it without a perpetrator what she would have thought would have been mr dunn she was planning on going to turn tricks with mr young mr davis just happened upon the scene he just happened to be there  together the probation officer had not grouped them again and this was of conduct that was one chain of events within five days there's not separately identifiable harm in our view isn't that though the same thing as the guidelines example of a single victim right being being right across time and those are grouped on i mean isn't that isn't it three d if we were to remand for research and see would the district court consider that issue of whether there should have been a hanson for obstruction of justice i think that issue was considered your honor and rejected honestly please the court my name is laura ford and i'm here on behalf of the united states your honour's the district court did correctly calculate davis is guideline range but the government is nevertheless asking this court to reverse and remain davis sentence f reimposition of the original guideline life imprisonment sentence because it was proper invalid at the time it was imposed it was only later that the district court changed its mind reopen concluded sentencing hearing and imposed a different sentence in a manner in which is not permitted by rule thirty five day but it was prior to the entry of the judge correctly or on or from a policy basis can't a judge read her decision before enter in the judgment and decide that a different sentences appropriate well the rules committee for the federal rules of criminal procedure has made a policy judgment that there is an institutional interest in judge in the finale of sentencing and so it's simply not permitted unless there are specific circumstances that falls within an area low thirty five rule thirty five correct that's that's a correction not  not a rethinking of the basic job of the judge to determine what is appropriate and not overly not too long a senator to shorter sentence for this particular crime or oh so help me with the policy here is the judgment has not been heard well but i understand that there's a fair amount of case walling that graphic well there's an institutional to reconsider factors that had already been considered the rules committee has made a policy judgment for the court and limits it to specific circumstances and certainly if the court was unsure of  how it was factoring the thirty five fifty three circumstances in this case it could have delayed sentencing and continued it knew it had that option because it exercise an auction option on october thirty first when it needed additional time to consider the government's arguments about group which is that p j d twenty eight twelve to thirteen i think the fact that the court did not exercise that option once again the issue as to the the appropriateness of amending the sentence first with respect to the grouping of the offenses the court correctly divided the offenses into three separate groups the first group was for conspiracy the transportation and the sex trafficking that occurred on january twenty fifth that conduct occurred on a single day and was over when the defendant took the victim back from indiana to ohio she was safe at home and he picked her up that night on the twenty sixth transported her back from bluffton ohio which is a small village to a large city in indiana about an hour and fifteen minutes away and reintroduced her to this  activity sex trafficking occurred on that night and then there was a three day break and she reengaged in that activity in each of those instances there is a distinct temporal break which the victim was really exposed to harm this involved the production of child pornography there there were two instances where the images were separated by one day and in three days the court only group the child pornography production that occurred on the same day and counted separately each time the videos were separated by one day in some instances of the resonator ninety day difference but there was two instances where there is only one or three day difference and the reason why the court did that was because the victim was exposed to separate harm the begins case also is instructive and it did not deter  not dependent on the length of the relationship between the defendant and the victim as davis suggests there the defendant did engage in abusing the victim over a weekend and then reengage that conduct two months later which a y is a longer period in our than our case but the question there was whether the victim was really exposed to separate harm and that's what we have here the victim was exposed to different harm on the twenty six because the conduct had ended when she was at home then she was transported in re introduced to this activity and there is a three day break in based on example five of application no four to guideline three d one point single course of conduct and notably the the application note says days not weeks or months is davis would seem to suggest the fact that these events were alleged as overt acts in the conspiracy doesn't change the outcome it doesn't make the outcome illogical in fact it's fully consistent with applicable cation note eight to guideline three d one point two which instructs that where defendant is convicted of conspiracy to commit several substantive offenses and also is convicted those subsume fences group one is the conspiracy in the first substantive offense and then the remaining substantive offenses are determined by guideline three d one point two which gets back to example five raping the same victim on different days because there are three distinct episodes of condom the court properly counted them separately the court also properly applied a guideline enhancement for do influence there is a presumption in favor of this enhanced meant where there's a ten year difference or more between the defendant and victim and here we have a seventeen year difference between the defendant and  sixteen year old drug addicted victim this court and will be in farmer has made clear that the enhancement is not limited to circumstances where there is force fraud or coercion and it includes manipulating or preying upon the victim's vulnerable status which here you have to be the defendant is twice her age she's taking a fifty percent cut of her earnings and you have her drug addiction with respect or ag sixteen years difference in a huge it was in as well as the government's reasoning in the sentencing memorandum which was based on also the age and the drug addiction i mean this victim was so desperate for drug money that she brought her infant child with her  the record reflected that the child stayed in the car with her sister in january when she's with a customer and she specifically states and her been victim impact letter that her mind was altered from drug abuse that the defendants knew this it knew charge crime but she certainly stated that in her victim impact letter which had in addition of reliability and notably the defendant did nothing to rebut that letter he states instead that the presumption doesn't apply because she was willing and she had participated in that activity before but notably being willing to do so being inclined to do so and actually doing so are two different things she wasn't on a corner and  ohio engaging in this activity and when she had previously engaged in this activity it was at the direction of her mother now the time that she's being gauged this activity notably it's again with someone directing it who is substantially correct what is what is the the additional factual support in the record for undue influence in the court's finding of the age difference the additional support is the victim impact whether the letter itself correct which was the court was permitted to rely on in the defendant did nothing to rebut that i think critically here is she says that there were times that she became uncomfortable continuing with the activity and that it was done young in davis that pressured her and she gave in to that pressure which is a page eighty six hundred sixty three and i think the phone is well within this court's decision in two thousand and fifteen that says that even if a victim is a willing participant that seeks out this activity the question is whether the defendant unduly influence a victim to participate in activities she normally would not have done or would continue participating in activity i think one point she did that's what her letter states that she was uncomfortable participating and that they were pressuring her to continue so i think also how it how do they  her pressure she did not give a specific example she said that they that she became uncomfortable participating and that that they pressured her and i would also say that her or her drug  objection your honor i have not considered that issue i think it would depend on if it was a general remain and certainly there's an argument if we had withdrawn it and i apologize i don't mean it that it would sentencing proceeding december twenty first and this is the u s attorney mr sterling and for the purpose of making the record clear at this time the government will move withdrawn and i think the rule is quite clear that to preserve an issue there must be an objection and here there isn't anyone there who have actually more so i feel the see how if  do with this so i guess i'd like to know your position well i think we would be for clothes for arguing that enhancement because we drew a previously this court could issue a limited remain and simply to consider the issue that i have not seen anything as to that if the court would like additional i supplementals letter i could look into that and provide that to the court to see if there is something available because it's influence i think is a separate question certainly davis knew that she was under age because he even commented that she looked young in the car and you know they wouldn't post the photos of her in the online advertisements initially because she looks so young and he had to return her to her father's house before her father got home why because she was a minor so but if the court would like additional like a twenty eight jail letter as to the issue i'd be happy to do that in may i conclude unless this court has further questions on the government would respectfully request that this court affirm the district court's guideline calculations but reversed and remanded this case for reimposition of  you know if you've got a situation where a mother is encouraging her daughter to engage in activity of this nature i think you kind of overcome the presumption right there but mr davis is invest transpire i understood but it's not a situation where mr davis corrupted the struggle that he forced her into this kind of behavior i think we've touched on that issue i'd like to turn to the  the state's appeal on the reopening of the sentencing of what happened below would only be found to be error if the court looks at it purely through the lens of criminal rule thirty five and we would suggest that that is not what the court did in this case criminal rule thirty five does not control if you accept the fact that imposition or talk about imposition of sentence if imposition is defined as the action or process of imposing something or something being imposed that suggested sentences not imposed until the formal entry of judgment yes isn't the problem a con from the one a defendant has a right to face the judge and hear the judge's son that's correct so it seems to me that the problem here is that rule thirty five really doesn't address of addresses an error and i certainly understand that it seems that it's very reasonable for a judge to be able to rethink but i keep hitting the constitutional issues why isn't imposition of a sentence at the time that the court fulfill for constitutional mandate to look the defendant in the eye and to pronounce summits isn't that the reason that oral pronunciation in a number of cases is said to be the end position of the sentence the cases with which i am familiar with the sixth amendment issue arose were situations where the court entered a judgment written judgment different from judgment pronounced in court in the presence of the defendant this case does not have that problem mr davis was present at both the original sentencing hearing and at the reception here so we don't have a sixth amendment issue with respect to the defendant's presence before the court and we also do not have the case where we have a written judgment which conflicts with the oral judgment there are kids there are a line of cape several cases that deal with that situation this one's different the defendant was before the court the court pronounced its life sentence several days later the court reconvened the sentencing hearing with the defendant present and reduced the sentence to a three hundred sixty month s then entered written judgment accordingly so this is different this is somewhat of a different animal and it only makes sense to to look to the entry of the written judgment because of the sentence time for appeal under criminal rule forty one does not even begin to run until there is an entry of judgment and without the written judgment there is no formal mechanism in place by which to execute the sentence on what does the bureau of prisons rely there's nothing in writing to make a be against your argument i don't think so because the the oral imposition of sentence on what it will says sentencing is defined as the oral pronounce of the sentence that addresses the question of overwhelming body of case law say yes there is a line of authority out of the circuit the says that the court speaks only to its journal it's the written judgment that controls and that's the martin case and there are the ocean but those are not  cases that address the issue when something isn't posed those cases say that is imposed when there's already a pronounced that's it that defines sentencing does not define imposition of sentence and i think that there are cases out of the eleventh circuit i did not cite them but the court if we're to look to those cases that is an issue in that circuit and i would suggest that given the current status of the case law in this circuit it's also an issue here that needs to be addressed when is the imposition of sentence sentencing is when the oral pronouncement of sentence takes place that does not answer the question of when is that sentence imposed and we submit that that sentence is not imposed until it is a formal judgment upon which the sentence can be executed upon which the bureau of prisons and other entities can rely otherwise you're operating in a vacuum the only people who know what the sentence was were the people inside the courtroom if you  what is your response to that well look if we want sentencing judges to have discretion to do what they feel is right for a particular defendant under particular set of facts then what the judge to harry did should be commended he reflected it took him some time obviously was a few days before he reconvene the words of the fence counsel of the time of sentencing we're obviously resonating in his head because when he came back to reconvene the sentencing hearing he said as much and so would if the judge is going to have discretion to do what's right let's let them have it and we think that there's a statutory basis for this in eighteen u s c thirty five fifty one thirty five eighty two c thirty five fifty three so the we submit that the court did have the discretion that operated within the bounds of that discretion and acted for dimples in any case that distinguishes between situations in which there's a conflict between the judgment in the oral pronouncement and the situation here where there is no conflict there was just a continuance or a second typing of the imposition i think that the government cites a couple of cases that it's briefs i think a royal out of this circuit and i think perhaps the houston case come close to that but again it doesn't it's and they're not on all fours with the question before the court see that you're out of