good morning your honour's matt campbell from the federal defenders of eastern washington idaho on behalf of daniel streetman i'm going to do my best to reserve two minutes for rebuttal with the court's permission i'd like to begin with the second issue that i briefed namely that of what i referred to as triple counting under the guidelines and in this case the district court enhanced the guideline range political to mr streetman in three distinct ways that said issue in this appeal first it applied three additional levels under multiple count analysis under three d one point four second it applied five additional levels for a pattern of activity under four b one point five and then third it applied consecutive sentencing since strictly speaking the primary double counting effect that i'm concerned about that i think this appeal is concerned about is the application of the multiple count analysis right you know what i mean so what i'm trying to do is you have a thirty year sentence and i understand your arguments on on that one i'm trying to figure out whether there's even double counting on the two fifteen year sentences or are they just guideline sentences no you're on i think there is double counting and the reason basically refers to math which is not necessarily my strong suit but what happened here is the base offense level was set at thirty two there were several additional enhancements that i'm not taking issue with as part of this appeal but i'm just without the enhancements that you're attacking and let's just assume there was only and we were looking at each each sentence separately we're not worried about the consecutive miss of them aren't the two fifteen year sentences not double counting at all i think the problem the problem is with the enhancements force for both multiple count analysis and pattern of activity the adjusted offense level ended up at forty eight so the acceptance of responsibility the acceptance of responsibility really didn't matter at that point they've lowered it down to forty three and we're missing each other and i don't want to waste too much of your time when they're so used to what you tell me and i think it's a waste i'm just trying to figure out if i were only analyzing in isolation the two fifteen year sentences when i have any enhancement problem as to either of those if i if i think i think i understand the question now if the guidelines if my argument was the guidelines were calculated all correctly would i have an objection to consecutive sentencing i think the answer to that question would be no for accounting purposes so ok no interest in your argument i don't understand your argument though about how sentences were calculated in correctly that guidelines goal is to a can't for the crimes against each of the victims that's correct your honor and where my argue my argument is that in this case in essence the pattern of activity enhancement and the multiple count analysis were the same and they address the same issue there were three levels added for multiple counts so because the defendant  exploited multiple children multiple times that in your view double counting pattern of activity and victim the more th history the worse see is all the last count no your honor the problem here is that the district court never made the factual finding that your honor specified what the district court did i had made my objections if we look at x or page sixty five i had made my objections orally after making them explicitly in writing and the district court's response was that it understood my  concern and it's very much like relevant conduct concerns that the sentencing guidelines always raise i think however i think it is an accurate use of the sentencing guidelines and so i'm going to overrule the objection at no point did the district court say i find a pattern of activity and han applies based on multiple instances with one individual well if you've got you've got three separate victims here correct yes so that the district court had merely given the guideline sentence without  you do the math but i guess my point i'm trying to figure out what the problem is with respect to the sentences on the second to conviction the problem is that in this case it's abundantly clear that what the court did w calculate a total overall punishment level of one thousand and eighty months based on the guidelines and then did a thirty five fifty three analysis based on that one thousand and eighty minutes if however the pattern of activity unhandsome it shouldn't have sentencing commission to decide whether the pattern of activity and the number of victims overlap and they haven't taken the opportunity to do so you are certainly the sentencing commission is entitled to make determinations as to what they should punish for but under the reese case that i've cited in my briefs ultimately it's up to this court to determine whether even if the sentencing commission allows double counting whether it's nevertheless it's the length of the total offense level based on the guidelines because that is the number that drove right i believe would you agree that this is a classic case for consecutive sentences is not you have three three different victims no you're on i wouldn't agree with that because again if we look at the guidelines the guidelines are computed with multiple counts and now we're making we're making we're missing each other once again we have three different case correct three different offenses involving different people that's correct in a typical case we would say that's the classic circumstance for consecutive sentences wouldn't i think that i suppose so you're only objection in this case is that you think that by in appropriately applying enhanced mintz the judge arrived at a total sentence which you think was  is that's when judge person was asked i want to make sure i understood yes that it is ultimately the total guideline calculation that drove the decision as to how to run the sentences consecutively and that if a lesser guideline was there evidence that with regard to each of these victims there was a lot more child pornography than was actually he was actually convicted i'm not exactly sure what you're on i level i understand it there are many many many photos was he convicted of many many many photos or he was he was convicted of what he was charged with the charging documents did not define how many photos were in boston report includes other similar conduct for example he made a plea deal there were five hundred victims you pled to three correct your honor in all candor the to support that apparently did the district court adopt the p s r no nowhere and i've reviewed the transcript at length no where does it say for example i'm adopting the factual findings to some of the factual findings your honor in all candor i did not object to every single factual paragraph begins to get to the fact that there are a lot a lot more than what he was actually c you are i don't believe that that fact was explicitly addressed although there was argument and testimony from an f b i special agent that oftentimes met a data is not accurate and the metadata was largely the basis for a finding that there were multiple dating mean from the computer correct because they judged the scope of the activity based on photos and the like that were found on a computer tablet etc so that was largely the please the court counsel judge asked answer your question first this is a classic case that calls for consecutive sentences and this i mean that's frame this case and i think that's right and that's why i want to go back to what i think the essential argument is which is simply that the guideline calculations was wrong was wrong i think it's great even in a case in which consecutive sentences are required if there's an improper guideline calculation we usually say to the district judge go back and do it right so so tell me why the guidelines calculation was not wrong in this case the guideline calculation is correct in this case and it's not wrong because counsel the defense is conflating a pattern active active duty with a number of victims analysis you can have multiple victims you can have just where we ended up you said yes you could but there was no fine i think there was an implicit find in this case that i think there was certainly a fine in this case that that that was the testimony that the court relied on at the portion of the court's analysis in nature and circumstances and seriousness of the offense i believe at that point the court is functionally making if there is a pattern of conduct here and those that analysis and the district court talked about the nature and circumstance of the offense which he called her ethic in the course of that analysis the district court is making a determination there was a pattern of activity here the p s r is replete with that pattern of activity here  not sure and that's why in the end his arguments may be fruitless but even if a judge incorrectly calculated the guidelines the guideline sentence in and then deported down we're to calculate with the guidelines were correct i see the course point and but the court's calculation of one thousand eight months as the proper guideline sentence to start with was correct because then there can be multiple victims of the court goes through at ninety three ninety four ninety five talks about the different victims who were victimized in this case and the times in which they were victimized yes and the court did find a mean to offend and did plead guilty to victimizing these three yes and they and as i understand it in this record the the relevant offenses occurred on at least three different days absolutely if what if what if it occurred on the same day no worries i'm i'm trying to figure out what the limits of the statute are so let's assume that he downloaded three pictures and i think that would be a question for a different case i know i'm so i'm asking it so you don't want to answer that one so let me make it slightly different what if it's three different victims but he downloads them in in quick order what is it and then do we have a pattern seems to me you have to say yes don't you think i think we would have a pattern but in this instance of course we're talking about crimes of production production where he is and it's not a valid well i'm going to try to do is just focus on the crimes of conviction for a moment so we don't have to worry about what else the judge found i found or didn't find us and it seems to me your first point is correct that if you have three different victims on three different days that's probably sufficient to show a pattern of activity so now my question and and so but but ultimately your position at least in the brief says that there is no double counting problem anyway because double counting is ok as long as even if it was the same  still wouldn't double counting because you congress congress can say or sentencing guidelines can say count this and count that if you have a victim who is over six feet tall count it if you have a victim who's african american counted and if you have one victim was over sixty two an african american you counted twice and the guidelines are the difference objects the order directed toward different harms the guideline with with regard to are there different victims here authorized either by the guidelines of the statute it's fine there's nothing inherently wrong with double counting what you got found out is whether it's authorized by the relevant law that's correct your honor and i would say that with regard to four b one point five that is a very specialized and particular harm of the guidelines you're looking to address this guideline applies reading the background section of the guy but in the commentary this guideline applies to offenders who sense the defense of the convictions or sex offenses committed against the minor etc and it relates to very briefly there was a question about where it was in the record that the court adopted the guidelines and made its guideline calculations it didn't there was no statement that we often see about i find that the base offense level is forty i find  or it didn't have my review i was reading it back on the plane over this morning it didn't happen so we have a silent record as to the basis for the denial of my objections we have a silent record as to how the guidelines were arrive understood and made him wrong ere objection wasn't to the pattern and handsome and as such a list of the asserted for dungeons there right i think that's i think that's correct your honor and but my point is either way the guideline calculations are horribly skewed because if you applied the multiple count analysis but not a pattern of activity the guideline range total offense for all three offens find could you not that there were multiple counts which we know there were and that with regard to the victim in each of the house there was a pattern beyond what he was convicted of  honor i hate to sound too loyally there is one issue that i would actually need to really review in the record i believe and i'm happy to submit a twenty a j letter to clarify this point i believe that either at the change of plea hearing or early on the sentencing hearing it was stated that the basis for those dates was the metadata that it was not admission as to the scope but at the basis was that the metadata would indicate that there were photos uploaded or downloaded during that period of time about the base level they agree that it's increased by four levels if the following occurred it cetera et cetera so given that given your agreement that the base level is thirty two and it's increased if various things occurring and the judge found various things occurred i'm not sure why we how we can say the judge didn't have a we don't have a record that we can review which it's stipulated that we started thirty two it's also stipulated that various increases apply if the judge makes appropriate findings so i'm not sure how we lack a record in this case well there was never a stipulation that the pattern of activity in hanssen would apply no no but there was a stipulation that if you did apply it would occur it would raise the level by a certain amount not the pattern of activity enhancement that wasn't mentioned ok agreement but you're also that problem as i understand is to judge never made a find that's you're saying i think in regard to the government's arguments that in fact