today just one of six in hansen's that were added as part of the calculation of his guideline range and that is the two level vulnerable victim adjustment adjustment which had the effect of increasing the bottom of his guideline range by fifty two months there's mr nichols position that the relevant conduct in his case because it includes images depicting toddlers triggers the application of the new infant and toddler toddler toddler prog that precludes double counting or counting again by use of the vulnerable victim unhandsome and as a result of the images that were counted as under the nd prong of the particular factor that makes the person vulnerable is already incorporated in the guideline and what the commission did was incorporated that in the guidelines by adding the problem to do b two point four so what you have is from two different directions plainly stated that years old in a wheelchair being sexually abused am i right in thinking that a section and three plus the vulnerable victim a handsome and yes yes they would both apply yes same defendant now possesses same image plus an image of a two year old being molested yes so a video of a two year old being molested that person's guidelines would be the last under your scenario right know that person  toddlers yes would be would apply to them and thus three would not correct and so if the latter defendant possessed images of toddlers but the former defendant did not in my right in thinking the former defendant would have a higher guidelines so the former defendant would get the vulnerable victim unhandsome an excuse me adjustment the plus two because none of the images involved an our toddler and so they were not triggering the rule in writing ok so the nd defendant has those same images plus one additional image of an infant or toddler a one thousand both one thousand so it doesn't matter how many let's call it but let's call it on and we're having a hypothetical here yes that person does not get the two level vulnerable victim and handsome and so right so i'm right in thinking that under your interpretation of the guidelines the with lesser guidelines and that is given right so they would not get the vulnerable victim adjustment that is true so they would have lesser god wants so their guideline range would not be the same that is right would it be less it would be lower ok and so how is that consistent with the structure of the guidelines where the guidelines specifically say that the goal is right for more culpable defendants to have higher sentence where does it say the  one so which you quote the one right before but if you where two or more guidelines provisions appear equally apply a couple but the guidelines authorize the application of only one such provision used the provision that results in the the one that best describes the conduct and so my point is that if the entire enterprise of sentencing is to sentence greater defendants that are more  conduct more greed just conduct to higher sentences your interpretation of applies which i think is an ingenious one and a fair one and i'll ask the government about it but it is it would create that structure acknowledge that that's what the note says and b but i would take us back over to the vulnerable victim adjustment in and of itself and in the application know to the vulnerable victim adjustment it says i the factor that makes the person vulnerable is already incorporated in the guidelines do not apply the victim and hence me so when you're at that point so you can go from that direction as well and look back and say that the the thing that the factor that makes the person vulnerable which in this case is the infant and toddler the factors associated with that is already incorporated in the guidelines do not apply the gold all this terms of what you started with to be good to be fair to you you gave a perfectly reasonable way of thinking about it but oh yeah what apply means right because if apply means actually to be applied then we know if it wasn't here if it means it just applies to america lee then the nd part of the comment is odd then don't apply right right it is true that the word apply might have some various meanings but it is a very common feature of the guidelines for a particular provision to apply in the abstract because the relevant conduct is present but it doesn't actually get used in the calculation of the guidelines or in another way it doesn't have the effect of increasing the range it happens all the time so what the commission did when it made the decision to to write the guideline in this way we have to go back to what it sends it wrote the guidelines so that the infant and toddler and hanson would apply in every single case when there were images involving infant or toddler years regardless of the facts regardless of whether the judge could find this or that extra horrible future to make this or that different it applies in every case and once the commission did that i can't do this for court do what they did here why can't the pick between the two especially when you look at the commentary that says you know if there are equally a political klyde the one that will result in essence in a greater offense is that i mean i believe that what that particular note i'd like to say i have seen that no and i do think that what that note says is use the provision that results in the greater offense level and the example it gives is about figuring the offense level within a guideline it says if a firearm is both discharged and brandished pick the one that has the higher offense level in it's just like brandishing and discharging they've engaged in both and now you're picking the one with the greater offense level where my misunderstanding well because i think well big well the way that it works under that particular guideline is to brandish gets you one right fence level and to discharge gets you more so what they're saying is pick the one that gets you more whereas in this case what we're doing is we're not paying attention to particular cond are asking interrupt you you're asking a district court to do this in a vacuum versus pay attention i mean because you started out your own words which are perfectly fair use context structure right the disc work pays in tension to the entire enterprise and my problem is you could let's say you're right let's just assume you're right why wouldn't it be perfectly reasonable and why shouldn't district court say wait a minute this creates an unwarranted sentencing disparity so i have to very up to get us back to where we were well i would again point to the commission's choice the commission knew exactly what it was doing when it decided to include this this nd prong to provision that is already used commonly in cases where there are images of infants and toddlers but not in every case and after fact based on their evaluation so it just i added two rather than add and an entirely additional rather than do with the th in the th circuit's were doing it was going to do something more conservative it was going to do something that maybe not in every case was going to increase the range so not applying before the not actually applying it was that it was an error here the the district court had to do that faced with a and b had to pick b my answer to that would be that before b did apply everyone agreed in fact the government itself said that the images in his collection triggered the application of that particular subsection it was to to ignore its application in order to then use those same images to get the vulnerable victim adjustment is is the problem here in in mr nichols position is that because the the commission was aware that this is not a situation where he's going to get a significantly like it's lenient sentence because we don't add these four years and four months to his sentence because the person had that one additional image in our hypothetical we're talking about a very long sentence that the commission itself already believes in many cases there are states where district courts have abused their discretion or whatever it would be for not picking the more appropriate guideline or the more applicable is that it is that an error for the in a situation like this where there are two prongs to a specific fence characteristic where one is not necessary like an increased more culpable conduct necessarily it's just two different ways to get to the same place i am not aware of those cases and the government ha not cited any case where the district court was committed in error because they didn't pick the right one within two equally apply couple in that way when when you have a situation where it clearly applies and the rule against double counting is triggered as a that was based upon only three images the videos and other words if and there's nothing in the record to sentencing transcript that the  he did make that complaint in the district court for really what happened here is that the court did exactly what the th in the th circuit's were doing as a matter of course which is the approach that the commission rejected when it adopted the amendment that it did so that's why there were no findings done because it was basically on this idea that as soon as they're in images not only no findings there's no indication that the judge looked at them and just setting aside the issue of whether they were refining so the fact that there were no finding toddlers then the question becomes can we use the vulnerable victim and handsome and the government says well the commission wants one so therefore we've got to do it but there are you're right there was not that kind of fact finding done but that's what the commission's trying to avoid when it and i would agree with you about that and that's because they were missing everything on a categorical description of the images as involving toddlers and i think you nice one question for you you don't contest they involve toddlers right know in the contest they involve sadistic whatever the the terminology there were images that satisfy the test under the six circuits law with respect to that in hansom and yes so does  district court judge have to review them to make that determination if they're both satisfied well in this case he did not say that the nd prong was satisfied he then moved over to the vulnerable victim adjustment in which case there does have to be fact findings made based on the actual images and you can test that that applies both unquote in your definition in other words not ignore  three or ignore two ok this pay attention to three dollars whatever it is you can test that that applies if that was the only one applied not to g two whatever it is before if that was the only one you can test that involved vulnerable victims i can test that involve i what my own you say i can't pay attention to two g two point two yeah i why i'm asking is by not looking at the images you're saying he had to look at the images to determine if three a one i can never remember this be whatever it is apply yes that would be if if we must to go to the vulnerable victim adjustment and decide whether it applies based on its factors then i would say there's been no finding that it applies i would agree with judge clay about that that the judge actually did not make a determination that all my questions different your contest you would contest that if we re man did you would contest that and the judge would have to go look at it yes and if the judge finds that's a frivolous contest they could exist revoke acceptance correct there is a six circuit case law that supports that yes but the commission has actually told that there's no it would not be a pivotal thing to contest under the circumstances but i hear i hear what you're saying you're right but aren't i that's why argument is much more legal istic which i get thank you very you're welcome good morning your honour's may please the court if this court were to adopt the defendant's view no defendant with a single image of a toddler could ever receive the vulnerable victim in other words having a side cashmore culpable conduct is judged the par pointed out depicting infants and toddlers would foreclose the application of the vulnerable victim handsome which seems an absurd result for more culpable conduct that is to separate types of child pornography to receive of lower guideline level two levels lower than if the defendant had only had older children and thousands of depictions of handicapped minors sleeping minors drugged minors nevertheless because of one toddler no vulnerable victim and can i skip you back to what we ended argument when you have certainly can't so what's your response to the questions that were asked about the judge having to look at the images to apply to vulnerable victim any chance you might pinioned a court would in this case the defendant did not object to the application to the to the fact that vulnerable victims depicted there was no objection to that part of the p s r and they said these victims are vulnerable so in my opinion if you act to the guideline itself apply correct i agree that right now we're we've been talking about the legal application of the guidelines but there's a district court to have an obligation to look at the images and make sure that applies your hon don't believe a district court does where the probation officer in the fewest or finds facts that support the application of a guideline enhancement or adjustment and the defendant does not contest that that's what did that that is what is depicted in the images and videos that the defendant had in his possession so if they object on a legal but not factual basis the district court only has to make the legal determination and not the factual the court would need to the defendant would need to object to the factual basis for the application of the adjustment or enhancement the court doesn't have to i go back to your legal argument if you let me give you a hypothetical if a person is driving sixty five in a fifty five mile an hour  never gets pulled over happens every day does the speed limit apply to that yes even though it's not being applied yes so why is this any different the guidelines apply to the defendant even if it's not being applied and so the loss why doesn't the commentary do exactly what your friends that does that make sense is my question makes i understand your question your honor and application to the word applies in the kitchen no four in two g two point two is a shorthand reminder to the courts not to apply the vulnerable victim and handsome and if the court is applying this the the for level enhancement on the basis of infants and toddlers only why wouldn't it say applied like it used to say i mean why would they change it to the present tense from the past i don't know you know why when they use use which they use it applies to the defendant i mean if you think of the word applies like the speed limit applies to you and me whether we obey it or not well in subsection a for the for the sadistic masochistic another depictions of violence also applies but the application note is the result of the interpretation that the defendant is advancing is an absurd result and when you consider the application note five hundred and twenty one b one point one the general application principles as your honor pointed out that guides the courts to applying the one which results in the higher  your friend's argument that i thought was a very creative which is brandishing she uses the brandishing example and says look you can tell from that guideline which one is more culpable or which one's a higher range in so it's self evident where is here you can't they both apply for levels so that no doesn't apply well the the application note says the offense level and here the offense level is higher with the application of the vulnerable victim in hand with the application of before a plus the vulnerable victim enhance images that satisfied would they both we will be applicable no they would apply but not equally aps to describe the defendant's conduct what would be best what would best describe  honor is that it would require a court probation court counsel to in this case analyze hundreds of videos and images in order to counting up to twenty almost twenty nine thousand dollars images under the guidelines and do a balancing our quantitative determination in order to assess which one best describes the defendant's conduct and in your honour's example of one versus one hundred that's an easy seems to be an easy conclusion to draw you go with the one hundred but the continuum of cases that come before the courts is not that easy and it seems is it seems more apt to look at the guideline application notes and consider the history of this new infant and toddler enhancement and see what the result would be  part under application no five dollars to one dollar b one dollar where it says pick the one that results in the higher offense level to address judge clay is a factual question the p s r did provide that the defendants had hundreds and i'm looking for the passage have hundreds of images in videos that totaled under the calculation in the guidelines which gives seventy five dollars a count of seventy five dollars images per video had a total of almost twenty nine thousand dollars images that was that based on i'm sorry because it said it was it based on multiple videos and then multiplying it out yes there were there were three hundred and sixty videos in his dropbox account twenty videos on his cellphone in three videos on his tablet just plays right that it's an multiplication that results in yes correct your videos videos count is seventy five dollars images under the guideline unless the court has additional questions of me i'll conclude my argument all right thank you some objection to the car to the to the decision that the images because they were four years old was a toddler not a toddler there was some objection to the age of the find or the statement by the p s r that involved a four year old child was questioned there was no evidence to support that possessive two videos of four year olds being yes and a video of a four year old who is gagged right and then a picture of the toddler and then a picture of a four year old performing yes so all that so all that was objected to practically in is that preserved on appeal i wouldn't say it was all objected to factually in the way that you're suggesting because the argument really was that if these images do depict infant and toddlers then the vulnerable victim adjustment doesn't so i can see you're not can i just want to be clear you're not contesting on appeal that the district judge had an obligation to go review the before apply that was no because there was no we didn't get to that point not not in this appeal this appeal is about whether you can basically do with the th circuit's were doing that the commission rejected and i'd like to go if i may to application no five and read it again it says where two or more guideline provisions appear equally apply a couple but the guidelines authorize the application of only one use the provision that results in the greater offense level so when you said judge the par let's think about this not in a vacuum so let's go to the vulnerable victim adjustment and ask ourselves does using some prong a result in a greater offense level because it allows us to add the two levels for the vulnerable victim and just when we go there and we read the application note that says if the factor that makes the person volta rollerball is incorporated in the guideline do not apply the vulnerable victim adjustment and that's not if it is applied or if it is used it says if it is incorporated in the guidelines the fact that the images involved infants and toddlers is incorporated in the guideline therefore even when you follow that route under application five you still come back to language in the invulnerable victim adjustment to says that you can't apply it so it doesn't result in a greater offense level so that no doesn't change mr nichols argument and with that i would just say that really i'm asking the court to look at the plain language that the commission used and if it results in something that the government is unhappy with it can go to the commission and ask