grew up thinking of him as a what a federal judge years judge jo pryor had a family matter come up and she is not going to be here for the argument this morning i can tell you that she had fully prepared for the argument she has given me questions that she would like to have the litigants answer this morning she is going to listen to the audio of the arguments today and then the three of us will convene to conference the cases shortly i think tomorrow actually  so i regret that she's not with us but in many ways she is with us because she's read and prepared and i've got her questions my clerk put  you're at it all right i know you or your with our whiting system when the red light comes on if you could wind it up with be grateful so with that i'll call the first case the united states of america versus david ryan albert good morning good morning government and please the court my name is steve lines i'm with the federal defender's office in orlando i'm very happy that i'm assisted by rosemary katniss this morning i represent david albert in this matter and i would submit your honour's that this appeal is what i would consider positioned within the uncertain framework of sufficien the district court accepted a presentation of what mr alberts had apparently told investigating authorities as well as the probation office at face value that is our position and applied a five level enhanced and by doing so that effectively double up what we would consider mr albert appropriate guideline range in this instance we would submit his overall guideline calculation should have been a total oftens level of twenty eight in criminal history category of one and he suggested prison range of seventy eight to ninety seven months which is effectively six and a half years so my understanding of the record is you didn't object to the facts in the present report so what we're arguing about this morning is the application the lot of those facts that i'm right about the i think your honor  that we or the trial attorney in this instance did not object to the content of mr albert statements that's what he said that's what he told the i that's what he told the probation office that's what he said the objection in this instance i think is the substantive accuracy of what he said so we don't have an issue that yes those were his statements what we do have an issue with in this what we consider a fact specific issue is the substance of accuracy of what he said is what he said true did it it when it was so long ago and i think you really acknowledge that foreclosed by attorney case and then you argue that the pattern should not apply because it was when he states this notion that we as the words i'll use here as a holistic or an organic effort to sentence an individual what is it that we need what is sufficient what is reliable what is competent what is going to lend us confidence in handling and disposing of a human being under these circumstances if i take a step back my point of view at least in my time standing next to individuals in these types of situations our federal sentencing has two components there are two questions that we have to answer and it's awfully difficult for the trial court to do this the first question is w what is it that the person did wrong what is it that david alberts did wrong in this instance we know what he did he admitted to that he received and possessed child pornography so now we know what he did wrong the more telling and more significant more difficult question to answer is what are we going to do about it well we've tried to structure a process in which to try and help the district courts to help get them decide that question the first episode is the is the appropriate guideline calculations now to g two point two is awfully involved it has a number of enhanced mints in the one in hands and here is the five was there a pattern of sexual exploitation and the one source of evidence that we have to just accord in this instance relied on were the statements of mr alberts well it is true but it was not just his statements to law enforcement he laid a made the same statements to the probation officer and r so that it seems to me be it one situation of have been confessed a single time to the offices and arrest investigating think i would submit that if we look at the sentencing transcript of the one that i have before me at page six for the record down between line seventeen and twenty five the trial attorney did she raised a couple of issues of which to try to answer your specific observations judge anderson as she says that one i think the fact that he himself was a minor and two that the facts of the case at best are vague and not corroborated or w investigated does not rise the level of the application in this instance so i think what we're doing here is we are challenging the substance of what mr alberts said because if we look at the totality of the circumstances i think i would start with number one the government's notice of essential elements that has language in that change of plea hearing a document if you will to at paragraph thirteen i believe in the pre sentence report it has really is a notion well what exactly are you saying did you admit to one incident did you admit to a second incident did you admit to a number of incidents what exactly is going on here particularly the notion that we are challenging is the reliability in terms of our standard at the district court is faced with a preponderance of evidence is what exactly happened here because i think the one example i would given in light of what the government has recently submitted and it's supplemental briefs when you read the two cases that it referred to for example in both of those cases and in fact in some of the other cases that are out of circuit in all of those cases  government of the probation office did something more they went out and investigated whether or not the defendant in those cases said there was just some degree or more to come additional in terms of what was the defendant saying so in this instance we have statements by the defendant are they reliable especially in light of the totality the circumstances of which mr alberts presents here here is a man forty five years old today having served approximately two years of his tenure sens that obviously had a very horrific childhood he had a very stellar a military career but his domestic situation has psychological disadvantages everything that he bears and brings to the table has to be subject to question in this case so we're advocating that in this fact specific instance under a preponderance of evidence standard merely to say that his statements alone are sufficient reliable that we can have utmost confidence meets our standard of due process and notions that yes as an organic and holistic matter we can effectively double up this man's guideline range and go from six and a half years up to eleven and give him a sense of ten years he simply would submit that in this case the district court erred and it did not properly meet the sufficiency or reliability of the preponderance of evidence standard  good morning morning me please the court german side or for the united states the district court here did everything right and made factual findings that were supported by the record that applied the pattern enhancement based on the plain language of the guidelines and i determined his advisory guidelines range and then considered all the sentencing factors before it and decided that the mitigating circumstances warranted a downward variance by fifteen months the guidelines here worked exactly as they should they just report didn't error and relying on mr albertson statements to the f b i and others and finding that mr albert had molested his nephew at around the age of four by performing oral sex on him and by molesting his niece after telling the f b i that he had done all of those things as this court has pointed out  repeatedly confirmed those statements cannot turn you to the legal question that i gather will need to decide i  actually did do they were not those were inconsistent statements is our position he pointed to the fact that so after he told the f b i that he had done all of these things he had an interview with the probation officer later correct the well the probation officer yes the initial p s r came up around november and so that was and his interview with the f b i was in our guest so within that three month period he had an interview with a probation officer in which they were evaluating his acceptance of responsibility and when the matter of the sexual abuse that as much at the minors came up he did not deny he committed those offenses it appears that he just gave additional details he wasn't saying oh no i didn't do that i only did these on one occasion and so those they're not inconsistent we have here instead is just repeated statements confirming that what he had said to the f b i and he's never disputed the act truthfulness of a statements and there's no evidence to suggest that they were untruthful and i want to point the court to statements also but the court mentioned have you repeated this to the district court at the change of plea hearing and then again to the probation officer and there's a third time too and it's his statements to a psychologist for the purpose of a mental health now that report is sealed and it's not discussed in the party's briefs but the district court expressly relied on that at sentencing so invite the court to look at that report because you'll see how that crop rates once grounds and defense counsel submitted that to the court for that purpose and the court considered it for that purpose is sort of all right so we're assuming we're go decide this question of mine minority whether it person who's a minor when they commit this is subject to the enhancement under two g t seems like there provision the reference to twenty to forty one would have much broader application in this context than in the context of what cases the government would bring as a criminal prosecution and what i mean by that is i'm not aware of the government prosecuting minors under twenty two forty one and  particularly in the context of a romeo and juliet type situation a thirteen year old you know gauging and some sexual act with an eleven year old i mean that the government wouldn't ordinarily bring that as a criminal prosecution the federal the federal government your office right well i mean are you aware of them ever doing that yes we are but the federal government prosecuting a thirteen year old for involvement with an eleven year old i don't know if it's in that situation but it's what the question is whether the government would prosecute someone under the age of eight when my question my question relates to what i'm referring to as the romeo juliet situation where they're you know they're just a couple years age difference between the two people engaging in the sexual act that i'm not aware of the u s attorney's offices prosecuting that type of crime are you i don't know of any but the definition of sexual abuse or exploitation which mr roberts has never contested that his actions qualify but it also includes it's also described not just as conduct described in th federal statutes but they're also offenses under state law and i'm just trying to get you to explore with me the idea that if this guideline calls on the government to seek enhancements for crimes that the government wouldn't prosecute in the first place is i mean i think that's right and i mean i'm not i think that's a reading of the the appropriate reading of the guideline isn't isn't that right i think that's just a matter of prosecutorial discretion as to whether the government would bring that case and under the circumstances presented for it but even if the government decided not to the government would take the position as you do here that that would qualify as a reason to enhance somebody he's since under two g two point to correct because that's what the language of the guidelines provide for us and it covers that conduct and it's not just again the definition of sexual abuse of exploitation or exploitation is not just the conduct described in those federal threatening someone with death to cause them to engage in sexual acts we're also talking about possible buying we don't have that here we don't have that here do we know but i'm talking about we're talking precisely what they do do they say if it's under the age of twelve any sexual activity is covered there's no limitation but if the child is has attained the age of twelve and three the age of fifteen then the then the perpetrator has to be at least four years older and four years old and cause here we're talking about a sixteen year old with a four year old yes we are and that we know how the niece and you know what we have here is just a straightforward interpretation of those guidelines and the plain unambiguous language of the guideline does not provide a limitation requiring the defendant to have been at an adult age at the time of committing the sexual abuse or exploitation of a minor and we know that elsewhere in the guidelines the commission knows how to make that distinction between offenses committed by the defendant at the time that they're an adult or under the age of eighteen and they place limitations based on those distinctions and the fact that the commission did not do that and the pattern has been here is just further crop aeration of what the plain language shows  that even if even if he hasn't waived it you're correct that this would be under the plane air review and he cannot satisfy that standard because for the first when you read the district court statements he does address rehabilitation but i think that can when you consider the context that mr defense counsel was arguing or that needed counseling and this he was amenable to counseling and that was the whole purpose of putting forth that sealed psychologist report and the court statements don't reflect that the court was deciding to impose a prison sentence for the purpose of giving him counseling on the purpose of giving him rehabilitation and certainly he wouldn't be able to show this under the third prong because even if they're worth any kind of consideration of rehabilitation for the purpose of imprisonment he it is clear that the courts reasons main reasons primary reasons for imposing a prison sentence was because of the seriousness of his offense and because of his criminal history and because of our not the criminal history but the been abused he just a child absolutely and that is a large part and that's just the court said that that is why it very down so much and so consider and consider that all the circumstances before it and decided that warranted a bearing down  unless this court has any more questions thank you before you get started out i wanted to tell you what judge pryor wanted to hear so you can work it into your argument if you did she wanted you to distinguish the second circuit's case on the on this topic of minority it's called the rheingold case i'm sure you're familiar with that you talked about it and then she wanted to know that if  panel concludes that the district court was proper in its application of the pattern of activity in a hansom and then that's the end of your reasonableness of senates argument and wanted to know whether you agree with that or disagree with that  i will i guess go in reverse order i think obviously your honor we would advocate any issue as best we can in that regard so no even worth the panel or this court to find that the district court did not error in application of the five level enhanced been we would at least posit and ask the court to review for reasonable application to the presentation thus far in regards to all points if i can even try to encapsulate my argument here i would try to narrow your honor in terms of our presentation that we lee raised three questions or challenges to the application of a two g two point to be five won the first issue is the insufficiency as a matter of law of the evidence that the government offered in support of the five level application the only evidence we have are the statements that mr alberts gave in that the psychological report that dr  i would suggest that it page four of that report it's nine pages at page four at the top again there would be a no other version of events of this so called molestation from before so  goes to the courts observation of reliability the war consistency if you will are the statements inconsistent are they consistent that something we submit should have at least been followed up it's regards some additional degree or more to come presentation other than merely relying on mr albert statements to authorities in this case simply to try and meet that preponderance of evidence standard second obviously is the  idea of the thirty years that two g two point to be five does not apply to something tempore only so extended in this case clearly i recognized the case law on this matter i raised that obviously to preserve it hopefully maybe for additional review if we get that far and finally the third point is this notion of minor on minor should this particular enhancement apply when you have a case of a minor wrong i guess week authorized to say that but i think that's where i'm headed i mean yet i have to make law because if i take that step back i am an advocate i subscribe to that school of law that says what are we trying to do here what's the purpose of the guideline application we have an individual here that i submit the district court said posed a danger to the community he seemed to focus on this notion because of his knowledge station because of his background  one of the four pillars of sentencing here one of them was dangerousness we had to protect our neighborhood protect our community and he looked to take him out by giving him a ten year sentence i think in the minor on minor notion here your honor i would you persuasive case laws against me i recognize that the language of the guideline the commentary are against me but it appears i couldn't find any other unpublished or published opinion from this court specifically addressing that so i'm hoping that the purpose behind the enhancemen would be sufficient to say look in this instance when we talk about prosecutorial discretion we're not going after kids because again in this instance the sentencing transcript from the trial attorney says look at best he was thirteen fourteen fifteen not more than sixteen so we just don't have reliability as to the statements that mr alberts gave the court that let me get this it as i do recall from what the government said it is true that you didn't really is presented in the record below in the core as given by the trial attorney language that was submitted to the district court and i think i have to take the record as it comes to me and in light of you know the effort that i tried to put forward i tried to cover as best i can those those issues that at least we would have the court raise in this instance specifically we would submit that the way it was presented preserve the argument even though there thank you thank you we appreciate your mike and the trip from florida as well it's always good to see know i'll call the case