the first case united states of america versus patrick killen good morning may please the court federal law mandates that in a criminal case a sense in court shall impose a sentence that is sufficient but not greater than necessary to meet the federal goals of sentencing fortunately in this case we had a district court that impose a sentence that went far beyond what was necessary to meet those goals it was a shocking sentence that served no just purpose substantively and reasonable sense we're asking this court to vacate it and to remain it to a district court judge  all the sentences were or most of them or were run concurrently what was his advisory guideline range well those are actually two things you're on i mean the advisory guideline range as calculated by the district court was life you know if i know but that's because the sentences were run in a certain way yes or so i'm asking you under your version of the case right if you believe that at least most  not all of the sentences should have been run concurrently yes and that's one of the things you think led the district court into imposing a reasonable sentence so my question to you is and do your version of the way the sentence should have been structured what was the advisory guideline range well there were three offenses they had statutory rape ranges of fifteen to thirty years if all the senses were to run concurrently  bend those would have really under the under thirty five eighty four and under five to one point two those really would have been the ones that control the sentencing so there are times when even if sentences are run well there are times when an advisory guideline range exists the top maximum sentence of a lable for one of a multi count case and in that case at the very least a guideline certainly envision a district court running one of the other counts consecutive to reach the advisory guideline range that's a permissible way of doing things right that is correct your honor but here you're telling me that if all those fifteen to thirty year sentences were run concurrently his guideline range would have been within fifteen to thirty years again you know i think there are two separate things so if if the district court goes through the district through the sensing guidelines calculation comes up offense forty three history one that's a life sentence and then goes through the five g one point two steps and the thirty five eighty four taken all into account and five you want point to seventy really kind of spells it out for the district court what it's supposed to do first thing supposed to do is to set up a specific sentence which the dischord didn't do initially then you look at the sentences how many do i have to run consecutively and it tells you five to one point two you start out with the the sense of care is the highest mandatory sentence thirty years that one three and five had a fifteen to thirty is thirty years enough ok it isn't we haven't gotten to the life range if i want to send them to the life range now we get three one in three run concurrent those are now thirty and thirty at sixty is that not enough does that not that put you into the life range now the right one three and five that's the question that's being asked here i think the question is if the sentences were to run concurrent concurrently and the guidelines were interpreted that way what would the guideline range be and what would the sense from that what what could the sentence be again you know i think there are two different things one of them is the calculation of what the range is under the sense of guidelines and then one of them is the next step then would be to determine a sentence and under five to one point two then how do you get to that sentence given that the statutory maximum i hope i i agree with you that those are two separate things but i think your answer to my first question was that he faced even under your version of the case on the advisory range of life is that accurate or not accurate well we would circumstances you win on every guideline issue what's his guidelines advisory guideline range at worst it would have been thirty six to life which are the next three sixty to life three sixty life yes ok so step one the sentence that is imposed if you are correct the advisory ranges thirty years to life imprisonment and now if you are correct about that we have to figure out whether or not the sentence that was actually imposed was substantively reasonable or unreasonable that's correct ok my only question is can you tell me precisely what the age was when the defendant started his criminal activity and finished his criminal activity yes i think there is some i think at one point the government makes mention of a sixteen being sixteen when he started i don't know if there was any evidence that actually supported that he was at least one thousand when he started so eight hundred one thousand when he started twenty when he finished  was from his parents there was also some expert and at the sentencing there was more of an allusion to that but there was also a factual finding by the magistrate judge during the evidentiary hearing she made a factual finding that she found the defendant to be immature yeah well he spent the first three and a half years of his life in a romanian orphanage yes tied down to a crib and he was tied down to a crib for three and a half years to the point where his wrists were  there was markings on his wrist down to the bone i believe it was his wrist and also his his ankles ankles and so that i don't know whether there was expertise that could that that tied the two together that that that his immaturity resulted from his first three and a half year yes there was the there was the implication district court that that had a definite effect that in some of the hours what the evidence was before the district court in terms of his his immaturity there was at sentencing they did talk about and i think or not they talked about because they presented an  he's going to pose the same set i was the same sentence what i want to know is whether he considered or what evidence he considered on the issue of recidivism here given the nature of  with or was or some factual basis for him to conclude that he would be he could never be rehabilitated i think it was just the argument from the government your honor that he could never stop and the judge just typed i think there was any evidence as to that that he would in fact be ever said it best if he were to be let out before basically before he died in jail yeah i know his parents testified i read the sentencing transcript is parents testified that  this was not knowing his situation that this was not something that was necessarily true that he would he was incorrigible but there was no expertise to that effect or one way or the other you know that i think there was any expert or any kind of evidence presented on that you know on did the judge heard from reaching that conclusion in his own mind that  any kind of findings over conclusions or factual basis and now you know i think they were all basically conclusory statements given by the district court and the district court also failed to give a specific reasons why it was imposing that specific sentence which was required whether or whether what he did was a very useful nine and we would quarrel with the fact that it really wasn't a variance under either inside the guidelines i'm not talking about the guidelines i'm talking about how he reached the sentence i mean the substantive and reasonable this question is is really whether the sentence was shockingly high but there's also a procedural component it seems to me which is what was the basis for his for his conclusion that  the only sentence that could be imposed here was effectively life that's i don't think there is anything that would support that conclusion from this record and certainly i don't think the district court could made any specific findings or had any basis to support a conclusion question i have is really whether every judge would most judges would come to the same conclusion based upon the nature of the criminal activity how is this criminal activity less  serious than other crimes for which he might have gotten a lower sentence i think even if you compare to other producers help or not graffiti i mean this criminal activity was that there was no physical contact he was never in the same room as any of the victims never even a same resulting circle contact with the victims he was never in the same room with them much less entice them to have sex with him that's correct to meet with him in some it was all done on the computer yes the process was probably that the least offensive type of production also the material produced is probably in twenty years of doing this probably the least offensive type of child pornography if you can call it yeah there is no sexual access none at all you know mistral love is a before you sit down i have a couple questions i want to ask you i have an idea that maybe some of these  two hundred fifty two pseudo i think this is how your first to them some of those were from the time when your client was a minor but you just said you just said something that makes me think maybe that i was wrong about that as at again there's there was i think it was the government too who talked about his being sixteen when he was doing some of this so do you think some of this one hundred  thirty nine year sentence was based on conduct while mr killen was a minor so that's possible based on the government statement ok you're more familiar with kind of the the daughter is that johnson where you had somebody raping an eight year old boy for six years and then handing them out to other people to to do the same this is a case that is just i'm president  offender the fact that there were all these maturity and health issues the fact that it was a nonviolent offense no contact all of that is just unprecedented and then to give what the supreme court has has labeled the second harshest penalty available in criminal law is just it's just shocking and i know i'm way past my time but if i could just a quick point on the suppression issue the meat before you turn to that just opens let me ask you one more question about the sentencing hearing what sentence did you ask the district judge to impose believe your defense counsel requested a fifteen year sentence which would have been the man if dylan or fifty fifty if that was the total was a mandatory minimum that's correct mandatory minimum for three of the offens of the factors that she misapplied those one of them was a chorus of police procedures and we talk about the swat comment she really kind of focused on the way that that threat or that thing was made but a threat doesn't have to be made in a threatening way in order to be threatening in this case it was a threat in a word it cost to defend his mother to then tell him to go ahead and give the government everything they wanted and that was before he had given any consent importantly on that that the magistrate judge  flipped the burden of proof if she said she was fine that factor in favor the government because the defense had not cited any case law that would that would demonstrate that it was a course of procedure so that was erroneous and also on the last factor to the case law says that that's a significant factor to the only factor that the case law cites as being significant that's whether he believes that incriminating evidence will be found and she didn't find that in advance favor where the facts are clear that he knew the evidence would be found and i appreciate your time if the court has no other questions you've reserved some time for rebuttal so we'll hear from you again thank you very much  hundreds of victims who was caught by a properly conducted investigation who was tried convicted after a fair trial and he was sentenced reasonably i get that mr killen disagrees and just about everything i just said that seems to be the central question that we're running with you so i'd like to turn first to the last thing i mentioned which is that mr killen was sentenced recently let me ask you one thing before you started that i won't interrupt you in your narrative what sentence did the government request from the district judge the government requested the advisory guideline sentence which was not a range it was just two hundred seventy four years the three thousand six hundred eighty eight months i believe so i would like to address that that are on the guideline range cannot be that though right the guideline range would be the maximum the guidelines provide for his life correct so i think actually i don't think i disagree with defense counsel on this as we were trying to explain and there are sort of multiple components to this initially you have a range that's produced by the offense level combined with the criminal history going to court which we're all familiar with it was forty three and one in this case which advisory guidelines range of life life imprisonment however there is a separate part of the guidelines which dictates what should happen when you have counts who is maximums are below the advisory guidelines produced by the offense level in the criminal history category that's and then you have discretion to run sentences consecutively to reach the advisory guideline range correct correct just like the district judge of course has discretion in any sentencing matter but not to exceed the and not to exactly like i mean as a matter of fact there's a federal law that that says sentences are to run imposed the same time for different offenses are to run concurrently unless the court orders differently or the statute mandates that the term to run consecutively that's eighteen u s c thirty five eighty four c or right right right so essentially that statute provides the district court with the discretion to go with either concurrent or consecutive sentences and then of course the district court should consider in addition to what the statutes provide what the guidelines recommend or advise so i our position would be that five g one point two d is is an advisory statement by the guidelines saying that in cases where the statutory maximum are below the otherwise a political advisory guidelines range of life that the district court is actually advised that they should run them can consecutively unless there's a reason to do otherwise so i think we're going to get i don't think we disagree on this i think our understanding is that the consecutive provision applies in this case and therefore the advisory guidelines including five g one point two was the three thousand three thousand two hundred eighty eight months i've heard from the three thousand two hundred eighty eight months which the rather extensive sentence for anyone two hundred seventy four years effectively what we're talking about here is a range of fifteen years to life correct correct given the mandatory minimum yes in the mandatory minimum and the judge had discretion and finding variances in that however the judge to work with with within that range correct and in fact the judge to give a substantial downward variance in this case well actually have you gave a substantial downward variance from a life to life two hundred seventy four to one thirty nine working within the confines of the guidelines cress irrelevant i actually disagree with that your honor for several reasons i think the first is that if you decide you're going to sentence someone to life plus fifty and then you decide you know i want to be a little lenient here and i'm going to sentence you to life plus thirty that's a practically in significant difference is it not i grant you the point as to from the perspective of the defendant alone but i'm going to point of sent to anybody's perspective well i doesn't think he's going to lift a life plus fifty right correct but i or lifeless twenty but given the overall objectives a sentencing which encourage include general deterrence and just sort of that's a different way that's proportionate to your defending the reasonableness of the sentence i'm asking about a different question calling the sentence that the judge impose a downward variance was not accurate in proc in all practical terms same thing that's a little preview depok if he had departed down to two hundred forty one years you would have said downward variance correct for the because it it implicates the other motivations of sentencing general deterrence and creating a sentence that proportional to the criminal conduct so here the district court looked at the conduct balanced out any mitigating factors and for instance on the thirty year maximum counts he cut those in half mr killen got fifteen years on each of those counts and he ran that but he ran them all consecutive as he was advised to do or recommended to do by five to one point two why why was it appropriate in this case since the guidelines are indeed advisory why was it appropriate in this case given the host of circumstances both pro and con to mr killen to run everything consecutive so that's just goes back to the eighteen u s c thirty five fifty three factors of course one of those factors is what the guidelines advise or recommend you to do so i think we should accept that factor weighs in favor of the government because the guidelines in fact advise that these should be run consecutively given that the maximum term is life that's one factor the other factors include the offense conduct  itself and in fact not just the offense conduct but the relevant conduct surrounding it as the government demonstrated at sentencing mr killen had victimized two hundred eighty eight miners that was a very conservative number and we can talk more in detail about why that was a conservative number but that was established at sentencing two hundred eighty eight miners in a period of about two years not only that but of course the severity of the conduct itself i think is somewhat understated by it was he was he victimizing all of them and i don't want to i don't want to minimize the severity of his conduct but was he victimizing all of them in the same way in other words not only was he obtaining the photographs in the images and then distributing them and trading them and the like but was he involved in the extortion side of the offense for all two hundred eighty something of these miners not for all two hundred eight essentially he had a variety of tactics you could call it at the carrot and the stick the carrot was that he imitated or pretended to be young women and he would essentially offer trade right nude images or productive images of the young woman that he supposedly was in exchange for images of the young men sometimes that worked in which case he did not need to bring out the threats the stick when it didn't work or when he was dissatisfied with what he had received he often then did resort to the threat which was give me more images give me them the way i want them or i'll publish your images to social media and that's why i say that the threat should not be minimized here as something that is harmless or silly or something that young people do i mean particularly in these cases given the risk of sel without parole at the age of twenty two for crimes committed i take it between teenage years and into into up up up to the age of nineteen correct including including the age of or rape or crimes of that sort often they're met with a severe sentence of twenty five to thirty years something of that sort this was life without parole against a person who had real maturity problems had been tied down in an orphanage from ages three up until he was three and a half years  the judge did not rely on any outside expertise on whether this particular defendant was light given his psychological condition his time in the orphanage his admitted on all record which goes to that point which is that the defendant actually had a chance to stop as we know in the procedural history of this case the f b i come speak to him obtain his devices in february twenty fourth teen at his that point he knows his level of maturity had not changed apparently i mean it piers to be because even at sentencing he was behaving like he was a you know a sort of a crazy teenager i take the point your honor but i just want to point out what the judge had before him at the time because he's not making this decision purely based on his own view of pornography cases or defendants in general he had specific facts about this defendant which include the fact that he had a chance to stop when the f b i came and essentially found out his conduct in february twenty mr killen was a minor is that right i actually i apologize i don't know for sure i would be surprised if that were true given that they were treated as pseudo counts which would imply that they were criminal conduct which you are saying that he started the government's position was that the conduct relevant to the pseudo counts was a occurred between eighteen and twenty it was from the data that was lifted from his computer that reflected back up in that time and i'll note as to that more importantly it's a relevant mr killen's offense level without a some screenshots did they get the records that you got from canada did they include the actual chats i'm glad you asked the judge might and they did not so this goes to part of my point about why we have a very incomplete set of mr killen's victims in this case because a large portion of the records are from the company directly they did not store the chats they only stored images and met it data so in other words we do not know what mr killen said to many of these people and we do not know what they said to him so in other words it's difficult to know whether in fact he extorted them or induce them through promises that cetera what we have and all already there or else are so many victims are chats that were stored on his computer so in other words when he plugs his phone into his computer it backs up his kick records and that back up is more complete it includes not only images but the text this is the stuff you got from canada basically just showed you who he contacted and w correct correct and i just want point out this again goes to the idea of recidivism in the severity and sort of remorseless nature of this conduct so one of those kick back ups the one that actually generated these specific counts where he extorted three miners it was from a seventeen day period between august and september twenty fourth teen in seventeen days he did this to forty seven minors that's in the sentencing transcript record and i think that just goes to demonstrate this is something that essentially is an addiction or obsession of this person something that he could not stop even when caught by the government in february twenty fourth teen he did it if anything he escalated his conduct by the time the search was conducted on march twenty fifth and so these are the factors that were in the normally recidivism isn't a backward looking determination right you're looking to see whether or not with a stiff sentence and possibly with treatment whether the person if and when released is likely to commit that crime or a similar crime in the future i mean if you if you use recidivism in a backward looking way everybody who was involved in a scheme or almost everybody who was involved in the scheme would receive eight i take your point because they were doing it for four years and so they didn't stop for four years so they're they're going to receive the that's not the way you look at that issue normally is that in this case it's particularly relevant because it's not the typical case where criminal conduct continues unabated but also undiscovered and uninvestigated i grant your point it's not fair to say that someone's going to recidivate because they dealt drugs for four years during which time they were never stopped or warrender advised by anyone this was not acceptable that's not what we have in this case we have someone who was stopped caught in feb twenty fourth teen it vies that he had to stop this as the record of the suppression hearing shows his parents even sent an email to the f b i agent suggesting that they would take him to a psychologist and try to work on this a year later they're back in the same place with anything if anything there were more child porn a graphic images on the devices that he had replaced than the ones that they caught him with in february twenty fourth teen i recognize him out of time i would like to say one or two things on the suppression issue if i could my colleague mentioned the notion of coercive police procedures in this case as to that a few points the first is that i thought you said one or two points are enough oh i'll make two points totality of the circumstances test and that's exactly what the magistrate judge took into consideration when considering whether this is coercive and so the factors not mentioned by my colleague where the fact that the officers were invited into the home they never said that people were not free to leave there was no physical contact or restraint guns were not drawn the conversation took place in an ordinary conversational tone these are all credibility findings that were made by the magistrate judge actually not in let him go to his room by himself to to check on his file to get it charged in that kind of thing correct exactly and the second point i would make as to this notion of burden shifting is that the court did not shift the burden on to the defendant to prove the absence of coercion the court plainly put the burden where it belongs which is the government in the actual setting the witnesses came the court made the factual findings that supported the government's position the only point in the line that was cited by defense counsel is that the court cannot locate nor did any of the parties identify case law that would suggest that a single isolated comment automatically transforms an otherwise consensual non custodial encounter into a custodial one and doesn't burden shifting that's just discussion of conclusions of law thank  decision in under thirty five fifty three c the district court was then required to give specific reasons why it chose that specific sense it didn't if you look at the statement of reasons from the district court there's nothing there he checked off a couple  boxes and said the send was not greater than necessary it did not comply with thirty five fifty three c basically mr emery requested a two hundred seventy four year life sentence and the district court imposed one hundred thirty nine year life sentence they were both life sentences and one hundred thirty five year difference between the two of them is greater than twenty four months which kicks in thirty five fifty three c which requires the district court to give specific reasons in the eleventh circuit i understand that there if most we've we've said in the second circuit that most sentences will that are within the guidelines range will will be will be will be comfortable with a reasonable to us but but not all  was was an older computer but there was no evidence that he would he went back to his kick meeting boys and ask him for these images none of that what happened was he was involved for lack of a better word with this computer was stuff that charism had had given to him it was graphic stuff i'll grant you that but there is no evidence that he went back to this i'm getting i'm back on kick in getting these boys there was no evidence that he went back to that he kept his questions i would again just implore the court to reverse the convictions but the at the very least vacate the sense and reminded to to a different court judge different district court judge so that mr killen can have a