so disturbing and emotionally charged that they have elicited aggressive response by the sentencing judge resulting in its excessively harsh sentence it is precisely when cases are disturbing and emotionally charged that it is most important to follow the pled guilty to a single count of abusive sexual contact the guideline provision applicable to that charge has a it contains a cross preference provision which provides that if the offense involved criminal sexual abuse or attempts to commit criminal sexual abuse as defined under a particular statute of why i've never guideline to a three point one which is a guideline which corresponds to conviction involve some relevant qanbar which permits the application of the cross reference what is your understanding of the relevant conduct but the government is poland to to justify the application of a cross reference well in order to put that in the proper context in order to if you five follow the guidelines structure there are only a couple of ways to get to the cross reference right it either because the actual offense of conviction the actual conduct of conviction involved and aggravated sexual abuse or an attempt to commit aggravated sexual abuse or because some other separate conduct which fits the  definition of relevant conduct under the guidelines can be considered rental of a kind but they seem to think that the conduct that was the subject of the cow  touching of the child saw it that that was actually an attempt to do something even worse be cause he had in fact done something worse with the other child who was the subject of the cow who was dismissed is that your understanding of their theory my understanding of their theory is that they kind of end up falling back on that but really the focus of the discussions was that other separate conduct was an attempt and that clearly how can the other separate conduct be part of the offense of conviction may be the true point that is my point that is exactly my point they had to have focused exactly on the conduct of the offense and neither in the arguments and the business questions below really focused on other conduct which cannot be considered relevant conduct under the relevant conduct guidelines the brief i'd like to point out in footnote ten concedes that one of the usual course is for considering of a rather conduct as relevant conduct which is conduct which is in the same course of conduct or common scheme or plan does not apply that provision of the relevant conduct guidelines doesn't apply in this case because it specifically excluded from that application that that provision of the relevant conduct guideline refers to specific offenses which can be grouped under a separate guideline and this this these offenses involved in this case cannot be grouped and so other conduct which is part of a common scheme or  involve continuing condor but this is no uk of the troops was not in the firm that's correct that's correct this is a single time a fact that this is a single occurrence of fans or a single moment in time offense is not a continu penetration and oral contact with the janet taylor or touching of janet taylor not through clothing so those that specific conduct is the kind that you would have to have shown was involved and given his admission of what do you do there which is very similar to what he did and this other carol it's appropriate to infer that when he was touching the child side that was course of three years we don't even know what order these events actually occurred and we don't have any proximity of time there's not a description of the event that gives us any context there's only a cursory description of the circumstances there's no there's no information about the time of day whether the defendant said anything during that event whether something in particular occurred before or whether there was even and a reasonable opportunity that the  the for the conduct to escalate whether or you know we don't have facts i mean if you in order to show by a preponderance of the evidence that there was specific intent to commit a very specific act  these these acts that are described in the in the statute are very specific you need something which is tied into the circumstances not just not just a general propensity or willingness to know we know that the defendant eventually or at some point was willing to get to that point we have to show that that conduct at that time that he is we can't say that his state of mind was such that we know what he was intending to do and because of the but nature of the sparse information that we have we can't make bad we can't arrive at that conclusion you are actually my time is up and i be happy to address any other concerns you thank you united states it was not unreasonable in this case for the district court to impose a low and guideline sentence for a granddaughter her grandfather that subjected his two granddaughters to series of sexual abuse when he was caring for them while his son was stationed abroad in germany let me start by trying to clarify with the district what did in this case he was convicted of abuse of sexual contact with regard to granddaughter number two the cross reference permits that the court to apply to cross reference if the offense involves aggravated sexual abuse that word offense in the guidelines is defined as the offense of conviction and all relevant honda during during the commission of the offense of conviction in preparation for that offense or in the course of attempting to avoid detection or responsibility for that offense is not the relevant definition here that is correct you ok so if that is the relevant definition what specifically are you arguing with respect to the claim that he was engaged in an attempt to commit a more serious offense is that your theory yes we are using that the conduct in question that constituted an attempted aggravated sexual abuse overlap and to see if incidents are similar to determine if they are constitute relevant conduct specifically under that definition opposing counsel's i thought she said you're not actually relying on those attempts theory was that a misstatement  same granddaughter as to the offense of conviction that that constituted an attempt to commit aggravated sexual abuse because you have to look at it in the context of everything that he admitted to during this time period when they were in correct that is correct but even if the government could have charged it the relevant conduct guidelines allow the government to rely on conduct that's uncharged or that was specifically dismissed in applying relevant conduct under the guidelines and specifically under cross references and in fact the guidelines speak about that is the point of relevant conduct is to take into account the actual conduct of the offense not just the the the conduct that was the object of the count of conviction  and specifically as to this cross reference it was passed because the commission found that a lot of conduct that was being charged and convicted under abuse of sexual contact actually involved ins that would constitute aggravated sexual abuse and so the purpose of the cross reference is to get to the defendant's actual conduct in addition he did benefit greatly from the plea agreement because that count one which was dismissed carried a thirty year mandatory minimum so although the cross reference was applied it's not that he didn't get any benefit from dismissing that more severe charge another thing that i want to point out is that this argument that the government can't rely on this attempted aggravated sexual abuse because it wasn't relevant conduct was never made so i don't understand how you can say that they're not now able to make the arguments that they're making they argue that the cross for her should not be applied but on another under another theory they argued below that the cross reference should not be applied because there was insufficient evidence that in trying to pull down granddaughter number two's hands that his intent was to commit a sexual act so that's what's being argued right now will that that's one of their arguments but the but the st argument is is that is the pulling down of the pants relevant conduct and they never made that argument below but regardless regardless of whether we have five players standard or not we have a situation where we have the same victim as account of conviction under similar circumstances in this wall mr garcia was taking care of his granddaughters in germany and conduct that is of a similar sexual nature and under the relevant conduct guidelines that can be considered and when you look at that in the context of what of all of the acts that he admitted the one time that he successfully pulled down one of the granddaughters hands he licked her janet's halley a which is a sexual act and so court could could conclude and it was possible for the district court to conclude and that's all that we have to do even under a clear air standard because it's a factual finding of the district court that that's what he intended to do in trying to pull down granddaughter number two's hands and so there was sufficient evidence to prove to show his intent to commit an attempted aggravated sexual abuse and apply the cross reference  from even the victims there were two letters read from the victims where they talked about how they couldn't sleep at night and how they had a lot of anger and that you should press you should be punished because of what they did to them and so given the severity of the offense it was definitely substantively reasonable to give him a low and guideline sentence and again he benefited from count one being dismissed which is the want to carry the thirty year mentor a minimum if there are no further questions just just like to make a few points very briefly number one and all of the cases that i've been able to review and then i found applying this crime friends car cross reference deal with conduct that occurred during the same event or incidence and finding that if that conduct was more egregious and involved a sexual act than the cross reference applies i have seen no cases and i didn't see any in the in the government's brief that  cross referenced in the way that they are proposing to use another separate incident which is an attempt as the basis for the location of the cross reference as to the you know they're saying that te the thief or basing themselves on the theory that that the actual touching of the inner thigh conduct also constitute an attempt at really the argument below and the finding of the court below was itself relevant conduct can be taken into consideration they argue that the pulling down of female minor twos parents was what constituted an attempt but there's no there isn't there was never any argument that that was part of the count of the come fiction that was part of the conduct under the count of conviction the conduct and the count of conviction is the touching of the inner thigh and we think which of those two theories to the court a dog and it's  the st the st the record states mr gets the attempted to pull down the pants on one of the granddaughters mentioned in the count of conviction and the court finds that it can reasonably be inferred that his intention was to commit a sexual act so it's referring to that other separate event and the obvious choice for the court to make was to make a beeline directly to the conduct of the offense of conviction and the court refrained from making a finding that bat was an attempt it did