if i may reserve three minutes for rebuttal you may my name is peter oh i'm with the federal defender's office from memphis tennessee and i represent mr charles all over this case involves gruesome facts involves allegations and conviction for distribution of child pornography in exchange of text messages that can best be described as graphic and explicit and quite frankly just difficult to stomach but the issue that were presented to this court is really a more standard tory or sanitary issue it's about plain language it's about statutory construction in a straightforward application of the guidelines the facts of the case the guidelines unhandsome that issue is us s g two g two point to be three b it was amended effective november first of two thousand and sixteen and here is how it presently if the defendant distributed in exchange for any valuable consideration but not for peculiar again increased by five levels the commentary then goes on to define this phrase the commentary states that phrase that i just read means the defendant agreed to an exchange with another person under which the defendant knowingly distributed to that other person for the specific purpose of obtaining something of valuable consideration from that other person such as other child porno graphic material preferential access to child porn or graphic material or access to a child  essential element for our discussion today to the defendant knowingly distribute child pornography to that person three for the purpose of obtaining something about able consideration and for the valuable consideration came from that person our position is that strict court erred below in applying this guidelines and hanson and i think it's apparent from the transcript itself in response to mr all of his argument that the first element was not met quote that there was no agreed to exchange with another person but this court said fine there is no explicit agreement anywhere in the record the grosser court then went on to hold that there was or find that there was an implicit agreement do you agree that the agreement could be i do i do there is no modifying language before the w agreed in the commentary therefore i think we have to give it the broadest most expansive interpretation which includes both explicit and implied but then in making its finding of an implicit agreement but this record reasoned that after having reviewed the texts in the record that it found that mr oliver purpose in sending these messages was to seek access to a child or to seek photographs of the child in return so our position is quite straightforward that this report improperly conflated what we now know as the first and third elements of this enhanced meant in coming to determination quote that the distribution was for the purpose of seeking valuable consideration so if i could present a hypo and you could tell me what you think about it so we have an agent here and we have your client mr  so just suppose that the agent says that the this is an undercover agent says he won't go forward with producing the young girl unless oliver shows that oliver is not a police officer because the agent is pretending that he's worried defended oliver is a police officer so oliver then sends child pornography to the agent to show that over is not an agent of the police not a cop so wouldn't that show an agreement implicitly between the two of them the actual agent and oliver  would be having the purpose of producing the child pornography giving it to the police officer agent undercover person for the purpose of showing that oliver is not an agent so that oliver can get access to the girl they don't present a closer question i'm not willing at this point to concede the issue but i think the court's assessment is closer if the officer were to say i need you to produce child pornography or some illicit image to me to prove to me that you're not a cop and then i will produce access to a child and if mr oliver worked to have produced the image in response to that explicit word that exchange i think the court could have come to a closer but that is an explicit agreement and it's agreed that an implicit agreement could satisfy and so what i'm wondering is and i would worry under your hypo that that would be entrapment by the age of say show me child pornography is that arguably is trap i think that could be entrapment  i think the in going back to the courts hypothetical i think that if mr oliver had sent child pornography in response to an urging from the officer then there might be a better argument that there was you know agreed to exchange between these two individuals well so the my hypo and the reality of this case is that the agent the undercover agent is pretending to be worried that oliver is a cop and is hesitant to produce his pretend girl and says i how do i know you're not a cop it's over and over says well here's some child pornography and a cop wouldn't send child pornography so you know i'm not a cop and why isn't that an implicit agreement my understanding the record is slightly different from the courts i think there are only actually two specific instances of the distribution that we see in the sentencing record of the first occurred on april seventh of two thousand and seventeen mr oliver sent his very first transmission to the government or to the undercover officer think of himself and then a child porn and graphic image but the officer still does not produce a picture of his minor daughter so i think the government itself even characterized that exchange as an instance where mr oliver was trying to persuade the officer to act to persuade him out of his reluctance i think was  that's really a rough summary but we see there is that even in that instance we don't have been agreed to exchange where there was an agreement between both parties that the chopper not graffiti would be sent there is some so which do we have all the dialogue or or is or turning primer more to come if there are twenty five images that were transmitted there in the course of a four month period there were also eleven videos  at sentencing because we did not object to that assertion but as far as the actual text themselves and the actual distribution of those were not before the district court the only two actual distribution instances that we see in clear and specific detail is the first woman hable seven two thousand and seventeen where i think it was agreed that was just the image itself and then the second one where mr oliver sent an image attempting to get a return image of the daughter but no image was forthcoming certainly under that circumstance there was no agreement to an exchange between the two individuals so i do understand the court's hypothetical but i think our position would be that the facts of this specific case and what was before the sentencing court did not rise to the level of in agreement we're agreed to exchange between one person and the other but there are two levels i suppose to your objection one is that the district court did make a finding that there was agreement because he was focused on purpose yesterday so if we thought that agreement was essential under the terms of the new guidelines would the proper remedy be just send it back for the district court to allow to make a finding i think that is the proper remedy  wish it weren't so i wish this court could rule in our favor but i think the appropriate remedy would if that were the instance would be remained with the opportunity for the district court to to consider the analysis a new and then would would both part i would have to concede the issue but i think just based on my practice understanding i think both parties both sides would be allowed to introduce or admitted dish no evidence as it's  i think i still have additional time one of the things also that we stressed about the plain language in the strict applications for construction is this word expectation that was in the there that this record this records in the courts construed the enhancement much more broadly that they are now allowed to have the expectation has been described as something out intice a patient looking forward to to apply even when the perpetrator in this case mr all or had been unilateral expectation of what his transmission of the trapaga fee might produce our position is quite straightforward that the guidelines as they were amended effective november first two thousand and sixteen highs to us requires far more stringent requirement that was not met in our case the other pla language issue that i think that you raised in our brief is this word exchange we describe this in hanson as the exchange it has been because it's critical not only in the guidelines body but also in the commentary and we third new international dictionary in its interpretation of that word exchange webster's describe it as the act of giving or taking one third one thing in return for another as  act of substituting one thing in the place of another blacks also gives it a similarly restrictive definition the act of transferring interests each in consideration for the other well we see this new word that's good afternoon may it please the court case the while and on behalf of the united states in this case the district court properly applied a five level sentencing enhancement for distribution of child pornography in exchange for valuable consideration the district court did make the factual findings specifically finding that an implicit agreement to distribute child pornography in exchange for a thing of value was evident from the record this finding was not clearly erroneous and this court should affirm when we look at the factual record before the district court context is important misrule has made reference to the defendant in this case his first transmission of child pornography to the undercover as being an e mail with an image of child pornography attached to it devoid of any other content this should not be considered in a vacuum but rather in the context in which it arose what we know from the facts before the district court are that mr oliver went online into an internet chat room specifically looking for and soliciting information about somebody who could provide  access to a minor for sex and informant in that chat room provided mr oliver with contact information for an undercover law enforcement officer who was posing as a father with a six year old daughter who  willing to make that minor of vailable for a sexual encounter upon receiving that contact information mr oliver almost immediately initiated contact with the undercover in the manner that mr o has described what we see from this context is that mr oliver specific purpose in initiating contact with the undercover was to facilitate the sexual encounter and all of the communications between them from that point forward including the dissemination of child pornography were directed toward achieving that result when we look at the content of the chats what we see is in essence a negotiation of  particulars of this agreement there is discussion about when it will take place how quickly it can take place whether it would take place in mr oliver van or a hotel room whether it would be rough or gentle whether it be undercover would be allowed to and then the meaning of it in the commentary which is where you really get to the heart of this the defendant distributed in exchange for any viable consideration means the defendant agreed to an exchange with another person agreement between mr oliver and the undercover to arrange for the sexual encounter with a minor what we see in the course of the chats is that what each side is seeking from the other before executing this agreement is as your honor pointed out assurance from the other that the person he's corresponding with is not a police officer and that they can be is someone who can be trusted someone who is actually interested in meeting for a sexual encounter when we look at your honor has pointed out the language of the guideline itself i would note that the word agreement does not actually appear in the text of the guideline all that the plain language of the guideline requires is that the defendant distribute in exchange for valuable consideration and the government's position is quite simply that such an exchange could occur and in fact in this case did occur in the absence of an explicit quid pro quo the am now in agreement is certainly still part of the analysis but the district court did make a finding and i would direct the court to page two seventy four of the sentencing transcript the district court specifically said that no explicit agreement was articulated by the parties but that an implicit agreement was evident from the record what are you saying is the implicit in the implicit agreement is this agreement about a ranging between mr oliver and the undercover to meet and facilitate a sexual encounter for mr oliver with a minor i think it's that greed we have to have under the commentary we have to have the defendant agreed to in exchange with another person under which the different knowingly distributed to the other person for the specific purpose of obtaining something valuable from the person yes sure let me let me try to express it a little more clearly what the government's position is on this point in essence the undercover we think about in agreement we generally are thinking about it in terms of contract offer and acceptance and i think mr o's position is that well mr oliver never said i will send you child pornography if you give me access to your child for sex i think we have to think about it in a sense and in the reverse when mr oliver initiates contact with the under cover of the offer is already out there the premise is that this is an individual w i will i will facilitate this transaction if you send me child pornography what he does seek and what you are to your honor as already hinted at is assurance from mr oliver that he is someone who can be trusted and the way that mr oliver seeks to provide assurance is by disseminating these images of child pornography and when he did so he was doing it for the specific purpose of getting something a valuable consideration from this other person namely a sexual encounter with a minor and the district court specifically relied on the content of the chats between them as being evidence of mr oliver specific purpose and as reflecting this implicit agreement i think it's important to note that self rule courts applying the pre amendment version of this guideline found that this unhandsome it was warranted in factual circumstances that are  it goes to what the government is saying here about the seeking of assurance and the hypo that your honor posed to opposing counsel is actually almost verbatim from the record in this case and i would direct the court to page ninety two  the district court record where the undercover says i gotta be careful i'm still not sure about you if you're real and not a wanker or the cops those were the words and just as your are posited mr oliver response to that was  and not a cop a cop wouldn't be sending you this and he transmits an image of child pornography so i think that is again what we can look to and see evidence of this implicit agreement that the degree here  provide your child yes your honor now did the district judge find that explicitly i don't see that in her and i'm looking into seventy four into seventy five record and it looks to me like she was focusing more on the specific purpose of mystery as opposed to the question of whether there's an agreement or an exchange well your honor that it's clear that the district court didn't discuss mr oliver specific purpose and i think that that makes sense when we're thinking about it in terms of an implicit agreement where the terms are not explicitly articulated by both sides to some of the things that we look at to determine what is the simplicity agreement is what the party say and what the party specific purpose is and in their actions and in their words hermanson in this back if we if we come up with a test which is the next question for you we come up with a test that somewhat different from the district courts what's hermanson it back for her to make explain your honor i don't know that there is necessarily any harm the government's position is simply that the district court made a factual finding in this case and that there is ample support for that finding in the record when we look to the existing body of case law which i was getting to just a moment ago and the cases that apply  enhancement in factual circumstances very similar to this i would acknowledge that those courts did as my posing counsel's pointed out rely in part on this expectation of receipt language that at that time appeared in the text of the guideline  but in understanding the significance of the amendment on this existing body of case law and determining to what degree the court can still rely on this earlier line of cases i do think it's appropriate and important to distinguish in the body of case law between those cases that arose in the peer to peer context which is specifically the body of cases that the commission was concerned with when it drafted this amendment and cases that arose outside the peer to peer context the reason we know that appropriate is when we look to the commentary that company that two thousand and sixteen amendment what we see is that the commission was specifically concerned with the differences among the circus in determining the proper mental state that needed to again i would i would just note for the record that how recent was a case that arose in the peer to peer context i think it's only marginally helpful for our purposes here to the extent that however since basically tracks the language of the application note the government does not necessarily disagree with with that portion of the court's analysis and how person whether the government does have to take some issue is with this imposition of what appears to be a fourth requirement which is that that the defendant actually receive some court in the it's a district court case out of the middle district of tennessee the taylor case which i believe is also referenced in mr rose twenty eight j letter that was a case where the court as and that case importantly arose outside the peer to peer context  in that case the court basically adopted the how person test but but said that it did not agree with this fourth requirement and however said where they were basically reading in an additional requirement that the defendant actually received valuable consideration from another person so again to the extent that that how person basically tracks the language of the application notes the government does not necessarily disagree with that analysis but that fourth requirement i believe is reading something into the guideline it does not appear on its face going back to the commission's concerns that are articulated in that commentary what i would point out is that the commission specifically said that this amendment was an appropriate way to deal with the higher level of culpability when you have a defendant who knowingly distributes to another person for the specific purpose of obtaining something of valuable consideration from that other person if the court is unfamiliar with the way peer to peer networks operate i think a very very brief explanation helps to explain the context in which this arose peer to peer networks are essentially a network of connected computers a user is able to go onto the network search for files that are of interest to them locate on the network these files that other users have does made from their own computers as being available for sharing and basically with the click of a button and mission to download of that file to their own computer a user also has the option of designating files on his or her own computer as being available for sharing but does not necessarily have to do so so what we see is that inherent in the use of peer to peer networks is this expectation that the user is going to obtain files of interest to them and what the commission observed was that there were four it's the fifth circuit and i believe the eight circuit that were applying a centrally a person a rule and finding that the knowing use of a peer to peer network gives rise to this expectation contemplated in the earlier version of the guideline and was therefore sufficient in and of itself to trigger the application of this five level and handsome it and the court commission part of me was essentially saying when a defendant passably makes files available in this manner it is a much different level of culpability than when you have a defendant who is actively engaged with others and exchanging to another person for the specific purpose of getting something from that other person an example may be helpful or was a tenth circuit case a peer to peer case in which the defendant initially did not have the sharing function on his peer to peer software enabled at some point enabled the sharing feature on his peer to peer software and did so because that would give him priority trader status which would give him a faster downloading capability the court said that that was sufficient to give rise to an expectation that he'd be receiving a benefit exchange for his sharing and that was sufficient to trigger to get handsome guy in or would come out completely differently under the current scheme because we see that he didn't agree to an exchange with another person he didn't distribute knowingly to another person for the specific purpose of getting exchange where there is discussion about whether this or all of it was a cop or not that appears on pages seven and eight of the appellate brief electronic stamp pages eleven and twelve that's where mr oliver starts off by saying do you mind if i seen her really requesting i ship i guess a picture of the fictitious daughter this is what i have for her the cops is a going to be careful still not sure about you and he says when i say he mr alder i'm really not a cop a cop would be sending this and that's when he sends the image of the chopper not feet it's undisputed however at the end of the exchange the officer never gave to mr oliver what he had been seeking an image of the fictitious daughter it's very difficult i think we look at the natural in plain language to say that this was evidence of in agreed to exchange with mr oliver asked for he never received it has to be a bilateral agreement that there will be receipt or taking or giving or taking of one thing in return for another one of the point of does commuting or they would perform the act horrific and it goes i think to the government's argument about higher levels of culpability but our response to that is also equally straightforward first there's a mechanism that is available to the district court for higher levels of culpability and that's the thirty three factors even after you properly set the appropriate guidelines range the district court in its discretion looking at the nature and circumstance of the offense can adjust the sentence accordingly but it is requires that the actual consideration come from the other person it's combination of the first in the fourth because it's from the agreement where the exchange that the consideration comes so i think the answer to that is yes it's a combination with the focus first with the predicate first element i think the fourth element naturally wraps into that but it is the agreed to exchange language that is that the heart of our argument and i do understand the court's concerned about higher levels of culpability the graphic and explicit nature of what occurred here but we're asking for strict application of the god lines and it's commentary and absent ambiguity or absurdity the plain language has to control