decision at this point will hear united states versus morning your daughters may please a court i'd like to address first the issue of the appellate waiver of any sentence of one hundred sixty five years or less i filed a rule twenty  it looks like the consideration is that the prosecution withdrew a count that would have carried an additional ten year mandatory minimum now and therefore the mandatory minimum who from thirty five years to twenty five years now of course that would be all swallowed up in one hundred sixty one hundred eight months or whatever but the judge was free to to depart and and that what would the consideration it seems to me that your client got it may be meager but it's more than a peppercorn is that  basically it was two pronged two bases for saying that there was no consideration that case one was that without the plea agreement you could have obtained the same benefit that would not be true here with a dismissal of count eight or count five but i submit it would be true on the second basis and that was whether it had a practical impact on the maximum exposure years you could make that argument and you would have been able to do that at the other count remain there were arguments that as in dealing with mandatory minimum the plea agreement preserve the ability to make from one hundred seventy eight years to one hundred sixty eight years on the maximum side had no practical effect you can only serve a term of life that this is four times what his expected life expectancy was and therefore the argument is that it didn't have a practical impact on the the maximum exposure that he was facing i also have said here as an additional argument is that i think we're dealing with an extreme waiver i don't think there's a real question one hundred sixty eight years is is is you don't come across a case like this often and in rows this court said that we're when you get into these kinds of waivers you start you are dealing with matters of constitutional implication and principles of fairness and justice and there is and the reason that you're dealing with that you know a situation like this is that you are waving and the words in rows are unbounded risk of error and abuse so i hear what does that really mean and what that means is that the  end and in the usual case there's a requirement of course that judges in the please proceed in address do you know you have this waiver what i submit is that when you're dealing with the extreme waiver and it's been my experience  seeing records when judges deal with extreme extreme waivers like this is they go into more questioning in depth and i submit the measure here of the question that was necessary was was really where rows of was going and saying this on bounded risk of error or abuse so that when you're agreeing to this in other words is it knowing involuntary your you it's basically do you understand that if it lets me do  you can't appeal that so where is the understanding that this waiver is is so on bounded and the risk is so great of something going wrong that needs to be explained and i submit that that that is the that's also a basis here is a message as why you know these these appellate waivers are strictly construed they're looked at with strict scrutiny but especially an extreme waiver needs to have that strict scrutiny court and also to recognize that this is a deferential appellate soon to review and broad discretion of the appellate court i recognize all of it the question that's being raised here is whether the sentence recognizing all that  whether a sentence that is requiring him to spend his entire life in prison is or is not sufficient but not greater than necessary or was a sentence where there was some possibility that at some late will say right now i i i'm saying as you're saying it's me i find it hard to imagine that he was i know that he was asking for the mandatory minimum there is a lot about this case it's hard to but he certainly argued at length and i think that was a again this other aspect of what the what the reasonable expectation i think where they were really hoping for and what the arguments were was that mandatory minimum and it ended up on the maximum side so if the rizwan statement i would say that  minimum and if the plea deal made that possible at twenty five instead of thirty five then why would you not a practical impact because i think your argument is practical impact is what you claim i did was so horrible that he couldn't really hope for a sentence that would allow him to see the light of day i would say not because of the whole again the focus of the argument position of defense was that this was a case where they were asking the court for the minimum of twenty five years so i'm saying here at the point of appellate review and to say counter to but the judge judge said even his in his old age he is a danger to the community therefore he must be always in cause for it well it goes counter to studies that saying with age that someone's the risk  goes down i'll just cite to one case in terms of disparity there was this this with this playpen website the creator of this website a terrible thing received a thirty year sentence  well he was usually someone's at the top of the pyramid they get the most sentence so the have some comparison like that and was there evidence in the case that he engaged in specific conduct no did he encourage that of one hundred fifty thousand other users and then put on display on a website that kind of conduct yes and that makes him as culpable if not more c here but it is a question of first impression for the court two circuits did say that the the n i t warrant was invalid the other circuits declined to reach the issue all circuits ruled that but the question is whether it's in good faith apply then i would say that you would be getting into the analysis was it in effect of assistance of counsel mr keith claims or maintains that it was not good faith to not know the judge didn't have the power to issue  warrant even if you get past that threshold you have to deal with ineffective assistance of counsel under these under these circumstances one is was counsel supposed to know come back in make a motion timely on it investigate this second the prejudice element the the argument here on prejudice is that the stakes were so high for him that even if the motion had ate what might have been perceived as a slim chance at that time than the last one of those circumstances he would have taken that chance and part of that the supports that is this plea agreement was reached soon before trial so he was heading toward trial here and the argument is that you're weighing weighing the factors and he was close to going to trial that it supports an argument that in his calculation he would have made that motion  may please the court my name is matthew but all skin i represent the united states if i may like to start by responding to some of the arguments regarding the appellate waiver which seems to be really the bulk of the defendant's arguments in this case now helms counsel just said that he was really focused on the practical impact of the appellate waiver by which i understand to mean the fact that the defendant in practice at the end of the process received a very large sentence larger than he may have hoped for but i think what's very clear that's quite an understatement yes you are and it's clear that he in practice received a life sentence a very very large sentence in this case  and a sentence that corresponds with what your honor was discussing a few moments ago the heinous nature of the crimes in this in this case but what's important on the appellate waiver is that there is no case there is no case of a circuit that suggests that a are for the court united states versus brunetti that's at three seventy six if he's ninety three you for over one hundred years my recollection your honor is that his counsel really the main thrust of his argument was to have a sentence that would give him a waiver where the waiver was to a guideline sentence of three hundred sixty months to life so the mere fact that the way from a go to a very large sentences is simply not sufficient to void void a waiver things to note about that case the first is that case was when the guidelines were mandatory and so what that case focuses on in that line of cases focuses on is that the defendant can't expect to have a sentence  well above the mandatory guidelines and therefore the court to look particularly carefully to determine whether the waiver was knowing involuntary in the unusual the agreement where the defendant waives  particular look to make sure that the appellate waiver is knowing and voluntary and the court concluded that it was in this case if you based on my review of the of the transcript i think that the asked at least three times if he understood that the appellate waiver would go up to the statutory maximum of one hundred sixty years he said yes each time i think he was asked at least three times separately if he agreed and voluntarily waived  an appeal that of any sentence up to the statutory maximum or the guideline sentence of one hundred sixty years he said yes to each one each time he was asked so it is clear that in this case the appellate waiver was knowing involuntary  the only other requirement just to touch on this is where the argument began is that there be some valid consideration i believe just because you refer to it as more than a peppercorn in this case it is true that at the end of the day it didn't u ltimately benefit mr keith in terms of his sentence but it was a substantial benefit viewed ex ante which is what the court is required required to look at and again that's in united states versus brunetti a that's because based on the eve of trial faced with a short conviction the defendant was able to secure himself a chance at least at a sentence ten years lower than he otherwise would have received  so it was a substantial benefit and i don't want to put too much emphasis on this we noted it in our twenty eight day letter but one in disha that this was a substantial consideration is that the defendant came to the government on the eve of trial and asked for this he particularly sought out this benefit and he was also permitted this was important to him to reserve certain legal arguments we were guarding the mandatory minimum and in a very limited way preserve his right to appeal those those arguments so there was consideration and that's just not correct so i'd be happy to go through each of the cases the appellant relies on but the basic the basic point here is that none of them are like this case they're all cases that involve  downloading child pornography possessing child pornography in a few instances in a non coercive and nonviolent way making child pornography they also almost invariably involve defendants with no criminal history or at least very limited criminal pose a question absent in seeing a centrally would be mandatory minimum of twenty five years be appropriate what a sentence that is functionally life perhaps and i believe probation recommended an eighty three year sentence or would a sentence  at the guidelines level of one hundred sixty eight years be appropriate i say appropriate actually it's necessary and the court was scrupulous about pointing out that the question was what sentence is necessary in the court's analysis was  i think the transcript is very clear about this and any one say one hundred sixty years is necessary and one hundred fifty years is not necessary well your honor i think in part this is why there's substantial deference to the judgment of the district court but i think the court's reasoning is is this terms it correct so the nature and circumstances of so first the court pointed out to be afraid to be sentenced hundred sixty years where they would be frightened about two hundred years that's right so let me just say the court first points out that a in terms of danger to the community a sentence of functionally life would would respond to that concern but then the court looks at other factors such as the nature and circumstance of the fence offense general deterrence and just punishment for an offense like this and is life maybe in the life is this is well beyond life at least life as we know it we could all hope for medical improvements i've that's right i think the point is this your are your honour's a life sentence would protect the community from of the founding but in terms of sending a message to potential offenders a message to the community about what is just a sentence below the guidelines in this case was i think the court concluded not not sufficient that in this case those factors required a sentence of one hundred sixty eight years and i don't think that it substantively unreasonable for the court to conclude that and one reason that i know that is just turning back to some of the cases if you look at some of the cases that are more similar are actually similar to this case they are in this range so united states versus hamilton this is at five forty eight federal pen except the eight this is a i think the most similar to this case of child predator child predator someone who filmed himself attacking children hit a criminal history category of three so some criminal history history not six like this defendant and in that case one hundred fifty year sentence was upheld as substantively reasonable united states versus jass this is that the thirty one federal pen except fifty there was  accompanying opinion as well in that case a husband and wife transported their daughter and her daughter's friend across state lines for sexual acts no criminal history or at least cruel history category of one in that case one hundred fifteen year sentence was substanti reasonable united states versus davis six twenty four a third five await united states versus rosa six twenty six a third fifty six both cases that i think less criminal history history and significantly less heinous acts one hundred twenty year sentences for each of those defendants so the sentence is simply not out of line with comparable with comparable sentences thank you thank you thank  is as you would in contract analysis you look at the time the contract is made was there a benefit or a practical impact of the benefit and the argument is it did not have that practical impact in terms of the maximum sentence that he was a practical impact would have been some range where he had the possibility of release before the end of his life that's the practical impact goodman which  e judge a comes you cited in lodgment and i quote it or i'm paraphrasing it right now but it's in the opinion that it was said that there was no consideration because there was very little benefit so i would if if  that's therefore there is an argument here that supposing you were to say it's something but it's so little in comparison to what the exposure was from going from one hundred seventy eight years two hundred sixty eight years if you're going to call it a benefit it's that that your clients x or y are so do praised that there was no realistic expectation i'm not making that argument now what what when i turned on the substantive reasonable of this reason most aspect of  am not saying to this court this is a this is deserving of the lower end what i am saying is the issue is should the sentence have been when he would buy time use in his seventy's or eighty's does he get release if he's still alive at that time is there still remain a sentence that has a hope of release and there's a big difference to a human being in prison whether that hope is still there so that's something to be to be said and then what the last thing the argument that there was he preserve the ability to argue minimum certain minimum seer that had to do with if i understand what counsel was referring to whether certain state court convictions constituted i think under federal law or under an enhancement sex abuse crimes that would qualify for an enhancement he would have had that argument anyway without clear agreement thank you thank you thank you both