because when the sentencing commission created this guideline they just referred to congress rather than using a perp approach as was done with other sentencing guidelines the guideline results in sentences that concentrates prison isn't that in significant part because plus five levels for having engaged in sexual conduct that involve children well yes your honor this is why these cases and that is to say if it to your client isn't it yes your honor fact that does fit in with the argument because one of the reasons why his guideline range goes up so high is not just because of the factors that distinguish  say it as i read the transcript and you can correct me if i'm over reading or misreading it i thought that the district court here recognized the need to have a case said yeah that's that's true but in this case we have a factor that he has a prior record which is a distinguishing factor and we have this particular eyes factor of that plus five and so that means that this is a case where i think the sentence is appropriate now maybe it isn't i mean maybe you want to argue there are doing that this is substantively on reasonable taking all the facts and circumstances of your case into account but i think isn't it hard to say the district court ignored the guidance from using these factors the guidelines are what the guidelines are the question then becomes and it whether they're good guidelines fed guidelines stupid guidelines those are the guidelines and you get a number and then after you get that number it's only advisory and the district court considers the facts and circumstances in the case to decide whether that number or some other number should be applied right but when and when calculating the guidelines and once you get the calculation and this kind of argument is routinely made have we ever said that these factors should be that the district court has to say i'm basing the sentence on what the guidelines would be if you totally ruled out those  cases the offense characteristics for images involving prepubescent minor is applied we know that in proximately ninety seven percent of the cases the office characteristic for use of a computer take that into effect and not focus on those guidelines or remove them from the calculations now there are other guidelines you can see we're not saying to throw the baby out after there are other characteristics offense characteristics and  to point to that to distinguish each individual individual defendant and allows for individual i sensing and these would could still be applied by the court such as whether or not the  images distribution was involved which would be a tool or whether the pattern in the hands if i level in his meant that he spoke about your honor whether or not that should be applied of course there would be enhanced ones based on the number of image so this is the direction that we need to go in terms of determining whether or not the guidelines are calculated correctly and if the court once a chapel it's got like taking these into consideration still feel of possible sentencing range is not appropriate there is still arrows in the judge's quiver of what the court can do there is always a possibility that the court well good morning everyone may please the court my name is tiffany lee and i represent the united states in this matter the main question here is whether or not the district court's sentence of thirty years is substantively and procedurally reasonable and while thirty presented to this court should affirm the sentence mr two a lot at this was his the instant offense for which he was sentenced was his rd offense involving the sexual exploitation of children that occurred in the span of ten years beginning in two thousand and two he st received his st conviction for attempted sexual abuse of a minor involving a three year old and then two years later while he was on probation for that offense he committed the offense of possession of child pornography it was a new york state violation and then in two thousand and nine he committed the offense of failure to register in addition to all this we have all the violations of supervised release that mr to lot engaged in beginning when he was on release i think in two thousand and eleven and in each instance of the violation it involved his inability really to prevent himself from being in contact with children there his st violation involve his hand being in contact with a two year old child in which the child was sitting on his lap it was something that he didn't disclose to sexual offense treatment provider and that resulted in i believe a six month sentence for the violation of supervised release he then violated supervised release again when he was viewing in chalo radhika on his mother's conduct and in fact when he was arrested for the instant offense he had actually been already arrested for a violation of supervise race again for failure to disclose contact with children and failure to disclose that he had been using the internet on unmonitored devices so this is not a do or b case terms of not counting necessarily those numbers certain other specific events characteristic and handsome and depending on the case but that's not what the sentencing statute requires a district know i'm here i hear you will and i've lost the screen to myself as well but i'm here are you able to see the boy or is it all i see loyal if i see my colleagues the only judge jacobs absence really i i will say that you know this is not a door b k s i think what this court was instructing in door v was yes you may be a guy buying calculations and you have these numbers that typically will increase rapidly because most cases do involve the specific a specific event characteristic however i believe that the the court's caution to door with regards to door sentencing courts is pay attention when you're looking at section three dollars by by thirty eight factors is this a st time offender how many like really truly how many images was he have did he have what were the circumstances of his appearance as opposed to just relying on the guidelines and saying well you know it's a guidelines of sentence it should be reasonable here though this court did do those did make those evaluations discussed sentence which was actually in the middle of the guideline range was because he thought the district court felt that it was necessary to protect the public from further crimes by mr to law and this is given everything his history h against the very highly deferential standard that this court normally employs when it's reviewing sentences the sentence of thirty years is neither shockingly high nor unsupported by the law and thank you your honor just a few points that i would like to make in response to government yes this mr to lot of does have a high criminal history this was taken into account suggestions that we're making in the direction we think the court should go in the future the courts would have an opportunity to address this if they felt that it needed to be taken into account i'm sorry your honor no i don't think right the government has also said that mr i guess i'm just having oral and i'm thankful understanding exactly what you think the district court should have done because the district court did take these factors into account the district court relied specifically on the criminal history and the violations of supervised release and what the judge characterized as an inability to comply with supervised release as the reasons why he thought th sentence was appropriate are you saying that he should have said st i am disregarding the following sentencing guideline calculations and throwing those out and then i think the sentence back up because of this as opposed to just saying i've taken everything into account and based on these particular things that i'm seeing as important in this case this is the sentence i'm giving what we've never required judges to yes you're in that kind of mental gymnastics of verbal gymnastics we it's a question of properly calculating the guidelines and i think that including within the guidelines calculations sometimes will lead you to in appropriate places we did not say these guidelines are illegitimate or to be disregarded that when you calculate the guidelines disregard these things that's not what dervaes says at all and isn't that what you're just telling me is w that's where we start to have problems encountered a guideline range and the question becomes what was the what should have been the starting point the court ultimately determined that a guideline sentence a sense within the guideline rings was appropriate question is what was the appropriate guideline range to start he did not decide he decided that this sentence if i decided that this sentence was appropriate rightly or wrongly he didn't give a guideline specific he gave a specific sentence that happens to be within the guideline range but the sentence is actually it's not the bottom of the guidelines of the top of the guidelines it's the sentence that the judge thought was appropriate i guess now i will stop the clock which we've also lost back i can hear you well i mean approximately what it was the last thing you remember it was it was the discussion about derby and most specifically it was about whether characteristics in the majority of the cases were not they should be applied in i would say that they should not be applied because they really go to the conduct of the offense and of course when calculating that one should take that into consideration and from there then base what what the got what the appropriate guideline range is and if the appropriate guideline range does not adequately address what the french being then the court does have the and as a as i said earlier your honor this will give you the opportunity to say that