remained it to the district court based upon the court's we believe only reasonable valuations of the arguments presented both in the sentencing memorandum and at sentencing specifically the impact of the was the driving force behind the sentencing guidelines recommendations not just when you have any kind of major incurable study but i'm that maybe so me i know it is so but when was what was the that the supreme for our court said the district judges don't need to start with the guidelines however they arose whether it was because congress had input whether it's because sentencing commission studied it that's still the starting point and you still have thirty five fifty three a four particular ization judge i would agree with the court i don't well i mean all the cases came broke read a call all of those say that the district court is free to disregard the guidelines on policy grounds and that's what we asked the court to do in this instance a discreet doing he didn't think this was the right case to do that he said i think this is a case for a guideline i thought it was a very serious disregard the arguments of the sentencing commission when in fact it's not the argument of the sentencing commission we presented citations to the court in the sense the memorandum where the since the commission itself said that the guidelines skewed the  sentences that were based upon the guideline calculation simpson commission said that fully ninety percent of the people in twenty fourteen and twenty fifteen received two or more enhanced much i mean the purpose of the guidelines is to start  to is to be used as the basis for a starting point but the guidelines don't differentiate between individuals who have different criminal through street in the area of child pornography both two g two point two and two point one but you know we've said  even if there's overlap in these adjustment factors in the guidelines age of the victim and use of a computer and family relationship and pattern you know all of those things sure i mean i  can certainly see actual overlap but but that's not a problem i mean you're elected at least in computing the initial guideline level and of course in this instance got reduced down to forty three because it's because of the acceptance of responsibility and the way it was and then it got bigger actually got cut down further because of the statutory maximum two things not only do the guidelines double count he gets a chapter for an estimate for the same conduct for which you receive specific offense characteristics which results in roughly nine to ten points that for exactly the same what why isn't this just punishment excuse me why is this sentence not plain punishment i believe in reading it in well in being there it's insane there it's what the judge intended to do even care to punish him as hard as he could and beginning well what's the limitation on that thirty years i mean we're not happy with thirty years we think i know what that is if you're talking about rehabilitation that's one thing i maybe something else will but i believe that it has to be considered by the court and beating out punishment if the goal is to rehabilitate the people i don't think that is that well i mean that's what i'm saying we eliminate rehabilitation then everyone should get thirty  sentences on a minute that's not but that's not the purpose of the guidelines or the thirty five fifty five that's why i ask in the beginning if the guidelines eliminate punishment as a factor and imposing sanctions i think in this instance in the child pornography guidelines i think the guidelines do everything they can to increase the punishment because of the overt overcounting and double counting in the fact is not encourage based it's based upon mandates from congress in effect sensing commissions said that  you receive an initial increase in the base offense level i believe it's twenty six or twenty eight it goes to thirty two because of her age so he received an initial increase in then the double counting we're talking about of the fact that you know sexual exploitation of a minor and you cause them to perform certain acts for purposes of a visual depiction that's always going to be in the commission of a sexual act or contact every sexual act or conduct results in the masochistic conduct which is six point and then you get five points from chapter four so our point is that he's receiving eleven points for exactly the same condo does it does i frankly don't know did the sense of guidelines take into consideration the relationship between the  defendant and that child yes it does it it he gets a two level increase because it's a father of the minor victim or family members i think i think it is we're not i'm not saying that that's inappropriate or that's double count not at all i just did know what i write but i think that in reading that the judge's comments say that it's insane it's clear when he began with the nature and circumstances of the offense but he makes no distinction for my client criminal history and if there is no distinction for criminal history of the rest now you say that usually there's very little criminal history with people accused of these kinds of crimes that's what the judge will find however if the thirty five fifty three factors they have to do with nature and circumstances of the offense in a void don't want to seem disparities you have an individual with no criminal history he gets a statutory maximum he could have had fifteen prior convictions and never gotten the same sentence respect and he said the court specifically said that the fact of the matter is the bias from this and the guy commission to me is this advice i'm required to consider it i don't have to abide by it i can reject it but i have to at least consider and when he was considering it what he said is i don't see any of these enhanced minutes i don't see anything about the base offense i will that offends my sense of justice i don't see anything about the chapter fourteen spence that bends my sense of judgment in this case and he went on to emphasize that this that mr oberg sexually exploited and abused his daughter on twenty four separate occasions he mentioned that several times he said twenty four separate occasions this mean sexually exploited and abused his daughter i don't see any reason why i should reject the advice of the sentencing commission in a case for me and sexually abused his daughter twenty four separate times i don't see any reason why i should look at oberg and say the guidelines the bias from the sentencing commission the emphasis of the legislatures direction to the sentencing sentencing commission is ill founded doesn't make sense and mr oberg case twenty four separate times he zero twenty four separate times he took pictures and or video of a zero and addition with respect to his criminal history he did the court again address the fact that mr ober had no prior criminal history or i'm sorry he did have some grey street a dui minor things right do you on a couple minor things and the fact that he had no prior history sexual abuse prior histor would concede would you not needed to these child sex offense cases are always terrible there they're all over the block i mean there are people who actually use real children such as mr oberg there are people who have untold numbers of videos are pictures that are violent or awful you know who wind up with significant sentences it's very hard to calibrate levels of bad you know in this so does that just leave us saying well the district judge you know one district judge is going to think thirty years of time and in a federal prison is good and somebody else might think oh well fifteen is going to be fine you know he's he's fifteen years in federal prisons a long time no i don't know your honor i think the question is whether or not the court went through the proper analysis of the statutory factors  think mr butts is also making a second i said a difficult but that a permissible point that the ultimate sentence after the thirty five fifty three at factors after the proper let's assume the proper calc i don't think he actually says guidelines are improperly calculated he complains that they overlap but if you take them as a given forty three is the number so so i think he's saying the final sentence was subject leon reasonable that's correct he did say that's where is that maybe the judge mentioned as many times as you indicated twenty four separate occasions for a five year old daughter that's correct your honor and he's not once not twice but only fo that yes that's correct your honor and he says the court says that and the court does emphasize that the reason that his sentence the abject of in the particular sentence that he's given when he when he asked mr butts for if there were any arguments in mitigation that he didn't cover there was an argument that he didn't cover that effect in fact he did cover after mr butts raised it he said you know as far as i'm concerned the sentence that the court imposes in this case addresses the issue of the seriousness of the offense promoting respect for the law in providing just punishment and again your honor he talked about the seriousness of the offense with respect to not only what happened to a zero by her father honor we would also point out that some of the things that mister but right says that the court did not address as we said in our brief we believe that those arguments for weight under sanchez because i know you wouldn't you see a difference between somebody saying you didn't talk about a certain factor versus preserving the right to say well sure you talked about you know pattern of activity but i have a problem with the substance of what you said to me you don't just keep telling the judge i don't agree with the substance of it those are two different things it seems to me he's really here not saying the judge forgotten thing he's saying the judge she just doesn't think the judge did it right well he specifically bring that to the court's attention when he was asked if there were any supplemental arguments that the court needed to address before formally closing sentence if there was something in particular that mr butt's please the court should address and that was a project that was the appropriate time to say what judge you know i think you're right dress this but i think his principal point here is is more that the double counting to get here bases those are all preserved are yes yes yes your honor i agree that they preserved and i do i do agree that preserved but i do believe that your honor that the district court addressed those i do believe you address those and i think he said basically look  know look at them and consider them but i and decide whether or not i want to follow them i mean sometimes judges will say you know here's this tricky guideline point but actually no matter how it gets resolved because thirty five fifty three a here is where i'm going as long as that's within e what the what would you consider mitigating factors in this case not in this case and a case like this i'm sorry mitigating factors what would they be there are in this case i don't see any mitigating factors i agree with the judge in al the cases that i've done i have never had a defendant with any kind of prior criminal history or any kind of similar behavior in the past so i i counsel i ask you the same question whatever and again factors in this case criminal history i believe nature and circumstances the offense as horrible as it is  the physical conduct was limited to three against not twenty four the other were additional pictures i don't mean to minimize them but it's not the case of for example i referred the court to the price case out of this district where an individual physically abused many individuals the sister's daughter and others in other cases who were brought to the court's attention of the district court level as horrible as this isn't it always these are horrible cases we admit that i don't believe that thirty five fifty three factors were considered at all in fact when the court asked about the census going to be imposed the judge said i impose a sense in this case i impose a guideline sentence that wasn't a guideline sen