that the government didn't know about it for that it was very bad form your honor and extremely foolish however the defendant immediately agreed when this when this was revealed and i have to say something about those e mails which is that they really were to one person this kind of fantasy girlfriend that he had never even met mr knowles wrote thousands and thousands of e mails talking about to his real partner in life his real life people about his son and all of his other problems in the problems in the family his father whose house was hit by a hurricane and all kinds of them his mother had died he had a lot of family problems and most of his emails were to his real family about real life things and then there was this string of e mails with this woman who had started communicating with him in prison in which she was puffing himself up and boasting like a fool which he was he was young and foolish pretending that he was not just humiliated person sitting in jail but that he was going to be a millionaire they made they made no sense his one and only attempt at this kind of thing had resulted in his immediate arrest by sting operation so considering the context it was very foolish and bad definitely bad behavior but he got his wake up call when his when these were revealed he understood how serious this kind of loose talk was he immediately agreed to relinquish the computer and give up any ability well he he had a choice but his choice that he boasted about was no he would keep and do the extra time but really that was just foolish talk it wasn't real he he arranged to have it can relinquish and destroyed giving up as he said all of his life was on that computer including his personal photos and his his other life's work and he had no no ability at all to to use these secrets that he'd acquired so that the court had asked for that for this procedure to be done for him to relinquish the computer and said that this was really going to matter at sentencing and then even though he did relinquish it still double the guideline range and impose basically the maximum sentence on each count it's two he could have imposed consecutive but that was that was never any in anyone's mind that he would get consecutive sentences for this offense so the question was whether you know this kind of substantial significant upward departure was justified and we contend that it was not substantively that you know under  not your honor the judge very thoroughly went through all of the factors it was a very thorough sentencing decision that made clear that this was the main reason for the upward variance the court said that he needed a wake up call that this these these statements dramatically change the court's view of the kind of sense that was required this was clearly their driving factor in their in the sentence and arguably not the really the standard it doesn't fit into the standard and jenkins which is the court's most recent statement of what's required to show substantive and reasonableness is that the court must evaluate each sentencing factor relied on to support an arp were very hands and determine whether it can bear the weight assigned it under the totality of the circumstances and what we're arguing here is that this one factor which is what really drove this sentence to to double it and go up to the to the maximum of five years and each count was insufficient to justify the sentence under these circumstances where it was a first time offender a young man who had had recently a lot of trouble in his life he had he had basically failed out of college was back living in the bahamas with his parents his mother died and then while he was in jail and his he had a child bar in his father's house was hit by a hurricane really five years for this for this conduct particularly since it was corrected and he did everything he could to to take back what he said and make it clear that he had no intent to do anything in the in the future honors my name is christy greenberg and i'm an assistant u s attorney in the u s attorney's office for the southern district of new york representing the united states in this appeal so i want to address first the argument that the main reason for the upward barrier and see here was based on these prison communications that simply belied by the record and i just want to point your honour's to bear is parts in the center sense and sentencing transcript where the court makes clear that there were numerous factors that were considered in determining the upward variance not just these prison communications so in the sense in transcript appendix three seventy five through seventy six the court before imposing the sentence invites counsel to address whether a variance was warranted in the court specifically said that there were three issues where the court wanted counsel's views the first being whether the loss calculations and the relevant guidelines adequately captured the harm posed by the can copyright infringement and the theft scheme that was about the seriousness of the offense and whether or not it was captured by the loss calculations of the guidelines the second was whether or not the need for general deterrence was adequately captured by the guideline sentence the guidelines range and then the third was whether or not there was an interest in public protection and specific deterrence given his stated intentions to sedate based on his communications they are after all the judge also said during the imposition of sentence all after describing in detail the seriousness of the offense the jet need for general deterrence and also these prison communications that it was all of those reasons that led to the court's judgment that a variance well above the guidelines range was appropriate that was appendix four thirteen said again that the bottom line is i say this there is no surprise a number of these thirty five fifty three factors point strongly towards a lengthy sentence significantly above the guidelines range that's at appendix three ninety nine so it is very clear given the exhaustive  to what what that should be simply that there should be a substantial sentence to account for the seriousness of the offense as well as his his stated communications in his prison e mails about his desire to commit this very same fence again which you know as judging the buyer notes is a pretty classic example of an aggravating circumstance that is not contemplated by the sentencing commission and again just to come back to the standard points from stupid we agree with well your honor i mean it he did this post plea he at that point also it's it's brazen and you know it but it is it is fairly rare as the court noted if not on heard of for a defendant before a sentencing to announce a plan to break what amounts to be the exact same law  again and that's literally what he is doing in these communications so you know the first point of it's not the determining factor but was it appropriate for the court to consider of course it was it was perfectly appropriate for the court to consider that in conjunction with the the circumstances here these were not merely foolish e mails to one woman he had never met he made the same kinds of statements about his intention to go right back to doing what he was doing and hacking and  know providing private information about celebrities to the woman who is the mother of his child as well as to it's unclear whether it was his brother or his brother's relative mills admits his brother but either way he makes the same communications to his relatives as well so these were not idle e mails and the court made detailed factual findings about these prison communications and credited mr knowles in fact meant what he said and that was based on the words that used the specific details of the calls including the book and what it would look like the judge listened to a tape recorded excerpt of one of the between calls mr knowles and his relative the multiple people again that he contacted the tone  tenor of his remarks the fact that he was devoid of course the fact that he had no plan to get any legitimate work these were not you know i don't i don't communications the this as the judge you know found  about what weight an aggravating factor or a mitigating factor should have been the court says that that is a matter firmly committed to the discretion of the sentencing judge and it need not be the weight that this court may have given the factors so long as it can be explained by the court and bear the proper weight under the totality of the circumstances that's also a that's not inconsistent with per case law from the circuit saying that that only happens really to set aside a substantive determination in exceptional circumstances that are shocking the fact that there would be something that would not bear the weight it would not be consistent with that with the prior law and it lets your honour's have any the only the bad ones here there were thousands and thousands of emails that he sent mostly as i say not dealing with this issue at all but they're in there in the appendix at a one eighty seven to ninety two and they show clearly that this string of e mails was all with this woman this fantasy girlfriend who had never met the one that the government keeps pointing to that shows that he must have been having the same conversations with his wife with his partner his partner the mother of his child is one e mail in which he  says he's going to shake up hollywood and there's some artist and some white guy who's an artist in prison who had designed something for him but there's no context to that because the entire page is redacted and if it helps the government's position that would be it in the same set of emails he says oh i'm not really going to expose anybody i'm just going to talk about gossip i'm not going to do anything criminal so he's back and forth talking out the same side of his now the second point i want to address is the argument that it that this sentence wasn't based on these e mails and when it clearly was the judge in his september twelfth order stated his intention to very sick very substantially and the significant basis for this was the prison e mails and he wanted to know what was going to be done about the computer  at sentencing he went through all the three five five to be a factor as it's true he discussed every factor in which way a cut he would have done that even imposing a guideline sentence or even a blow guideline sentence but in this case he imposed an upwards of a variance mainly and it was clear that it was mainly based on these e mails and he made that clear that was what dramatically changed his view thank you thank you very both thank you both very much but we'll reserve decision that's the last case