morning honors there please the court my name is scott graham on behalf of bryan stevenson and with the court's permission i would reserve three minutes for rebuttal time ryan stevenson is serving a thirty year prison sentence for his based upon his contact with a person identified in the record throughout the record as  he comes before the court today presenting two arguments i acknowledge at the outset that there are a couple of hurdles relating to the arguments in regard to the standard to be applied when a defendant seeks to withdraw a plea of guilty i understand the factors present some some difficulties in regards to the waiver or a limited waiver of the because in this situation as you're aware the the waiver related to either just general unconstitutional principles which i'm not alleging here or as you pointed out the question of whether or not an appeal is waived if in fact a correct guideline range has been calculated the difference here is of course that  moved for a variance alleging that section thirty five fifty three a factors indicated that an appropriate sentence would be something less the waiver is as as i read it  i did i wasn't involved at that stage as i read that waiver it does not deal with the impact of a motion for a variance i believe that if in fact the thirty five fifty three a factors indicate that a final sentence should be different then he is within the guideline range that in fact it would be appropriate for the court to  consider that and to reject the waiver and the reason is simply i say i couldn't find a case that specifically dealt with a variance motion and its impact on a limited waiver that simply uses the calculation of a guideline range but the court's well aware that the use of the guideline range is a starting point a starting point only and let me ask you a question here i just  sure i understand the story facts here and in this case there was a girl who was sixteen or seventeen years old in that neighborhood and she said to the defendant here a group of nude photographs and then he came from oregon  sexual relations with a trunk and he enters a plea agreement here in order to avoid the possibility of imprisonment is that part of the reason he did this well and that but he ends up getting thirty years out of this right well actually what happened was and i would note that the only thing i would add to that what you've said is is is correct ek the young woman did not travel to michigan and engage in any sexual go back in time no question about it for years it did and there's no question but that mr stevenson took a look at michigan law determined what he believed i'll use the term age of consent would be in michigan determine that that age was sixteen began to have his contact with her and there's a question about whether she was almost sixteen or had turned sixteen or whether he was aware but he makes that determination erroneous lee misses the fact that he may well have been able in michigan to have the sexual contact but they couldn't take sexually explicit photos and transmit them  is all related to child pornography not to engaging in sex acts with a minor right we're talking about what he pled guilty to as a child not receipt and possession of child prodigy in enticing a minor right and that's really the all part of the same relationship that went went to the two of them beginning to have these send these photos back and forth and her i just want to make the point he didn't touch her until she was eighteen and that was i don't know if that's relevant to the charges he pled guilty to well maybe not for the purpose of the charge but i'm not i don't know if it has relevance for the purpose of thirty five fifty three actors say that he pleaded guilty to exactly he pled guilty to enticing a minor to engage in sexually explicit conduct which would be taking these photos that would show among other things her gentilly and and and transmitting  interstate interstate commerce and he transmitted images back to her so the entire hour wrong nearly criminal act have only to do with the taking of on taking photographs and transmitting them back and forth between them yes yes and but i gather that i mean he was given two different play agreement options right sure and one would have a sentencing range of between fifteen and thirty years and the other would be ten years to life and he and he switched on the morning of his guilty plea right understanding that he switched he was he didn't like the fifteen minimum he liked the ten minimum although the downside of the ten minimum was the upside was a lot of absolutely correct and absolutely correct but i mean the one in order to avoid the possibility of life that you know he ended up choosing the one to essence of your climb well as it relates to the guilty plea my point is that again understanding what the factors are to be applied to the four prongs to be applied in this court's consideration of what the district court did one thing that's really troubling here is there's a question about timing and i know timing is always a very important factor how long do you wait do you before you ask to withdraw the guilty plea is this truly a matter of buyer's remorse because at the end of the road a defendant finds out that you know there's going to be real trouble here there's going to be an extremely high sentence the thing that's unusual here is his attorney files a motion at some point in time and in the motion makes the representation that my client saying that he wanted to withdraw from the very beginning of this motion doesn't get filed for quite a while three months or more right to until the initial draft of the pre sentence reports filed but the motion itself is never really dealt with factually because there's now legation in there by the attorney saying my client told me that he was he was unhappy with the plea from the beginning which is so that's an ineffective assistance of counsel claim but until the court knows that he wants to withdraw his plea it's a little hard for the we don't ordinarily say that you know well if wishes were horses you know he was thinking about it but until he actually did something about it the time doesn't start to run does it i grew beyond i agree with you except the difference here is it as far as i'm concerned the difference is that the court in denying the motion essentially except it is true that he didn't do anything until ninety six they didn't as far as the court was aware except there's now a geisha that's been made that the defendant is saying something different and that allegation was never resolved even though that allegation was before the court once the court made its ruling i agree with you there's no way that the district court could have known anything until those papers were filed but once those papers were filed and they didn't say mr stevenson now wishes to it draws guilty plea because now he's upset when the papers say that the defendant has been saying what the defendant is saying that he wanted to withdraw before from the beginning then the question is can the court take it up then or is it something that maybe is a twenty to fifty five issue i guess is the way i look at  thirty years for this that he would then try to withdraw over you'll be pleased with what happened well it doesn't read that way and read it and it could well be that that that you know that that's what happened but the papers don't read it that way the papers read as if mr stevenson is saying that he wanted to withdraw the plea from the beginning because he did not coerce e k to do anything i don't think it was from the beginning i thought there's the record talks about that on february four of two thousand and fifteen he moves from one jail to the other and at that point he was supposedly trying to get in touch with his lawyer and couldn't do it until weeks later in a while until march that it was the motion was actually filed to withdraw the pulley i'm sorry but using the term from the beginning but very early on as opposed to a very early on of the guilty plea was in the sumber of two thousand and fourteen right so even from that time of the guilt to february for when he switched jails that's six weeks and we've got cases say that even five weeks is too late that even thirty days is the dividing line between what's reasonable on reasonable stand your what it can you do about that time well in regard to that time gap i don't know that there's anything in the record at this stage that would undermine that time period or allow me to with the way that's a problem for you there  use the word coercion is coersion an element of the offense here it is certainly arguable that merely asking ek to send photos merely using the words would you send me photo but the statute says coercion this while even if it isn't the statute prohibits coercing entice ng persuading or attempting to persuade and now he's saying i didn't course and i didn't entice but he's not saying i didn't persuade and i didn't attempt to persuade he he is the position that he took at the  withdraw the plea was he didn't his position was that he didn't do anything to try to overcome her will whether that was an adequate defense as a matter of law his quest where he would try to claim morning honors please the court my name is tessa house miller i represent the united states in this case as it is district court level in the western district of michigan there are two issues in this case the plea with drawl and sentence i'll start with the plea withdrawal here mr stevenson has some philosophical disagreements with whether his conduct constitutes coercion as your honor has already noted inducing entice ing or even persuading a willing participant and because she was doing this with other people at other times but the government would present the trial as it has here in its appeal on its ears in its response to the motion to withdraw the plea to mr stevenson's email to say in may two thousand and twelve which he admitted at the plea hearing was his and he admitted that u k was sixteen at that time and this was after lengthy discussions between them about things that indicated that she was a minor things like taking the ac t taking driver's training not being able to text during class having a classroom eight to am to two thirty pm trying out the lacrosse team her thirteen year old brother etc etc that which included things like you were to take a minimum of eight photos for me daily more are encouraged and will be rewarded my little camera slut you're required to come for master at least two times daily you must use yourself at least one such a current should be recorded in order to either go to trial or accept the alternate plea offer we're not sure what mr stevens and position is it hasn't been articulated if you want a trial or he just wishes that he had taken the other plea offer when it was available so we're not sure if he wants to go to trial this evidence would be persuasive to a jury not just because it's agreed just and shocking to the conscience but because it meets the legal definition of persuading mr stevenson was certainly persuading meet the legal elements for the crime of coercion and enticement which they are and so i'm mentioning this the e mails that mr stevenson send as the factual basis as the factual basis your honor correct that just legally speaking the facts that he admitted to including girl who was at home she was using the computer in her own bedroom according to the letter that her mother sent the impact of knowing that a grown man through the daughter's computer was invading their home for two and a half years unbeknownst to the parents was quote unquote devastating to the mother it really goes against the adage of lock up your daughters i mean this mother thought she had locked up her daughter it's centrally she's in the room she's at home she's in the safety of the home and mr stevenson is using the internet to get into that child's bedroom and persuading her to take child porn or pornography and send it to him thousands of images which she sent him doing this minor is not a defense in fact it's these types of minors that the law particularly needs to protect its wayward minors it's minors with poor judgment and it's minors even promiscuous minors who are susceptible to twelve and then she turned sixteen in april two thousand and twelve and then it continued until she turned eighteen and came to live in michigan age of consent for having sexual intercourse in michigan is sixteen the age of consent under michigan state law for producing child pornography or producing pornography is eighteen so weird as the defendant has recognized we're not even talking about hands on physical contact we're talking about we're not talking about the sexual content intercourse world we're talking about the pornography world and in both state and federal law it's illegal for an adult to take possess or receive pornographic images of a person under the age of eighteen as it turns out in terms of the age of consent sexual intercourse the age of consent in oregon is eighteen anyway so i mean that just further reduces the reasonableness of giving mr stevenson some sort of a break for thinking that the age of consent for sexual intercourse was sixteen  the court also heard evidence that stevenson had done this with his own wife when she was thirteen that he found her online that he met her on line that he talked her into meeting through the internet that they met that they had sex when he was nineteen she was thirteen to your honor two little girls he took photographs of the wife which were on c d s which the f b i had reviewed and come firmed with the wife that they were her the data inside those photographs indicated that the wife was thirteen then she was fifteen there are allegations made by the wife to the f b i is documented in part of it certainly on it was on the record at sentencing that also the wife said that this happened to her other thirteen year old friend who mr stevenson also had sex with when she was a minor and who engaged in sexual acts that that that other minor described  increasingly sick and twisted or sick and perverted the wife described this lifestyle as mr stevenson kept referring it to she described this lifestyle as involving bondage and torture that she did not even want to explain to the f b i she mentioned sleep deprivation she mentioned having to sleep in the same bed as e k u when she when he came moved to their home in michigan having to watch her husband have sex with being relegated to the basement if she complained so these are all facts that were in the pre sentence report that the court considered the court also considered during the sentencing procedure the progression from ek just casually sending images to maybe other people sending them to mr stevenson to them forming a bond and eventually during the course of this process while ek was still a minor her email address changed to master ryan's property at dot com so this was not this was an exclusive relationship that went on with her feel she did you wanna so she started emailing him over during the second year of their relationship on line from her e mail address master ryan's property dot com and she sent him images of herself naked with master ryan written on her pubic area and other things indicating that she was not just doing this with anybody she was doing this and simple and for have its appeal for any reasons other than reasons already noted by your honor i'd like to just suggest strictly from the perspective of the language that it's not clear and so if this is one that you use all the time you might think about actually making it clear because what that waiver says is the defendant understands that the law affords the defendant the right to appeal the sentence imposed now that's certainly clear i have no problem with that acknowledging this the defendant knowingly waives the right to appeal the sentence as determined by the court at sentencing that's pretty clear but then you go on to say and the manner in which the sentence was determined on the ground set forth in eighteen u section thirty seven forty two and of course those aren't that's not the manner in which it was determined you might maybe even i mean there are a couple things you could do to fix that but i read that about four times and trying to figure out exactly what do you mean by that waiver your honor the office has actually changed the way all good i do agree with your honor that the paragraph is written it's wordy it's cumbersome and it's not clear and i was only referring to the fact that there are two appellate rights that he retained which were to put to appeal a sentence that exceeds the statutory maximum of the count of conviction or is based on an unconstitutional factor or the right to reach to appeal objections that were preserved at sentencing that the court incorrectly the to determine the final guideline range so i should rephrase that your honor when you boil it down there are those two appell rights which were clear to the defendant in the briefing and were already mentioned by the court earlier as for whether this request for a motion for variance effect the answer is no in paragraph eight of the plea agreement which is on page eighty eight zero it states that the defendant further understands that the court shall make the final determination of the guideline range that applies in this case and may impose a sentence within above or below the guideline range subject to the statutory minimum and maximum penalties the defendant further understands that disagreement with a guideline reenter sentence shall not constitute a basis for withdrawal of the plea so the defendant understood in the course of the plea agreement that the guidelines are what they are parties can make their arguments the court may vary upwards or downwards but that the right to appeal pertains to whether the court incorrectly determined the guideline range not whether the court follow the guidelines range one in favor of the government with that this crime did involve use of a computer which is obviously i don't want to say it was clear your honor who just made that mistake earlier but it was pretty obvious that it is a computer  so the parties were asked at the end were there any objections to the sentence both parties said no there were no objections to the guideline range after it was calculated other than the one objection to use of a computer which is not at issue here so to sentence that was given w within guideline sentence was presumptively reasonable the court did consider thirty five fifty three a factors the court said at the beginning of the sentence it recognized that it had a lot of leeway that it was not bound by the  know there was one other thing that jumped out at me i don't i don't think it makes any difference because i know we do have case law in this circuit that sort of addresses it but at the plea hearing and i think you we charge it in our district we always say and when the well that would sort of seem to most people to mean that if you don't show off or then you're not going to win whereas if you if the statute is in the conjunctiva and you charge it in the content of any of them are going to work in the government's favor so i was curious as to why you do that there is an office policy to do that your honor and i'm not i did i'm not exactly sure why but we always do it that ring an english teacher or a consultant i'll bring that back the officer i mean thank you you thank in regard to the question of the motion for a variance and its impact the guidelines in this situation this is not a case where simply thirty five fifty three a factors were discussed there was a written motion for a variance filed at the at the conclusion of the guideline calculation the district court was asked to take up the thirty five fifty three a motion as a separate matter and determine whether or not there should be consideration given in that a different sentence determined the court denied the motion rejected the request disagreed denied the motion then we moved to the question where the court asks is there are there objections to the guideline range well you know that way they were calculated before it was correct but the thirty five fifty three a motion was just a not a written motion was just denied i don't think anything else has to be said at that point to keep open that issue the question becomes have you for ever and always waived a thirty five fifty three  variance motion if you make if you enter into a waiver that relates to the original guideline calculation i don't think that makes any sense in case of directly supports your suppose i don't have a case either way  that it's a unique situation to me but i would say that to me it ties in in terms of common sense with the fact again that it's so well established that the calculation the guideline range is only the beginning of the sentencing process in order to find  waiver included the manner in which the sentence was calculated which would certainly include file a motion for a variance and having the court declined to take it up much i'm not sure that it's so clear from from my perspective again easy for me to say i didn't negotiate the plea agreement i'm just not sure it's quite as clear that's i guess that's my position to the to the court in regard to the in regard to the circumstances about how bad the overall conduct was the one thing that is so important to me is this i believe very strongly that the record shows this the court imposed this incredibly harsh sentence not because of these other events that have been briefly discussed here but because mr  engaged in a master slave relationship i have to accept that with someone that he brought to his home and someone who we had live at his home with his wife and two children that and that alone was so shocking to the court even though even though at that time the conduct was completely legal but it was so shocking to the court that it caused an incredibly harsh sentence to be imposed i don't think that's right i think it's all for what mr stevenson did and punish them i think so harshly because of that and i think was unfair that we know counsel that you are appointed counsel and we very much appreciate your work and you know without the contribution that you all make be hard to make the whole system works out thank you very much and with that there being nothing further this morning the major import