living with a girl who had two three children two young boys and ago and one day he found the two little boys looking under the door to the bathroom and he's stopped them from doing that realize that under the door there was a gap under the door and as a result he could see and the kids could see into the bathroom and so he got the idea one day to put his cell phone down there and videotaped the twelve year old girl taking a child he stored those items on his phone and eventually transferred  from his phone to his compares laptop computer it what he did is a crime and there's no question about that the only question is is it a federal crime and is it involving interstate commerce and the degree to which he should be punished those are really the only issues that you represent him at trial i did and he was originally charged with multiple counts of production of child pornography and that's a pretty serious charge because it carries a mandatory minimum of fifteen years ago at labor so the prosecutor and i actually had some discussions about how or why that would apply and one of the discussions we had was you know this would theoretically apply to kids in high school using their phones to videotape other kids taking a shower they on the government's case they could be charged with and convicted in federal court of producing top let me ask about this case in particular though i was a little confused by the colloquy when he entered his guilty plea and i believe this is a quote from u s defense counsel we don't intend to say that he's pleading guilty but he's not really guilty we what we are saying is he is guilty of the facts of this case that i believe that may have been at the sentencing hearing is there any are you arguing now regarding is guilt or not when you're here today about i guess i'm a little confused by this quotation in the context of both sentencing and the arraignment and that was a sentence in your honor and it came up because  the court the judge felt that the defendant wasn't showing acceptance of responsibility and so our argument was that the the charge overstates the conduct and the potential penalty overstates the condo and what we didn't want to do it sentencing was for the court to say well i'm i think you're saying he's not guilty and so i'm going to plan issue by not giving you acceptance of responsibility so yeah so so i think it's important just to keep in you got it reduced to this one count and now you're saying by the way you can't convict him on this count now you're either incredibly preachy and or clever or else incredibly trying to get a good t his potential magic tory minimum so under what he pled to it's a five to twenty year sentence so it reduced from fifteen years to five years to a very serious that we always have questions about whether it should be in federal court or st but you know it's not my decision to whether someone goes to trial or not it's his decision and he chose not to go to trial probably because of the coercive effect of having six counts of production  fifteen years mandatory for production and that's of you know that clearly that was a course of so you but it mention two things though to two reasons why he possibly entered a guilty plea one i think you said was the sentence the charge carried out a lesser sentence the other was because if he had gone to trial he may well have been convicted of the several other counts that had been alleged but not once have you said that he chose to plead guilty because he was in fact guilty of the offense which is part of the colloquy at the rearrangement you know it just seems like when we review what the arguments are made here there's an attempt to maybe crawfish out of what had been piped to that i will say this if if he if interstate commerce and compas is using a phone or computer but not going on the internet just using it because the phone a computer traveled in the state commerce then it's that but i just don't i think that means that there's larger than the limit to the interstate commerce jurisdiction so if this desk came from amazon and i used it to get somebody over the head and likely choice in federal court because this is a facility of in interstate commerce so virtually there is no limit but it is not a communication to think your want to jurisdiction think there's an argument that it weighed yes i think there's an argument that he waited i think though that he waded in the sense that if that's what the lawyer is then yes he waived it but he he doesn't agree that that's what the law the the probation officer basically calculated the guidelines use this cross reference under us c section two g two point two and what it says  transporting permitting or offering or seeking by notice of out or advertisement in minor to engage in sexually sexually explicit conduct the purpose of producing a visual depiction of such conduct what's important here is that the cross reference doesn't use the word using because there was some questions about will what was he using her not using her this cross reference by its terms does not appear to apply but there's a note at the end after the the actual guideline that uses the word using and says that this cross section should be construed broadly includes all instances where the offense involved employing using persuading inducing entice and coercing transporting permitting or offering her seeking my notice our advertising that a minor to engage in sexually explicit conduct no where in the in this sense and guideline is the word using use but in the note it's used and you know it it's if it's if it used to be if there was an ambiguity then that defendant gets the benefit of the ambiguity i'm not sure if that still is the case but it's not very difficult to use language that that would have said using in the a guideline itself or language is a just capturing  that the language used in the guidelines it does not fit if you you can extrapolate and say what they intended to use the word using or you can but we're all could certainly i think you can certainly say that prior decision was incorrectly decided which i think it was in fact that i know my time is coming close but the obstruction conviction and any relevant conduct or a closer related offense and you increase it by two levels it doesn't say obstruction in the instant offense or a closely related offense the upto e the obstruction they alleged was not at all related to this or relevant conduct it wasn't used as well it still didn't come in and if he had gone to trial couldn't  in this case in the case of conviction or in the other case then it's a no it doesn't say so again you know it used to be that if there's ambiguity that the family gets the benefit of the ambiguity i think that is still the law if it is there is clearly had least ambiguity but the english language is not is such that if we redid applying the english language it requires obstruction him the obstruction in the instant conviction that's i think it's pretty clear that up to the case that was a long case and they discussed a whole bunch of things at the very and that was sort of like oh and by the way there are a couple issues here for cells i mean i realize you've relying on the guidelines and interpretation and says that you quoting from your brief there's a two level increase if the defendant willfully obstructed or impeded the administration of justice during the course of the investigation prosecution or sentencing of the instant offense so it says during the course of the prosecution of this offense and there's no question it was during the course right of the instant of well that's right because he was in jail for the instant offense at the time that he was dark of conduct related to defend its offensive conviction and and any relevant conduct and certainly this that the phone call was to try to get a friend to talk to this was a one count bill of information charging him with only this offense i think just that plead agreement had been reached and it was it occurred when he was in jail and he was making phone with or who the people were involved and he was sought to find out and if in fact we followed motion relevant to that because the diamond cave was virtually no information so we tried to get a bill of particulars and couldn't even get that  so he was trying to get information but he had already been indicted the investigation are being complete everything was done and then he talked to bubba his sister's boyfriend in second utah to talk to her and you know there were the details of that didn't come out very much because and not there was not much evidence because this isn't do we know that the person that he contacted the girl involved in his communication from the jail was not part of any of the pending counts at the time he was in jail she was she was part of it's hard to tell from the indictment and that's why we filed a bill that akers asking about it i'm not exactly so i think he there was a text message between him and her where they had been you know texting and well but the text message would send me send me your sexiest picture and so that i think the government was saying was attempted possession of child pornography but that's i think what that was about but i just want to know what i want to know is it in the absence of a  and and that had nothing to do with the instant of things and leading the way over your original time so you'll have some time for about oh thank you you can find a case that narrows this guideline basically has two arguments in defense of this the first is a waiver argument this court has long recognized the distinction between the failure to make an objection a forfeited objection which is subject to alleged problem but says no that's not a problem rebel as was a trial case involving a briton issue the defendant said no i'm not going to make a projection in this particular case there were objections to the p s r they gave the district court some concern that the defendant was actually i think her language is some of your objections fly in the face of the facts set forth in the factual stipulation if that's the case if you disagree with your own factual stipulation your remedy is to seek to undo your guilty plea and go to trial and then she goes on and she makes them a comment about you know this could be a problem for you with regard to acceptance of responsibility and obviously it's implicit it's going to be a problem with you in terms of the facts as jones as you pointed out defense counsel who negotiated a very favorable plead greenman in this case so this was going to give him one big problem you know in terms of the big picture and then another problem in terms of the instant sentencing and what defense council says is in judging or you quoted the language this is i think our way six thirty one the conversation that takes place between are always six twenty nine an hour away six thirty one and and defense counsel says we're not saying he pled guilty but he's not really guilty we're making a guideline argument with this court said revelle as well as we're with the defendant or defense so at that point he's trying to talk the judge out of her concerns that there's a problem with the sufficiency of the factual basis so he does say that judge but then he goes on to say and you know the guideline is what the guideline is and if we've been under the guidelines then you know we're stuck with it under the guidelines and defense counsel's argument then as it is now you know it was really that was pertaining to this cross reference what had happened was the defendant had pled guilty to  transportation of chopper not a fake but by virtue of the two g to point to see one cross reference his guidelines were calculated as if it were a production case because as we all know the guidelines were driven by this notion of real offense conduct what we're not going to look at what the defendant just pleads guilty to we're going to take a look at what he actually does the notion of real office come into so that was sort of the context in which all of this came up at the guilty plea the defendant i would suggest didn't like how high his guidelines were and was sort of trying to walk that fine line between saying well yeah i did it but it's not as bad as these guidelines would suggest in terms of recommending a sense and we would suggest to the court that you know that that's a language in her valis when the when the defendant or defense counsel makes such an express statement that no i'm not objecting to th no i'm not making that argument then how how can we expect the district court to override the express intention of defense counsel and sort of notice the error or the defendant's rights to spot today and that's the language right out of her valis that's our first argument that this is a pretty clear case of waiver if it's waived then it's unreviewable on appeal and or any standard we have an alternative argument on the merits of the cases that the defendant relies on on appeal runyan is a pre two thousand and eight amendment case the in two thousand and eight twenty two fifty two cap a was amended purposefully based on a congressional judgment that we want to expand the coverage of twenty to fifty to cap so we don't want to make this record meant that the images actually travel in interstate commerce we're going to expand it and the ninth circuit in brown case i cited my brave says that this represents a congressional judgment that we want to expand the scope as far as the commerce clause authority is going to left us is there any dispute that his contention i understand and i believe in the factual basis is also that he used the u s b cord i think that's the factual plank on which his argument rests is that he didn't transmit it electronically but rather through through the court itself the u s b cord that he linked to devices bar the u s b cord is there any dispute about that or is it just his self serving statement that that's how he did a couple responses to that first judge that is not in the factual stipulation the only place the coup ordered the notion of using a cool word appears in the record is in his of the defendant defendant's objections to the p s r basically again his argument not did i didn't commit a crime that you know we are saying it's not as bad as the guideline calculation would make it sound so i would suggest that that was counsel's factual representation that's not a fact that was ever proven and it's not something to which he stipulated in fact i'll read you the stipulation the stipulation is restarted reason stipulates that he transported that image using a facility of interstate commerce that is he used his cell telephone and his computer to transport the image of child pornography from his cellphone to his computer for storage and that's our zero eight eight hundred so the cool word only comes into the record if at all in a defense counsel statue a representation in connection record in the p s are both the cell phone itself and the mac book air satisfied the definition in eighteen u s c twenty two fifty six some part six which incorporates by reference eighteen u s c ten thirt is i don't i i think and i and i argue this in a footnote in my brave i don't read and of course the the court obviously could read it a different way every defense counsel's argument on transport as again it's the case the defendant sizes brief is runyon runyan is a preacher thousand a case the argument as i read it in brief is it required interstate travel as in running and so the defendant sides run into say in runyon this court reversed the conviction because there was no interstate travel so i don't think that's the argument that's made i think that argument is actually way just whether it's demand in the us whether it's to demand judge because it has to transport in a way that affects interstate commerce dot dot dot including through the use of a computer so if i move the images on my cellphone from one pocket to the other i'm not doing a transport by means of computer i'm doing a transport by means of my hand from one from one pocket to the other this part of one of cases yes you know that the fact that the purposes of the of the jurisdiction satisfied because of the computer or the phone was shipped from from one state to louisiana but but then whether he committed the conduct that it rendered  appeal to argue that that transport from one device to the other was to demand amiss to equal transport i would suggest that arguments waive if it's not waived i don't think this court has ever so held so it could not be clear or obvious error even if this if this is if this is reviewable at all i e if you if you don't go with our waiver argument it's no better than plain air review and i don't think that error could be clear obvious and i make that point in a footnote  first those cases address third and fourth prong review on plain error where basically a defendant objects for the first time on appeal to sufficiency of a factual basis and we discussed that third and fourth  analysis in our brief you know basically saying it's not enough for the defendant to say you know the national basis is insufficient he has to show that he would not have pled guilty but for that error  supreme court case basically saying that's the showing the defendant has to make a move on and talk about the two guidelines issue beginning first with the cross reference judge davis as you pointed out binding circuit precedent is mccall which point to see one cross reference but the inquiry is the same and i do that analysis in my brief we're basically talking about does this rise to the level of something that would satisfy the the production  statute you know again focusing on the words the counsel talks about using and costing so you know what do we do in a case of assertiveness filming and what mccall basically says is there's no per se rule in this circuit that the victim meaning only the cross reference but i would suggest twenty to fifty one the production statute to surreptitious filming and i don't i certainly don't think that that's the purpose of either side a older fiserv the case in my brief norris that talks about the danger to the the the the injury to the victims you know and it is there are there certain types of there are different kinds of injuries to victims and a victim who served fishley filmed there is a great invasion of privacy that lives on  i can't think of a rule of lenity case under the guidelines there's the stinson principle that the supreme court announced that where you have a commentary that conflicts with the clear language of the guideline case from the supreme court on ex post facto so we have had some supreme court cases that have elevated i don't want to argue against my own position but you know the the supreme court on the guidelines is a little schizo phrenic because on one hand when they're fabulous and then the other hand they're merely a one hand of the touchdown and then the next time oh they're really not that important you know so we have a lot of sort of conflicting  guidance from the supreme court but i would suggest rule of lenity only applies with a guideline is not clear i think we have enough certainly case law saying that you know in cases of certain issues filming that you know the victim doesn't have to actively participate so i would suggest the rule of lenity even if it's applicable to the guidelines would not apply here and the last thing on touch on is the enhanced meant for obstruction of justice judge jones you read from counsel's brief quoting the obstruction guideline i would suggest that that is an older version of this guideline three is that it will not judge but i would suggest the counsel has quoted an older version of the guideline brief three c one point one has been amended numerous times and there are at least two amendments that are significant here an amendment five eighty one was a nineteen ninety eight amendment to the guidelines split on whether the guideline could apply to conduct that happened before the federal investigation that's kind of what was it issue in the alexander case that was a case relied on by the district court when the court ruled on this particular objection to the p s r it's a case addressed in my brief and then the closely related offense language was to address a circuit split on sort of what the instant offense nat so i would suggest to the co our argument is that the guideline requires two things the obstructive conduct has to happen with respect to the ongoing investigation of prosecution judge jones as you pointed out we've got that the chronology of events  that basically you had an original indictment in august of two thousand and fifteen the superseding indictment happens in september of two thousand and fifteen and then the defendant judge downs as you pointed out he's detained pending trial it's february of twenty sixteen some thought of months later is when the defendant makes the call to i think it's his sister's boyfriend is his name and says you know reach out to this witness and see if you can pa off or find out what she knows and get some money from my mother and you know pay or off to shut her up or whatever the language was a mistake there's a dispute that the conduct itself satisfies the particular guideline that clearly happened during the investigation and the prosecution and it related to a closely related offense in response to some of your points about whether it was relevant conduct the p s r categorized  not relevant conduct because of the unusual operation of the two d one point two d grouping rules these offenses are exempt from grouping because they would involve because of the different victims  and so it was not relevant conduct i think because of these hyper technical grouping rules but it was definitely a closely related offense and i discussed in my brief how there was a temporal overlap at the time the defendant was communicating with this other finding that the conduct was closely related i don't to get on with it use that term but a part of the same course of conduct and the same scheme or plan the last thing i'll mention is counsel made a comment about well we weren't sure which victim it was the defendant would have received discovery by that time and the discovery clearly included these chats the exchanges you know i would suggest to the court that the defendant could have what i'd like to do is just respond briefly to the cross reference and i think that's that's pretty important because the guidelines provide for someone who is convicted of trafficking in material so the problem here is that we have to wonder whether or not the cross about france applies and the cross reference simply says that the offense involved causing transporting committing offering or seeking by notice or ever ties with a minor to engage in sexually explicit conduct for the purpose of producing a visual depiction then it applies just the fact that we're having this conversation i think indicates that there's some doubt as to whether it should apply and it does not use the language that using a minor to engage in activities so we can't even you know there's a question as to whether or not what he did was using a minor but you know it's like a you know if i'm using a hammer that doesn't mean if i take a picture of the hammer i'm using it  we clearly there's a there's some ambiguity here and you know it it the whole purpose of of the lack of the ignace is so that people know what they are dealing with they know that if you do this this is your you know this is your penalty so in this case they do a guideline calculation and it the calculation didn't even say ok two two point two is the one that applies it just jumped right to the cross reference the present in the report just simply said cross section across reference and so we're going to we're going to go from twenty two to thirty six with a cross section so he went from roughly well from five years of incarceration to seventeen and a half years incarceration if there that it clearly applies to this case the obstruction of justice is the same thing it says the instant conviction it doesn't say the investigation of other offenses that he was charged  chart it doesn't say obstruction of the insta conviction or obstruction of the related charge and i think that i mean that it is at the very least ambiguous in my opinion if you apply english language it means that he had to obstruct the instant conviction and he didn't thank you ok thank you