under two l one point one when a death occurs and that particular enhancement under the file i believe it is doesn't speak to intent and the courts have held that  for regardless of intent or additional harm created by defense but if you look at that section and the case that the sign for that the hard case it actually says that that's the circumstance where the defendant actually intended to have a something that's not a weapon appear to be a weapon and the hard case actually cites in one circuit case taylor where the one but the cases on b one there are there is no intent requirement under that guideline show action and it reads very similar to the increase for should district or masochistic conduct and i think the reason behind it in age sound that it's an additional harm and there has to be some showing that the defendant intended to to receive that type of material or certain that type of material in order to be subject to substantial increase could you address the milieu with our certain decisions in the united states for versus lavender and or requirements we declined and followed his invitation dream scienter requirement in section three v one point four because the plain language of the guidelines does not require that a defendant have knowledge that the individual is under eighteen age for the enhancement to apply i think that you know one major difference in a case like this where it's really about images being sent over the internet that it's reasonable to have some state of mind requirement for the reasons set forth in the other cases of the watchability that people can have possession of a particular image or group of images that are sent to them without knowing the o's and it's not a actual physical object and so that there is a good policy reason to require some more mental state especially when a defendant could be subject to having this material sent to them by the government itself i know that's not the case here but i think it would set a rule that if it is strict liability for this type of offense the same as if it was strict liability for having sense without any you know further managed rayyan part of the defendant if i could turn briefly to the evidence of knowledge in this case and or lack thereof in the government's letter brief they make some assertions that really the record just doesn't bear out for example the government says time and time again cook conversed by telephone of your computer revealing his girl fourteen years old across the street from his house yeah well i think that's part of what the issue is is that he did did he say that yes he said that and he and he was talking about any faulty agent time again that he was interested in teenage depictions and you know what the government is using now for the sense and has meant is pretty you know images of pretty to bash and miners and so on the have all these floppy disk about fifteen popping floppy disks containing this right in the images what i'm saying is that the record shows that the defendant was seeking material of teenagers and that his interest was primarily in teenagers but he had be a libertarian of quite a bit of it seeking that particular type of sub group of images to get possession of it that he wasn't seeking it how to get the session of it well i think that there was evidence that there were hundreds of images that were  transferred back and forth his possession correct i mean right right but it's the same as that other case where the defendant has possession of sexually molested material involving minors but didn't have the intent for instance what they call chop erotica that's what suppose they are there's an adult male close by there's no penetration in this space the reason it becomes this is because  answer through just hearkens question and i'm still not but it's his question so i'd still like to know as i thought that he has hearkens as asking is there a category of child pornography which is sadistic because there's no showing of penetration or insertion right so that's the quick answer but let me also try to at least give the sense of the truth that we've shown a trial and i didn't talk and i don't know where you were going with that question but i had the same line of inquiry are you do you have more that you want to do no i understand the government's response mixed bag like that no that they are in fact getting sadistic what would be considered sadistic along with the nine sadistic but the assumption first stop i think get those images and it's hard to write in separate floppy disks you also transnet it though and that's the problem here because that shows not only did he get it he looked at it he knew what it was he undercover agent man that looks real how do you how old you think she is response ten so that confirms what it confirms that he sent it it confirms that he's looked at it before he evidence on page two seventy seven of the record transcript of the trial let's turn this to talk and again it sounds like the government's position correct me if i'm wrong i don't want to put words in your mouth but it sounds like your position is that even if there were a science or requirement you met in this case that is exactly our position and that's what we've indicated in our letter brief let me just in the case i have i have a follow up to that if that's the government position do we need to reach the issue i think for the purposes of this case you probably don't however you know  that he had tropper naga fee and was sending out chopper free but once you go down that road and venture into this kind of area of illegality you run the risk not only obtaining possessing but also government prove that they knew that the person they were defendant knew that the person was vulnerable for it was an official government employee the problem with that example that he wrote in his letter brief is that three a one point one causes us to understand the difference between so i answer that is read and directly to be required within the something in hasluck and those like for instance what we're talking about here under g g to point to first statistic sadistic material i'm looking for sadistic material and you know now the government comes up with some other claim about a moving files that the district court relied on for images none of which th was any evidence were sent the government now is claiming that these images that show slight penetration were sent out there's no evidence of that and one of them was found on a deleted file and the other three were on a disc i'm not that was before the district court and the government you know reading from exhibit eleven that wasn't relied on by the district court and finding that i haven't i mean i don't doubt mr chang well wait a minute that's because if i ma well actually the very beginning of the hearing at at the last sensing hearing i did i mean in my written papers i objected to knowing possession of the fifteen images the government was relying on and then at the a that wasn't relied on by the district court it was these for images and so there's no evidence that i've seen and certainly the wreckage sites the government gives in its briefs has nothing to do with showing that these particular images were  to have been traded they weren't shown to have been received with any particular knowledge or intent that they involve statistic and to the contrary the you know the supplemental  fifty seven the defendant tells the age and he's looking for twelve to seventeen he says that he's interested in teenage girls and one twenty five to one twenty six he says it again he never says i'm looking for  any further questions are many members of the panel no sir thank you thank both council for their arguments they're very helpful these are difficult for everyone involved case just argued will be the better for decision in the courts