discussion about the self service gasoline station was very nice poetic but i don't see first i disagree with it and i'm going to tell you why in a second this created new hypothetical i decide i want to distribute cocaine sharing network was and i and i post pictures and you post pictures and we swap back and forth this is not usually goes on well in this case however we don't know if this guy put it out there and share photos or no evidence that anybody looked exactly  right and never the twain shall meet and they said for example he could have been charged with an offering to distribute he could have been charged with various other one but distribution involves the completed  circle and you know for the purposes of the stack chips i think that since you obviously but some sort of gasoline station is also a commercial transaction or is the whole thing i have a question you know when i looked at this i said section mention you out your honor and that's exactly the point that he could have been charged various different ways he was charged with distribution and it was i had a thought on that scene question this got to be a difference between offering is a different offense than actual distribution if the if the government had decided to charge in that way we wouldn't be making this argument and so the decision that you're going to make in this case is obviously going to actually it's interesting about the courts the case because they're citing the exact same cases for the exact opposite proposition but they have to be on cases that are the first one and even the tenth and here in the hive and all seem to require actual put cooking on my front doorstep and tell the world to come and get it and no no money just i'm offering it and can i be convicted of with distributing or just possession with inten out on friday ever see it and i have a letter dealing with yet another thing with the ninth circuit there's no question for sentencing guideline purposes that what he did can be considered under that guideline to be  sentence here in this case this doesn't help my current that much except in as much as like there were sixty seven images that were the total of this whole thing if you knock out three of the four counts some of those images that out and the sentencing guidelines start going down work which of course brings me to the next issue of the sentencing guidelines first of all he received an enhancement in this case for a pattern of activity and as we pointed out the the trial judge stated that the transcript that is attached to the government's sentencing memorandum and nowhere in there does it state that he admit to molesting or funneling to victim so he just edited general activities five points it doesn't say there were two victims in that often kind of case while later on in the p s i i don't see it there either it's very they used to the number of victims and at the time the sentencing i don't think the sentencing council reali nailing this down because at the time it was i think he mistakenly believed that the previous conviction for child pornography possession could itself be part of that pattern of activity  obligation to look into that he knew about it before sense he did and it was he unfortunately didn't do what he should have done however it was plain error is my point there and therefore all that's left from the states from the government's point of view not only did he calculate the appropriate sentence under the guidelines but then gave him an enhanced one because he didn't believe first of all that the conviction of the list of convictions properly  e i'm sorry now you know that we certainly have had a number of circuits that have described what's necessary for distribution under the guidelines when it makes sense to follow a similar approach with the statute to simplify things boy confusion i mean we could we could be consistent with we wanted to i know they can't make law but we could look at that and say why don't we adopt the same approach if we wanted to i guess i'm confused though is i maybe i'm missing we have a definition of distribution that has been adopted sentencing got absolutely by a whole slew of circuits and this in looking at the definition it's not a fine oh i do this ac in looking at that undefined word and trying to decide what the word tribute to it wouldn't certainly we could look at the guidelines and say we want to be consistent with the guidelines in our definition if we wanted to know because and especially when you have a statute that contains various sub par its end alternatives ways that a person could be charged but haven't we broadly construed the word repudiation under the drug laws in this  them out on the street you are not guilty of distribution into ico actually out there and them to people and mix them up and it's exactly the same case here that the sentencing guidelines are gloss at something different but they can't make the law the law itself the statute has to be defined and interpreted narrowly because it's a criminal statute all criminal statutes have to be defined narrowly and in a case like this where the statute gives the government police court robbers are on behalf of the government with regard to the distribution issue there are really two areas to focus on one is the law and one is the facts the facts of what happened in this case are very important but first the court has asked about the law so let address the landscapers fresh what is referred to there is no article three court as we've said that has held what the defense is arguing here which is that if you put something on a file sharing site and no one takes it that that's not distribution in your honour's example in mr francis example he says put it out on the front lawn maybe somebody takes it maybe somebody doesn't nobody has expressed any interest whatsoever in what's in his are his front lawn that's not distribution but i need to spend a moment talking about what these programs are these programs lime wire and share three sixty and individual has to intentionally knowingly put these on their computers if you go to a store today and buy a new computer or go back to your chambers you're not go one wire or share three sixty they're not there these are programs that you have to go out and purposefully take from the internet and the reason you do that is because you want to share files with other people that's what m created but then he has to take it even further step in order to distribute his images to this common group that wants to share files and it's all laid out in the expert testimony of mr price from the f b i who testified i think it starts around page what i'll get to the importance of the guideline later but this is what everybody is saying where this issue has been presented you are distributed to this common site where it's now available for anybody it's very different from just putting it out for any member of the public who may or may not come by the what huntsman has to do even when he downloads this program lime wire and sure if he sexy that doesn't share everything on his computer what he then has to do according to price is he offers therefore be convicted for distribution yes anybody who would go to creates this common system where they're sharing these things with each other where they put it into the sharing folder they have distributed pornography that is you know abusing children and being put out in the world and it stays out there forever so no you couldn't offer i could call someone on the phone and say joe i've got some chop and i really would you like me to carry it over i'm guilty of offering you have to designate what's in your folder and then the way you search for what you want it's what search terms and so people put various they take to these files you know various nefarious terms that lead people who are looking for us so it's like a supermarket in that it has different things but it's very specifically intended by hussman to share this type of material was the case in this case that there was some identification downloaded into that sharing area that honor it didn't occur to us because we believe this is distribution we've charges distribution certainly if the court of appeals tells us we're wrong that's going to be the next indictment will be for a time but this is distribution and the government's you know the analogy i want to suggest your honor is not the retail store it where somebody in antarctica it's not the front lawn it's where people share common property with each other they create a common room to take a simple example so you have two people living in a house and each has his own computer to maintain his privacy but they also share another computer where they want to do things together when the person with one of his private computers transfers material to the shared computer so that his friends in the house inhabit that's the distribution if we have a common room in which people live together and people put out things for the others to have based on their practice isn't predilections that's distribution under the the normal definition of the term which is to give say possibly they couldn't possibly have that may be a problem and that's where it's come to make a man say somebody tries to public to move a folder and post it and fail something technologically fails i would be in a time but yes any time somebody shares it  our case that if you had somebody who tried to do it and utterly failed to do the sharing that might be an attempt but here the evidence is that he successfully put it in the shared folder created by a good program that he intentionally and that others intentionally put on their computers with respect to the guidelines or honor of course what was said earlier is true that the guidelines cannot interpret the statute but they are informative in the same way that this court would look to any other sr court or jury what happened here he didn't make the offer he put it in the shared folder that was created with this community so that everybody could have it he moved it from the private place of his computer to the place that was shared by this group of people so sure it's an offer but it's more than that it's an actual distribution to this group and that's what all the courts have held in interpreting the guidelines which again this while we have no on point decisions regarding the statute where it came down to differently because they serve different purposes and we generally are a little bit more strict with criminal statutes right whichever is you know generally kind of course i don't think that's true your honor there certainly are guidelines that go beyond  statute but there are many guidelines that explicitly enforced the exact provisions of the sacking of energy and my might have been hinting at this point should we use the guidelines to inform us what the structure and the answer is yes in a situation like this where again it's  the only word in there is there because of the statute it's not as if that is not a good policy well it's not so much policy as what this court looks to to inform its decision as to the normal meaning of this where distribution i also don't think it's accurate that guidelines are interpreted in a more loose fashion and statutes there are decisions of this court applying strict construction to both they're also opinions even applying liberal construction to statutes based on the evident purpose of the scotch they are there since actually to say that explicitly that it should be construed liberally but here we have a statute or congress is clearly aiming just to stamp out this illicit trade and that's it doesn't call for a really harsh definition of distribution apart from a normal definition of the term and divorced from the facts of this case in which there clearly is a distribution to this common group are going yes well well yes it is data in part it mentions that there was an actual distribution in that case but the language is very strong and clear they're not focused on whether somebody actually downloaded when they're discussing what it's tradition is about and we fully embrace that  one and i have to say on of the one thing in common with his first issue that we've been discussing both iran plainer review so it's important with regard to distribution the defense is asking this court to acquit based on a legal argument that has never been adopted in the holding of any court which is inconsistent with these many other decisions involving the guidelines we don't think that's appropriate on planar review certainly that's true with regard to the five level enhancement as well no objection in the district court there actually is evidence in the record to support what the government has told the court here mr husband was infected of two counts involving indecent assault on two different girls two different times at the hershey school was evidence  evidence was provided certify convictions to the district court at sentencing they were not attached to a sensing memo they were certified convictions they were presented in court will provide them to this court if asked but the burden is on the defense here we  were the ones on the defense to show claim there to show that there was a plane there that affected his substantial rights and it was a miscarriage of justice there wasn't this your husband of used two different girls at this school who were in his charge that was the pattern is possible it may well be accepted it has to be plain under current law and when we look at the landscape to use the term that just wanted says it's not at all plain right now in fact the law would suggest the opposite conclusion i don't want to stand  a for instance i've said in this argument he's guilty of all sorts of other things under the same statute based on his own admissions and on appeal and so no we don't see it as that fundamental message but let me be very clear on i am not standing here telling you that he should be in prison for twenty years because he didn't make an argument that's not what we're saying the primary argument that i'm making to your honor is he distributed this child pornography to this peer to peer file sharing site when he moved it into the folder  itself presents other issues for example if you put something say on this shared computer in this hypothetical house that he's talking about but but the computer itself crashes the next day before anybody has a chance to walk in and access it has he distributed it seems to me he's attempted to do so he's put it out there but no distribution to place because other housemate never got to the computer before crash so if we start going into too many hypotheticals it raises all sorts of the possibility issues and different things that's really a possibility as a matter of fact now this yeah exactly you know if it's creates a lot of what is it even in possibility he seems to be saying that the act of moving from his computer into this shared or that that's where the distribution act and so now why is that so well because nobody other people didn't necessarily find it goes  get it he's not talking about distribution to third parties he's talking about moving it right from one file to another and that's what he says is that issue i can't that be because the distribution of anything else she could but it in the real world that isn't what we deal with in this court usually we deal with a sale there is usually somebody else involved right but it's theoretically possible we're going to construct hypotheticals we have to we have to play them out to their logical conclusion the second thing is robbery for the reason why we're here is this man got twenty years and that's i mean all these nice legal arguments are all very nice i maintain that this is not  sentence for this sort of activity is percent reasonable because yes you know he was on probation when he did it and everything like that but it was a second offense simply asking you where you were correct on the distribution point that you're arguing  the sentence based upon these other factors you know these legal niceties we've engaged with there are wonderful hypotheticals they're great legal argument i've really enjoyed researching the but basically it comes down to was once he resolved them