reasons that this court has already explained we've set forth our position in the briefs i'd like to highlight a couple of points and try to answer whichever questions the court has there's no way that this non custodial could reasonably further the statutory interest in the sentence reflecting the seriousness of the offense it's not enough to himself say i recognize the seriousness of the offense that's not the sentence it's not enough for a district court simply to say this offense is serious and then give a sentence that does not reasonably reflect the seriousness of the offense really the only way that a non custodial sentence could reflect the seriousness of an offense in this case is if you take the view that really busy barely committed a crime at all if you think that this these child pornography images and videos were acquired by an automatic downloading program that did all the work itself without his lines involvement that's essentially what the district court said on remained which is very similar to what it said at the original sentencing the district court in this case also added that it hadn't seen any videos of rape of girls and more importantly from the government's perspective you know if it had that wouldn't change the sentence so the district court was relatively explicit that the nature of the crime the child pornography that was acquired by best line was not relevant to its selection of the sentence so from the government's perspective this non custodial sentence cannot reasonably reflect the seriousness of it do you think we can well i think that this court can look at this sentence and which does not include a term of imprisonment and say that there's no way that it reflects the seriousness of the offense or deters others it is euphemistic way of saying you've got to  reviewing a sentence that's before it and saying this one just doesn't pass muster and is not even close the court certainly can say the latter in fact that's what the court said the first time i mean we can reject sentences  say that they a particular sentence does not reflect the balance prescribe by thirty five fifty three correct but we couldn't then say all right and remain and impose a sen twenty four months or so exactly in the united states does not ask the court to do that the united states simply asked the court to say that the mistake by the district court in this case was substantive that's exactly what the supreme court assassin i'm looking at  think that not necessarily i don't know i don't know the facts of all of those cases but i think that to say that there have been forty four cases i don't know how that list was compiled they're not all reported decisions some are just  e citations to district courts that forty four cases in history ever by any court have imposed a probationary sentence really tells us nothing about whether this probationary sentence on these facts is  it's just so much of too much of an easy game to play i can easily find cases from this court where this court has affirmed prison sentences for defendants who are older than this defendant in worse health than this defendant if  sentence creates unwarranted sentence disparities which either way the district court acknowledged it does create sentence disparities but i took a closer look at the statistics that were submitted by the defendant on remain and that the district court did not allow into evidence now the just the defendant on appeal has chastised the government for in effect keeping that evidence out and then saying that there was not sufficient evidence about what is relevant in other words a defendant who has similar characteristics in terms of offense an offender to this defendant was an initial matter i don't think there's anything wrong with not talking about evidence that the district court specifically excluded from the record but i did take another look at that evidence anyway and if you look at it and you look at the us had appendix one the number and you look at the percentage of defendants in the sixth circuit in fiscal year two thousand and eleven which is what they submitted  who were not sentenced to any prison that was three people out of one hundred forty six one other words ninety seven point nine percent of all defendants according to their statistics were sent to prison for some period of time  i took and further look and said well wait a minute maybe they're counting among that prison the people who got like a day in the courthouse lockup like this line ok well we had in men the next category of their sentences which is zero to six months that's another four people total so that's seven out of one forty six so in other words ninety five percent plus receive the prison term of over six months now those those are their own statistics in fact if you take a further look at th their greater more specific statistic of the number of defendants in the sixth circuit in fiscal year two thousand and eleven who had the same total offense level as baseline twenty six number of defendants who received no term of imprisonment is zero commit crop exactly right but so are there is there any if you got in the to sleep i want to know about all people who commit crimes get so immense the prison for a long term or they get off on probation those well unfortunately i'm unaware of any any available statistics that would address that precise question are again i think my problem i'm so maybe under thirty five section thirty five fifty three that's a reasonable factor th take into account the universe of old people who commit possession crimes like this where there's no direct harm to a minor maybe that's not unreasonable to responses to that first in order for the sentence to be reasonable can't simply be because there are other old people who may or may not have been sent to prison i have no idea about those other cases perhaps if there are such cases which i don't know their sentences were too short i don't know only baselines cases before this court but for a sentence to be reasonable it cannot be reasonable only because with reference to some other subset of cases it has to be reasonable with reference to the thirty five fifty three a factors so you've got to be able to articulate a reason that that sentence for someone who is older or in your health reasonably furthers those statutory purposes of sentencing now there is a way i think i'd be happy to concede it i guess it to the extent is implicit in your question that perhaps the need to incapacitate this defendant is less based on his age and health but no one's ever said that the court couldn't take into account age and health and maybe it is relevant to incapacitation but it can't possibly reflect the seriousness of the offense or deter others imagine that you are a sixty seven year old man who is bored and maybe all download some child pornography if you knew that if you downloaded child pornography over a lengthy period of time and you got caught eventually and you got convicted but the worst that would happen to you is a term of supervised release where you'd be returned to your house just as you were what possible disincentive is that for you that doesn't couldn't possibly deter anyone and i want to point out that to tie this into deterrence but the district court literally did not give any explanation as to how this non sentence could further deterrence it simply asserted that any informed person would think that it was sufficient that is not an explanation at all this lines attempt to fill in the gap by saying hey deterrence is not empirically relevant to  slightly below the guideline range on remand in order to account for the defendant's age and health there's no like a variance of that if i may answer the question your honor the that's actually a pretty important point it's not a matter of not liking a variance down to zero or disagreeing with a particular sentence it is a very different thing to say that some variance might be appropriate based on any number of reasons versus saying that a variance of this magnitude would be appropriate so that if you cite a bunch of cases where there have been downward variances for example in child pornography possession cases without that those variances went to zero you're not showing anything so reserve the rest of my time sure have richard by sly and the real simply the court i think went to great lengths to evaluate all the factors here the court went to great lengths to discuss its explanation i know the transcript is pretty in depth i  recall judge graham speaking into the record for approximately an hour but it took him about an hour or two to articulate his rationale and at the end of the day judge graham considered the mandate from this court judge gran sentencing and in the end judge brinn considered all the factors he considered all the evidence he considered all the arguments of counsel he weighed the factors he didn't mention a single line from our opinion  not sure how to interpret your you know the words you know i mean we we had a pretty lengthy and i would say comprehensive opinion agree or not i agree i mean agree with the opinion him and it was rejecting is a sentence in many respects identical to the one that comes back to us now and one would think that in considering whether to impose the sentence before us now that the court might speak more about this opinion for example than the one we expressly distinguished install it it's a remarkable omission and i guess the challenge that i think you face is how to reconcile the court's decision without us because i mean the way it works is the district court has to comply with our decision we don't have to comply with his i think the district court has done that but i think what the district court also did which it was entitle to do and perhaps required to do was it considered the changes that had occurred in the three years in between  examination where he did not have any improper contact with children or any desire to have any improper contact with children any past that polygraph examination mr biased one was completely compliant with his probation officer and otherwise complied with all the rules of know provided additional evidence relating to how the program ended up on his computer provided additional evidence relating to prison and all these other things and then even with all that additional evidence and you may know from the transcript i advocated to the core essential judge given all the new evidence i think you can impose this same sentence with nine months of home confinement of which he had already served the judge disagreed with that and imposed what courts have recognized this is a potential penalty home confinement is a penalty it is punishment it may not be this court's preference but it will it is punishment it is a an additional further punishment that he received and he received three years of home confinement and in all candor i was quite disappointed with that  general deterrence question as mr glassman stated judge graham addressed by simply saying anybody who's informed about the facts of this case would understand this is a punishment that would deter people like this so if you had a seven year old man with a pacemaker to figure later yes seven year old men do who had trouble walking trouble hearing trouble speaking because of the two strokes that he suffered that type of person would be deterred by the sentence and i think you're eating up in a situation where  you have to view general deterrence through the prism of similarly situated people i think the other thing but let me let me just interject affirming on that point i mean mr bice line has said himself that he has all or he was already largely confined self confined to his home doesn't that undermine the idea that if we're looking at a similarly situated body that they would be deter mean it's not much of a change well to say he's self confined and mean he's seven years old with health problems his wife has health problems i mean there is a common sense quotient here that tells you mr bice line wasn't going out on saturday nights and cruising up and down main street but the point is is that his liberty has been impinged his liberty has been affected by the home confinement he's not allowed to leave without permission from the probation department he's not allowed to leave and less for specific limited shirts not remove i mean you know so certain jo guess my point is that relative to other defendants who aren't spending most of their time at home this would seem to be less of a turn for defendant or a body of there that isn't affected by any individual actor this is a unique situation a lot of the general deterrence theories especially in this area relate to the market theory that you know there's a demand or that the market is being furthered or or isn't being deterred by these kind of punishments the market's going to go on regardless and i guess what the courts ultimately getting at is perhaps the case law doesn't really accept that rationale that their particular  downloading a child pornography is just simply not going to have an effect and i think the case law says otherwise the office well and i guess the call to me question is that from the court's questioning it seems that this court may disagree with the amount of weight that judge grant put on that thirty you know it's it says well it's not terribly persuasive when somebody is conclusory as a general matter and i think the other thing that's changed a lot on or since the last sentencing is that there's been some changes from the sentencing commission as well the sense in commission and all these factors are related it's hard to just take one factor in isolation you have to consider all these factors together ends and the greater the date the policy statements have been changed to include a health as a permissible consideration you know on that point if i may just interject again as i understand i mean i know that there was some criticism in the rehearing papers that you know we were oblivious to the change  well thirty seven forty two something and maybe you gentlemen no idea what either but i know yeah i mean it says that even when there is an amendment the version in place at the time of the original sentencing even on  is the governing one i don't think there's a huge difference between these i mean one says it in a negative way we discouraged this factor the other says you can consider the factor only upon a very high showing  a prison term by him was because of his age and health i'm not sure that i would characterize it as the only well let me read you now if mr misaligned were a young person with no health problems they would be going to prison  substantively reasonable that if you're old enough and ill enough that you get a free pass to commit the alamo child powar well it this simple answer to that is no you don't get a free pass because you're of a certain age  obviously don't get a free pass just because you're have certain health concerns but again you have to consider all of the different factors and when we're talking about the seriousness of the offense we have a situation where things were downloaded so they could be viewed he didn't copy then he didn't actively distribute them he did not pay for them he did not trade them he did not make copies and put them on a shelf he had a lot of number of files in a number of images that were not even involving sexual conduct in the first place they were commission seems to address that as well and acknowledge that so at the end of the day if you go back to the original guidelines you know back to nine hundred ninety one when the original guidelines on this were put into place they got one recommendation would have been six to twelve commission has recognized some of the flaws in the guide and this court was particularly critical of judge graham at the from the first sentencing because judge grand commented extensively about the fact that this guy learned been created by congress and therefore under kimber oh he felt that he had to give it less deference for his court told judge graham he had that wrong judge brinn did not rely on that factor in this sentencing hearing instead he pointed out some of the very specific problems with the guideline he pointed out that most courts most course the tune of seventy or eighty percent of them are sensing people below guidelines for living and i appreciate those points but if i can just speak to this guideline issue generally i mean i think that we need to get more specific in our terms here judge graham as i read his comments from the second sentence is criticizing a number of the enhancements largely on grounds that the common to most of its i think those grounds are ones that are also cited by the commission and its report and as you and your excellent brief for now but a lot of the congressional involvement here  concerns the base offense level and at least three times since i think ninety four and maybe more and try to hard to keep track of all this congress has a knack did through its you know by present presentation requirements under the constitution has a knack did directives to the commission to increase the base offense level and in our first opinion and so these are a different animal i mean those are different than the enhancements that judge graham criticize and in our first opinion and i'll read from it we said it is congress's parag you get to dictate sentencing enhanced ment's based retributive judgment that certain crimes are reprehensible and warrants serious punishment as a result then we said congress is long in repeated involvement in raising the offense levels for two g two point two makes clear that the grounds of its action were not only empirical but retributive that they included not only deterrence of punishment and so i see judge graham and i see in your brief the the criticisms of the enhancement based on these imperial grounds but what i'd like you to answer is the question that congress according to what i just read congress made a value judgment it retributive value judgment about this offense and said this is serious and we want serious punishments for this the court did not take on that value judgment it did not challenge that value judgment and so where in this entire record of the sentence second here where do we find any recognition of the retributive value judgment that congress made in that we called out in the first opinion in this case judge graham discusses that wanted his wins as you point out and he discusses the fact that the guidelines recommend a certain sentance when you the government likes to point out is that we get from sixty three seventy eight months all the way down to zero well if you take these enhanced minutes and you sort of critique then when you have a policy judgment that where you disagree with down or whatever it might get you down to a certain point i haven't done the math thirty to thirty seven ma ok so we get down to thirty to thirty your honor i'll take the court's analysis that thirty to thirty seven months now all of a sudden to get to zero the variance isn't quite so steep and so you look at the at home confinement versus being sent to a federal judge but i guess my point is so then you end up with a guideline recommendation again the defense is argued that the guideline recommendation that should be considered a thirty five fifty three for policy reason should be the six to twelve months the government's argument should be sixty three seventy eight months you're posing a scenario where ok we get rid of the enhanced minutes we get down to that sort of court spoke to yes the thirty to thirty seven months and so at the end of the day then the question becomes considering all  thirty five fifty three factors considering the guidelines as just one of those factors you know did not give proper weight to the guidelines and well and on that point the court never mentioned the range there's i mean in our opinion we  say the actual range is the starting point and i think if we give a generous reading to his comments we could say well he's disagreeing with the enhancements on policy grounds and he's doing so on her reasons that are themselves reasonable  but he still has to come up with some range that is the starting point it's not a reason for throwing everything out and just freewheeling it when you hear them not not taking it in the range and do it concern and i just want to be really candid with you you know about my concerns and let russia speak to know that i guess that the end of the day the range again is one one factor to be considered a it's a factor the judge granted to agree with on policy grounds i think he has the right to do that and at the end of the day he gave he considered all the factors he weighed all of the factors he discussed not just in two thousand and thirteen but in two thousand and ten his policy disagreements with the guidelines and in the end and i'll summarize with this mr bice line is the exception he's not the rule he's the exception and congress allows there to be exceptions there is no mandatory prison sentence here congress notwithstanding it's rolling pretty guidelines your honor never made a mandatory prison sentence here that means congress in vision some people maybe a few maybe seven out of however many hundreds or whatever the numbers are but the point but one could argue that there are other factors that were just not weighted in a serious way at all the on lip service frankly seriousness of the offense i mean again he makes comments suggesting it's not serious i mean the crime here was you referenced how this program got on his computer that the crime was not down putting lime wire it was not his son who committed the crime he committed the crime and moreover he committed the crime over the course of an entire year if this was one intoxicated afternoon and you know it then maybe you start to you know get some real  traction here but this is over the course of a year and he is the one typing in p t h c he's the one who did it right but it's not about the court to this day does not seem to face that fact it's always the passive tense was downloaded it said and i'll just let you i mean why am i misreading the court's sense of the seriousness of the offense well the impression i have is that judge graham has seen much worse i think that's what with it who cares but you know that only answer to the conduct of the offense but i mean but again he chose to download this stuff if you don't have to be a q computer savant to know that it's a really bad thing to look at pictures of kylie being raped by her fall that takes moral sense not computer science so why why does this lack of sophistication matter the computer didn't do it he did isn't it fair the crime was committed there's no doubt about that he committed he committed a crime but it's go no noise nobody had a signal really from our side of the case has suggested that the crime happened to mr bike and i'm not i'm i'm not putting that on you mr tyin and i would say your representation in this case has been superb and i every defendant should be so lucky to have somebody who's working as hard with a client but my concern is with the district court and the district court is the one who keeps saying these things when i read the second hearing transcript for the second sentence and about the sophistication issue i wasn't i for a moment i wasn't sure if i was reading the transcript from the first sensing of the second one i mean that's what he said and at the end of the day we're viewing his decision not anything you've done well and you're going to get around that i think the important distinction there is context it's context ok you're looking at mr bice lines of conduct in the context of the law no doubt he's on the wrong size will do i know he's on the wrong side of the law he violated the law he committed a crime judge grants context wasn't looking at it in the context of guilt or innocence he was he was guilty there's no doubt about that judge crams looking at in the context of the overall world of child pornography offenders and judge graham seen a lot of them judge grim scene i don't know how many but over the last twenty some years he's seen a lot of them and what he made very clear is that in his experience he has seen a lot worse and that he wouldn't characterize mr bice once conduct in this case as being on the more serious end of the spectrum because of his lack of sophistication because of the limited number of images and videos because of the nature of a lot of the images and videos again not to say that they were illegal or that they were repulsive but judge granted is putting mr price lines conduct into the context of what he's seen over almost three decades as being a sitting federal trial judge that's what we want our trial judges to do we want our trial judge to put him in context and this court unfortunately doesn't have the benefit of judge graham's context it doesn't have the benefit in and perhaps judge graham didn't do know when enough job of explaining all that but in the end he he made it very clear that mr was not the worst that he's ever seen in fact he's seen a lot worse and and i think that it's a function of him being able to put mr by signes conduct into a context of all of the offenders that he's seen over the years and recognizing that this man wasn't buying it he wasn't selling it he wasn't trading it he wasn't making it he wasn't copying it over on to disks or videotapes didn't he get an enhancement i mean agreed to an enhancement for distribution i might be misremembering that's tr because he you know that's where the line where works it's a baby that's work it's as has incomes as a passive distribution meaning it's to view it all the way the program works is if you if you go back to your computer in your office right now and you want to see a story about something going on in syria you click on it and then you watch a small video from c n n dot com and leave a temporary internet files on your computer one where news programs work the same way you can't view it you can't of serve the content unless or until it's downloaded and i think the record shows all the sentencing hearing about this automatic downloading that you seem to think would be happening of these images what automatic downloading again what judge brinn is talking about is again how the program works and what agent white testified to at the very first hearing as i recall i haven't read it recently but as i recall ok is that he talked about how you cannot view the files unless or until you down so what happens is a list comes up you click on one of the files and it may take a minute or two it may take longer than that but eventually you can watch it right but it has to be downloaded and it's automatically placed in a in a shared file by the program but all the user has to do is run the search again right t h c whatever it may be a list comes up when the list comes up you have downloaded the files at that point ok so what you do is you click on it to watch it you click on it to observe what the file is but it cannot be observed it cannot be watched without first being downloaded into your shared file and that sounds like a refutation of the court's comments that he said you know that there is this automatic downloading it it and that i don't know where the well automatic downloading it is automatically downloaded to your computer when you view it in other words mr brightside you have to choose to view it if you choose to view it's not just hal in two thousand and one space odyssey taking over you have to choose to view it but you can be viewing it little folders on his computer in other places we see that no other cases we see you know my favorites over here we see young children here teenagers here we see people moving the files around the only place that these files were ever found were in the share folder on his computer they were placed there automatically by the program when mr bison chose to view it so again i we may be splitting hairs here but again tonight understand i think judge greer understood that again may not have articulated well but the point is what he what mr bison wasn't doing was categorizing and cataloguing and storing for later use he was watching one time it would be down there on his computer because it had to be for him to watch that's the end at the end of the day that's what he was just a few quick points your honor i don't think that the district court was saying in context i've seen what he did say at one point i've seen a lot worse but then he also said at the close of the sentencing hearing that he didn't see rape and he didn't care if he if  it was on there wouldn't change his sentence so i don't think that that's really a reason for the variance to get the thirty to thirty seven month range that would be eliminating the two points for use of a computer and it would be eliminating any enhancement for the number of images as i got to the range if you just use the minimum number for number of damages so adding two points because he was more than a ten images then you're looking at thirty seven to forty six months and of course is a big difference as i tried to say in the opening argument between articulating a legitimate policy disagreement with particular guidelines and actually working out what that means for the sentence made some reasonable  even if you're bestowing himself sitting at his computer if you download it one day and then you get the next and the same image because stuff's not being produced there's no there's no inexhaustible supply for you to download you're going to quit doing it because it's the same image i don't understand how it helps this line to say i only looked at stuff once he did it over and over and over again he admitted he did that he admitted he did it even after he knew that line where was a file sharing program as the court pointed out he admitted he agreed to the enhancement for distribution not wasn't an enhancement for knowingly distributing something for again it was the lowest kind of distribution but i mean i think that that was at the minimum that could have applied in light of his admission that he continued doing this conduct for over a year he certainly knew what he was doing and he was the one who was doing it as the court pointed out rather than the automatic downloading program that the court referenced in its sentencing rationale it's clear that the court has thoroughly scrutinized the record so if i could try to answer any other questions the court may have otherwise the united states asked the court to vacate the sentence and to remand for re before a different district judge thank you both for your arguments they should be submitted to major court