let me start today by thanking just kaplan from the united states district court for the southern district of new york for joining us and helping us it's a great addition so welcome and thank you let me also before we get to today's argument a few words about a member of our court family tony anthony whose funeral  is this morning and unfortunately we're here and missing the funeral but he was a and i think i speak for both just of all and myself and everyone who's number the second circuit he was a terrific member of our family and he'll be sorely missed i understand and that everyone is present for the calendar and so will dispense with the calling of the calendar  ill start with united states v stone eighteen one two three eight my name is more of a i'm an assistant federal defender from connecticut i represent mr stone i represented him below in the district court and i reserve two minutes for rebuttal please force the district court committed procedural  erroneous lee construing mr stone statement to the court and to the victim's family in this case as a self absorbed a clear complaint essentially lacking remorse the court addressed the statement during it explanation give him a point reduction for acceptance of responsibility is a correct she did your honor she did and she didn't say anything about remorse in her statement to she she didn't specifically say remorse or hon or but she focused on the self absorption which i think can be easily translated into a lack of remorse it appeared that her assessment was that mr stone was concerned as to how his crime impacted him are a lot of self absorbed remorseful people in this world are there well perhaps remorseful as to how something impacted themselves but what the the district court interpret it was that that's where his remorse was in that it wasn't remorse for his crime and the impact on the victim and her family so that there were there was some content in that statement that that could be described as as concerned with himself i tend to agree with you that the major thrust of the statement was expressions of remorse and his frequent use of i and me was in saying i am i am mother because of the awareness that by the time he gets out of jail she'll probably be dead and so that that that that that that part of it could be characterized as as  concerned with his own predicament and misfortune like your honor i i disagree respectfully i think that those statements were actually clearly illustrating just how longer speak to my family but then when he gets through i do speak to my mom he says i talk to my mom but that's only because i know that before all this is over she might not even be alive anymore that that part of the statement could be could be described as expressing concern for his own predicament but i think if it's isolated but in the context of the entire statement again i think he's making the point that you know he's essentially been besides being incarcerated and separated from society what he's done was just that bad the only reason he's talking to his mother is because  not be around later i don't view that in the context of the entire statement as some sort of a self pity quite frankly the statement is essentially the opposite of that stating that he deserves whatever sentence that he's going to get and i'm i'm paraphrasing interpret it on my own but i think it's a reasonable interpretation it isn't a problem this i mean granting for the sake of argument your point that there were expressions of remorse in what he said not to the exclusion of other things but along with other thing isn't your problem that the district court never denied that and never did i that he never did nor that there was some element of remorse in what he had to say she spoke about the self absorption but i don't feel the two was mutually inconsistent well your honor i respectfully disagree i think her statements are mutually i think it is inconsistent with with the into his entire statement she focused on that statement when she was rendering sentence that was the first thing she talked about when she described the nature the history characteristics of the defendant and rendering sentence and she stated that it was interesting because it was all about i and me and ma and his concern for himself and i respectfully disagree that's to the exclusion of remorse for the victim morse for the victim's family and what's happened to them as a result of his conduct i see i'm about to run out of time and is there anything you want to say on the substantive  my name is nancy gifford i'm the assistant tourney from connecticut and i was the attorney on the proceeding below dysphonia up on some of the conversation the courts already have the government agrees that there has been no finding of remorse and there was full credit for acceptance of responsibility in the court's interpretation of the defendant's deem it was a permissible one that is in the context of the whole sentencing hearing which at that point had begun with the government reading in a statement from the victim's aunt the government referencing the minor victims mother's letter and then the government itself detailing the heartbreaking consequences of the of the of the harm wrought by the defendant in his conduct in that context and then for the defendant to discuss how sorry he is in give full credit for his sorry miss i do believe you can both be remorseful and not fully  if the fact is that the judge of the judge's words were i have it correctly here the most prevalent words in the defendant's statement were in me and my how this has affected mr stone is what is on his mind today rather than focus on the impact of his offense on the six year old girl and her family we had to hear about mr stone and how this case has impacted him  is like a paragraph here i want to start by saying i'm deeply i'm very sorry for what i did i know that i got to do a lot of time and i know i deserve it and i am saying sorry right now for something i know i'm wrong for i know how hard it must be for you guys that's the victim's family to be here today i'm ashamed of myself i mean barrister i don't speak to my family no more and then there's the one one sentence i quoted earlier i talked to my mom but that's only because i know that before this is all over she might not even be alive anymore i just hope that you know if i do get the max and i'm not saying i don't deserve it i hope it brings you guys the family of the victim some peace i'm really sorry now i find it extremely puzzling how one can interpret that overall statement as an expression that doesn't express concern about the harm that he has inflicted on its victims and family on the victim in it and the family and being solely absorbed in himself and feeling sorry for himself now i also know very well that words are cheap and that and that expressions of remorse doesn't necessarily mean remorse but nonetheless to to say that to characterize  statement as one that expresses only concern for himself and doesn't express concern about the harm that is inflicted inflicted on the victim and his family just seems to me seriously wrong and if the fact were that the court increased the sentence gave him as a stiffer sentence because of her feeling that his statement was one expressing only concern for himself that would be as kind of problematic because i just while while there is a sentence out of the eleven or twelve sentences there is one that is about his own predicament that his mother is going to die before he gets out of prison the rest of it every single sentence sincere or insincere is about shame and and an admission of guilt and so so what do we do about that if we face the possibility that the judge may have increased the sentence because of of and in correct i just don't see how anybody can interpret all but one clause one one half sentence out of those dozen sentences as being concerned with himself rather than with the victim and his family enormities done this a couple of quick points one is that the hypothetical that the court just posed is not what we had here there was no upward departure and he did receive no no credit we don't but it's not what we have we don't know what might my question is how do we know whether the court gave him more because of of the of the judge's expressed statement that when he spoke to the court he even expresses a little bit resentment we had to listen we had to listen to  his concern for his own sad plight i think the court's view in that sentencing hearing as i mentioned in the context it's a view was a permissible interpretation of what that what the defendant said it reflected some remor sentence i don't talk to my family anymore his steam and i'm embarrassed reflects back to his sentencing memorandum where he talks about that the biggest punishment from this offense is going to be on the fact that he's on the sex offender registry those don't reflect anything about the harm and the heartbreak and the trauma of this family and this child and maybe you can help me on another question there was as i understand it a finding that there was no contact with the minor right or what would the sentencing exposure have been in connecticut if he had forcibly raped the child you know i did a quick review of the second circuit case law where there has been production of child pornography and sex abuse and circuit regarding the fact that we look at the fact that they are producing child pornography as a separate and distinct offense and the harm it causes from that in particular but could any reasonable person conclude that this guy's reprehensible taking in secret of thirty odd photographs on his cellphone which he deleted on his own before there was any notion that he cord is worse than forcible rape i'm not a six year old i appreciate you are not i would i would say is when you look at the noted recently i believe in brown that the average sentence for someone prayed produces child pornography is two hundred sixty one months and that includes those that have actually had hands on contact and those that have not i mean i don't want to interrupt you i saw just a little hand which  years is a long time but when you look at the the this defendant being a category six that is a criminal history category six that requires at least thirteen criminal points he's at twenty in his young life and he had a history of violence violence against women  against a man who was prone on the street kicking him he had almost no period of his adult life where he wasn't in violation of law are under terms of supervision and given that criminal history which is very rare and a production of child pornography cases the sentencing guidelines most recent study says seventy seven percent of individuals who are charged production of child pornography are criminal history while i'm we are well are we are up to six categories a different category on or i like to ask you something else that i find puzzling the court said two different things that seem to be diametrically opposed to each other on the issue of whether there was any and he touching any and you physical contact there's an image of the child's body in which mr stone's underwear are depicted so i'm not certain that there is no evidence that there was no contact as i said earlier i don't leave my logic behind when i come into the court room and that of appears to be saying that that in view of the fact that he was lying on the bed next to her in his underwear that she had her her or  he pulled up to her waist revealing all of her private parts and that he and they were shown in the photograph and the mother said the mother provided information that the child never slept without panties on that she was shown without panties on in the photograph the court seems to be saying there that that i think there was touching and then she says later that that there that that that there was no physical contact the underwear would have had to come off you're lying in bed next to the child in your boxers there's just there's touching and then there's sexual misconduct and sexual family inappropriate touching that's that what the government said from the beginning we did not have evidence of in this case and that's what the court when it said at the end just before ruling that in imposing the sentence fully credited the temp and it with no physical conduct contact if there's any other for the question that much thank the question about her the statement about the judge's two diametrically opposed statements when the judge when when the district court made the statement that it didn't leave its logic at the door that was in response to defense remove that issue from the sentencing because it wasn't a part of it and i didn't want a reference in a victim associated letter to set us on a different path it seems as though the court though analogize contact with sexual assault and then gave him apparent credit at a later point under the guidelines for not sexually assaulting the victim but just going back to  the idea that whether or not the judge the judge is misconstruction impacted her sentence it clearly impacted the sentence because as i stated earlier at the beginning of the court's recitation of the basis for the sentence the court discusses under the history characteristics of the defendant the first thing she talks about is this perceived self absorption she gave him a sentence at the bottom of the guidelines if you review the holiday  case that's another case where there was it's a seventh circuit case but it's referenced in our reply brief and it's a case where the court misconstrued the defendant's statements and his statements reference that he was in a sense that he received ineffective assistance of counsel that his confession had been coerced but that is how do we review that is it that she clearly that anybody reading the transcript would clearly conclude that she misconstrued the defendants f morse what is the standard well the standard is obviously it's an abuse of discretion but i i believe this is a plainly erroneous finding by the trial court i think it's the transcript is plain on its face that presupposes she credited the sincerity right maybe she disbelieved the claims of remorse you or your honor that's a good point but i don't think that's the case here  fact i'm i'm i she didn't state that that was the case and i understand she didn't say she disregarded remorse to her statements misconstruing mr stone statements are about the words he use i me and my and assigning an interpretation that is not there that she didn't draw out from his demeanor something intangible that only the district court if she disregards the claims remorse on the ground that she doesn't believe them there's nothing else in the statement is there besides his comments about the impact on i think that's accurate but your honor she doesn't say that she's disregarding or finding any claims or for morse she's for series that if i understood correctly that this could have been construed as an important reference not just to the paragraph from his statement in court that i read but to would raise with most defendants who are going to be on the sex offender registry it's raised as you know another punishment mr stone statement was mr stone statement i wrote the sentencing memo so his statement about being embarrassed in the courtroom he didn't attach it or relate it back to the sentencing memorandum so i don't think that's an appropriate  statement i wrote the sentencing memorandum your honor and i don't believe in his written statement he mentioned anything fact he didn't about the about the sex offender and he did file a written statement that was actually different from what he stated stand that so his statement in court and i know this is no or on the record it was just a statement in court i frankly had rightly or wrongly nothing to do with it and quite frankly i think it was a one of the best statements i've ever heard