morning morning or hours they please the court my name is kevin mulcahy i represent the united states in this matter i would request five minutes of proposal time if i could all right i'm going to be your honour's the one day sentence for the child pornography crime in this case against these facts was unreasonable this court held this much once sent the case back for reset and saying i'm reminded district court made almost the identical errors judge we do not make that request or are you making now i do not have authority to make that request so no you are our position has been that we leave it to the courts discretion and it supervisory role ok what are your what are the standards that we would evaluate  r of the standards would include i believe from the baseline case whether or not this the district court would be likely to essentially it here to the remand a second time or actually even the first time i suppose even though you t i mean if you're prepared at all talk about what what the standards are i mean i think that's kind of what i'm focused on right now i understand your time and maybe my colleagues are different i mean so there may be some a remand before a different judge what i look at yes or on of the principal issue to look at would be whether or not the original judge in this case whether the original judge or the sentencing judge would reasonably be expected to have a substantial difficulty in putting out of his mind previously expressed views or findings i think that's the overarching theme from this line and in the other cases what what here would go one way or the other  well factually here the district court was focused in what our contention in regard to the error in the sentencing this court was focused on mr robinson's personal characteristics and one of the statements that was made in the  record at the sensing hearing was that the district court said i i'm not going to send someone to prison who has mental health problems unless i have a compelling i believe or or good reason to do so is something that regard and he said that he wasn't even close to making that finding i think that's probably the principal fact that would respond to to this argument i guess also with regard to this defendant the district court was focused substantially like i said the mental health issues including past suicide attempts by this defendant and the district court did  correct and he was charged with a crime in two thousand and eight two thousand and nine was his sentence and then the suicide attempts were in two thousand and eleven i mean the principle fact i think in the number one factor would go to your honor's question is the district court said in refusing to impose a term supervisor excuse circuit raised in robinson one the lack of response coupled with some of the statements in the sentencing transcript would be the i think the most responsive to your question your honor and i guess i'll build on top of that and just note that for the es of the sentence itself this court's principal criticisms were three that the sentence imposed did not adequately reflect the seriousness of the offense meaningfully detour others and avoid sentencing disparities in here in response man the district court as to the seriousness of the offense didn't respond or indicate how the sentence that he was going to then reopen pose would address the four facts that this court was focused on with the seriousness of the offense in other words mr robinson's conduct had for very significant facts that this court focused on in the first opinion the further those were that he paid money into the marketplace of child pornography he didn't obtain these say through an e mail exchange or downloading from a free website but rather and he did so three times the number of images in this case was seventy one hundred which was a significant amount the content of those images which the six circuits original painting included terms like bondage torture and rape children and then mount of time that the defendant spent amassing his collection in this case was five years so against those four facts the court of appeals said these are the four facts that underscore the seriousness of this offense and the response was  silence on those the district court never went through an analysis on those four facts similarly on the general deterrence argument this court described general deterrence in cases like this is crucial and is focused on the marketplace and and then criticized the district court because the district court in the initial sentencing was focused on sex offender registry having to do terms of supervised release being labeled a felon these were somehow deterrent and this court  criticized that and said those are consequences of a arrest and prosecution and conviction not of the sentence so i remained in response to that direction the district court centrally mocked the notion of general deterrence as to general appearance he said i look around i see no media here will be no pleb publicity and oh by the way you weren't deterred from all the other cases that we've had in addition to that in the written sentencing opinion that followed the hearing the district court again focused on collateral consequences of a conviction sex offender registry and limitations on where a person can live who is a registered sex offender as deterrent factors but again that ignored the direction criticism in robinson one and the last issue about avoiding set of voiding sensing disparities again this in this was perhaps the most robust portion of robinson one in there the court said we understand that the sentencing guidelines for child pornography offenses are under attack in are being subject to revision but there are two factors in the sentencing and hansen's here the fact that there were images of children under twelve and that there are sadomasochistic in violent images that are really under attack and that aren't subject to as much scrutiny it also focused on opinion also focused on two aggravating factors again paying money into the into the marketplace in the five year period that mr robinson spent amassing his collection in response again the district court said nothing about the enhancements said nothing about those aggravating factors instead the district court criticised i guess is the fairest word the government for its failure to appeal other one day sentences and again avoided the issue of national disparity which is really what this is about so this is the same arguments that were made before the direction greater than they are you're either yes yes your honor the guidelines in the case are seventy to ninety seven months and we recognize that we made a recommendation below guidelines here i think that takes into account some of the criticisms that i've talked about earlier the sense of commission just issued  lengthy analysis of the guidelines the department of justice has responded and agreed this should be some revisions so we did recommend below guidelines and here the bottom line of all of this is simply this it's not that whether or not this case could or should have been given a departure a variance from the guidelines it's that this should not to be a non custodial sentence the facts in this case are severe they're worse than the facts and baseline the sentence that was imposed and found on reasonable misalign was more severe than this case both times good morning your honour's can really start on behalf of mr robinson i see i'm in a difficult position here but i love the challenge i'm only want to free people i am and i understand that and and here instead of some other court of appeals which i won't mention besides very different judge there was very concerned about his poor physical health and his age and how age played a part into deterrence the judge was also very concerned about policy considerations of the sentencing guidelines that is not the case here judge turn now who are speaking about who allegedly truthfully the disrespect i see here is what i've seen from the government's table in addressing judge turnout judge time now is considered a more liberal judge in our district and i think that he has a dry sense of humor that's often very misinterpreted  he did not pander to the sick circuit and i think he misspoke when he said that work because i was a little surprised as probably everybody was when they heard that in the courtroom but what he did was admit that he did not consider some of the factors and put it on the record how he now felt at the next sentencing which let's remember how many years have passed and let's what we're here to consider is what you said your court said in united states versus fanaa c five fifteen fed three hundred thirty five eleven and that's not we're not here to continue to substitute our judgment for judge channels we're here to consider whether this is a reasonable sentence with an abuse of discretion standard consider and consider what this court directed judge turned out to do while this court specifically said in robinson one opinion that there could be extraordinary circumstances that justify extraordinary variances that was i think at page seven eighty and i'm sorry if i'm wrong i am pretty tired today and i thank you for allowing me to be late  the extraordinary circumstances here and what judge turner put on the record maybe not as artful as could have been put and i'm sure i'm not very artfully today because i'm tired but was post conviction rehabilitation it's been six years and four months since the complaint was filed and it's been five years and four months since the first sentence this client has had no violations of the law this client had significant mental health ill disabilities that were documented by a doctor who specializes in the area of sex offenses with the ph d that was not jail and ever by the government or disagreed with or probation or pretrial or anybody this man tried to kill himself three times he was hospitalized in sentencing he's become homeless lost his cars and his apartment has become a family pariah since since the arrest though in the sense he's been blessed because the court has paid for our taxpayers have paid for mental health treatment which is seriously needed he has schizoaffective disorder which was diagnosed in unchallenged by the government he has o c d which was unchallenged by the government and serious depression which was  challenged by the government currently se as part of supervised release the courts often pay for treatments when based on the ability of the client to pay mr robinson was a working man but no longer works because of this and also because he got in a serious job accident in his that now on disability also because of the way he was raised around he wasn't as fortunate as some other defendants to get mental health treatment as you desperately needed when he was growing up the judge even attached pictures of mr robinson because he wanted this court to see what he quote unquote found as a profound change in mr robinson since arrest since the first the plea hearing in the first sentence a profound change is what he said so there has been something extraordinary that occurred in the united states supreme court in pepper versus united states one thirty one supreme court twelve twenty nine two thousand and eleven has said post conviction rehabilitation may support downward variance that's not a question at issue at all so he did find something further he talked about attorney general holder memo which was dated august twelfth two thousand and thirteen and directed to all the united states attorneys an attorney generals in the country in the criminal division and asked them to use more discretion in mandatory minimum drug cases there there anything that they state was clear it was just a recommendation by them i had no agreement with them i know that i'm just saying that sets the attorney general said you can believe it whether they cut it by half from the gu pornography is a he has disgusting people that produce it i'm a mother i'm a grandmother i'm a step great grandmother the peer absolutely right people that possess that are the customers for the people that produce them and victimizes children and if there weren't the customers out there buying those viral stuff they wouldn't be the production that's what our cases talk about not and i don't know how we have to crack down on people possession because they're creating more of a market for it but we've we've learned through but i haven't seen it yet for child pornography and sadly child porn and like drugs as a does exist as long as time and i don't think i don't think we're going to get the people in russia and ukraine her create creating these videos because sadly i've had to watch some of them as part of my job and i regret it but i have to say so i'm doing a cut to the issues here ok one of one of the factors that the sentencing court must consider general t the district judge make some sort of a comment i don't see you did general deterrence is going to be affected here because there's nobody from the press here to see is that is that how he dealt with the issue of general terms or i don't believe so you but nonetheless he also increased supervised release by five years continued increasing that's true general deterrence purposes are what we asked him to consider the following factors including general terms what rulings did he say on remember specifically that dealt with general terms other than i don't see any media here so i can't see how this sentence is going to affect the terms in general i mean in any other ruling that you find a separately said number your honor because he specifically said i am restricting this gentleman's freedom excuse me further with more conditions and a longer supervisory period that is what he said when he addressed it he did and he went into something that i think is important here and stop me if you have further questions of course your honor but even though general judgment general deterrence is important and that's why he increased the supervised release and the conditions which include polygraphing and who we can associate with an approval of hooey associates with and treatment and medications excedrin but he also said as the score set him united states versus presley five forty seven fed third six twenty five that in affirming the six circuit held that a district judge may exercise his or her discretion and determine a disadvantage sentence in light of a  disparity is usually concerned with national disparities so it is recognized by this court and as well as others as i know you are aware and let's move to that dubin case dugard case is important here because the government wrote in their syndrome it says here that in their brief the defendant suffered lifelong debilitating form of asperger's and severe social deficits while mr robinson has a skin sort of affective disorder unchallenged again and found by doctors and treated now o c d in depression mr du been was for from a family that was wealthy were a father who is an evidence professor in our local area to law school actually has class was able to treat his son his whole life yet he still collected child porn i know it was supposed to supervise was a biased parents my client in contrast was raised by a single mom in baltimore  very limited education with very limited means and she was a member of a very strict religious group which caused him not to be able to attend dances talk about social you have a professional psychiatric opinion that collections and is as you should know or you probably do know when he was arrested he's the one who who when he looked to the ice officers and welcome them showed him the computers no search warrant and then went and this gentleman was intentionally trying to act out from his upbringing intentionally and doing things that were considered inappropriate on purpose because of the religious background and the restrictions that he grew up within the consider all that and put it in his report he also made the findings that he is a well adjusted male who likes adult women you know not altering and you know i find that somewhat significant i know the government doesn't find it is significant  but all in all it i do believe that the the the lower court addressed this line first line it address the seriousness of the offense and increased treatment increased polygraphed and increased there's several cases this court listed that were appealed that were given probation for child porn in our district and there's no rhyme or reason and i just think there has to be an appearance of justice here and there is you thank you for your leave mr out first of all i'd like to go back to the panel i'm sure agrees with me to thank you for taking this case i think you know just exactly thank you well representing your client berstein and i could be wrong but was was more that the judge in that district disagree with policy and there's an issue now of whether you you you permitted to disagree with policy of the sentencing commission and formulate your sentence from there this judge did not do that he looked to the factors you asked him to consider and spoke to him perhaps said some things that weren't funny that he thought were funny because that's judge starr now but he did look at your factor so i think he would be considerate of any follow up to that and that's the difference a big difference and he didn't say i erred specifically in his opinion i erred and i don't consider the factors you this the seriousness and just punishment the disparity in the deterrence and this is how i'm going to address it not i'm thumbing my nose at you when there's no policy that's not what he did and that's why he put the pictures in there that's why he wrote an opinion after the s really define it because he wasn't as clear as he perhaps should have been and i hope he does listen to this thank you thank you by way of rebuttal i think start first by answering your honest question regarding whether or not there is a conclusion from i guess a medical doctor of the evaluation about whether or not this defendant's mental health issues somehow related to  the crime he committed the the answer from dr sigrid in his initial in missed out did touch on this in his initial review of the defendant was that the defendant explanation was he wanted to shake his image of being a good boy and to do that apparently this was the crime he chose to shake that image and the doctor indicated that might seem unbelievable to some and then went on and explained a little bit more about the defendant but i don't think anyone has any ability the doctor or otherwise to say this idea of comparing the child pornography epidemic that's going on now with the crack issues those two things can't possibly be compared crack is something that gets ingested and then it's gone images of these children from two thousand and eleven and what it said was if a handful of pornographic images taken twenty years ago were sufficient to satisfy the perverse desires of those who possess and trafficking child pornography we would not have the huge industry that exists internationally today and it's exactly right because the last thing that i think is worthwhile is when talking about the post conviction rehabilitation and the district judge did spend time on that we have no quarrel with the idea of what which is the court to consider that that of course is true there's no doubt about that our position though is that with the district courts analysis of that was frankly hollow there was very little to support the idea of post conviction rehabilitation yes mr robinson had attempted suicide but not before at the time of his arrest it was in two thousand and eleven two years after the sentence while this case was pending for the first time in from the court of appeal that issue was addressed by the doctor dr said in his follow up report and what he indicated was that the suicide attempts were quote by robinson were brought about because he was quote distraught over his unemployment poverty homelessness lack of transportation family rejection and isolation this is a man who certainly has a mental health issue certainly some depression issues and the district court even found at the time of this recent thing that he had time to apparently overcome those you know his stable housing doesn't have the same suicidal thoughts anymore but the idea that he dipped in a mental health standpoint in the interim and came back up is the same thing as having a particular criminal disposition and then being rehabilitated i don't think those two are the same things also the district court found that mr robinson was exceptional because he had quote survived this long and had not committed any crimes but not committing new crimes not violating the terms of supervise release these are just the minimum we should expect from folks that are on supervised release mr district court found that these things work structure exceptional extraordinary and we disagree we don't think that there's been post conviction rehabilitation to the