sentencing issue and i'll begin by the suppression issue is settled law that a private search nonetheless implicates the fourth amendment of police exceed the scope of the private search and infringe on privacy rights not yet extinguished by the private search these princip apply equally to a seizure seizing mr wells hard drive without a warrant including content not already exposed by the private search of mrs wolf exceeded the scope of the private search it was an unreasonable seizure in violation of the fourth amendment any other said you said searching it without a word for word of the fourth amendment they they got a warrant before they searched it and they did get a warrant and if if i use the word search i may have misspoke what i what i was trying to say your honor was the seizure he then obtains a warrant to search it correct so tell me what in that sequence exceeds the fourth amendment why would so forth and that it's the seizure of the entire drive when the private search only encompassed some portion of the content on the drive that she gave them the entire drive correct so we have cases a prep binding precedent saying that the government's acceptance of materials provided by a third es but jacobson are our decision black came after jacobson has the district or pointed out and our standard for overruling our president is very high it has to be irreconcilable so why  is black not the controlling precedent here and requires us to find that either there was no seizure at all or any seizure was reasonable well your honor i think i think the important thing to note is i'd obviously cannot disagree that this court has precedence authorizing a seizure when there's actually what happened well in any of them the hard drive and she said here you can have all of his electronic material so i think i think that's actually the distinguishing factor between black and the other precedent that the that you're on a relied upon so for example in black the facts and black were that a the defendant had given his legal assistant or secretary a certain set of documents and then that woman the third party gave the documents over to government law enforcement agents in that scenario and that in that set of facts the court found this court found there was no seizure because of the voluntary relinquishment i think the important distinguishing factor here is first of touch my hard drive it has pornography on it and she said tough on you i'm going to take it and give it to the police and and she did would that make the police is the police acceptance of the hard drive or a violation of force and then in if want you to see and she nonetheless looks in it sees whatever disturbs or calls the police and says here's the hard drive is that is there acceptance of the hard drive a violation of the fourth amendment under those facts it's our position but tell me what case supports that so i think i think first of all jacobson as is i think the crucial precedent here so in jacobson as the court's aware law enforcement seized a package that had been the subject of a private search and obviously the the package was not intended for fed ex was intended to go to some other third party but it was intercepted by fed ex who examined it could tell that it had been tampered with and once they looked at it they could tell that it contained drugs in the supreme court and jacobson noted that the seizure and first of all they did find that there was a seizure even though that the package had been the subject of a private search they nonetheless found there was a fourth amendment seizure they then said the seizure was reasonable because of the several factors first they found that the privacy interests had largely been compromised by the private action in other words once the federal express employees had seen what was in the box all the privacy interests there had essentially been extinguished the other important fact and jacobson was that the package really had what they called a distinctive character meaning it could only appear to be one thing which was drugs and therefore the supreme court said it was reasonable to seize that effect without a warrant and because the agents had already learned a great deal about the package i said much different from the case we have here where the white has seen the materials given the police and occasion as to what's essentially they could the officers could tell on its face right away that this is a good mrs wolff in this case she was contrary to my hypothetical authorized to to use the hard drive she looks at it and she sees what she thinks the password to get access into the drive but to go to judgment question i think the other important distinguishing factor is a hard drive on its face is not incriminating i think probably every single person in this courtroom has an external hard drive on it  with them or in their house and that hard drive can have both contraband on it and can have completely legitimate materials on it in fact in the record miss wolff noted that she told officers on page one forty one of the record and has a statement from this wolf that she gave to the police that  she found quote many expected things end quote like school records and photos and so the difference is in jacobson the package only could lead to one conclusion it was contraband the hard drive maybe there was contraband while there was contraband on it but there was also material that was not contraband or any indication that she was acting as an agent for the law enforcement if they had any indication at the time and directed to try to access hard drive through trying to get the password no i i don't think she was acting as a government agent i think it was solely a private search when she presents hard drive and she basically gives the government indication that it 's not much different than the jacobson i would disagree i think if i think it would be a very different scenario if she came with the specific images she saw and let's say hypothetically she had copied the images she had seen on a thumb drive and given the thumb drive over i don't think we would be here complaining i only have one minute left john and i'd like to reserve the rest of my time for  morning your honor sir may please the court justice lemon for the united states your honor the exclusionary rule is designed to deter government misconduct and here there wasn't any i'm happy to talk about any of the issues in the case but it seems like the seizure issue i'd like to talk about the sentencing issue oh sure it's one that your colleague didn't get a chance to get to why wasn't this sort of improper bargaining between the judge and the defense because this was first of all not the judge's idea the judge began the sentencing hearing by saying as judges often do that he had a tentative sentence in mind he had some concerns about the acceptance of responsibility issue here take you waited a few different concerns and one of those was that the defense had refuse to pay a penny of restitution now totally out of the blue defense counsel then offered up this stipulation which she said she discussed with her client before the sentencing hearing so this was something they talked about already and she said that if that's a concern of the court we would offer to withdraw our objection and again this took the judge by surprise he said what do you mean she said we would we would move the issue for appeal and we would agree to pay restitution didn't the didn't the judge of specifically say that restitution was one of the problems he had with giving a third level yes he did i mean he was wrong on that was any no i don't think he was wrong and in fact your side supported given the third level didn't you yes we did and the third levels designed resources before well i don't know that that's the so that's that's what animates whether the government needs to move for that third point that guidelines aren't quite as clear that the district court is required to award the third point and in the sentencing them of the defense asked the district court to make an independent assessment of that third point that has come the district judge's comments clearly pointed to the restitution is one of the problems he i think mistakenly believed was you know the issue as to why that third level should be given well i think as the full transcript makes clear he had more general concerns about acceptance of responsibility and demonstration of contrition but you're right i mean that early con conversation was about the third point and if this allays your concerns he may have been mistaken about that but he hadn't made his ruling on that yet and before he had made that ruling the defense offered up this waiver and under those circumstances i mean withdrawing an objection you know the district court might have been wrong about the third point but explicitly withdrawing an objection and saying we don't want to appeal this issue your honor you know the judge should be able to take the defense attorney with this at after they offered to withdraw there so the sequence went like this first defense counsel said mr wolf and i have discussed it we would obviously defer to your honor if the court would want to impose restitution and waive the issue now a way of this you is by definition an appealable the judge says what does that mean counsel goes on that means that if the court is concerned about not awarding the third point based on restitution mr wolf would concede the restitution and moot that issue on appeal if that's important to your honor so that's before the judge said anything about waiver of appeal the court responds well is he agreeing to pay a certain amount of restitution for the victims defense counsel we would agree to pay the the amount the probation officer recommended i don't think it's a sound legal analysis however i would waive that issue for appeal your honor if that is something that your honor is concerned about and then at the end of that discussion the judge reconfirms so we're clear mr hanson mr wolfe will pay the restitution to the three victims in the amount specified in the pre sentence report and not challenge that order on appeal is that right defense counsel so waived so your position is the court the court stated rightly or wrongly it's concern of at the third acceptance of responsibility point and the impetus to offer up withdrawing the objection for initiated the negotiations he said i want to hear the defendant say i'll accept the judgment so this court i'm not going to waste anybody else's time and money and the judge said if the defendant says those things he'll receive a below guideline sentence and the judge said somewhere in the range of sixty sixty five months so there was real bargaining going on there and the judge was the driver of that bargaining and we just don't have that here what if we created the waiver as effective as your any that would there be a basis for upsetting the restitution numbers that were going to probation officers report the other side although it contests what happened doesn't present any evidence that there are reasonable we could even if we ignore the waiver we would end up affirming the restitution award and if that's the only part of the only part of the sentence that the other side really taxes yes and that's a point we made in our answering brief that even if there was not a valid waiver here this would have been invited error and even i mean it's really quintessential invited error there to say i just had to actions that to the restitution amount right they said in com determination i do we do have at that well again that's that's classic invited error i think because had the defendant not stipulated to pay six thousand dollars as recommended by probation judge to not a would have made the required findings but because he had a stipulation presented to him by one of the parties that she said she had discussed with her client before the sentencing here and withdrew the objection so there is really objection to have to make the findings and so even if this court didn't find a waiver or invited air it would be at most reviewed for plain air and under that standard even if there's error and it's plain the defense would need to show that there's a reasonable probability that the court would have imposed another had no interest in aggregate in these cases i've never really understood how one does so suprising number of  mailed to the court and so i was trying to see whether there was something in the record it is aggregated in your answers there's not there's not i mean there's the there's the desegregation articulated in the government sentencing memo and it goes through the paralyzing factors and you know caroline recognizes this is not a mathematical inquiry it's difficult but caroline makes clear that dictum is in this in these kinds of types of cases are entitled to restitution and it shouldn't be a token amount and the statute twenty two fifty nine also makes restitution mandatory or indeed we couldn't have zero restitution no because the statute requires requires restitution correct if i could respond briefly to a couple of the defense points on the seizure issue black really is the controlling precedent here the defense tried to distinguish it because mr wolfe didn't give his wife the hard drive but in black the defendant told his secretary that she was not permitted to disclose these documents to other people so it's similar to the hypo that judge her wits with talking about also in black it was the defendant who was paying for the secretary's apartment where these documents were found and moreover in black you know the government was was much more active in sort of pursuing the evidence there than we have here and black distinguished the facts of that case from what this court described as sort of an easier case and the easier case was so the ninth circuit said this is not a case in which the private individual who undertook the search initiated the contact with the government but the fact that the government contacted her the secretary rather than the other way around does not preclude a finding that she cooperated voluntarily so we're really in the easier category of cases here  and let's see if there's anything else i want you to also address the argument that that is your card urged to consider the henderson argument sure so i think the threshold issue is the standard of review the parties disagree policy objection was not sufficiently express and under those circumstances they need to make an objection if they want to if they want to avoid plane air because judge not to give ample reasons for his sentence he clearly did not think that the child pornography guidelines were irrational or excessive and if the defense didn't think that was a sufficient explanation for this guideline sentence they needed to object if they wanted to avoid plain air and one case where this court so held was bared which we cite in our brief so what is what do you think henderson requires here as i read the cases where we told the judges that if you think you don't have discretion you do but there's a judge required to say on the record that he thinks he has discretion i see him over time but if i can answer this court has never held that the judge is required to use magic words or you know go through the defendant's sentencing meant memorandum without the benefit of any objections from the defense and say i'm rejecting this argument on page two i'm rejecting this argument on page four if there's no indication that the judge failed to recognize his discretion to vary on policy guidelines and if the the sentencing judge gave sufficient reasons for his sentence that's enough and this court rejected a similar henderson argument in the baird case where it said that the district court the defendant there had claimed that the district court procedurally erred by failing to address his argument that the district court should exercise its kimber discretion but this court reviewed for plane air because the defendant didn't raise that objection in the sentencing hearing so this was a sufficient explanation of why the judge thought one hundred eight month sentence was appropriate he described the guidelines as advisory he said i've read your papers is there anything else i should be considering to council said no and again the judge clearly didn't think that the guidelines were excessive in this case or as a general matter now you know reasonable juries can disagree on that question they can write larvae articles on that question but you know a judge is is not required to vary and henderson says that you know if the judge doesn't have a policy disagreement with the guidelines he's not required to vary down for any are there any pending objections by the defense to the pre sentence report and the defense went through if you didn't raise that issue so what do we do with the well i think i think it's i don't know if it's necessarily characterize as an objection to the pre sentence report because i think the pre sentence report calculates the guideline range and apart from the acceptance of responsibility discussion there really was no disagreement about what the properly calculated guideline range so there is there isn't th and rita is specifically concerned with thirty five fifty three factors it goes to the seriousness of the offense the nature and characteristics of the offense and to the guidelines policy statements or the sense in commissions policy statements rather and so the district court was presented with a thirty five fifty three a argument to reject two g two point two readers says when a court is presented with a non frivolous argument it has to go further and explain its reasons for why is it which i don't try to show prejudice well i think  circumstances and then gives it or do those circumstances how do you get a better set was if the judge expression he considers it says i know i've got the ability to go you know to depart downward i'm not required by it's our position that sort of to rail the entire sentencing hearing and i can imagine a scenario where on remain and when the district court does not engage in improper negotiation and appropriately grants the third acceptance of responsibility point and then engages with the camera style arguments there would be a possibility of a different sentence and i'll end by noting it's in the in the record if you look at the sentencing discussion it's pretty clear that the probation office in the pre sentence report had noted you know one sentence had not of initially given them the third point for acceptance and it sentencing recommendation changed after the district court ultimately said it was going to grant the third point and so i think