[00:00:02] Speaker 03:
Please proceed.

[00:00:03] Speaker 02:
Thank you.

[00:00:04] Speaker 02:
May it please the court?

[00:00:05] Speaker 02:
Cresta Daly on behalf of Mr. Sharma.

[00:00:07] Speaker 02:
I would like to reserve the last five minutes of my argument.

[00:00:12] Speaker 03:
Keep your eye on the clock and we'll try to help.

[00:00:14] Speaker 02:
Thank you, sir.

[00:00:16] Speaker 02:
Mr. Sharma pled guilty to three different crimes, two of which are germane to this appeal.

[00:00:22] Speaker 02:
Those crimes are the distribution of child pornography and the receipt of child pornography.

[00:00:28] Speaker 02:
And his complaint in this case relates to portions of the sentencing guidelines that were used in his sentencing, which violate the due process clause because they are arbitrary and unrelated to a legitimate government purpose.

[00:00:42] Speaker 03:
Counsel, let me ask you this.

[00:00:44] Speaker 03:
Interesting argument, but what authority do you have, case law authority from any court of appeal that would buttress your position?

[00:00:56] Speaker 03:
It's an interesting position, but your own client seems to have conceded that the more images that are there, the more culpable somebody is.

[00:01:04] Speaker 03:
So what's your argument?

[00:01:05] Speaker 02:
My argument as to that, I don't have a lot of case law to cite to you, but I can at least relate the argument to you.

[00:01:11] Speaker 02:
There's two problems with the number of images.

[00:01:13] Speaker 00:
Your client had 275, that was the admitted number?

[00:01:19] Speaker 02:
Yes.

[00:01:22] Speaker 02:
The number of images is only, let me start that in a different place.

[00:01:29] Speaker 02:
The goal of this law is to protect children.

[00:01:31] Speaker 02:
And the number of images can only be relationally related to a legitimate government purpose if it achieves that goal.

[00:01:38] Speaker 02:
And the way this guideline is structured, it does not.

[00:01:41] Speaker 02:
Because having 175, 275 images does not reflect the harm that was caused or the potential for harm caused.

[00:01:49] Speaker 02:
And there's two reasons for that.

[00:01:51] Speaker 02:
And it ignores, one of those reasons is that it completely ignores the modern way in which people download child pornography.

[00:01:57] Speaker 02:
People go into a chat room or some place on the internet and in a few mouse clicks they can download ten images that they've never looked at or a thousand and ten images.

[00:02:08] Speaker 00:
So why would it be irrational?

[00:02:11] Speaker 00:
even if things have changed since the Sexual Crimes Against Children Prevention Act of 1995 with regard to technology, why would it be irrational to say if we, through the guidelines, can put into effect even a minor amount of deterrent

[00:02:33] Speaker 00:
from using these means of incredibly wide harmful distribution of child pornography.

[00:02:40] Speaker 00:
Even if there is only an incremental increase in deterrence, why would it be irrational to have something out there for distributors of child pornography that says, we want to warn you.

[00:02:55] Speaker 00:
If you use computers, you're going to get more time.

[00:03:00] Speaker 00:
Don't do it.

[00:03:03] Speaker 02:
Because it's so much easier to catch somebody who is committing these crimes if they use a computer.

[00:03:10] Speaker 02:
I mean, the whole logic of... We've switched to the other sort of... But that would have been true when they enacted the law, right?

[00:03:18] Speaker 02:
Sorry, sir, but I disagree with that.

[00:03:22] Speaker 02:
That law, that portion, the use of the computer portion was enacted in 1995.

[00:03:26] Speaker 02:
Cybercrime was in its infancy.

[00:03:29] Speaker 02:
Law enforcement had almost no idea how to detect these crimes.

[00:03:33] Speaker 02:
Now, we're talking 29 years later, law enforcement is

[00:03:37] Speaker 02:
incredibly sophisticated at how they track these crimes.

[00:03:40] Speaker 02:
They have programs where they can watch IP addresses and they can watch the Shaw value of an image that's being transferred back and forth.

[00:03:48] Speaker 02:
Nobody knew what a Shaw value meant in 1995.

[00:03:52] Speaker 00:
You don't think it increases the harm to the victims that

[00:03:57] Speaker 00:
child pornography images of them can be seen by a thousand or a hundred thousand people as opposed to five or ten.

[00:04:08] Speaker 00:
You don't think that even that it's you think it's irrational to say that deterring that wide distribution helps the victims even if only a little.

[00:04:22] Speaker 02:
I don't think there's any evidence to support the notion that it has any deterrent effect.

[00:04:27] Speaker 00:
It's a different question.

[00:04:31] Speaker 00:
There is deterrent effect, rational basis, and then there is even at a slight level alleviating harm if you can have fewer images distributed, that the harm is greater

[00:04:48] Speaker 00:
when thousands of people are seeing it as opposed to scores of people.

[00:04:55] Speaker 02:
But that is one argument of the guidelines, but that's frequently not how they're employed.

[00:04:59] Speaker 02:
I mean, the other problem and why the number of images is irrational is because if a person has 275 images taken of the same person during the same abusive event, that's encapsulating one circumstance.

[00:05:16] Speaker 02:
But a different person could have 275 discrete and different images of different individuals

[00:05:23] Speaker 02:
on different occasions, and yet those people are being punished the same, and that's not logical.

[00:05:28] Speaker 03:
Counsel, we review this for abuse, excuse me, we look at this based on a rational basis, right?

[00:05:36] Speaker 03:
Yes.

[00:05:36] Speaker 03:
That's the standard of review?

[00:05:38] Speaker 03:
Yes.

[00:05:40] Speaker 03:
Given that low standard, even if your argument has an intellectual appeal to it, don't you lose based on the fact that the folks who came up with this standard

[00:05:51] Speaker 03:
were acting rationally?

[00:05:53] Speaker 03:
Isn't that the end of the story?

[00:05:56] Speaker 02:
No, I don't think so, because I think they were acting rationally at the time.

[00:06:00] Speaker 01:
Well, Ms.

[00:06:00] Speaker 01:
Daley, usually when you're bringing a facial challenge, and do you have any rational basis case we can cite to where we revisit the rationality, typically when courts

[00:06:11] Speaker 01:
invalidate legislation, the enactment of legislation for being irrational.

[00:06:15] Speaker 01:
It's because it's irrational at the time.

[00:06:17] Speaker 01:
That's how they speak of it.

[00:06:19] Speaker 01:
Is there any case that allows us to revisit on the face that the enactment was unconstitutional later, even if it was constitutional at the time?

[00:06:29] Speaker 02:
Courts regularly revisit and consider changes in the law, and changes in society, and changes in technology.

[00:06:36] Speaker 02:
The first one that comes to mind is Plessy versus Ferguson gets overruled by Brown versus Board of Education, because society had changed.

[00:06:43] Speaker 02:
And the courts look at things differently when society changes.

[00:06:46] Speaker 01:
OK, but that's equal protection, and that was overruling.

[00:06:48] Speaker 01:
So we're looking for a rational basis.

[00:06:50] Speaker 01:
Is there any law that you can point us to where a court has said, even if it was irrational when enacted, it is irrational now?

[00:06:58] Speaker 00:
I do not have a site for you.

[00:07:01] Speaker 00:
Council, with regard to the numbers, it sounds like you're saying any division based on the number of images would be irrational no matter where the line was drawn?

[00:07:15] Speaker 02:
I think there has to be a nuanced division of the numbers.

[00:07:19] Speaker 00:
But you agree that some numerical division would be rational?

[00:07:26] Speaker 02:
I agree it could be.

[00:07:28] Speaker 00:
So would a million be rational?

[00:07:32] Speaker 02:
I was thinking about this.

[00:07:35] Speaker 02:
It's not like the drug guidelines where there's a clear correlation between this much drugs could cause this much harm.

[00:07:43] Speaker 02:
And it's not like the fraud guidelines where this much money equated this much loss.

[00:07:47] Speaker 02:
because of the example that I gave, where somebody could have 275 images.

[00:07:51] Speaker 02:
It could be the exact same picture, copied 275 times, which is very different than having 275 pictures of 275 different people on discrete occasions.

[00:08:04] Speaker 01:
But Ms.

[00:08:04] Speaker 01:
Daley, on a facial challenge, I mean, you're not challenging the substantive unreasonableness of the sentence as applied to your client, correct?

[00:08:10] Speaker 01:
Correct.

[00:08:11] Speaker 01:
So on a facial challenge,

[00:08:16] Speaker 01:
If one is constitutional and you might be able to identify some unconstitutional applications of the law, why don't you still lose?

[00:08:26] Speaker 02:
Because it's still irrational.

[00:08:28] Speaker 01:
Well, the facial challenge means, I believe, under the Solerino test, it has to be unconstitutional in all of its applications.

[00:08:34] Speaker 02:
I'm with apologies.

[00:08:36] Speaker 02:
I'm not prepared to address that, Your Honor.

[00:08:39] Speaker 03:
But isn't the point made by my colleague

[00:08:44] Speaker 03:
The real problem for your, it's a facial challenge.

[00:08:47] Speaker 03:
You've got to show that under no circumstances does this make any sense.

[00:08:52] Speaker 03:
As I look at your pleading, it seems like your client seems to concede that at some point, as my colleague suggested, it's okay.

[00:09:01] Speaker 03:
You didn't say what the number would be, but that the increased number makes a difference.

[00:09:06] Speaker 03:
You bear the burden of proof, right, to show that it's irrational in all circumstances because it is a facial challenge, right?

[00:09:13] Speaker 02:
Correct.

[00:09:14] Speaker 03:
So why isn't that fatal to your claim?

[00:09:30] Speaker 02:
Because he shouldn't have conceded that.

[00:09:33] Speaker 03:
But he did.

[00:09:34] Speaker 02:
He did.

[00:09:34] Speaker 02:
No, I agree, he did.

[00:09:36] Speaker 02:
It is a significant problem to his argument.

[00:09:40] Speaker 01:
Ms.

[00:09:40] Speaker 01:
Daley, I'm trying to understand maybe the limiting principles of your argument if we agree with you here that this sentencing scheme is irrational.

[00:09:51] Speaker 01:
The sentencing report that you cite suggests that there are some other

[00:09:58] Speaker 01:
Provisions of the child pornography guidelines that need to be changed or updated because they don't fit, are those in danger?

[00:10:05] Speaker 01:
So for example, it criticizes the images depicting pre-uvescent minors, which is also widely applied.

[00:10:13] Speaker 01:
Would that be unconstitutional?

[00:10:17] Speaker 02:
Potentially, yes.

[00:10:18] Speaker 02:
I mean, these guidelines are deeply problematic.

[00:10:22] Speaker 01:
Well, I guess that's kind of our concern.

[00:10:24] Speaker 01:
If you're asking us to plant the first flag for your rationality with respect to sentencing guidelines in this area, we might want to know where that argument stops in terms of all of these guidelines that might have been drafted a few decades ago under one

[00:10:45] Speaker 01:
society, and now must be applied now.

[00:10:48] Speaker 01:
If that's the argument, why isn't there a general requirement that any out-of-date guideline be struck down as irrational?

[00:10:57] Speaker 02:
Because not all of these guidelines are out-of-date.

[00:10:59] Speaker 02:
I have 2G2.2 in front of me, and it's only a discrete number of them that are out-of-date.

[00:11:07] Speaker 02:
Pecuniary purpose is not out of date.

[00:11:10] Speaker 02:
Distribution in exchange for a thing of value is not out of date.

[00:11:14] Speaker 02:
The offense involving distribution to a minor is not out of date.

[00:11:18] Speaker 01:
But the crack cocaine sentencing scheme that the US Supreme Court upheld in Armstrong be subject to an irrational challenge here.

[00:11:29] Speaker 01:
You've talked about drugs being a different issue.

[00:11:31] Speaker 01:
I'm not sure based on Judge Bennett's theory of harm here that they are that different of an issue.

[00:11:37] Speaker 01:
But drugs are far more potent, widespread.

[00:11:42] Speaker 01:
They can be split into many more doses now.

[00:11:47] Speaker 01:
When the Supreme Court was presented with an issue suggesting that the crack cocaine sentences were unconstitutional because there's a difference between that and powder, they rejected that.

[00:11:59] Speaker 01:
Despite the fact that the drug market had changed and that some people were being sentenced for far more harshly than others, why does that not control this case?

[00:12:14] Speaker 02:
I can't answer that because I don't have the rationale of Armstrong at my fingertips, so I can't, I'm sorry, I can't intelligently respond to your question.

[00:12:22] Speaker 03:
I'll save the balance of your time for rebuttal.

[00:12:24] Speaker 02:
Thank you.

[00:12:37] Speaker 04:
Mr. Yang.

[00:12:39] Speaker 04:
May it please the court, Roger Yang, for the United States.

[00:12:42] Speaker 04:
This court should hold that Congress had a rational basis when it added the computer enhancements and the number of image enhancements to the sentencing guidelines, and therefore they satisfied due process.

[00:12:55] Speaker 01:
Mr. Yang, with respect to the computer enhancement, can you identify any other enhancement that applies to nearly every conviction?

[00:13:06] Speaker 04:
Yes, Your Honor.

[00:13:08] Speaker 04:
In the 2012 report, the Sensing Commission did the statistical research and found that the prepubescent minors enhancement applied in over 90 percent of the cases.

[00:13:22] Speaker 04:
Back in 2009, when the Sensing Commission was discussing the history of the guidelines, at that time, the computer enhancement already applied in 89 percent of the cases.

[00:13:34] Speaker 04:
These are not arguments that there is no rational basis for these enhancements.

[00:13:41] Speaker 04:
These are arguments that, say, raising the base offense level to account for the ubiquity of computers or adjusting the table to a higher range, that those are better enhancements or a better sentencing scheme.

[00:14:01] Speaker 04:
Not that there's no rational basis.

[00:14:04] Speaker 00:
And these are going back to something that you said that ties to a question.

[00:14:10] Speaker 00:
Some of my colleagues asked your friend.

[00:14:13] Speaker 00:
Is it the government's view that

[00:14:16] Speaker 00:
if whenever a statute is enacted, if it's rational at the time, then it's rational forever, or why wouldn't we judge whether it's still rational today?

[00:14:33] Speaker 00:
Is the government's position, if it was rational in 1995, that settles it forever?

[00:14:41] Speaker 04:
Essentially, yes, Your Honor, because whether or not there is

[00:14:47] Speaker 04:
a rational basis must be overcome by the appellant, and the appellant must show that there is no longer any rational basis.

[00:15:00] Speaker 00:
Right.

[00:15:00] Speaker 00:
But my question is, don't we look at that now?

[00:15:06] Speaker 00:
The government isn't saying that whether a statute is passed in 1995 or 1895, all we look at is whether it was rational at the time.

[00:15:18] Speaker 00:
Don't we have to look now to see whether it's rational?

[00:15:21] Speaker 00:
I mean, it's a very forgiving test, but wouldn't it be relevant as to whether it's rational now, not 30 or 130 years ago?

[00:15:31] Speaker 04:
The cases discussing rational basis do allow for

[00:15:37] Speaker 04:
the appellant to at some point overcome rational basis, to demonstrate conclusively without any doubts that there is no longer a rational basis.

[00:15:50] Speaker 04:
However, in this specific case, these are simply arguments for a better sentencing scheme, and these are considerations and decisions for Congress, not for the courts.

[00:16:03] Speaker 03:
In this case, you have

[00:16:07] Speaker 03:
The Sharma is claiming on a facial challenge, meaning that under no circumstances in which this makes no sense, that this law is unconstitutional and yet he himself concedes that there is a rational basis, the greater number of images, the more of the problem.

[00:16:28] Speaker 03:
Doesn't that pose a fatal problem for his claim?

[00:16:33] Speaker 04:
Yes, Your Honor.

[00:16:34] Speaker 04:
And the Eighth Circuit in 1999 in United States versus Vincent recognized that the computer enhancement has a rational basis.

[00:16:44] Speaker 04:
It is now easier to copy, produce, and distribute child pornography.

[00:16:50] Speaker 04:
This is easier than ever.

[00:16:51] Speaker 04:
And we're seeing by our experience with this guideline.

[00:16:56] Speaker 04:
And that Vincent case actually quoted the Ninth Circuit's case in United States versus Fellows, which went through why Congress passed or directed the Sentencing Commission to enact this two-level guideline.

[00:17:11] Speaker 03:
As a matter of fact, isn't there just commonsensical argument that my colleague referred to earlier that the fact that this is potentially hundreds of thousands of people that could see something

[00:17:25] Speaker 03:
rationally, that makes perfect sense that Congress would want to penalize that more.

[00:17:31] Speaker 03:
Correct, Your Honor.

[00:17:32] Speaker 04:
And in fact, in the United States of McInerney, the Sixth Circuit in 2011, specifically stated that just because a sentencing guideline applies in almost every case is not a reason to reject the sentencing guideline under rational basis.

[00:17:48] Speaker 04:
And it specifically had to do with the table in 2G2.2b7.

[00:17:55] Speaker 04:
uh... and so and they also recognize that only congress can change these guidelines and i think the uh... the court's experience with the 101 crack cocaine to powder cocaine ratio also informs this discussion because the supreme court refused to

[00:18:24] Speaker 04:
overturned that ratio on due process grounds and waited until the sentencing guidelines were discretionary to create essentially Kimbrough discretion as a solution rather than address the due process claim.

[00:18:43] Speaker 04:
Because every court to address the issue on due process and rational basis grounds

[00:18:49] Speaker 04:
rejected those claims.

[00:18:51] Speaker 04:
And it was only until Congress acted in 2010 with the Fair Sentencing Act that the 100 to 1 crack cocaine to powder cocaine ratio was essentially undone because the rational basis from the original 1986 enactment continued all the way through till Congress undid its work in 2010.

[00:19:12] Speaker 03:
But doesn't that buttress the government's position in that when you could see

[00:19:19] Speaker 03:
that I think in that particular instance, it largely adversely impacted African-American defendants, if I recall the statistics correctly.

[00:19:28] Speaker 03:
But the commission couldn't change that.

[00:19:30] Speaker 03:
Congress had to change that, and they did, based upon new input that they had.

[00:19:35] Speaker 03:
And arguably, that's what needs to happen here if the government's correct.

[00:19:40] Speaker 03:
Is that right?

[00:19:40] Speaker 04:
That's correct.

[00:19:41] Speaker 04:
The government's position is that Congress needs to, let me back up.

[00:19:48] Speaker 04:
The Citizen Commission's report, the US Department of Justice's letter, they were all addressed to Congress because everyone recognizes that Congress needs to act.

[00:19:58] Speaker 04:
And until Congress acts, we are examining this solely on rational basis.

[00:20:04] Speaker 04:
The rational basis for these enhancements existed and continues to exist to this day.

[00:20:10] Speaker 04:
And as a result, under rational basis, this Court should uphold the

[00:20:18] Speaker 04:
say that due process is satisfied and uphold these census enhancements?

[00:20:23] Speaker 03:
If we didn't follow that, wouldn't that basically open up a Pandora's box any time a panel of appellate judges thought that a law was old fashioned and that they were just out of touch?

[00:20:37] Speaker 03:
We'd say, hey, this doesn't make any sense anymore.

[00:20:40] Speaker 03:
We're going to declare it unconstitutional.

[00:20:43] Speaker 04:
Right.

[00:20:43] Speaker 04:
Under separation of powers, as the Supreme Court recognized, starting with Chapman, continuing to kneel, and then further with Labonte, the Court's role is to look at Congress and see what Congress meant.

[00:20:57] Speaker 04:
When the Sentencing Commission issued reports and even concluded, for example, that Congress's approach regarding the LSD blotters, et cetera, was irrational,

[00:21:09] Speaker 04:
The Supreme Court specifically told the Sentencing Commission, you must yield to Congress.

[00:21:16] Speaker 00:
Counsel, does it matter?

[00:21:18] Speaker 00:
You can correct me if I have this wrong, but the defendant's guideline was life, right?

[00:21:23] Speaker 00:
That's correct.

[00:21:24] Speaker 00:
And the government recommended 330, right?

[00:21:31] Speaker 00:
Yes, Your Honor.

[00:21:32] Speaker 00:
And the court did 288.

[00:21:33] Speaker 00:
Yes.

[00:21:34] Speaker 00:
So does it matter in terms of our evaluation of whether the guidelines have a rational basis that both the government and the district court, even with a really high guideline because of

[00:21:52] Speaker 00:
these increases still has the ability to vary downward.

[00:21:58] Speaker 00:
Does that factor in to whether the scheme itself has a rational basis or are those things totally separate in the government's view?

[00:22:08] Speaker 00:
And the fact that the courts have the ability to vary downward or to depart downward doesn't factor into whether the guidelines are rational.

[00:22:16] Speaker 04:
The government's position is that these are two separate considerations.

[00:22:20] Speaker 04:
But even Henderson, Dorvey, and Grover didn't go to take that additional step of finding that these sensing enhancements and the sensing guidelines in total violated due process.

[00:22:33] Speaker 04:
They simply used Kimbrough and Kimbrough discretion to explain that the courts can exercise their discretion with regard to the application of the guidelines.

[00:22:42] Speaker 04:
And that's a separate question from whether or not there's a rational basis.

[00:22:46] Speaker 03:
And in effect, the ability of the court to vary or depart is, in effect, the as applied version of this, right?

[00:22:56] Speaker 03:
That's correct, Your Honor.

[00:22:58] Speaker 03:
If the defendant in this case had been able to convince the judge, he ought to really go down much, much more on the judge.

[00:23:05] Speaker 03:
I agree with you.

[00:23:07] Speaker 03:
The judge could have been thinking in part,

[00:23:09] Speaker 03:
I think the fact that they had all these images there, that it's not something not penalized as defendant for, so I'm going to vary.

[00:23:17] Speaker 03:
Isn't that correct?

[00:23:19] Speaker 04:
In a way, yes, Your Honor, but this district judge was very specific that he did not have a policy disagreement with the guidelines.

[00:23:27] Speaker 03:
Well, I know that's what he said.

[00:23:29] Speaker 03:
I'm just saying, hypothetically,

[00:23:31] Speaker 03:
the sentencing judge could take into account the arguments made by learned counsel and say, gee, this is just not fair.

[00:23:42] Speaker 04:
And I believe that the 2021 update by the Sentencing Commission regarding the statistics show that judges are exercising their sentencing discretion in this matter.

[00:23:52] Speaker 01:
Mr. Yang, I guess we've got, so in the First Amendment context, there's the over-breadth doctrine that allows someone to challenge on its face a law that is concededly constitutional as applied to them.

[00:24:08] Speaker 01:
Sharma seems to maybe viewed as conceding that the laws constitutional is applied to him.

[00:24:15] Speaker 01:
Why didn't the government challenge his standing to bring the facial challenge?

[00:24:20] Speaker 01:
Because there is no First Amendment over breath issue.

[00:24:22] Speaker 01:
This is a due process challenge.

[00:24:27] Speaker 04:
Well, in a way the government believes that this is an issue that's been percolating up through the courts and should be addressed in the proper case.

[00:24:38] Speaker 04:
In terms of the briefing, this was squarely addressed and the government believes that this is an appropriate case to go ahead and hold that, yes, these enhancements do in fact satisfy due process.

[00:24:53] Speaker 01:
Because as you say, that's where the district court started with and agreed with the enhancements here.

[00:25:01] Speaker 01:
So they are in play with respect to Mr. Sharma as well.

[00:25:05] Speaker 04:
That's correct.

[00:25:07] Speaker 01:
Can you help at all any ideas in terms of the question of whether, when we examine whether a law has a rational basis, it strikes me that most of the substantive due process cases involve courts looking at old fashioned laws and when they're successful saying that they no longer have a rational basis laws, whether you're talking about the, you know,

[00:25:35] Speaker 01:
Lawrence, some of those cases.

[00:25:39] Speaker 01:
Do you have any help for us in terms of the best way to frame it?

[00:25:42] Speaker 01:
I think in the brief, there are some arguments that we need to look at the law when it was enacted.

[00:25:46] Speaker 01:
But I think you'd suggested that we can look at changes over time.

[00:25:50] Speaker 01:
And some of the cases suggest that as well.

[00:25:52] Speaker 01:
What should we do here?

[00:25:55] Speaker 04:
The government's position is that in, for example, Lawrence or Plessy versus Ferguson or Brown versus Board of Education,

[00:26:04] Speaker 04:
Those cases were overturned on strict scrutiny because there was either some sort of specific discriminatory intent based on a protected class or some other grounds for reaching a higher standard for evaluating whether conditions had changed to the point where either equal protection or substantive due process was violated.

[00:26:28] Speaker 04:
Here we have a broadly applicable

[00:26:31] Speaker 04:
race neutral, there's no other discriminatory intent for these enhancements.

[00:26:40] Speaker 04:
They're broadly applied, they're evenly and neutrally applied, and therefore we should default to rational basis and evaluate these existing enhancements on that basis.

[00:26:51] Speaker 04:
Obviously, if we were talking about broader societal concerns on some other consideration that may result in scrutinizing Congress's intent with regard to discrimination against a protected class, then we'd be in a different realm.

[00:27:08] Speaker 04:
But here we are here for rational basis because there's absolutely no evidence of that type of discriminatory intent.

[00:27:16] Speaker 04:
Thank you.

[00:27:17] Speaker 03:
Thank you very much.

[00:27:19] Speaker 03:
Very well.

[00:27:21] Speaker 03:
Ms.

[00:27:21] Speaker 03:
Daley, you have some rebuttal time.

[00:27:27] Speaker 02:
Thank you.

[00:27:30] Speaker 02:
One of the factors in 3553 is to promote respect for the law.

[00:27:36] Speaker 02:
If the goal of these laws is to protect children and protect society, then people have to understand them and understand the logic behind them.

[00:27:44] Speaker 02:
And as these laws are currently written, or at least as these sentencing enhancements are currently written, they're not understandable or acceptable, I think, to the average person.

[00:27:52] Speaker 03:
Let me ask you what I ask your opponent.

[00:27:58] Speaker 03:
There are lots of laws that Congress has passed over the years, lots and lots of them.

[00:28:02] Speaker 03:
And if you look at them based on current

[00:28:05] Speaker 03:
views in society, a goodly number of them would seem just nonsensical.

[00:28:13] Speaker 03:
What you seem to be suggesting is that we three or any three judges on the Ninth Circuit or any other comparable court can just say, you know, this is old-fashioned.

[00:28:23] Speaker 03:
Let's get rid of it.

[00:28:24] Speaker 03:
It's not rational anymore.

[00:28:25] Speaker 03:
It may have been rational when Congress passed it, but it's not anymore.

[00:28:30] Speaker 03:
Isn't that what you're advocating?

[00:28:32] Speaker 02:
I guess you could view it that way, but with every passing day and more improvements in technology and changes, these laws become less and less rational and therefore less constitutional.

[00:28:41] Speaker 03:
But you are making us, the judiciary, the decision makers, if you will, on something that has been in the constitution placed with the legislature and the executive.

[00:28:54] Speaker 03:
Doesn't that create a separation of powers issue?

[00:28:56] Speaker 03:
I mean, you could make us philosopher kings, I guess.

[00:29:01] Speaker 03:
But the reality is, that's not the way our government's structured, is it?

[00:29:05] Speaker 02:
It's not, but you are the poor people in charge of deciding whether or not this is rationally related.

[00:29:10] Speaker 01:
Well on that, why doesn't the, I guess to pick up on Judge Bennett's questions, now that you've had some time to think about it, why doesn't the fact that the images are more widespread and easier to disseminate, and this goes to I think both of your challenges,

[00:29:29] Speaker 01:
The fact that they apply in the vast majority of the cases, why doesn't that just tell us that the harm is all the greater than it was back then?

[00:29:36] Speaker 01:
What's your argument that the harm from either scenario of the images being spread is not scaled to the number of those images that are now out in the public?

[00:29:50] Speaker 02:
The number of images is illogical, and the breaks in the guidelines for when the guidelines go up, there's no... How is... Well, the breaks... I think you've got a problem with the breaks because that's true of all sorts of sentencing schemes.

[00:30:06] Speaker 01:
Talk about the harm in terms of... On the computer side.

[00:30:09] Speaker 02:
Because 275 copies of the same image is equally as harmful as one copy of the same image.

[00:30:18] Speaker 02:
If every person has a copy of the same picture or one person has a copy of the picture, the victim is still harmed.

[00:30:29] Speaker 03:
Other questions by my colleague?

[00:30:31] Speaker 03:
Thanks to both counsel for your argument.

[00:30:33] Speaker 03:
We appreciate it.

[00:30:34] Speaker 03:
The case just argued is submitted.

[00:30:36] Speaker 03:
The court stands adjourned for the day.