[00:00:00] Speaker 01:
We now turn to the third case for the morning, United States versus Crosby, 23-2155 and 23-2156.

[00:00:12] Speaker 01:
Counsel for appellate, if you would make your appearance and proceed.

[00:00:17] Speaker 04:
Good morning, may it please the court, Tiffany Walters for the United States.

[00:00:21] Speaker 04:
With the court's permission, I'd like to reserve three minutes for a bottle.

[00:00:25] Speaker 04:
Mr. Crosby was caught with child pornography when the FBI executed a search warrant at his home.

[00:00:31] Speaker 04:
His collection and devices were seized, and he was other than honorably discharged from the Air Force as a result of his conduct.

[00:00:38] Speaker 04:
But Mr. Cosby was undeterred.

[00:00:40] Speaker 04:
When he was eventually arrested in Pennsylvania on his first federal charge, he was found in possession of new devices with new images, resulting in a new charge in the Western District of Pennsylvania, which was eventually transferred to the District of New Mexico.

[00:00:56] Speaker 04:
The 337 images

[00:00:58] Speaker 04:
and the 212 videos that Mr. Crosby possessed were horrific.

[00:01:03] Speaker 04:
They involved not just borderline images of older teens, they included deeply disturbing images of sadistic sexual abuse perpetrated against very young children, including, for example, a video with the vaginal penetration of a three-year-old by an adult man.

[00:01:21] Speaker 04:
These images were not just nameless faces on the internet.

[00:01:24] Speaker 04:
These were real children suffering real abuse

[00:01:27] Speaker 04:
and who now continue to suffer from the knowledge that images of their abuse are still passed around and viewed over and over again by countless strangers for their own pleasure.

[00:01:38] Speaker 04:
As punishment.

[00:01:39] Speaker 01:
That's powerful stuff, Ms.

[00:01:41] Speaker 01:
Walters, but place it within the framework of the legal issue that we have to decide, which is what was substantively unreasonable about what the district court did here

[00:01:53] Speaker 01:
And in that connection, as it relates to your brief, at least my recollection was, reference to that he, well, which he I think admitted, that he had been doing this for a number of years, 10 maybe, something like that.

[00:02:07] Speaker 01:
Well, what I would ask you is, is that

[00:02:11] Speaker 01:
That factual universe, is that relevant even in the sentencing context?

[00:02:16] Speaker 01:
I mean, it's not relevant conduct for what he did now, right?

[00:02:21] Speaker 04:
No, but it is relevant as an offender characteristic.

[00:02:24] Speaker 04:
It's part of his history.

[00:02:25] Speaker 04:
It's part of the nature of his offense.

[00:02:28] Speaker 04:
He's arguing in many ways that it served in the Air Force.

[00:02:32] Speaker 04:
He has these other achievements.

[00:02:34] Speaker 04:
And what it's showing is that this is not an aberration.

[00:02:36] Speaker 04:
This is not a one-time criminal mistake.

[00:02:40] Speaker 04:
This is a pattern of conduct that's gone on for 10 years, and then on top of that, he's caught once with the FBI, with images in his home, and suffers significant consequences, and yet he's undeterred.

[00:02:51] Speaker 04:
So the original discussion of victim statements, I think those are directly relevant to the seriousness of the offense, and that goes to

[00:02:58] Speaker 04:
3553A2A, which is retribution, as this court was just discussing.

[00:03:03] Speaker 04:
It goes to what's just punishment for this offense?

[00:03:06] Speaker 02:
Okay, and that's a different factor than I think the chief was just asking you about.

[00:03:10] Speaker 02:
Oh, I'm sorry.

[00:03:12] Speaker 02:
Okay, so just punishment, retribution, you rely on the fact that five days is simply unreasonable substantively in terms of adequate punishment for this crime.

[00:03:28] Speaker 04:
Correct.

[00:03:29] Speaker 04:
It goes also to general deterrence, which is an A to C. And that's because this conveys a message.

[00:03:38] Speaker 04:
It conveys a message that you can be caught not once, but twice, convicted of two counts of possession on different occasions, and still only merit a five-day time served sentence that doesn't convey to the victims that their harm is significant, that it matters, and it doesn't convey to would-be perpetrators

[00:03:56] Speaker 04:
that this is a crime that has significant consequences.

[00:04:00] Speaker 02:
With regard to general deterrence, I read, and maybe I read it incorrectly, that you claim that the court never even mentions general deterrence.

[00:04:12] Speaker 04:
I do believe it's mentioned in that initial, the court at the very beginning goes through all the factors, and I do believe it's listed there.

[00:04:20] Speaker 04:
Our argument would be that the court has given it no weight in practice.

[00:04:23] Speaker 04:
It's not a consideration, we're not arguing, I mean we agree that the district court's decision reflects that it considered the factors, and clearly the court was wrestling with this, but in the end of the day, the Senate itself has to reflect and comply with the Congress's mandate that it reflect the 3553A2 factors, and there's just no room for general deterrence in the Senate.

[00:04:44] Speaker 01:
And to your point about weight, I mean that in fact was what Cookson was getting at in terms of whether there was an adequate explanation

[00:04:50] Speaker 01:
of the weight that was accorded to the other factors other than A1, right?

[00:04:56] Speaker 04:
Correct.

[00:04:57] Speaker 04:
Cookson was very concerned with the adequacy of the explanation in this case.

[00:05:02] Speaker 04:
The district court here really has given no weight to general deterrence.

[00:05:05] Speaker 04:
Perhaps its comment that treatment works, incarceration does not, could be read to go to that.

[00:05:13] Speaker 04:
the closest, but that conclusion is really one that this court rejected in Walker, which is to say that general deterrence is a fact that Congress has had, that courts have to consider, and even if it just disagrees with that as the effectiveness of longer sentence and generally deterring, Congress has required the court to do so, and so it must put its skepticism aside, as the court said in Walker.

[00:05:37] Speaker 02:
What about the courts?

[00:05:40] Speaker 02:
reliance on its disagreement with the guidelines policy overall.

[00:05:47] Speaker 02:
How does that come into our analysis here?

[00:05:50] Speaker 04:
Well, in Cookson, this court recognized that some degrees disagreement with the sentencing enhancements in 2G 2.2 could be reasonable, and that might support a downward variance in this case to some degree, but the difficulty is that that policy disagreement is really about the enhancements

[00:06:07] Speaker 04:
It's about saying that everyone uses computers.

[00:06:09] Speaker 04:
Everyone possesses these sorts of terrible images.

[00:06:12] Speaker 04:
And so these enhancements don't reflect increased criminal conduct, but it doesn't address whether or not the base offense level is incorrect.

[00:06:20] Speaker 04:
I believe even without any of those enhancements, his sentencing guideline range would have been 18 to 24 months.

[00:06:26] Speaker 04:
And none of those policy disagreements explain why the court would believe that a nominal sentence is appropriate in a case like this.

[00:06:33] Speaker 04:
Or did the guidelines get totally wrong?

[00:06:34] Speaker 04:
I'm sorry.

[00:06:35] Speaker 01:
And the court did not explain that, right?

[00:06:38] Speaker 01:
It didn't explain why it would go below what would be the base offense level if the adjustments were taken off the table.

[00:06:46] Speaker 04:
It didn't explain that in reference to the guidelines.

[00:06:48] Speaker 04:
What its explanation appears to focus on is really Mr. Cosby's characteristics.

[00:06:54] Speaker 04:
Specifically, Dr. Joy's evaluation where she

[00:06:58] Speaker 04:
notes his recently diagnosed autism and his depression.

[00:07:00] Speaker 04:
And that seems to be what the district court explained as the basis for its variance.

[00:07:06] Speaker 04:
But even if the court were to provide weight to that, and perhaps that would warrant some degree of variance, it can't give no weight to retribution.

[00:07:14] Speaker 04:
It can't give no weight to general deterrence.

[00:07:16] Speaker 04:
And Dr. Joy's evaluation simply doesn't speak to either of those factors at all.

[00:07:20] Speaker 02:
And what about sentencing disparities?

[00:07:23] Speaker 02:
What's your view of how the court dealt with

[00:07:26] Speaker 02:
the possibility of this creating sentencing disparities?

[00:07:30] Speaker 04:
The court mentioned sentencing disparities in opening, but doesn't really delve into that.

[00:07:34] Speaker 04:
I believe the briefing below, the defendant had argued that it would avoid unwarranted sentencing similarities with more serious offenders, sort of along the lines of the enhancement argument.

[00:07:49] Speaker 04:
But I think looking at the actual disparities

[00:07:52] Speaker 04:
And this court's sentences in similar cases shows that this sentence in fact creates sentencing disparities.

[00:07:57] Speaker 02:
But as I read it, there was no attempt to compare with other cases with similar charges and sentences.

[00:08:08] Speaker 04:
No, there was none.

[00:08:09] Speaker 04:
Mostly it was just focusing on Mr. Crosby's characteristics themselves.

[00:08:13] Speaker 04:
So his

[00:08:16] Speaker 04:
compliance working on supervised release, his military service, and his diagnoses.

[00:08:21] Speaker 04:
That was really the focus of the court's attention in addition to the disagreement with the policy guidelines and this general sense that incarceration just doesn't work.

[00:08:32] Speaker 02:
You also challenged the court's consideration of incapacitation.

[00:08:37] Speaker 02:
If you look at the conditions

[00:08:43] Speaker 02:
of his supervised release, it looks to me like there's quite significant limitations on his ability to use personal devices and that he's going to be heavily surveilled and there's a long, was it 15 years?

[00:09:00] Speaker 02:
It's a long duration of supervised release.

[00:09:05] Speaker 02:
Can you explain to me why that's not enough for incapacitation?

[00:09:09] Speaker 04:
and it's been recently reduced to 10 years.

[00:09:12] Speaker 04:
As far as incapacitation, some of those factors absolutely do go to incapacitation.

[00:09:16] Speaker 04:
We would agree that the monitoring of his computer and the limitations on technology, those sort of things, do go to incapacitation.

[00:09:24] Speaker 04:
I think our argument was largely in response to defendant's argument as to location monitoring, and that's really just not effective at incapacitating for this type of crime because

[00:09:34] Speaker 04:
He can offend from his own bedroom.

[00:09:35] Speaker 04:
The location is really not relevant.

[00:09:37] Speaker 01:
And on incapacitation, though, isn't there a distinction with the difference of whether we're talking about someone being incarcerated or whether somebody has got all of these conditions unsupervised release?

[00:09:48] Speaker 01:
I mean, incapacitation also contemplates the notion of removing them from society, does it not?

[00:09:56] Speaker 04:
Correct, certainly he would not be able to re-offend if he was incarcerated because he wouldn't have access to these at all.

[00:10:01] Speaker 04:
These conditions help prevent him from re-offending, but they can't be absolute.

[00:10:06] Speaker 04:
I mean, if he violates the conditions of a supervised release, he can still re-offend.

[00:10:12] Speaker 04:
So it's an imperfect response to incapacitation, but it absolutely does reflect incapacitation to some degree.

[00:10:19] Speaker 04:
Really, the core of the problem here is that there's no general deterrence and there's no retribution.

[00:10:25] Speaker 04:
There's no just punishment.

[00:10:26] Speaker 04:
There's no recognition of the need to promote respect for the law where an individual violates the law, has those devices seized, and then goes out and violates them again.

[00:10:35] Speaker 04:
It's a next level of disrespect to the law.

[00:10:38] Speaker 04:
And that should have been met with significant punishment.

[00:10:42] Speaker 04:
And instead, the punishment is nominal.

[00:10:45] Speaker 02:
Well, at least a better explanation of why five days is enough.

[00:10:52] Speaker 04:
That certainly could have helped.

[00:10:54] Speaker 04:
Our position is that no explanation on these facts would have rendered this sentence reasonable, but certainly more explanation is always helpful.

[00:11:05] Speaker 01:
More explanation is more helpful, and it's also a remedy that is more likely to be given by this court, is it not?

[00:11:11] Speaker 04:
Correct.

[00:11:14] Speaker 01:
OK.

[00:11:15] Speaker 04:
And we're not asking that the court dictate what sentence would be appropriate in this case.

[00:11:19] Speaker 04:
We're only asking the court to review this sentence on these facts in front of it, and to say that under these circumstances, it simply doesn't reflect the harm that was inflicted on the victims, the gravity of the crime, and it doesn't deter anyone from committing these sorts of crimes.

[00:11:34] Speaker 04:
I see I'm down to two and a half minutes.

[00:11:36] Speaker 04:
If there are no further questions, I'll reserve the rest of my time for rebuttal.

[00:11:40] Speaker 04:
Thank you.

[00:11:51] Speaker 03:
Good morning, Your Honors, Council.

[00:11:53] Speaker 03:
My name's Amanda Skinner and I'm here on behalf of Mr. Crosby.

[00:11:56] Speaker 03:
The sentence imposed in this case was legally available and well supported by the District Court over the course of two sentencing hearings.

[00:12:03] Speaker 03:
The record reflects that the District Court selected the sentence after thoughtful consideration of every 3553A factor and was not manifestly unreasonable, arbitrary, capricious, or whimsical in the reasoning given.

[00:12:16] Speaker 02:
Where does the record support that the court adequately consider general deterrence?

[00:12:22] Speaker 03:
Thank you, your honor.

[00:12:24] Speaker 03:
With respect to deterrence, the district court was looking at how do, part of deterrence is how do we protect, we're trying to deter people because we want to protect the public.

[00:12:38] Speaker 03:
So I heard you earlier, Judge McHugh, when you talked about overlap between the factors.

[00:12:44] Speaker 03:
The district court imposed location monitoring in this case, which the government routinely issues press releases explaining sentences in all sorts of cases.

[00:12:54] Speaker 03:
Someone could hear, I could get location monitoring.

[00:12:57] Speaker 03:
If I have a federal offense, I could be put on supervised release.

[00:13:02] Speaker 01:
And location monitoring is going to instill fear in people?

[00:13:06] Speaker 01:
Is that what you're telling me?

[00:13:07] Speaker 03:
It's an added restriction on people's liberty.

[00:13:10] Speaker 03:
And I would take issue with the government's comment that if you were incarcerated, you couldn't access these materials.

[00:13:15] Speaker 03:
Individuals in prison that I've represented have possessed CSAM materials, guns, cell phones, money, drugs.

[00:13:25] Speaker 01:
The point is they're removed from society and the opportunity for them to do so supposedly is limited.

[00:13:30] Speaker 01:
On the general deterrence point, the issue, part of this relates to what Cookson describes is the need to adequately explain the weight that's associated with the factors.

[00:13:42] Speaker 01:
The fact that you identify

[00:13:44] Speaker 01:
monitoring as a factor that could implicate general deterrence.

[00:13:48] Speaker 01:
I don't see any indication that the court wrapped monitoring around general deterrence in its explanation of what it did.

[00:13:57] Speaker 01:
Is there anywhere where you can point me where it did do that?

[00:14:00] Speaker 03:
Maybe not specifically, your honor, but I would point the court to the fact that the district court does not even need to reference every single factor.

[00:14:06] Speaker 03:
And whether we're talking about a substantial upward variance or substantial downward variance, this court's analysis is the same.

[00:14:12] Speaker 01:
That doesn't get us there because Cookson made very clear that no, these factors don't have to have equal weight, but the court must consider them.

[00:14:20] Speaker 01:
And if it's going to do a significant downward variance, it needs to explain

[00:14:25] Speaker 01:
what weight it accorded to various factors.

[00:14:28] Speaker 01:
And the problem, no, it doesn't have to reference every factor, but if there's significant factors that are implicated by the facts of the case, it needs to speak to them.

[00:14:37] Speaker 01:
And if it doesn't speak to them, the question becomes, why don't you have the same problem that existed in Cookson?

[00:14:43] Speaker 01:
Because I don't see that it speaks to a number of these things, including general deterrence and retribution.

[00:14:52] Speaker 03:
the need to afford adequate deterrence to criminal conduct.

[00:14:54] Speaker 03:
This is another situation where facts overlap to support different factors.

[00:14:59] Speaker 01:
I'm talking about explanation.

[00:15:00] Speaker 01:
I'm not talking about whether the facts overlap.

[00:15:03] Speaker 01:
I mean, counsel can come in here and make an argument that the facts overlap.

[00:15:07] Speaker 01:
That doesn't tell us that the court actually accorded weight to retribution or to general deterrence in deciding its sentence and balancing this with the nature and circumstances of the defendant.

[00:15:21] Speaker 01:
That's what our law requires.

[00:15:22] Speaker 01:
We need to know that this was not arbitrary.

[00:15:25] Speaker 01:
We need to know that the court gave consideration to these factors.

[00:15:28] Speaker 01:
I don't see it.

[00:15:29] Speaker 03:
So I addressed this issue in our brief because I was confused about the government's argument.

[00:15:35] Speaker 03:
It seems to be a procedural reasonableness argument.

[00:15:37] Speaker 03:
And I think Your Honor's questions get to that point.

[00:15:40] Speaker 01:
And that's what Cookson took the time to tease out and explain when it got to talking about substantive reasonableness, that no, it matters.

[00:15:48] Speaker 01:
Explanation matters in the context

[00:15:50] Speaker 01:
of substantive reasonableness because we need to know that what the court did was not whimsical, not arbitrary, not an abuse of discretion, which means that if it is going to focus on his autism and the nature and circumstances of his life, then he needs to let us know that it actually gave less weight to these other things for a reason.

[00:16:13] Speaker 01:
that was not arbitrary.

[00:16:14] Speaker 03:
And I would point you to the sentencing transcript, Your Honor, of the second sentencing hearing held in this case after the district court recessed the first hearing to allow itself the opportunity to review the substantive briefing, the extensive briefing that was provided by Mr. Crosby's counsel specifically.

[00:16:31] Speaker 03:
But the government also did have a sentencing memo where they focused almost their entire argument on 13553A factor, the nature and circumstances of the offense.

[00:16:42] Speaker 03:
The district court stated, in sum, Mr. Crosby's amenability to treatment, possibility of benefiting from specialized treatment, low risk of recidivism, and high vulnerability in prison make him a good candidate for community-based treatment.

[00:16:54] Speaker 03:
You have paragraphs of discussion by the judge to then sort of, as you said, tease out more information.

[00:17:01] Speaker 03:
And we also have the statement of reasons to support the variance that was imposed.

[00:17:09] Speaker 00:
One of the factors that I've been puzzling over is the fact that these two cases were combined.

[00:17:20] Speaker 00:
Whereas when you look at it, and there's been no explanation by the judge or anybody that I see, had he been tried separately of each of these two offenses, the sentence would have been a mandatory 10 years.

[00:17:34] Speaker 00:
Now, to me, that needs to also be explained somewhere by the judge.

[00:17:39] Speaker 00:
of recognizing the seriousness and being able to go as far down as five days in time, sir.

[00:17:47] Speaker 03:
Well, Your Honor, respectfully, I think that explanation needs to come from the government.

[00:17:50] Speaker 03:
The government agreed to consolidate.

[00:17:52] Speaker 00:
I agree.

[00:17:53] Speaker 00:
But it still needs to be explained to us.

[00:17:57] Speaker 00:
That seemed to me to be a very important factor in considering all of this that's going on, because five days is a whole lot different than 10 years.

[00:18:06] Speaker 03:
This is where we get into a really clear understanding of why the district court or even the magistrate court judges who impose the bond conditions in this case are in the best position to evaluate Mr. Crosby in person in the hearings.

[00:18:22] Speaker 03:
We have at least two magistrates from two different districts that signed off on bond agreements to keep him out of custody when both of these cases were filed.

[00:18:33] Speaker 03:
We have a magistrate judge in the District of New Mexico who kept him out of custody pending sentencing over the government's strenuous objection.

[00:18:42] Speaker 03:
And we have a district court judge who imposed what is, you know, we concede a significant variance after having the opportunity to interact with Mr. Crosby and see him over the course of two sentencing hearings.

[00:18:54] Speaker 01:
Well, I think that I need to follow up on Judge Baldoch's point.

[00:18:58] Speaker 01:
The reality is that he did get it.

[00:19:00] Speaker 01:
I don't understand why it is the

[00:19:02] Speaker 01:
The government should be explaining, sure, it gave him a rule 20, fine.

[00:19:06] Speaker 01:
The government has whatever reason it has for giving him that benefit, underscored benefit, but the reality is that the genesis of the crimes that led to the rule 20 was the fact that he had been caught once, he had paid a price for that, and then he turned around and did it again.

[00:19:26] Speaker 01:
Well, there is no grappling with that.

[00:19:30] Speaker 01:
by the court as it relates to just punishment and respect for the law.

[00:19:35] Speaker 01:
What respect for the law did Mr. Crosby show when he did a pivot, moved, and did the same thing?

[00:19:43] Speaker 03:
So respect for the law, and I think it came out in the earlier argument, that factor, including just punishment, respect for the law, and in some ways to your questions on deterrence, that doesn't always mean prison time.

[00:19:56] Speaker 03:
The judge's explanation about the policy agreement goes to just punishment.

[00:20:01] Speaker 01:
Oh, let's talk about that.

[00:20:03] Speaker 01:
The policy disagreement related to the adjustments, you eliminate the adjustments, he still does time.

[00:20:09] Speaker 01:
He still does significant time.

[00:20:11] Speaker 03:
The guideline range would recommend time.

[00:20:15] Speaker 03:
And so if the government concedes that under only the policy agreement, the guideline range would be as low as 18 to 24 months, and Mr. Crosby's counsel argued it would be as low as 6 to 12 months, that is one factor.

[00:20:29] Speaker 03:
The judge used his policy disagreement with the guidelines to bring that range down to either 18 to 24 months

[00:20:36] Speaker 03:
or six to twelve months and then we have a voluminous record on history and characteristics.

[00:20:42] Speaker 03:
We have a restitution order.

[00:20:44] Speaker 03:
We have location monitoring and a significant term of supervised release.

[00:20:48] Speaker 03:
The term the government asked for.

[00:20:50] Speaker 01:
Let's use the word explanation again.

[00:20:52] Speaker 01:
The court did not explain why

[00:20:55] Speaker 01:
taking all of those adjustments out with the sentence that still would be incarceral, that it decided that no, he didn't really need that.

[00:21:02] Speaker 01:
Five days time, you know, time sure was all he needed.

[00:21:06] Speaker 01:
There was no explanation for why that made sense.

[00:21:09] Speaker 01:
And so we're left in a posture that, you know, of guessing whether that was arbitrary, whether that was whimsical, we don't know, do we?

[00:21:17] Speaker 03:
Your Honor, I read that the discussion by the district court and the statement of reasons as very similar to the discussion in this court's published decision in DeRusse from 2017.

[00:21:29] Speaker 03:
And Judge Baldock, you wrote a dissent in that case that I think is instructive here.

[00:21:33] Speaker 03:
DeRusse was a kidnapping case.

[00:21:36] Speaker 03:
A 24-year-old kidnapped his ex-girlfriend at gunpoint.

[00:21:40] Speaker 03:
It later turned out to be a BB gun.

[00:21:42] Speaker 03:
He had done significant planning, bought a new cell phone, impersonated a friend, took her from her apartment building, put her in a car, and drove her for eight hours before he was stopped by police.

[00:21:55] Speaker 03:
She was terrified.

[00:21:56] Speaker 03:
She had no history of any psychological issues before this.

[00:22:00] Speaker 03:
And at that sentencing, numerous family members testified, along with the victim in that case.

[00:22:06] Speaker 03:
The district court judge clearly

[00:22:08] Speaker 03:
It makes you thankful not to be a district court judge or trial attorney anymore.

[00:22:13] Speaker 03:
These are very difficult decisions.

[00:22:16] Speaker 03:
And in that case, the district court imposed a sentence of time served because of previously undiagnosed mental health issues, because they underpinned and offered an explanation for how this young man found himself in this situation where these are the choices that he made.

[00:22:32] Speaker 03:
Mr. Crosby is extremely similar because he was undiagnosed for his entire life.

[00:22:40] Speaker 03:
He had a suicide attempt at 14.

[00:22:42] Speaker 03:
He had interactions with people that he didn't understand and wasn't able to make sense of.

[00:22:46] Speaker 03:
Somehow he was able to serve in the military.

[00:22:48] Speaker 03:
Maybe it's that intense structure that was helpful to him.

[00:22:51] Speaker 03:
He volunteered for two duties.

[00:22:53] Speaker 03:
This is a golden unicorn of a client.

[00:22:56] Speaker 01:
Somehow he racked up a bunch of awards when he was simultaneously violating the law.

[00:23:02] Speaker 01:
What do you do with the argument that the government makes that this is in the situation where you can look at that part of the nature of circumstances of the defense and say,

[00:23:11] Speaker 01:
oh, well, this was an aberration.

[00:23:14] Speaker 01:
He all of a sudden, after a law-abiding like, decided to engage in this conduct.

[00:23:18] Speaker 01:
He's been engaging in this conduct all the time that he is supposedly presenting himself to the world as a patriotic service member.

[00:23:26] Speaker 01:
What do we do with that?

[00:23:28] Speaker 03:
This is where we get into reasonable range of sentences, and I would submit that the reasonable range of sentence in this case

[00:23:35] Speaker 03:
was perhaps a 10-year period of supervised release and five-day time served, and somewhere close to the top end of the guideline range, maybe more.

[00:23:45] Speaker 03:
Judge Baldock, in your dissent in DeRusse, you, of course this court never directs a sentence on remand, but Judge Baldock, you discussed

[00:23:53] Speaker 03:
maybe a sentence of 70 months would have been appropriate in that case, or perhaps even 70 weeks.

[00:23:59] Speaker 03:
That's a massive range because we're acknowledging that the district court had some really specific, unique facts in front of it that informed the sentence.

[00:24:09] Speaker 03:
And just because this court, or different judges in our district, may have considered a different sentence, that is not enough for the government to establish that this was a whimsical or arbitrary and capricious

[00:24:22] Speaker 03:
sentence.

[00:24:23] Speaker 01:
He got five days, he didn't get 70 weeks along the lines of the DeRusse.

[00:24:27] Speaker 01:
And so the point is not really, as I see it here, the point is not really, you know, at the end of the day, I don't care what sentence he got.

[00:24:35] Speaker 01:
What I care about is whether there is an explanation for why the court did what it did.

[00:24:42] Speaker 01:
And one that reasonably

[00:24:45] Speaker 01:
accounts for other competing variables that the sentencing factors of 3553A tell us the court needs to consider.

[00:24:54] Speaker 01:
With that in mind, it does nothing to explain why it goes from the 18 months or the six months involving the guidelines down to five days.

[00:25:02] Speaker 01:
It does nothing to explain how it deals with the fact that he goes to Pennsylvania and engages in the same conduct.

[00:25:09] Speaker 01:
It does nothing with those things.

[00:25:12] Speaker 03:
Your Honor, I think that the court's questions in the first hearing inform the explanation in the next hearing.

[00:25:20] Speaker 03:
The district court clearly thought about this.

[00:25:23] Speaker 03:
The judge was not originally considering a lower sentence.

[00:25:26] Speaker 03:
That's clear from the first hearing.

[00:25:28] Speaker 03:
He looked at the record, all of the information, including the report from Dr. Joy, and determined that incarceration is not what's necessary to protect the public or deter this young man.

[00:25:39] Speaker 03:
Location monitoring is necessary.

[00:25:41] Speaker 03:
In DeRouche, the judge did not even impose restitution or mandate location monitoring.

[00:25:47] Speaker 02:
And again, DeRouche, first of all, DeRouche is very different because, as the Chief pointed out, you had aberrant conduct based on a severe mental health

[00:25:58] Speaker 02:
Here we have a lifetime of looking at child pornography.

[00:26:05] Speaker 02:
And caught once, goes to Pennsylvania, does it again.

[00:26:10] Speaker 02:
The other significant thing is two years after DeRue's in Crookston, we gave very, very clear guidance to the sentencing court that when you have a significant variance downward

[00:26:28] Speaker 02:
We need to know why, and we can't read your mind by saying you said one thing at the first sentencing hearing, and then you came in and did a different thing at the second hearing, so it must have been this.

[00:26:41] Speaker 02:
We need you to tell us.

[00:26:43] Speaker 02:
And I think that explanation is missing here.

[00:26:47] Speaker 03:
May I answer and wrap up, Your Honor?

[00:26:48] Speaker 03:
Yes.

[00:26:48] Speaker 03:
Thank you.

[00:26:50] Speaker 03:
First, the government waived any procedural challenge to the explanation of the sentence in this case.

[00:26:54] Speaker 02:
It's not procedural.

[00:26:55] Speaker 02:
We went out of our way.

[00:26:57] Speaker 02:
to tease out how important it is an explanation is in determining substantive reasonableness.

[00:27:06] Speaker 03:
And your honor, I think there is record support just because this court would have reached a different conclusion.

[00:27:13] Speaker 03:
The downward departure in DeRusse is really replaced in this case with the policy disagreement by the guidelines.

[00:27:22] Speaker 03:
That is what brings the range down so low.

[00:27:24] Speaker 03:
And in DeRusse, he received a sentence of 70 days.

[00:27:28] Speaker 03:
I want to make just one final comment because the government included facts outside the record in their briefing and mentioned it here again today.

[00:27:36] Speaker 03:
there was a violation filed in this case and I would ask the court that if that is going to be considered that you direct the parties to give additional briefing because in that case he received an upward variance of the guideline range under 71.5 use note four because he received a charge bargain and a significant variance under the first sentence.

[00:27:57] Speaker 03:
It is fundamentally unfair

[00:28:00] Speaker 03:
for the government to use a low sentence to argue for an increase on a supervised release violation while this is pending.

[00:28:08] Speaker 03:
And if that is going to enter into the court's consideration in any way, I would respectfully ask that we be allowed to provide briefing on that issue.

[00:28:16] Speaker 03:
Thank you.

[00:28:17] Speaker 01:
No further questions.

[00:28:24] Speaker ?:
Counsel.

[00:28:24] Speaker 04:
Thank you, Your Honor.

[00:28:25] Speaker 04:
I'll start with the supervised release violation comment.

[00:28:28] Speaker 04:
We don't believe that this court needs to consider that.

[00:28:30] Speaker 04:
That wasn't before the district court.

[00:28:31] Speaker 04:
We reference that only to show that the term supervised release has been modified and that's part of this case, but that doesn't explain what the district court did in this case because it wasn't on the record at that point.

[00:28:42] Speaker 04:
No matter what explanation the district court provided, the sentence would not be reasonable.

[00:28:46] Speaker 04:
The defendant still hasn't identified anything that would serve the purposes of retribution.

[00:28:51] Speaker 04:
We have five days time served

[00:28:53] Speaker 04:
And we have $12,000 in restitution, which just amounts to 200 bucks a month.

[00:28:57] Speaker 04:
While the defendant has referenced the terms of supervised release, we know that those cannot serve the purposes of restribution.

[00:29:03] Speaker 04:
So no matter how restrictive those terms might be, they can't serve the purpose of just punishment.

[00:29:09] Speaker 04:
As to the transfer requested from the District of Pennsylvania, the government did exercise lenience in allowing that case to be transferred and it allowed

[00:29:18] Speaker 04:
the mandatory minimum to be taken off the table.

[00:29:21] Speaker 04:
But that being said, we have advocated below for a 78 month sentence, and the fact that we would agree that some lenience from that mandatory minimum of 10 years is warranted doesn't mean that the lenience down to a five day sentence is substantively reasonable.

[00:29:38] Speaker 04:
Mr. Crosby's also referenced the six 12 month guideline range that was discussed below.

[00:29:42] Speaker 04:
That is a reference to what the guideline range was in 1990, which is before the internet existed.

[00:29:48] Speaker 04:
that is not an appropriate comparator, and there's no indication that the district court adopted that.

[00:29:53] Speaker 04:
Finally, Darus, as Judge McHugh, you mentioned, is very different on its facts.

[00:29:58] Speaker 04:
It involved aberrant conduct, it involved severe mental illness resulting in delusional thinking.

[00:30:03] Speaker 04:
We don't have any of those factors here.

[00:30:05] Speaker 04:
Instead, I would direct the court to Judge Baldock's thoughtful dissent in Darus

[00:30:12] Speaker 04:
where Judge Baddaki mentioned that many defendants in these sort of cases have some sort of mitigating factor that might warrant some lenience.

[00:30:20] Speaker 04:
But those factors are usually never so severe that they warrant a sentence of time served.

[00:30:27] Speaker 04:
There's no situation in which the district court's five day time served could adequately reflect the harm that was inflicted on victims, the need for general deterrence, or the severity of crime.

[00:30:38] Speaker 04:
And for these reasons, we'd ask the court to vacate and remand for resentencing.

[00:30:42] Speaker 04:
Thank you.

[00:30:46] Speaker 01:
Thank you to both counsel for the very fine arguments.

[00:30:49] Speaker 01:
The case is submitted.