Judge John Padova of our United States District Court for Eastern District of Pennsylvania for sitting with us for these arguments and for our submitted cases. I say we're down to judges and we can use all the help we can get but with Judge Padova it's exceptional help so thank you John very much. I concur in that opinion. Thank you. All right we will proceed with our first case of the day. United States versus George Lichak. May I please the court. My name is Caroline Seblusty and I represent the United States and I'd like to reserve five minutes for the letter. That's granted. The government asked the court to vacate the sentence of the district court and demand for recentencing because under binding president of this court neither the reasons provided by the district court at sentencing nor any other set of reasons on this set of facts would be sufficiently compelling to justify the sentence provided by the district court. This case is not go. This is not a case in which there was the extraordinary showing of contrition, lack of dangerousness, rehabilitation or respect for the law manifest by Mr. Gaul when he after committing the offense conduct for only about two months withdrew from the criminal conduct and let a law abiding life for two years. I would assume you would say that it is not Gaul but it is Gaul. But I would say that it is Gaul. It is very much like Gaul. In this case it almost identical guidelines, ranges and offense conduct. Mr. Gaul had you 300 more images so his guidelines range was 6 to 10 months higher but he was sentenced to four months
. In all other respects they had a similar criminal background, a criminal history category of one, Mr. Lichock actually had a slight more criminal background having used marijuana. Mr. Gaul was a much more sympathetic figure in some sense because of his extraordinary commitment to his community, to his involvement in the school and the support that was shown for him at sentencing. Nevertheless, as the court found in that case the criminal history is already accounted for in the guidelines range and the finding of the court was essentially a policy disagreement with the guidelines. Councillor, are you satisfied with the trial judge's performance procedurally? Well, in some sense the court made some errors. She did not discuss the disparity for instance that arose with respect to other defendants and she, we really believe that she did not give meaningful consideration to for instance the seriousness of the offense, what results her sentence would have on other defendants respect for the law. But the mostly what we press is that these kind of, it is sometimes difficult to tease out the difference between what's a procedural and what's a substantive error but what is apparent at the end of the sentence is that this was, let all of this led to us a substantively unreasonable sentence, a sentence that promoted disparity and disrespect for the sentences of Congress in this area. Pretty clearly the judge here has a policy disagreement with the sentencing guidelines in this type of offense. If we look at spheres, albeit that's a crack cocaine case, not a child porn case, but the Supreme Court says that district courts are entitled to reject and very categorically from the crack cocaine guidelines based on a policy disagreement with those guidelines. What about a policy disagreement with the child porn guidelines? Should we extend the same license? In the short answer is no. I mean, both because these guidelines couldn't be more different than the crack cocaine guidelines on the crack cocaine guidelines. But these guidelines, with respect to child pornography guidelines, they're not based on the usual empirical review that the sentencing commission usually does. These, I mean, the guidelines with respect to child pornography as I understand it, at least one of our public courts has said, really resulted from a continuing attention from Congress and continuing amendments. And that's how the range was built. And my understanding of law is that, I mean, if it's not the sentencing commission acting empirically, then there's more latitude that's given to the trial judge. Actually, Your Honor, the sentencing commission did pursue its ordinary approach to identifying a guidelines range when it created these guidelines. And as it proceeded to amend them under the Director of Congress, the role of the commission pursuant to its statutory mandate, 994, is to both review past sentencing practices and consider them
. But 994 also specifically says they're not supposed to implement those practices as guidelines. They're supposed to take those under consideration. In many cases, the statute specifically says they're not severe enough. They are required to also consider many other commentary from practitioners in the field and also to conform to the directives of Congress. And so in conforming as the commission did with directives of Congress and also in developing their own rationale over time, they acted pursuant to their statutory mandate. And that does not make their guidelines any less compelling or binding than a guideline where they simply took empirical studies of past data. And I think that, you know, there's an effort being made to say that what Kimbrough was about was only about affirming guidelines if the sentencing commission has looked at past sentencing practices. And that is not what Kimbrough says. Kimbrough simply says in the case of Crackle Cain, the commission said it only looked at a statutory maximum and minimum of Congress before the sentencing guidelines had ever been enacted. It didn't do any of this other empirical research. And then it subsequently repudiated this as an appropriate method for setting a sense set of guidelines. Well, now these guidelines were amended and increased after 2003. Though I mean, if he were being sentenced under the later guidelines, he would have gotten 41, I mean, it would have been 41 to 51 range. How did that amendment happen? Wasn't that mainly Congress, rather than a sentencing commission, putting forth some policy objective? The Congress put into practice, Congress passed the Protect Act in 2003 and that set a statutory mandatory minimum for receipt. As a result of that, the commission amended the guidelines in several ways, taking into account the fact that there was a new statutory minimum and raised offense levels correspondingly for the related offenses so that punishment would continue to be proportional. So they were acting in their statutorily mandated role. They were both taking into account congressional directives and conforming the guidelines to congressional directives, but using their professional insight to create a set of guidelines that are proportional. And so in that way, they aren't simply a body that's being reactive to congressional directives
. Well, is there any move of foot? I mean, there was move of foot to change the crack cocaine guidelines. I mean, and judges would talk constantly about how unfair it was. Is there any move of foot to alter the current guidelines based upon a policy such as the one Judge Thompson believes is appropriate? I.E. These people need treatment. Jail probably isn't the right place for them, et cetera, et cetera. I want to talk about three views of the guidelines because I think there are a set of district court judges who are unhappy with these guidelines. And they cite in their unhappiness an article by the federal defender, which traces a history of the passage of these guidelines and the rationale behind these guidelines. And that article, I'm afraid I spent my summer vacation researching every citation for the legislative record in that article and also the entire legislative history of child pornography, which starts 15 years before that article begins. And so I think this set of decisions is will be arguing and appeal later to the support of a recent decision by Judge Hayden. These decisions aren't based in actual accurate. They do not reflect an accurate picture of the legislative history of this guideline or the reasons courts might be dissatisfied with it. If you look at the congressional record from 2003 when Congress took up child pornography and the context of other departures, one thing that was set on the record by both senators Leahy and Senator Kennedy is that this guideline happens and these set of punishments happen to be appropriate. And while they appreciate that judges might want to have discretion in many areas, this is one set of guidelines where they really do not like the fact that judges are departing downwards and there's no movement of foot, for instance, as that congressional record would indicate to reduce these guidelines. This also happens to be a set of guidelines that the Supreme Court has written. Well, I mean, looking at that, the Congress seemed quite firm on the crack cocaine guidelines for a long time that they shouldn't be reversed. So we should not be held captive by what Congress thinks, should we? Well, in so sense, Congress wasn't as definitive at all with respect to crack cocaine. They didn't say that the commission, this is what we want you to do
. And that was one of the problems that the Supreme Court had in Kimber with the government's position. They said, well, Congress never actually told the commission do this. They said, okay, we don't want it to be one to one, but come back to us with another option. And so, you know, the commission worked on other options, but the commission ultimately said, Congress, you have to take this up again. We cannot, in the absence of your action, pass new guidelines or new penalties very accurately. And so the Supreme Court noted that there really was a vacuum of opinion here, which is quite different than saying that when it comes to Congress very clearly expressing its views, as it has repeatedly, repeatedly be visiting this, that court should not give this close consideration and serious consideration. And I think this is particularly important in trial pornography because the legislative history is vast reflecting the fact that Congress has studied this again and again. I mean, they really have reviewed about 2,000 psychological studies. Councillor, let me follow up on Judge Rose's question with another one. Are you arguing that it's unreasonable for the trial judge, in this case, case involving child pornography to implement a philosophical plan? Where as it is not unreasonable in the crack cocaine case? There are two answers to that. One is, there is no law. The Supreme Court has not found that a court can undertake a philosophical disagreement separate from individualized fact findings in any area except for crack cocaine. And this circuit has found that the findings need to be individualized. And that has not been changed by the Supreme Court. So to the extent the court have undertaken an individualized finding, then that is possible. And then to the extent the court does undertake such a philosophical disagreement, that is subject to close review. And it is a reason for a sentence which is subject to less respect. And it's worth thinking about for a minute what a court needs to do to engage in a policy analysis
. It's not sufficient, I think, on this record to say, I disagree with these guidelines. Well, stop. That's not a sufficient analysis in light of 30 years of congressional analysis to brush aside the findings of Congress. If a court would like to engage in a flat philosophical disagreement with Congress, then they should identify aspects of congressional policy which they disagree with and have support for their reasons which are substantial. And again, the court is not the elected body making policy in this country. The Congress is the elected body charged with identifying penalties and setting punishments for them and identifying criminal offenses. So there is a reason for a court to exercise some degree of deference. And that deference doesn't need to be knee jerked to Congress. It doesn't need to say Congress did it so I'm not going to touch it. But the deference needs to be shown in an acknowledgement and a way out of the full reasons for Congress's policy judgments. And there was nothing like that attempted here. This is the most passing reference to a disagreement that was made. And so for that reason, it can't support the judge's sentence here. It's a very weak reason to support the sentence. OK. On rebuttal, could you give us the citation to the defender? Article, I don't know that it's cited in your brief. It's not cited. Sorry
. Thank you. Mr. Brookfield? Yes. Good morning, Your Honor. My name is Paul Brookfield. I represent George and I charge in this case. Your Honor, I submit that the glow case is controlling and that the glow case sent a very clear message to the court that the district court in their experience and wisdom and their day-to-day practice and the trenches in the courts are to be given the discretion to individualize determination of a pro-corporate set. Did we not send a message in golf? Golf is very, well, first of all, golf is golf that different. Well, golf is very different in several key ways. Some of them touched upon by the prosecutor. First of all, golf had a higher guideline. He was 40, I think, 37.3. Mr. Lightchild was 30 to 37. Mr. Gough was a school teacher, a wonderful guy who did good for the community. Well, yes, that's correct
. But Your Honor, I would submit that most people suggest that a school teacher in an elementary school, a father, child, pornography, is something someone that needs more punishment. But there was no, I mean, I was on the golf panel. I understand that, I realize. There was no indication that golf in any way had abused or been acted inappropriately with any school child that he ever ran into. That's correct. But I think the code was very concerned about the fantasy world that Mr. Gough was living in because the pictures in his case were actual depictions of rape and molestation of minors by adults. The pictures of Bob and Mr. Lightchild were single or multiple minors not engage in actual sexual acts. They were sexually explicit poses only. But we're not, I mean, Congress hasn't drawn that line. And we're not going to start drawing lines based upon exact depictions. All of this is prescribed, is it? That's correct. But in my mind, the key difference between George Lightchild and Mr. Gough is his father. Mr. Gough did not demonstrate acceptance responsibility. Throughout the sentencing and the district court, he maintained that essentially this was a ridiculous crime, it was harmless
. And I think a court could send a clear message of Mr. Gough did not accept or recognize that his conduct was accepting one call. He went on and on at the sentencing, both Mr. Gough and his attorney that this was done in a room by himself, that there was no harm to any children, so and so forth. That went when a client or defendant sends a message like that. And many times you do respond to jail sentence because the person hasn't accepted the warrant for Mrs. Condo. What? That's the light shock in contrast fully accepted as a comment on the moment that the police arrived at his home without a search warrant. He can send it to his home. He gave a statement of admission at that time. He went into council. He didn't admit what was really on his computer until they started looking at the hard drive. No, he admitted that there were pictures of children minus on a computer. He was wrong as to the number. Yeah. I mean by several hundred. I mean this is- Well, there are only three hundred altogether, but I'm sorry, Judge. Isn't there a real difference here in that Gough went to jail for four months? And here the court determined absolutely no jail sentence
. Isn't that a striking factor here where the sentencing commission says jail is appropriate and indeed thirty to thirty seven months and when he is given probation? How do you- How can you argue that that is- I'm sorry, but I'm sorry. I'm sorry. I'm sorry. I'm sorry. I'm sorry. I'm sorry. I'm sorry. I'm sorry. I'm sorry. I'm sorry. I'm sorry. I'm sorry. I'm sorry. I'm sorry. I'm sorry. I'm sorry. I'm sorry. I'm sorry
. I'm sorry. I'm sorry. I'm sorry. I'm sorry. I'm sorry. I'm sorry. I'm sorry. I'm sorry. I'm sorry. I'm sorry. Didn't it sound enough, Valencia? sold another 7-year contract. cases have held that a judge does not have to explicitly mention all the factors. In addition, in Goal, at page 595, the court said that if the district court has considered the proper guideline range, that that can be considered to be considering the need to avoid unwanted disparities. At the very beginning of her 7-sing court business case, Judge Thompson recognized that the 17th guidelines were 30 to 37 months. I think what motivated Judge Thompson here was Mr. Lightchock's for the moment the police arrived at his house. He demonstrated the understanding of the wrong witnesses conduct and need to change. And that's why I can send it to the search. That's why I went into counseling, even before he got an attorney. And that's why at the set-in thing, I think she was moved by his explicit acknowledgement that he had harmed children. He did not walk away a minute from his recognition. He said he would live. Every day the rest of his life knowing that he had harmed children. And I think she was moved by that. And I think she, balancing all the factors, determined that a set-in supprobation was appropriate for Mr. Lightchock. She said, what should I do with this individual? She recognized the guidelines for 37 months. But she concluded that Lightchock and society would be better served by counseling and close to the vision. Well, she really, I mean, there was an agreement among counsel that 30 months was reasonable. That's correct. And she decided that jail was not reasonable. That's correct. So it seems to me that her decision wasn't based upon his acceptance of responsibility, was based upon whether he should go to jail. And she notes he sought psychological help. He's been in therapy. His psychologist has written a report saying he's benefiting
. That's why I went into counseling, even before he got an attorney. And that's why at the set-in thing, I think she was moved by his explicit acknowledgement that he had harmed children. He did not walk away a minute from his recognition. He said he would live. Every day the rest of his life knowing that he had harmed children. And I think she was moved by that. And I think she, balancing all the factors, determined that a set-in supprobation was appropriate for Mr. Lightchock. She said, what should I do with this individual? She recognized the guidelines for 37 months. But she concluded that Lightchock and society would be better served by counseling and close to the vision. Well, she really, I mean, there was an agreement among counsel that 30 months was reasonable. That's correct. And she decided that jail was not reasonable. That's correct. So it seems to me that her decision wasn't based upon his acceptance of responsibility, was based upon whether he should go to jail. And she notes he sought psychological help. He's been in therapy. His psychologist has written a report saying he's benefiting. He's going along in a constructive way. And so we won't give jail to someone like that, which seems to be totally antithetical to what the guidelines are saying with respect to jail. I cannot see the benefit of imposing a jail term. Yes. And yet Congress says that's what you're supposed to do. Well, because I mean, I was on the district court and there are a lot of times I didn't think a jail term was going to be beneficial. Believe me. Well, you're on it. I think you have to look at Judge Thompson's decisions to the goal case. Because the goal case, basically, this Supreme Court has said loud and clear by a seven-to-vote that a sentence of probation may be appropriate, that the judges are giving quite frankly, I think the handwriting is on the wall between booker, spears, Kimbrough, wall, and the like, that the courts are the turning discretion back to a sensing court. You can easily stand here and say, how could go get probation? As a college student, he was involved with a large drug ring. He made $30,000 personally. But he was in it, I think, eight months, and he pulled back and that the event was eight years before. I mean, there were the facts were very different. But think about a college student, how many drugs you have to sell to make $30,000 yourself? And the court there said, yes, self rehabilitation. That was the key in that case. The court's perception that the wrong unfath's sent this man to jail. How is he that different from George Lightcharke? George Lightcharke, he was the police candidate's house
. He's going along in a constructive way. And so we won't give jail to someone like that, which seems to be totally antithetical to what the guidelines are saying with respect to jail. I cannot see the benefit of imposing a jail term. Yes. And yet Congress says that's what you're supposed to do. Well, because I mean, I was on the district court and there are a lot of times I didn't think a jail term was going to be beneficial. Believe me. Well, you're on it. I think you have to look at Judge Thompson's decisions to the goal case. Because the goal case, basically, this Supreme Court has said loud and clear by a seven-to-vote that a sentence of probation may be appropriate, that the judges are giving quite frankly, I think the handwriting is on the wall between booker, spears, Kimbrough, wall, and the like, that the courts are the turning discretion back to a sensing court. You can easily stand here and say, how could go get probation? As a college student, he was involved with a large drug ring. He made $30,000 personally. But he was in it, I think, eight months, and he pulled back and that the event was eight years before. I mean, there were the facts were very different. But think about a college student, how many drugs you have to sell to make $30,000 yourself? And the court there said, yes, self rehabilitation. That was the key in that case. The court's perception that the wrong unfath's sent this man to jail. How is he that different from George Lightcharke? George Lightcharke, he was the police candidate's house. He let them in, and he immediately started on the right path. I think that's what Judge Thompson recognized. I think the goal case is controlling here. The courts are very clear that they are going to return to district court judges to discretion to look at each case, each person as an individual, and make the court be determined. Except that, I'm picking up on Judge Kadova's point. When the disparity just jumps out at you, it seems you have to address that and talk about why this isn't problematic. And why this does not promote disrespect for the law. Especially in this situation, you had 50 defendants who were pulled up in this whole scam. And most of them got, I think, 30 months, 20, 30 months is the average. Doesn't the judge have to address that? No. Honestly, I think Judge Thompson, as Your Honor's were asking the prosecutor, these child porn pornography guidelines have not been driven by empirical studies. This is the direct result of the Congress systematically raising the guideline range. Without any studies, I'll support it. Systematically, removing normal, downwind departure, saying explicitly, these are not available for child pornography. It's a reaction to the public concern about child pornography. When a district court engages in policy analysis, or disagrees with the policy behind the sentencing guidelines, Ms. Ted Laskey gave us her ideas of the parameters that we should consider. What is your position to support a district judge's policy disagreement? What should the district judge set out in the sentencing discussion? Well, Judge Thompson was pretty explicit when she said she essentially doesn't believe that jail's appropriate for which she called her
. He let them in, and he immediately started on the right path. I think that's what Judge Thompson recognized. I think the goal case is controlling here. The courts are very clear that they are going to return to district court judges to discretion to look at each case, each person as an individual, and make the court be determined. Except that, I'm picking up on Judge Kadova's point. When the disparity just jumps out at you, it seems you have to address that and talk about why this isn't problematic. And why this does not promote disrespect for the law. Especially in this situation, you had 50 defendants who were pulled up in this whole scam. And most of them got, I think, 30 months, 20, 30 months is the average. Doesn't the judge have to address that? No. Honestly, I think Judge Thompson, as Your Honor's were asking the prosecutor, these child porn pornography guidelines have not been driven by empirical studies. This is the direct result of the Congress systematically raising the guideline range. Without any studies, I'll support it. Systematically, removing normal, downwind departure, saying explicitly, these are not available for child pornography. It's a reaction to the public concern about child pornography. When a district court engages in policy analysis, or disagrees with the policy behind the sentencing guidelines, Ms. Ted Laskey gave us her ideas of the parameters that we should consider. What is your position to support a district judge's policy disagreement? What should the district judge set out in the sentencing discussion? Well, Judge Thompson was pretty explicit when she said she essentially doesn't believe that jail's appropriate for which she called her. You just have to say that. In the end, the prosecutor, I disagree. Is it? You have to have facts to support it. She had a very good record about Mr. Lightshar. So you're saying, more abiding other than this? You were saying it simply facts about individual defendants that should support the policy disagreement? No. Judge Thompson is perhaps ahead of the curve in terms of she's trying to respond to some of the policy. What must she present to have us to recognize her policy disagreement? I think I agree with the prosecutor that so far, based on spheres, that only the practical can guidelines has been approved to have a close off for difference from the guidelines. Judge Thompson did not present a decision that way. She presented an almost anticipating goal to the individualized fact as balancing. So my position is that based on goal, she heard decisions entitled to differential abuse of discretion and very limited review and that she placed adequate facts in the record to support decision in this case. The goal, by example, had the very same guidelines, 30 to 37 months and the Supreme Court by 72 vote found no problem with that. Relying on that gentleman getting that kind of challenge departure. Well, there's a procedural component too, which is important as is the substantive component. And that is procedurally, especially under these circumstances where there's a parent disparity, doesn't the trial judge have to specifically address that apparent disparity in order to satisfy the procedural responsibilities? No, I disagree because the Supreme Court in Goal said you did not have to explicitly address each item. And if you recognize the guidelines, that recognizes the need for unwanted disparity. Now, the book of case is not settled. Well, I mean, it isn't the law settled that if there's an argument that's made, a reasonable argument that's made, that relates to one of the statutory factors the trial judge has to address it, it's sentencing
. You just have to say that. In the end, the prosecutor, I disagree. Is it? You have to have facts to support it. She had a very good record about Mr. Lightshar. So you're saying, more abiding other than this? You were saying it simply facts about individual defendants that should support the policy disagreement? No. Judge Thompson is perhaps ahead of the curve in terms of she's trying to respond to some of the policy. What must she present to have us to recognize her policy disagreement? I think I agree with the prosecutor that so far, based on spheres, that only the practical can guidelines has been approved to have a close off for difference from the guidelines. Judge Thompson did not present a decision that way. She presented an almost anticipating goal to the individualized fact as balancing. So my position is that based on goal, she heard decisions entitled to differential abuse of discretion and very limited review and that she placed adequate facts in the record to support decision in this case. The goal, by example, had the very same guidelines, 30 to 37 months and the Supreme Court by 72 vote found no problem with that. Relying on that gentleman getting that kind of challenge departure. Well, there's a procedural component too, which is important as is the substantive component. And that is procedurally, especially under these circumstances where there's a parent disparity, doesn't the trial judge have to specifically address that apparent disparity in order to satisfy the procedural responsibilities? No, I disagree because the Supreme Court in Goal said you did not have to explicitly address each item. And if you recognize the guidelines, that recognizes the need for unwanted disparity. Now, the book of case is not settled. Well, I mean, it isn't the law settled that if there's an argument that's made, a reasonable argument that's made, that relates to one of the statutory factors the trial judge has to address it, it's sentencing. And the government in this case did in its brief, certainly, make the disparity argument arising out of rate tag. That's correct, Your Honor. But if the government submitted their standard memo in this case, the sentencing memo, they added a few minor details about Mr. Leichard. If you read the actual sentencing statement by the prosecutor sentencing, they raised no factors. They did not consent, they just held the court in one paragraph, look at the factors, and we think 30 months. They did not direct the court to any particular things. And I think the book of decision recognized that the goal of uniformity was going to be, go by the wayside in individual cases. I think it's important that the government itself in their brief indicates that they recognized that this case might support a down-departure itself. The page 14 of their brief, they said that the facts in this case might support a departure. So the government is not even, in their brief, they recognize that Mr. Leichard is perhaps out of that normal range. They're really just saying they don't think it should go down as far as Judge Thompson said. And I think then you're getting into the weighing which goes away from the views of discretion standard. Judge Thompson, I believe, made an adequate record. In the end of the day, the golf case, he ended up with four months in conservation, one year's house arrest, and the United States did not appeal that. So I think the comparison should be between the four months versus the probation. And I think the goal case made very clear something that everyone in this field often overlooks, which is the substantial restrictions of liberty that probation provides in every case
. And the government in this case did in its brief, certainly, make the disparity argument arising out of rate tag. That's correct, Your Honor. But if the government submitted their standard memo in this case, the sentencing memo, they added a few minor details about Mr. Leichard. If you read the actual sentencing statement by the prosecutor sentencing, they raised no factors. They did not consent, they just held the court in one paragraph, look at the factors, and we think 30 months. They did not direct the court to any particular things. And I think the book of decision recognized that the goal of uniformity was going to be, go by the wayside in individual cases. I think it's important that the government itself in their brief indicates that they recognized that this case might support a down-departure itself. The page 14 of their brief, they said that the facts in this case might support a departure. So the government is not even, in their brief, they recognize that Mr. Leichard is perhaps out of that normal range. They're really just saying they don't think it should go down as far as Judge Thompson said. And I think then you're getting into the weighing which goes away from the views of discretion standard. Judge Thompson, I believe, made an adequate record. In the end of the day, the golf case, he ended up with four months in conservation, one year's house arrest, and the United States did not appeal that. So I think the comparison should be between the four months versus the probation. And I think the goal case made very clear something that everyone in this field often overlooks, which is the substantial restrictions of liberty that probation provides in every case. It's particularly clear in the sharp and archery case where a defendant is subject to some unique provisions. For example, you must submit to polygraph testing. You must have counsel on an ongoing basis. You have searches of your home. You'll have computer restrictions on your usage. Computer, there's monitoring equipment based on your computer. You have to report on a pre-pre-basis. You cannot move or lean to stay without permission. There are many, many restrictions. There are restrictions on contacting human children, both employment and volunteer provision, which was proposed in the slideshow. So he received the maximum period of probation with very significant restrictions of liberty. And I asked the court to defer to Judge Thompson and her balance in this case. Thank you. Thank you. Thank you. I'm sure it should be supported by a significant justification. Here, the justification offered cannot possibly rise to that standard. While probation may be the appropriate sentence in certain cases, such as Mr
. It's particularly clear in the sharp and archery case where a defendant is subject to some unique provisions. For example, you must submit to polygraph testing. You must have counsel on an ongoing basis. You have searches of your home. You'll have computer restrictions on your usage. Computer, there's monitoring equipment based on your computer. You have to report on a pre-pre-basis. You cannot move or lean to stay without permission. There are many, many restrictions. There are restrictions on contacting human children, both employment and volunteer provision, which was proposed in the slideshow. So he received the maximum period of probation with very significant restrictions of liberty. And I asked the court to defer to Judge Thompson and her balance in this case. Thank you. Thank you. Thank you. I'm sure it should be supported by a significant justification. Here, the justification offered cannot possibly rise to that standard. While probation may be the appropriate sentence in certain cases, such as Mr. Goths, where he already had a two-year track record of voluntarily implying with the law, Mr. Lichock had no such track record. He already had to be caught in the act. It's a very common thing for a defendant to go into counseling after being caught, as Judge Thompson even noted on the record. Doesn't make him, doesn't qualify him to be an exceptional or, in any case, to have taken responsibility in any unique way that takes him outside of the heartland of defenders. This person was someone who felt within the heartland of defenders. And this case is important because it's obvious from this case how easy it is to dismiss the guidelines with a few quick words. And it brings to mind the instruction of the Supreme Court in Kimbrough that there are certain institutional competencies that courts have a competency to review the individual in front of them. And are most compelling as they observe the characteristics of that individual. But that Congress and the Commission have a greater institutional competency to evaluate policy. And when a court dismisses the policy of Congress and the Commission in a line, and when it becomes truth because people have said it over and over again that these guidelines lack an empirical analysis, when in fact, a review of these guidelines demonstrates that they lack no such analysis. It's important to hold Judge's responsible for actually reviewing going back to the legislative history at the very least and reviewing the foundation. Well, there wasn't any mandatory minimum counts. So, I mean, if Congress wanted jail time, as a matter of policy, you know, ostensibly that would, that could have come through a mandatory minimum. And there wasn't any here. Absolutely, but courts and the Commission have resisted that. And there's reasons to resist a mandatory minimum, but at the same time to express as they had for many years through the guidelines, their feelings about their relative harm of this offense. And one way they did that was to suggest to the Commission that they have certain enhancements in the guidelines
. Goths, where he already had a two-year track record of voluntarily implying with the law, Mr. Lichock had no such track record. He already had to be caught in the act. It's a very common thing for a defendant to go into counseling after being caught, as Judge Thompson even noted on the record. Doesn't make him, doesn't qualify him to be an exceptional or, in any case, to have taken responsibility in any unique way that takes him outside of the heartland of defenders. This person was someone who felt within the heartland of defenders. And this case is important because it's obvious from this case how easy it is to dismiss the guidelines with a few quick words. And it brings to mind the instruction of the Supreme Court in Kimbrough that there are certain institutional competencies that courts have a competency to review the individual in front of them. And are most compelling as they observe the characteristics of that individual. But that Congress and the Commission have a greater institutional competency to evaluate policy. And when a court dismisses the policy of Congress and the Commission in a line, and when it becomes truth because people have said it over and over again that these guidelines lack an empirical analysis, when in fact, a review of these guidelines demonstrates that they lack no such analysis. It's important to hold Judge's responsible for actually reviewing going back to the legislative history at the very least and reviewing the foundation. Well, there wasn't any mandatory minimum counts. So, I mean, if Congress wanted jail time, as a matter of policy, you know, ostensibly that would, that could have come through a mandatory minimum. And there wasn't any here. Absolutely, but courts and the Commission have resisted that. And there's reasons to resist a mandatory minimum, but at the same time to express as they had for many years through the guidelines, their feelings about their relative harm of this offense. And one way they did that was to suggest to the Commission that they have certain enhancements in the guidelines. They would direct enhancements for the number of images, for instance, in 2003. And so that differentiated, that got you over probation here. They talked about enhancements for use of a computer. And why that was a very important distinction between people who are just using the males and people using the computer making it much harder to crack them down. They talked about differentiating between people who have images of violence, and people who don't have images of violence. And Mr. Lightchuck did have images of people engaged in sexual acts, and not just people engaged in posing a specifically spoke to the agent yesterday, and asked her to review the collection to confirm that the statement in the PSR was correct. And it is correct if you had children engaged in sexual acts and not just people. And they give credit for responsibility and criminal history, but Congress expressed a sense of the spectrum of this crime. And Mr. Lightchuck, by no means fell at the bottom of the range, which was probation. And they are rational for finding that real children are harmed, that more images come on the market, the more the people look at them. That children who are in these pictures feel that their images in this crime never goes away, because it's always out there being recirculated by offenders, is exactly what Congress was trying to address, and trying to address it proportionally, according to defendants who had more images. Or worse than images. Your Honor has... And the site to the
. They would direct enhancements for the number of images, for instance, in 2003. And so that differentiated, that got you over probation here. They talked about enhancements for use of a computer. And why that was a very important distinction between people who are just using the males and people using the computer making it much harder to crack them down. They talked about differentiating between people who have images of violence, and people who don't have images of violence. And Mr. Lightchuck did have images of people engaged in sexual acts, and not just people engaged in posing a specifically spoke to the agent yesterday, and asked her to review the collection to confirm that the statement in the PSR was correct. And it is correct if you had children engaged in sexual acts and not just people. And they give credit for responsibility and criminal history, but Congress expressed a sense of the spectrum of this crime. And Mr. Lightchuck, by no means fell at the bottom of the range, which was probation. And they are rational for finding that real children are harmed, that more images come on the market, the more the people look at them. That children who are in these pictures feel that their images in this crime never goes away, because it's always out there being recirculated by offenders, is exactly what Congress was trying to address, and trying to address it proportionally, according to defendants who had more images. Or worse than images. Your Honor has... And the site to the... The site to the defender article, if you have it, is called. And this is by no means an endorsement of the defender article, be conserting the myth of careful study. A primer on the flawed progression of the child pornography guidelines, and it's unpublished, you can only find it at the Federal Defender's website. And so I asked the court's permission, I'm happy to submit, and I'd like to submit my brief responding to this. I wrote a 78 page brief on the page, and submitted it to the district court, which is rest of the... Maybe given that, and maybe it's not published, and maybe because it's not part of the record, should we pass on it, or... There will be another chance with the government to accept it. Except he held from the decision that actually writes on it. I think it's not... It wasn't part of the record, it wasn't under consideration here
. I just raised it to discuss the fact that it easily said that these lack an empirical basis is becoming true, and government-resistant. I think we will then not seize the opportunity to read it and or your response, but thank you. It would probably just involve more response by Council, and it's not part of the record. Next case. Thank you, Council. Case was well argued, we'll take it under advisement. Call our next case