FYP Education

[00:00] Intro: Let’s amp up this episode of Registry Matters with our fantastic patrons behind the scenes. Shout out to Ethan h, Steve, Paul, Alex, and hold on. Yes. Ethan h again. Keep the dialogue for fun, and remember, f y p.

[00:16] Andy: Groovy. I have pressed my buttons. Recording live from FYP Studios East and West, transmitted across the Internet. This is episode 348. Good grief. How did we get here? Of Registry Matters. Larry, how was it going over there this evening? I’m not gonna ask you about the weather.

[00:36] Larry: That’s good because the whole country is under the same situation.

[00:40] Andy: I doubt that. Alright. Well, please, I’m gonna say this because I sometimes forget, but please show your support by hitting the like and the subscribe button. Send a five star review. Let’s see what else could you do. You could, like, put up some smoke signals perhaps if that doesn’t violate your probation conditions to put out some smoke signals to help show some love for us. Go over to your treatment provider and spread the word about this podcast. It would be amazing if you did all of that. So I’ve gotten that out of the way, Larry. What are we doing tonight?

[01:11] Larry: Well, first of all, I have very bad news. Oh, jeez. What’s the bad news? Chance is not able to join us this week.

[01:19] Andy: That means Smoke is used to attract kids, somebody says. Yes. I’m sure it is. I need I need a sorrow track. We have a laugh track. I need a sorrow track. Oh. That means it’s just mister doom and gloom for this episode.

[01:33] Larry: And in fact, he says he’d be gone for several weeks because it’s summer doldrums and he’s working on other stuff. We have a case from United States District Court. These are district of Virginia that deals with Prawn. Also also, we have some questions from our supporters, and I have an article that I wanna cover. I just can’t help myself because it shows there can be pitfalls when we have bipartisan agreement on an issue.

[02:06] Andy: Alright. Well, we should start with this, shenanigans of a YouTube comment that someone wrote. And it says, well, if I went to France or any other nation illegally, I wouldn’t have rights nor should I. The majority of these people. Now who are these people, Larry? Who are these people?

[02:28] Larry: It’s all the people that Joe Biden personally let in over the last four years.

[02:33] Andy: I see. Alright. These people who come into America came here illegally, so they have no rights. I mean, come on. Even being an American citizen and I break the law, my rights as a as a citizen are revoked. That is so not true. That last part is definitely not true. They might be, what, like curtailed perhaps or, I mean, like your fourth amendment. A judge has to issue a warrant for you to have your Fourth Amendment breached. So, like, what’s the right word for that? I mean, I know that, you know, they issue a warrant so they can come search your stuff, but you still sort of have your Fourth Amendment, but they are overriding it to a certain degree.

[03:13] Larry: Well, while you’re under supervision, you may have a very diminished, amount of rights because you are being punished. But, basically, almost all of those rights are restored. I mean, the the right to gun ownership is not generally restored, but voting is generally restored with a few exceptions around the country. And your rights are fully restored, so I don’t know what he’s talking about. But this is a fun one to get into Because first of all, I like to, I’d hate to break it to you, but Americans are illegal in a lot of countries. Oftentimes people are illegal not by their designer intent. You end up overstaying your intention by life circumstances and you end up being in a nation and your expectation of when you’re gonna depart changes and you’re technically illegally there. And a lot of Americans flee to Mexico. I have to break that news to you. When they commit crimes, that’s one of the hot destinations that Americans have sought refuge in Mexico and other nations. So Americans do illegally enter other nations all the time.

[04:27] Andy: I wonder if the the the Mexico comment you just made, I wonder if that has anything to do with proximity.

[04:33] Larry: I would imagine it might. So Might go in the other direction too if they’re trying to flee from there too. Is that that’s what I was getting Well, a lot of Americans did that very thing. They fled to Canada to avoid The United States draft in the nineteen sixties and seventies. Did they do that legally, or did they do that? They did they did it with Canadians turning a blind eye to it.

[04:54] Andy: Oh, really? They just, like, kind of moved over there and just integrated them without getting passports and visas and all that stuff? Correct. And then, there was a president that came along named Jimmy Carter.

[05:04] Larry: Okay. I’ve heard of him. And he offered he offered amnesty to those people, and you could could only imagine the firestorm of criticism he took for that amnesty, letting those draft dodgers come back into The United States. But back Shame. But back to the question, If you’re illegally in a nation and you get in trouble, I’d just would, like, like to pose this question to the commenter. Are you saying that you would be happy for them to just come put the handcuffs on you and say you’re guilty because you’re here illegally and you have no rights whatsoever to legal representation, to any due process, or anything whatsoever. If you can keep a straight face and say, you’d be happy with that as an American, if you were in a nation and you’ve encountered a law enforcement officer and they said, she have no rights. You’re not one of our citizens. And most Americans, in fact, if you watch the news, if an American is being held in a foreign country and it makes the news here, have you noticed how they always say that they’re being illegally detained? You remember there was a I think I’ve heard stuff like that. A basketball player. Do you remember Britney? I do. Yes. Well, she broke Russian laws,

[06:23] Andy: but She had a little bit of dope in her bag. Wasn’t dope. It was actually CBD, if I remember. Okay. I to me, they’re the to me, they’re the same. But, she was being illegally detained.

[06:34] Larry: And Americans are fond of of of thumbing their nose at every other nation’s laws and saying that their court systems are a joke and they’re being illegally detained. But when it’s you and one of these foreign jails, I bet you would wish you had a little bit of few rights and a little bit of due process. What do you bet?

[06:53] Andy: I think so. I really wanna go back to this these people. I really am bothered by the these people. I mean, I I I know who he’s talking about, but he’s specifically talking about a a a group of people that have less than white skin, and they predominantly speak Spanish.

[07:14] Larry: That’s true. It just bothers me. But we’ve done that all through our time. We we didn’t want the Italians, the WAPs. We didn’t I mean, this is not new news that we don’t that we’re prejudiced. It’s not. So this is Agreed. I completely agree. I understand that. It’s just this is just the current these people. So Good grief, man. But Americans forget that a lot of Americans came here illegally.

[07:37] Andy: I would imagine just about all of us, you know, if you are what, third ish generation, fourth generation, you’ve you you hopped across a boat and somehow got yourself legitimized later. I know people, Larry. I know a person who is who is here arrived here illegally and then through whatever process gained citizenship, and that person is against the people coming over the border undocumented.

[08:02] Larry: You know, it’s living on a border, living in a border state the way I do. You’d be surprised how conservative the people that have come here through the process. They’ve waited five, ten years for their for the quota to allow them to come in. And they they very much resent those who broke in line and didn’t do do what they did. And and so it’s, when people think that just because they’re an immigrant that they’re gonna vote for the Democrat party, They’re sadly mistaken. The strongest Republican part of our state is Southern New Mexico, believe it or not. That’s where they have the greatest strength. The conservatives are stronger, closer to the border.

[08:40] Andy: Well, what I intend to do with this particular segment is to tag the person with the time stamp for this particular block and reply to the guy. That’s what I intend on doing.

[08:50] Larry: You’re trying to cancel out of our YouTube listeners. We won’t have any certain subscribers left before long.

[08:56] Andy: Could be. Yeah. It’ll start a shit storm, I’m sure. Alright. Let’s see here. Let’s move over to this question. How did that one get there? That needs to go way over there. Question from Sal Salvatore. Yes. That doesn’t sound right. It shouldn’t be Salvatore. Yeah. Anyway. Alright. Salvatore. And this says, this one’s for mister Doom and Gloom. I had read that article four of the United States constitution outlines the relationship between various states as well as the relationship between each state and the United States federal government. And that’s, and that states excuse me. That states required to respect each other’s laws, records, and judicial proceedings, I e that a marriage, contract, or court rule court ruling in one state must be recognized in another and that under said article, it prevents states from discriminating against citizens from other states. So here’s my question, he says. If a court in one state decides that a PFR’s obligation to register is no longer required or if under state law he times out and is released, why then can’t he move to another state and not have to register all over again? Doesn’t article four of the United States constitution offer the PFR protection from one state not respecting the law or judicial order of the other? That is a fabulous question.

[10:21] Larry: I like it as well. And I don’t think that this has been litigated and postured the way that I would like to see it litigated, this particular question. I’m not aware of it anyway. But I would disagree with Salvatore slightly on the people who time out because that’s not the same thing as disturbing a judicial order. But as long as PFR registration is a, civil regulatory scheme, it’s like you take your car and I’ve used this no less than a dozen times in the years when we did this program. We have a rolling period of time where cars have to be emission checked here in Albuquerque, Burlando County, not statewide. But if you, if you, if your car ages out, you don’t have to do that anymore while you’re here. But if you take that vehicle to New Jersey, for example, I don’t know that they have an age out process in New Jersey. So they would tell you to take your ass back to New Mexico where you don’t have to do a smog inspection if that is so dear to you. But on the other hand, the registry, if you’ve gone through a judicial proceeding and a court has said, I find you know, you’ve had an individualized you’ve been through this process. You know that you had to go through an individualized process. Correct? Yep. I did. You had to be risk rated. Correct? You had to be you had to be level one and you had to appear before a judge if I remember right. Absolutely. Yeah. Okay. Well, then you’ve had an individualized assessment. Factors have been decided by a court that you don’t pose any significant risk above and beyond the normal risk of a ordinary citizen to the community. I think in those situations, they would be like that’s why I tell people to carry their papers with them. Nobody does it, but I tell people to carry your court order with you because you’ll totally discombobulate the officer if you get pulled over in State b after being released in state a. And you say, well, I heard that by this full faith and credit clause and something about that in the constitution that judicial proceedings are recognized by one state, by the next state. I got this order here and it’s a certified copy from whatever court. Would you take a look at it? It says, I don’t have to register anymore. Now the officer is going to be so dumbfounded and discombobulated because nobody in the whole history of, of his thirty three years on the force has ever pulled that stunt and he’s not going to know what to do. But I think that would be a good thing to litigate and see where we go with it because it might just work.

[13:07] Andy: Now remind me of something that happened approximately around 02/2014, and it was with same sex marriage was being recognized in certain states and this being I’m pretty sure a civil regulatory scheme recognized by your living state, your present state. And if you moved to another state where they did not recognize it, you have a major problem when you try to go get your new job and you’re trying to get, you’re putting your spouse on there. And they’re like, well, this isn’t your spouse because you can’t have two guys be spouses or two girls be spouses. And that’s what fired this thing up to the the Supreme Court. And that’s how they said, no, you can’t do that. If you’re married in one state, you’re married in all states. Wouldn’t that be sort of similar to this? Well, it’s sort of similar, but you’re leaving out a chapter now. What what actually happened was the conservatives didn’t like that more and more states were recognizing same sex marriage. So they passed during the Gingrich revolution, they passed the Defense of Marriage Act, DOMA, as it was known.

[14:09] Larry: And they said, we don’t give a rat’s ass about these states that recognize same sex marriage. You’re not eligible for those Fred Roe benefits, like social security spousal benefits and so forth. And they banned people’s eligibility to benefits even though the marriage was recognized in a number of states. That’s where the problem came in. So the conservatives brought this on themselves by not leaving Bonif alone. They had to have DOMA.

[14:40] Andy: I get it. But, you know, we’re still talking about, quote, unquote, a civil regulatory scheme. And if I’m not mistaken, the registry is a civil regulatory scheme. This is beyond your punishment. This is all that other stuff. Yes. But I’m saying the states were recognizing each other’s marriages. It was the federal government that said, we are not going to allow you to have federal benefits even though you’re legitimately married and it’s recognized.

[15:02] Larry: We say no, and that’s what created the problem. Oh. The rec the marriages the marriages were being recognized.

[15:09] Andy: Even if you got married in liberal Vermont and you moved to conservative Texas, they were recognizing it? As far as I know. Now I never tried it. But as far as I know, the marriages

[15:18] Larry: were being You should’ve tried it. The marriages were being recognized. But but like I say, the the almost what complicated it. And it was kinda like do you remember that judge in Kentucky? Wasn’t a judge. Actually, it was a county clerk, and she had an obligation to issue marriage licenses after this supreme court decision. And she Yes. She got thrown in jail because she said, I hate going. That goes against my biblical police. I’m not gonna do that. Do you remember that?

[15:44] Andy: I do very much so. Yeah. Kentucky or Tennessee? I think it was Kentucky. Yeah. It’s one of those places. Alright. What are we doing this parody collector thing?

[15:55] Larry: Well, there’s one above that.

[15:57] Andy: Oh, Jeffrey. Sorry. My bad. Your your cursor, like, spooked me. Alright. Question from Jeffrey. I have been wondering for a while why nobody challenges or even discusses the fact that the federal government or the state department requires a PFR designation to be put on the passport for all registrations.

[16:17] Larry: Or registrants. Excuse me. Is this not compelled speech? I swear this has been litigated, hasn’t it? Yes. And, Jeffrey, first of all, that it’s not on all registrants. It’s on registrants who had target offense against a minor. A whole lot of registrants do not have marked passports. So let’s clarify that. But it has been litigated unsuccessfully. And at the time of litigation, yours truly thought the litigation was premature because at that time we did not know what the marking was going to look like. And, an injunction was sought to stop them from doing something that we didn’t know what they were going to do. Because it was a last minute amendment that was put on the Senate side of the aisle by the conservatives to mark, I think Mitch McConnell actually was the one that offered that amendment, but there was a passport marking for certain PFRs. But since we didn’t know what it was, it was delegated to the State Department to figure out how to do it. Yours truly said, let’s wait and see what the market is going to look like and who they are going to apply it to. But there was another advocate that said, let’s just shut this thing down altogether before it gets started. And they filed a request for a temporary preliminary injunction. Well, the standards for that, getting such an injunction, are that you have to show that the primarily just about four prongs, but the two most important prongs are you have to show that you’re likely with existing case law that you’re gonna prevail when this case eventually goes to trial on the merits and that you’re going to suffer irreparable harm without the injunction. Those are the two most important of the four. There’s also a thing about being adverse to public policy and blah blah blah that I can’t recite as vividly. But the two most important components were not met. We did not know what the marking was going to be. Therefore, it was very difficult to predict the irreparable harm and to demonstrate that to the satisfaction of a court when we don’t know what the marking is going to look like. Right. And, I don’t know, without with my limited education, I was able to figure that out. But for some reason, a lot of legal professionals couldn’t figure it out. And I said, well, I’m just looking at what the well established jurisprudence says. We have to show that we’re going to prevail on the merits, and we have to show that we’re going to suffer irreparable harm if we don’t get an immediate injunction. You canit do that because we donit know what the marking is going to look like and to whom itis going to be applied. Anyway, the litigation crashed in the first district court it was tried in in California. And then it was taken further north and tried in another district because it was a bad judge. And it crashed and burned the second time. So, there’s been a lot of appetite to do another round of litigation. I think that another round of litigation could be successful.

[19:18] Andy: But Now that we have something, also a track record of people being harmed by it, and we know what it looks like, obviously? Well, we know what it looks like.

[19:25] Larry: We might be able to dig up some harm, so that can’t be speculative. It has to be real harm. But we also at this at this time in our history, we’ve got even more jurisprudence that we didn’t have at the time that this that this was done. And we’ve got a we’ve got, a whole body of case law that’s been developed up with with marking of documents. You know, there’s been driver’s license cases around the country decided since then. Matter of fact, we’ve got one underway right now. What state is that in? We just launched at Marshall. Oklahoma, isn’t it? Yeah. I think it’s Oklahoma. But we got a whole body of of of case law. You can mark documents. So get over that. You can compel speech. But in order to compel speech, you have to have an individualized determination. And that’s not happening on these passport markings. So therefore, if it were me and if I had a law license and I could do this myself, I would argue that there’s no provisions for exigent ex what is it? Well, emergency travel, is that exigent circumstances? There’s no there’s no Sounds good. Provision for that type of situation. And there has not been an individualized determination made that you pose a threat, a potential threat. Doesn’t have to be, absolute threat, but we need to know. Your conviction may have been twenty seven years ago, and you may have been 17 years old. And you may have had sex with a 15 year old. You may pose no threat to any minor today. So I think that if we if we did the tar targeted litigation and we didn’t tell them you just can’t do it, period. We tell them you can’t do it unless you provide a way for people to travel without the thirty day advance notices required. And we individually assess each person at some interval that may have a marked passport that but they’d like to be able to get out from under that. I think with that type of litigation, we might gain some traction. But people want all or nothing. Well, we just crashed the registry. No. We can’t crash the registry, but we could sure put the brakes on it.

[21:36] Andy: I gotcha. That sounds cool. I like that plan.

[21:40] Larry: So but just get me a law license. So are there any mail order law licenses out there that I could get?

[21:45] Andy: I am unaware of any. Then you told that you could get a law license, but then you still have to pass the state bar. You got connections. I mean, you could probably get them to, like, rubber stamp you as a lawyer. You think? I mean, I don’t know. You got connections. You’re almost like the mafia over there. Well, I wouldn’t go quite that far. Alright. Well, then let’s double back to the theme that I messed up a moment ago. What’s this parody collector segment?

[22:11] Larry: Well, it was a long email that was sent probably about a month ago toward the June. Guy, I think he had a Florida conviction. He moved to Virginia. And he got off the registry, and he spent $4. And he wants to share his wealth of knowledge. And I think it would be an informative segment. Everybody might wanna pack their bags and go to Virginia after we do it, but it’s way too complicated. But, I do wanna get back to him, and I think we can build a nice episode, in the future about how he weeded through the shysters that found a lawyer that didn’t charge him a fortune and put forth good cogent arguments, and he got off the registry in Virginia. So I think I think it’d be worthwhile. So, yes, parity collector, we haven’t forgotten about you.

[22:54] Andy: Very good.

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[23:44] Andy: Well, then let’s do this main event, and we’re gonna dig into the case of The United States versus Roberts. I have a question. Why are there two v’s? I think probably you did it. I did it? Come on. Alright. I was just making sure. I wasn’t like, it seemed to show up more than once. Alright. So it’s United States versus Roberts. A June 2025 opinion out of the Eastern District Of Virginia that nuked the sentencing guidelines. 75 videos equals how many images? 5,625 images. That kind of math. Alright. So buckle up. What do you people have sorry. Why do you people have this case about some child prom decided by a federal district judge? We generally discuss appellate decisions, I think. And why the hell is Roberts? Excuse me. Who the hell is Roberts? And why should anyone care? Well, because there is a split in the circuit courts,

[24:42] Larry: around the country, which makes this a potential case for the United States Supreme Court. And as you said, this case is actually out of The United States District Court For The Eastern District Of Virginia, but it very well could make its way to the US Supreme Court.

[24:56] Andy: Alright. Well, as I was mowing the lawn again, I was reading this case many times and, I can do it by myself if I need to be. So do you is it okay if I set it up? Yeah. Let’s let’s try to do it and see see what you know. Alright. So Roberts was convicted of possessing child prawn in violation of 18 US code two two five two a. Now, actually, he then plead guilty to that offense as part of a negotiated plea. However, before sentencing, Roberts objected to the probation office’s presentation sorry, pre sentence investigation report because it recommends imposing a five point enhancement to his offense level for possessing at least 600 images. The probation service cited the sentencing guidelines of United States I don’t know what a USSSG is. United States Sentencing Guidelines. Oh, duh. Since it just said that before. And, so how did I do in setting that up except for the sentencing guidelines part? Doing fine. You really don’t need me. I don’t. Nobody here wants you either. But don’t alright. Now, so let’s so you need to quit complaining. Let’s keep moving. Roberts argued that the court cannot credit The United States sent Sentencing Commission commentary interpreting the guidelines, which considers every video as child prawn as counting as 75 images under the guideline because the text of the guideline is not genuinely ambiguous and because such an interpretation is unreasonable.

[26:27] Larry: I’m confused already by the wording. What does not genuinely ambiguous mean? Don’t ask me. That’s why you’re here as the legal expert. Well, like I said, I I don’t have a real law degree. But let’s just go about what the judge stated. The judge stated that argument follows the decision of the Supreme Court of the United States in Kaiser versus Wilkie. And I’ll omit the citation and the recent decision of the United States Court of Appeals for the Fourth Circuit in United States v. Bowler. Again, citation omitted, addressing the deference owed and when it is owed to Federal agencies’ interpretations of their own regulations, including the Commission’s interpretation in the commentary of the sentencing guidelines. So basically they were, they were using commentary as the probation service. Oh, let’s just read the comment. Oh, well, that’s what the sentencing commission meant, but they didn’t put it into the guidelines. They put it in the commentary. So

[27:25] Andy: Alright. And well then, some some more details. As I stated earlier, Roberts plead guilty to possessing child sexual abuse material, otherwise known as CSAM, under two two five two a. The probation officer counted 13 pictures and 127 videos. Now under two g 2.2 of The US sentencing guidelines, each video magically counts as 75 images. Presto. One twenty seven times 75 equals 9,525 images. Cross the 600 image threshold, you get a, five level enhancement, roughly doubling the sentence range. Holy moly.

[28:07] Larry: Now, this is funny because for twenty years, the courts have just said amen. Because the sentencing commission wrote that that ratio in commentary, not in the text. And Judge Payne said, not on my watch, not on my docket.

[28:25] Andy: And then in November, Homeland Security tracked a Kik account named Bordani. They raided Robert’s house and found 140 CSAM files, 13 images, 127

[28:39] Larry: videos. So a handful of pictures, a bunch of videos, still awful, but the question is how to score it. Correct. And the probation officer plugs in the multiplier. Boom. And when he did that, he came up to over seven 600 images that raised the base offense level five, which translates to a higher recommended under the grid system that they use. That’s, you want your offense level to be as low as possible, and that bumped him up five offense levels.

[29:08] Andy: And, Roberts objected. So that creates some legal fireworks, I imagine. So that’s Judge Roberts for those out there. And, in December 2024,

[29:19] Larry: the pre sentence report presented with a five level bump. This is just a timeline. In 03/27/2025, the first sentencing hearing defense says the commentary is bunk after Kaiser versus Wilkie. Judge Payne then ordered briefs. 06/02/2025, which isn’t that long, a second sentencing hearing, Judge, Payne agreed and access the multiplier recalculates the range to seventy to eighty seven months instead of ninety seven to a hundred and twenty months.

[29:50] Andy: And then he slides even lower down to forty months. That’s like ordering a triple espresso and getting decaf.

[29:58] Larry: Indeed. The government withdrew its variance request, that they were wanting to to go up, and defense got a downward variance. Final tally, forty months in prison and five years of supervised release out of prison.

[30:15] Andy: Now a non lawyer here, Kaiser sounds like a Star Trek alien in this kind of context. Can you explain?

[30:23] Larry: Well, I’m gonna do my best. This is a good cut and paste job under Kaiser versus Wilkie. It reinvigorates what’s called the Hour Defense. Courts defer to an agency’s interpretation of its own regulation only after a three step gauntlet. One, is the regulation genuinely ambiguous? Two, is the agency’s interpretation reasonable? And three, does it reflect the agency’s fair, considered, and authoritative judgment?

[30:51] Andy: So the, so judge, Payne runs the image multiplier through the meat grinder?

[30:57] Larry: Exactly. He he did he ran it through a meat grinder, I’d love to say. Plus, June 2024, the fourth circuit adopted Kaiser for criminal guidelines in United States versus Bullock. So judge Payton had fresh precedent to rely on from his own, I think he’s in the fourth circuit, but he had fresh precedent to to to rely on.

[31:19] Andy: And then let’s not forget that Chevron just got tossed by Loper Bright, not statutory deference safety net either. Excuse me. No statutory deference.

[31:29] Larry: That would be correct. Agencies can’t count now on blind faith that they’re gonna get, they’re gonna get deference because they say so. And, step one, I think, is ambiguity. Judge Payne says the ordinary meaning of image is crystal clear. It’s a single picture. A video is not an image. End of story. Not ambiguous.

[31:52] Andy: That alone torpedoes deference?

[31:55] Larry: That seems to. And in step two, it’s reasonableness. The judge still humors the commission. Even if image were fuzzy, a 75 to one ratio is arbitrary. Imagine that. They pulled that out of the recti and

[32:12] Andy: the commission lifted it from thin air in 1991 to goose sentences and they’ve never revisited it. And even its own 2012 report questioned it. It’s over a decade ago. I think I mean, I think if you went back to that time frame where it was still pretty hard before digital cameras, video cameras were so prevalent. I mean, now any kid walking around that’s over the age of approximately 12 has a four or an eight k video camera in their pocket that’s recording 30 frames per second, if not eight, 60. They’re making high def 60 frame per second videos. Like, if you make a thirty second long video of your girlfriend and you’re that young, you’ve got thousands of frames. So I the the the the laws would need to seriously be updated or perhaps, Larry, we could interpret them different.

[33:03] Larry: That’s what the judge said.

[33:08] Andy: So we made it up. Trust us, judge Payne says.

[33:12] Larry: Yeah. And then step three is character and context. The commentary wasn’t adopted by notice and comment, which is required. It lacks empirical backing and contradicts the plain text. So Judge Payne says, no deference. Which circuits agree with this then? The third circuit and the sixth circuit, both have killed the multiplier, and the eleventh circuit still clings to it, and Judge Payne notes the split. Fourth saw first impression, and he sides with the third third and sixth circuit, in his opinion.

[33:44] Andy: Would you backtrack on that and give me a rough idea where those circuits are? Where’s the third and the sixth? I have no idea. Come on, man. Can someone in chat tell me so I can say where these places are?

[33:55] Larry: Alright. Well, sentencing fallout sorry? I could tell you the eleventh is Georgia, Florida, and Alabama, but that’s all I remember because that was created in recent modern history in the seventies.

[34:04] Andy: Sentencing fallout and policy ripples forty months. Now that’s a steep drop from where probation started. What’s the takeaway for our listeners living on the registry nightmare?

[34:15] Larry: Well, first it shows that district judges can and sometimes do push back when guidelines over punish. Second, Kaiser is a potent tool. Challenge commentary that inflates exposure. So you gotta tell your lawyer, hey, I want you to challenge this, and take the risk that it may backfire. And third sentencing is a one size fits all. Good lawyering, it still matters. This guy apparently had great lawyering.

[34:41] Andy: That that sounds like poppycock. You don’t need good lawyering. Just kidding. We did hear so the third is up in the Northeast US and sixth is the Middle US, Tennessee, Ohio, Michigan. Yeah. We should have known the sixth because that’s where the Michigan decision came out of the sixth circuit. Right. Of course. Now, does this ripple into supervised release conditions, do you think?

[35:03] Larry: Maybe indirectly. If courts question the commission’s math, they all might they also may scrutinize blanket computer use bans and lifetime supervision. It certainly emboldens defense counsel to argue that these conditions are too stringent because they’re not facing four hundred years in prison anymore.

[35:21] Andy: Okay. Now speaking of emboldening, Larry, would you file this opinion in every PFR’s objection henceforth?

[35:31] Larry: I’d certainly consider it. You better believe I’d consider it. Until the Commission rewrites guideline two g 2.2 or until the Fourth Circuit reverses, this is good, almost goal for defendants. Congress punted, sentencing to the commission in the eighties and politics, not evidence, drove the numbers and the courts rubber stamped it for decades. Judge Payne finally said, do the math and it’s about time.

[35:57] Andy: Wow. Grandpa gets spicy in here.

[36:01] Larry: They call me grandpa again. I’ll sign you 75 chores with every snarky remark.

[36:07] Andy: That’s like 5,625 chores. Hard pass on that, though. That’s about a fifteen or so minute summary. Now do do you think our listeners have found value in this?

[36:19] Larry: I think that they should have if they were in this position with a federal conviction, particularly if you’re in this position facing sentencing.

[36:28] Andy: That’s what I was just gonna ask. Does it do so can someone use this stuff and go back and try to get something changed, fixed, reduced?

[36:38] Larry: I don’t know if I can go that far out on a limb to to know if that door is closed, but you certainly should explore that. Find out if you can have a resentencing based on this particular if you’re in one of these circuits that’s that’s already been mentioned where they’ve already ditched it. And if this if this, if Judge Payne is they’re gonna appeal him. But if Judge Payne gets, upheld.

[37:01] Andy: Interesting. That’s fairly interesting. Okay. So are are they then just treating videos as an image?

[37:10] Larry: Is that what this is ultimately saying? That’s what it sounded like to me.

[37:15] Andy: Interesting. I mean, I don’t think it’s appropriate to say that you should count each frame, but should if you have a two hour long video of stuff, does that that only would then count as one image? That seems

[37:31] Larry: like that doesn’t even sound reasonable in both directions. Well, we’ll have to figure out what this will force a revisit of the issue maybe of today’s technology, and they’ll have to figure out another multiplier. I would agree with you that if it’s based on images I’ve never seen why it would be based on images, but I think they’re related to drug possession. The more you possess theoretically, if you’re possessed a small amount, it’s for personal use. If you possess a larger amount, it’s presumptive distribution.

[37:58] Andy: Sure. I I still I would still come back to twenty years ago. It was impossible, not impossible. It was really hard to distribute trade, etcetera, images. You had to have, like, physical film. So if you were caught in possession of, and you had all those Polaroids and all that stuff developed, like, you went through some shit to get all of that stuff. Now, it’s nothing to do it. And that’s why the sentencing rolling back to the nineties, eighties, and whatnot, why it would be so so harsh. It’s just so easy. It’s it’s trivially easy to do it now.

[38:36] Larry: Yes. But laws frequently stay in the dark ages. It’s difficult. Imagine you’re a member of Congress and you say, well, you know, I wanna make a proposal. Mister Speaker, what’s your proposal? Well, I got a piece of legislation here that’s gonna make sure that people who are exploiting children by, naughty pictures get less time because technology has changed, and it really inflates the numbers. And we wrote this law in 1980. Can you imagine how well they would their popularity would hold up after that? Yeah. I get I get that too. I I get that reducing these crimes on it for the punishment on anybody is is hard for the politician to to present.

[39:15] Andy: I get it. Well, let’s, you you put god, you keep putting stuff in here over the years from the Marshall Project, which has got to be the most left leaning thing out there. And it begins with, the title of it is why closing prisons, even bad ones, is complicated. The article begins with, this week, the Trump administration moved to keep the federal prison camp in Duluth, Minnesota open. The minimum security fill facility has previously been slated for deactivation by the Biden administration officials who cited asbestos, lead, and condemned buildings as safety concerns alongside persistent staffing shortages that make it difficult to operate. Now this sounds like a facility that should be close. God, asbestos. Can you imagine you can’t do anything about it and you’re living with all that glass getting in your throat? Good grief. Well, at the risk of running off listeners, I’ll just remind people that

[40:09] Larry: that, Trump has no idea. He’s not personally directing which prisons are slated for closure to keep it open, but he sets the general tone as the president that we want to make sure we have space for all the criminals, and we don’t wanna be closing facilities because we’re gonna be needing them. But it wasn’t. But just a couple few years ago after, the people were convicted for storming the Capitol, he said that they he was gonna pardon them because they were housed in facilities that shouldn’t even be open. That’s pretty much a direct quote from what the president said. He was not the president at the time, but he said they were housed in prisons, facilities that shouldn’t even be open. Well, perhaps this would fit into that description he gave. But anyway, that was a sidetrack. But not so fast here about closing this, because I want to talk about this because of bipartisanship. Bipartisanship kicked in here. And bipartisanship can be good, but it can be bad. The article noted in a rare moment of bipartisan agreement, the decision earned applause from Democratic lawmakers who had strongly opposed the closure. Now, these are the people who care about you having good conditions. They’ve been griping about the conditions of alligator, the prisons being built in Florida that’s gonna Oh, yeah. They’ve been saying how that they have to eat from the for drink from the same place that they poo poo, which tells me that they’ve never been to a bathroom in a prison because those stainless steel combined units, they’re standard issue in prisons. So so, anyway, now I’ve shifted to the Democrats. The Democrats said the reprieve means that roughly 90 staff members who won’t have to relocate or find new jobs. Officials told the Star Tribune that they expect the incarcerated population, which had fallen by over 700 to less than 300 during the transfer process, will soon grow again. Democratic US senator Tina Smith called the decision a, quote, major victory for the workers, families, and community that have fought to keep these good paying you and your jobs and the reason. So now I’m balancing my attack on the Republicans to the Democrats. Why is it magically that you’re so in favor of keeping a substandard prison open when you care about people and you care so much about those, illegal aliens being having to drink from the same fountain that they poo poo in?

[42:36] Andy: I’m sure they didn’t say poop. That’s exactly what she said. That that’s exactly what Sounds like you’re talking about your three year old that’s still in diapers. Yeah. Do you gotta go poo poo?

[42:47] Larry: She said they have to they have to drink from the same fountain before they poop.

[42:52] Andy: I mean, that’s this dynamic where taxpayer spending on prisons is pitched as economic activity for prison towns has been dubbed by some academics as correctional or penal oh, god. I know this this is the economist named Keynes, John Maynard Keynes. And I can can can I can’t say this word? I can’t either. That’s why I put it in yours. Of course, you did. But it it’s John Maynard Keynes is the guy’s name. He’s an economist from a hundred years ago. And it’s a nod to the economic theory that promotes government spending to boost growth. Research varies on how much economic benefit prisons actually deliver to communities in the aggregate, but it often finds that prisons deliver much smaller long term benefits to communities than promised, especially in rural towns banking on them as economic lifelines.

[43:41] Larry: And it’s noted that big picture view that the big picture view isn’t very convincing to people whose livelihoods are at stake. In Centre County, Pennsylvania, local officials have rallied to stave off the proposed closure of the Rockview State Prison and the closure of the Kewana Boot Camp in nearby Clearfield County. While the region’s economy is largely dominated by Penn State University, prison jobs remain an important source of blue collar employment in surrounding towns. Corrections unions have been out in front and voicing these concerns. We’ve gotta save these good paying jobs.

[44:18] Andy: The article noted that in Minnesota, currently and formerly incarcerated people have also put together a coalition to demand a say in shaping what comes next. At a press conference in May, several men who had served time in Stillwater spoke candidly about their experiences and described a complicated relationship with the facility. Some said the culture of the prison the prison was better than others, but that the physical structure of the building didn’t reflect that reality, reported k a r e eleven. But they also acknowledge that closures can be deeply disruptive. Some heard concerns from men inside that being transferred might leave them double bunked with a cellmate who wasn’t on their same rehabilitative path or who might set them back.

[45:01] Larry: Not on the same rehabilitative path. Now what could that mean? Did that mean that they don’t wanna turn their lives around?

[45:09] Andy: That’s I I guess that was I was looking at that the other way. I was like, these people are on a good path. I didn’t look at it the way you just did, but that makes more sense. Oh, So but Stateville prison in Illinois is yet another that has been doomed to toxic,

[45:24] Larry: too toxic to continue operations. The state moved to close the central facility after a watchdog group declared conditions there decrepit, unsafe and inhumane, and a federal judge ordered it closed. This spring, the state finished transferring all the people incarcerated there to other facilities so they could get work on a $900,000,000 rebuilding project for State Bill as well as Logan, the primary women’s president in Illinois. Already the effort has some word about how money is being spent. According to the Chicago Tribune, Del Norte Department of Corrections was proposing to spend more on the facility in the upcoming year than two years ago, despite the fact that it has been emptied. Officials said it was because the minimum secure unit and reception center on the stable grounds are still operational. It’s indicative of how prison spending and cost savings are often more complicated than they first appear. Oftentimes, you don’t save no money.

[46:22] Andy: You know, if the minimum security side is still open, that, I’m going to guess, are people that are going outside the gate and doing cleanup work and they’re getting paid by the county to then do that work. It’s sort of, money in one hand and money in from the other side. If they’re getting, state funds to have the prison and then they’re gonna get funds from the county to have people go out and clean up bushes and medians and whatnot, that that’s why they would keep the, the minimum security side open and double dip. So possibly so. Alright. Well and then in California, for example, the state has closed several prisons in recent years as part of a plan to shrink its correctional footprint. This week, the Sacramento Bee reported that the state has claimed nearly 1,000,000,000 in savings. But the advocacy group Californians United for a Responsible Budget noted that the state has also spent about 300,000,000 maintaining those shuttered facilities in a warm shutdown so that they don’t deteriorate further. The state has said that zoning, regulatory, and liability issues limit its ability to sell, repurpose, or demolish the structures.

[47:28] Larry: Yeah. I was thinking about that after I put this together. It cost you 300,000,000 to keep keep them multiple because you can’t tear them down. You can’t repurpose them. So what do you do with them? I mean, can you think Absolutely. Can you think of what good use of prism could be turned into for private development?

[47:48] Andy: Alright. Well, let me let me present this to you in a different direction. I took my kid on to go to our local community college, and we’re on the tour and the guy goes, okay. Now when this was built in the seventies, it was in in case this community college didn’t work out, they designed this campus in such a way that it looks just like, and I said, bomb shelter? And he goes, no. A prison. So the community college here in town kinda looks like a prison. It it and I was thinking it kinda looked like that because it’s 100% concrete. All of the the rooms could be turned in. You increase the, the the security on the doors. Those could all be turned into cell houses and all that stuff. So, hey, turn the turn the, prison into a community college.

[48:32] Larry: Well, yeah. Well, Georgia had a better solution. They took their state hospital complex in Milledgefield, called Central State Hospital, and they turned that into prison and prison administrative facilities. And, they repurposed the the they didn’t have the money to refurbish the hospital, but they had money to refurbish it as a corrections, facilities. No kidding. It yeah. Can you can you at least admit that’s funny?

[48:55] Andy: No. I’ve driven by that place. It’s pretty, it’s pretty just depressing. So, you know, like, a military base, they it’s, like, what how am I trying to word this? The the ground I’m not saying that there’s wastewater and all this stuff, but it’s just treated different than the civilian side of the world. And you can’t just, like, close the base and destroy the buildings and open up the gates and poof, you have land. You have to do they they do stuff to destroy the land and putting people in that close quarters, I I guess that the ground has been, tainted. Is that the right way to word that? I don’t wanna say like, contaminated, but it’s not the best place. I’ve heard that.

[49:39] Larry: I can imagine. We’ve we’ve got a lot of bases here. Remember, we’re we’re the, biggest, drain on the federal government. We get more money out of the federal government. I think three times what we put in, we get back in

[49:51] Andy: did I send you that picture that showed all the states that receive and produce for the federal government? You did. And we’re way up there at the top, and we always have been since I’ve lived here. You are the number one state. You’re the first of all, you’re the the number one state of far as a, receiving funds from the federal government. Or I guess not that that would yeah. That was a receiver. And then the next, like, five or six were all red states, and the top three or four producers were all blue states. The the blue states are the ones that are pushing money into the federal government. Yep. Well, we’re the exception, but we are a good exception. Like I say, we get about $3 for every federal tax dollar we pay. I just found that that chart to be a very interesting thing because I hear all about how the blue states are this terrible drain on society or something like that, and they’re not producers. But this chart definitely showed that in a different light.

[50:42] Larry: Well, sometimes you don’t get accurate information. That’s why I tell people, I think, read this conversation last week, you have to go by what you can see and document with solid evidence versus what you hear. Are you saying that Tucker Carlson is not a reliable source of information? Well, according to his audience, he has a large audience. He is. But I don’t consider him all that reliable.

[51:04] Andy: He is definitely popular. Very well, sir. Is there anything else that you’d like to go over? We are approximately fifty minutes. I think we’ve done a great job on short notice because we were both busy today. Yes, we were. Alright. We’ll head over to registrymatters.c0 for show notes and links everywhere, including the FYP education shop where you can find fabulous shirts like the Kabuki machine. And, make sure that you head over if you want to send us an email, you can do that @registrymatterscastatgmail.com. And old voice mail is (747) 227-4477. And if you would like to become a supporter of the program, I think that that would be a fantastic idea and that would be done over patreon.com/registrymatters, which comes with some perks. You can hang out and talk to Larry sometimes after the show if he’s not feeling too bad or tired. And I certainly hang out and we you can get in on the Discord server and chat with all the crazy goofy people there. And I think that’s it, man. I hope you have a great night and, I’ll talk to you very soon. Good night. Good night.

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