[00:00:00] Speaker 03:
Good morning again.

[00:00:06] Speaker 01:
Good morning again.

[00:00:07] Speaker 01:
You have quite a week.

[00:00:08] Speaker 01:
Indeed.

[00:00:09] Speaker 01:
All right.

[00:00:10] Speaker 01:
Well, good morning, your honors.

[00:00:11] Speaker 01:
Katie Hurlbrink on behalf of Mr. Ferrari.

[00:00:15] Speaker 01:
The district court imposed enhanced Mr. Ferrari's firearms dealing sentence under 2K2.1B5.

[00:00:23] Speaker 01:
finding that he had reason to believe that the buyer was a prohibited possessor or intended unlawful user.

[00:00:30] Speaker 01:
But in fact, the buyer was neither.

[00:00:32] Speaker 01:
He was an undercover agent with every intention of following the law.

[00:00:36] Speaker 01:
Courts across the country have interpreted firearms sales statutes with very similar wording to require both a reasonable belief and that the buyer actually have the prohibited characteristic.

[00:00:51] Speaker 03:
We don't have anything in the Ninth Circuit, right?

[00:00:55] Speaker 01:
That's correct.

[00:00:57] Speaker 01:
Certainly for the guideline, Your Honors have not interpreted it yet.

[00:01:04] Speaker 01:
In terms of the other statutes that I was describing that have very similar wording,

[00:01:10] Speaker 01:
Your honors also haven't interpreted those but you do have a model instruction for 922 D that at least suggests that the Instruction committee read the statute in line with the circuit instructions specifically has an element that at the time of sale The person is a convicted felon and we do not have that element in our model jury instruction That's correct.

[00:01:36] Speaker 01:
Your honor.

[00:01:36] Speaker 01:
You haven't separated it out into a separate

[00:01:40] Speaker 01:
But you do simply repeat the language from the statute without any further gloss.

[00:01:47] Speaker 02:
And there's no reason to suppose that in... Why would that mean that we have that third element when we actually don't?

[00:01:52] Speaker 02:
We only have two elements.

[00:01:53] Speaker 02:
I agree.

[00:01:54] Speaker 02:
The 10th Circuit, which did the Francis case, has three.

[00:01:56] Speaker 02:
I agree.

[00:01:57] Speaker 02:
And one of their elements is explicitly that the fact that is a person has a reason to believe has to be true.

[00:02:03] Speaker 02:
And we don't have that element.

[00:02:05] Speaker 01:
Exactly, Your Honor.

[00:02:06] Speaker 01:
So I agree with that completely.

[00:02:08] Speaker 01:
I agree that your model instruction doesn't answer the question presented.

[00:02:12] Speaker 01:
It simply describes the statutory language with no further gloss.

[00:02:16] Speaker 01:
But the commentary does suggest a reading in line with Mr. Ferrari's in as much as it says that whether someone is a felon for purposes of 922D is a matter of law.

[00:02:29] Speaker 03:
And if it was... But shouldn't we just look to the plain language of the sentencing guideline?

[00:02:35] Speaker 03:
And an argument can be made that the guideline clearly places the focus on what a defendant believes to be true and not on what is actually true.

[00:02:45] Speaker 03:
And so aren't you asking us to adopt a less plausible reading of the text on its face?

[00:02:51] Speaker 01:
No, Your Honor.

[00:02:52] Speaker 01:
And I think we can see that from seeing how other courts interpreting materially

[00:02:59] Speaker 01:
Identical very very similar language in other statutes have reacted to it Which one of those courts gave the most reasoned explanation in your view?

[00:03:08] Speaker 01:
So the Seventh Circuit in CRESA was, I think, had the most analysis of 922A5.

[00:03:21] Speaker 01:
But I think it is also just even without a full analysis, it is meaningful that these model instructions committees

[00:03:31] Speaker 01:
all came to the same conclusion about 922D, because at the end of the day, I agree.

[00:03:36] Speaker 02:
But in the Seventh Circuit case, we don't have the same issues.

[00:03:40] Speaker 02:
There, there was a concern about burdening states' traditional power to regulate criminal law.

[00:03:47] Speaker 02:
And we don't have that here, because this is a sentencing enhancement.

[00:03:52] Speaker 02:
And in the particular statute there, 922A5, the have reason to believe was added long after the statute had already been enacted.

[00:04:02] Speaker 02:
So you could say, based on that legislative history, that reason to believe was not a requirement that existed before.

[00:04:10] Speaker 02:
And we just don't have that because this statute has always had that link.

[00:04:14] Speaker 01:
So two answers to that, Your Honor.

[00:04:15] Speaker 01:
First of all, you can't say the same about 922D, so that point still stands.

[00:04:21] Speaker 01:
But when it just comes to 922A5,

[00:04:25] Speaker 01:
Despite the fact that, you know, the reasons that the Seventh Circuit gave may not apply here, the fact remains that after a full analysis, the Seventh Circuit concluded that this language was in line with what Mr. Ferrari is arguing, and that still implicates the canon that when laws addressing the same subject use very similar language, we ordinarily read them the same way.

[00:04:51] Speaker 01:
That's even more likely to apply to a sentencing guideline because

[00:04:54] Speaker 01:
At the end of the day, these guidelines were developed by the Sentencing Commission to specifically assign an appropriate amount of liability, an appropriate sentence to gun sales.

[00:05:08] Speaker 01:
So they were inspired by gun sales statutes.

[00:05:12] Speaker 01:
So if the Sentencing Commission uses materially identical language to language that is... So can someone not have a reason to believe a fact if that fact is not true?

[00:05:23] Speaker 01:
I'm sorry.

[00:05:24] Speaker 01:
Could you rephrase the question, Your Honor?

[00:05:25] Speaker 02:
Yeah.

[00:05:26] Speaker 02:
You seem to be arguing that a defendant can only have a reason to believe a fact if that fact is in fact true.

[00:05:33] Speaker 01:
Oh, I know.

[00:05:34] Speaker 02:
So under your reading and interpretation, someone can never have a reason to believe something if that something is not true.

[00:05:43] Speaker 01:
That is not our position, Your Honor.

[00:05:45] Speaker 01:
Our position is that the full sentence, its best English language meaning, is that it both encompasses a reason to believe and the reality of the situation.

[00:06:00] Speaker 01:
So we are not arguing that it is impossible to have a false belief.

[00:06:05] Speaker 01:
We're arguing that... But you are.

[00:06:08] Speaker 02:
You would never be liable for a false belief because you're making it a requirement

[00:06:13] Speaker 02:
The belief has to be true.

[00:06:15] Speaker 01:
Sorry, Your Honor.

[00:06:15] Speaker 01:
I thought you meant impossible in terms of is it physically possible to have a false belief?

[00:06:21] Speaker 01:
Of course, we believe it is physically possible to have a false belief.

[00:06:24] Speaker 03:
Well, let me take you a step further.

[00:06:26] Speaker 03:
If we accept your reading, it could never be an undercover sale to a police agency because the police could never do what?

[00:06:38] Speaker 03:
They could never meet that.

[00:06:39] Speaker 03:
They could never do that, you're saying.

[00:06:41] Speaker 03:
There could be no undercover buys with a police officer under your interpretation.

[00:06:47] Speaker 01:
Two answers to that, Your Honor.

[00:06:48] Speaker 01:
First of all, there could, because when it comes to 922D, again, a statute that's been interpreted in the same way we're suggesting, police officers have gotten around that requirement by enlisting a confidential informant that has a felony conviction.

[00:07:04] Speaker 03:
I'm talking direct to a police officer.

[00:07:07] Speaker 03:
It could not.

[00:07:08] Speaker 03:
And I mean, I think

[00:07:10] Speaker 03:
You don't have to be new to this to know that using the CRI as opposed to using a police officer CRIs are confidential with parentheses around it as far as I mean they're generally people that are Involved in the business and all of that which is hopefully different than a police officer Yes, so it is true that this enhancement could never apply to a sale direct to an undercover But that's the case for 922 D

[00:07:36] Speaker 01:
and 922A5 as well, as interpreted by the vast majority of circuit courts in the United States.

[00:07:43] Speaker 01:
And secondly, recall this is a sentencing guideline.

[00:07:46] Speaker 01:
So it doesn't prohibit sales to undercover agents.

[00:07:51] Speaker 01:
It simply says that if you make that kind of sale if that kind of sale ends up violating a law Then you don't get a four level enhancement, and I see I'm close to the end Let me find out does anyone have any questions Okay, so yes, go ahead, and I'll give you two minutes for rebuttal.

[00:08:05] Speaker 00:
This is a very quick question You compare the guidelines language directly to section 922 of the US code Section 933 of the US code has language.

[00:08:16] Speaker 00:
It's almost exactly identical

[00:08:19] Speaker 00:
Did you research that statute, and are you aware of any courts of appeals that hold that that statute requires that the result specified actually occurred, as opposed to have been understood to have occurred?

[00:08:33] Speaker 01:
Your Honor, I did research, as far as I could, the language of this statute in court cases.

[00:08:40] Speaker 01:
And 933, is that what you said, did not pop up.

[00:08:44] Speaker 01:
But I can't say that I looked at 933 specifically.

[00:08:47] Speaker 03:
I'll give you two minutes for rebuttal.

[00:08:49] Speaker 03:
Thank you So and I don't think you're the same a USA that was with her yesterday.

[00:08:57] Speaker 03:
I am NOT your honor Okay, I am that was mr. Zip or something it was though You're not the mr. Zip light or whatever here.

[00:09:06] Speaker 03:
You're yourself.

[00:09:07] Speaker 04:
So go ahead I have your honor mr. Zip is the chief down in the southern district of California, but I am NOT him I

[00:09:14] Speaker 04:
Good morning and may it please the court, Andrew Hayden, on behalf of the United States.

[00:09:18] Speaker 04:
This court should affirm Mr. Ferrari's sentence.

[00:09:21] Speaker 04:
The district court did not plainly error in applying the firearm trafficking enhancement.

[00:09:26] Speaker 04:
There's nothing about the plain language of application note 13 that requires the beliefs to be actually true or allows factual impossibility.

[00:09:37] Speaker 03:
No... So...

[00:09:41] Speaker 03:
To stage undercover operations directly with the police, would you agree that if the interpretation that your friend on the other side is urging the court to accept, that the enhancement could not apply to those situations?

[00:09:59] Speaker 04:
It could never apply.

[00:10:00] Speaker 04:
And that's the problem.

[00:10:02] Speaker 03:
Well, I guess that's the problem.

[00:10:04] Speaker 03:
But if that's what they meant, then you still wouldn't

[00:10:08] Speaker 03:
be prevented from doing undercover buys, you just wouldn't have the enhancement.

[00:10:16] Speaker 04:
That's correct, Your Honor.

[00:10:17] Speaker 04:
And so you wouldn't have the firearms enhancement, which is why we first go to the plain language, which if you look at it, it's slightly different than 922D and 922A5.

[00:10:27] Speaker 04:
But it's reasonable to believe, not reasonable cause.

[00:10:30] Speaker 04:
But it's reason to believe.

[00:10:31] Speaker 04:
And the focus appropriately for sentencing is on the defendant and the defendant's intentions.

[00:10:36] Speaker 04:
And that's why, although that's not an absolute bar from an operation for an undercover agent, it sort of nullifies the intent of providing the spectrum of custodial exposure.

[00:10:47] Speaker 03:
But you could use a CRI, and the officers could be standing by monitoring the CRI, right?

[00:10:54] Speaker 04:
Well, you could, Your Honor, but that would only implicate subsection one and not subsection two.

[00:10:58] Speaker 04:
Because if the confidential informant is working with law enforcement,

[00:11:02] Speaker 04:
They can never have an unlawful purpose.

[00:11:05] Speaker 02:
But if you can get the enhancement under subsection one, why does it matter that you can't get it under subsection two?

[00:11:11] Speaker 02:
Either way, you're getting the same sentencing enhancement.

[00:11:14] Speaker 04:
So it narrows the point to the fact that the confidential informant would have to be in a prohibited status.

[00:11:20] Speaker 04:
And so it narrows not just that it can't be an undercover agent, but it has to be a confidential informant with a specific prohibited status, which

[00:11:28] Speaker 02:
But what if we agree with all of those circuit cases that that say like Kraus that the person should be in the prohibited status otherwise you are burdening states traditional power to regulate criminal law.

[00:11:41] Speaker 04:
So you're going to answer your question in a few ways first.

[00:11:45] Speaker 04:
We're talking first about the sentence enhancement not the other statutes and so we would go I would like to mention first the standard of review So when judge basher on is there she's analyzing the enhancement No court has interpreted subsection two in the manner in which is being proposed today by mr. Ferrari there can't be air on her part and it can't be plain but the statute uses the same language newer had reason to believe that

[00:12:10] Speaker 02:
wouldn't it make sense that we would look at interpretations of statutes that have the same language?

[00:12:15] Speaker 04:
It would, Your Honor.

[00:12:16] Speaker 04:
And to go to your original question, in the pattern instruction 14.11 from this circuit, that extra element doesn't exist.

[00:12:23] Speaker 04:
And that's because if you look at 922D, the focus is on the seller of the firearms, not necessarily on factual.

[00:12:30] Speaker 02:
So your position is not that we interpret the same language in statutes differently than the same language in sentencing enhancements.

[00:12:38] Speaker 02:
your position is what just that other circuits interpretation is wrong what's your what's your argument sounded like you were saying we interpret

[00:12:45] Speaker 02:
sentencing enhancements differently than statutes for the same language.

[00:12:50] Speaker 02:
Is that your position?

[00:12:51] Speaker 04:
No, it's not, Your Honor.

[00:12:53] Speaker 04:
So the position first is you go first to the language, and it's clear.

[00:12:56] Speaker 04:
And so I don't think you need interpretive aids.

[00:12:58] Speaker 04:
The language in the other statutes is slightly different, although the obvious parallels are there.

[00:13:03] Speaker 04:
But if you're Judge Bashon at this sentencing, and you've received an objection as to the defendant's mens rea, and none of this analysis

[00:13:12] Speaker 04:
Francis, which was decided in 2018, none of these challenges have been presented to you and you're interpreting the enhancement and you focus on the mens rea and you interrupt the defendant's allocution to figure out what he meant.

[00:13:24] Speaker 04:
What did he believe when he sold these firearms in the undercover?

[00:13:27] Speaker 04:
That can't be plain error.

[00:13:30] Speaker 04:
But more specifically to your point, your honor, if you look at the

[00:13:35] Speaker 04:
at the language and how it's being interpreted elsewhere.

[00:13:37] Speaker 04:
If Judge Bashant had even tried to do that, this circuit has never added that additional element.

[00:13:43] Speaker 04:
It has never made factual impossibility a bar from a conviction under 922D.

[00:13:48] Speaker 03:
So he argued, the defendant, Mr. Ferrari, argued it slightly differently down in front of the district court, correct?

[00:13:54] Speaker 04:
Very differently, Your Honor.

[00:13:55] Speaker 03:
Yes.

[00:13:56] Speaker 03:
But still, any interpretation of the enhancement would be something that we're free to do de novo, correct?

[00:14:05] Speaker 04:
Well, the court could, but I think that the standard base, because I think the challenge is so materially different, I do believe that we are in plain error review.

[00:14:13] Speaker 03:
The court could choose to do it differently if you saw it that way, but if you look at... Well, if it's interpreting the plain language, we're capable of actually doing that, what you're asking us to do, right?

[00:14:25] Speaker 04:
Of course, Your Honor, yes.

[00:14:27] Speaker 03:
So, but in terms of what else is out there, I was looking and it looks like, so there's nothing in the 9th Circuit exactly on point, correct?

[00:14:37] Speaker 03:
Correct.

[00:14:37] Speaker 03:
Then the 10th Circuit isn't exactly like ours.

[00:14:41] Speaker 04:
No.

[00:14:42] Speaker 03:
But then there's, but none of, there was one case I think I saw, most of these were 2018 in that area.

[00:14:50] Speaker 03:
The Supreme Court has not weighed in on anything.

[00:14:54] Speaker 03:
I think one may have petition for certs.

[00:14:56] Speaker 03:
And cert was denied, but not the exact same issue.

[00:14:59] Speaker 04:
Am I right or that sounds right here?

[00:15:01] Speaker 04:
I'm not familiar with that cert, but I can tell you that most of the cases that were cited by the defense happened in 2015, 2016.

[00:15:08] Speaker 04:
Francis from the 10th circuit happens in 2018.

[00:15:11] Speaker 04:
But if you look at to Prieto, for example, in the seventh circuit, Prieto in 2023 took Francis on directly and said that didn't make any sense because the plain language of the enhancement

[00:15:23] Speaker 04:
was focused on the seller of the firearms.

[00:15:25] Speaker 04:
There was nothing about the statute that made the buyer's prohibited status a factual impossibility for a conviction under 922D.

[00:15:33] Speaker 02:
And so... Prado doesn't have much analysis, does it?

[00:15:37] Speaker 04:
It does not, Your Honor.

[00:15:39] Speaker 04:
It has limited analysis, but it highlights some of the facts that are important here in that it implicates whether or not there's a factual impossibility requirement to the enhancement.

[00:15:50] Speaker 04:
And it took that on directly and rejected it.

[00:15:53] Speaker 04:
And I think that this court, by analogy, should do the same.

[00:15:58] Speaker 04:
And at a minimum, decide that Judge Bachelon's decision not to see it, sua sponte, with no one having raised that in the objection, which brings up sort of an important point.

[00:16:07] Speaker 04:
Of course, this court can review the language de novo.

[00:16:11] Speaker 04:
But in the reply brief on page six, note one,

[00:16:14] Speaker 04:
They've conceded that they're not contesting the only thing they litigated in front of judge bash on below They've said we're not contesting the mens rea that was the purpose of their objection to the psr.

[00:16:23] Speaker 00:
That was their objection mr. Hayden Does section 2k 2.1?

[00:16:29] Speaker 00:
Apply to any statutes of conviction other than 18 usc 922 and its various subsections Yes, your honor and Does it apply to section 933 have you looked into that?

[00:16:43] Speaker 04:
Your 933 is relatively new.

[00:16:45] Speaker 04:
I think it does apply.

[00:16:46] Speaker 00:
I'm nervous to say yes, but I think it does apply right Section 922 was the statute of conviction here though and it requires that the defendant have knowledge or a reasonable belief of certain propositions and they're listed in the various subsections of 922 but all those Propositions are stated in the present tense or in the past tense correct is a convicted felon and

[00:17:12] Speaker 00:
Under indictment has been convicted of does not reside.

[00:17:16] Speaker 04:
Those are all the present tense or the past tense correct your Just one small clarification that things really important.

[00:17:22] Speaker 00:
Yes, um he was not convicted or 922d Yeah, he was just the most directly comparable statute.

[00:17:28] Speaker 00:
Yes, sir I understand but but as the most directly comparable statute all of those propositions are stated in the present tense or the past tense No, your honor.

[00:17:37] Speaker 04:
I think I think sections 10 and 11 talk about intentions, okay?

[00:17:41] Speaker 00:
That's exactly the sort of information.

[00:17:43] Speaker 00:
So you think I ought to look at D, 10, and 11 again?

[00:17:46] Speaker 04:
I believe so, Your Honor.

[00:17:48] Speaker 04:
I believe it.

[00:17:48] Speaker 04:
I think 922's.

[00:17:49] Speaker 04:
A, 10, and 11.

[00:17:50] Speaker 04:
No.

[00:17:51] Speaker 04:
If you're looking at 922D, Your Honor, I believe sections 922D, 10, and 11 talk about future intent.

[00:18:02] Speaker 04:
And that's another highlight as to why this interpretation can't be right, because how could anyone ever prove the actual objective reality of future intent unless a crime or the subsequent action has not already occurred, which is why the focus really needs to be on the knowledge of the seller.

[00:18:20] Speaker 04:
Thank you.

[00:18:22] Speaker 04:
Unless the court have other questions, I see that amount of time.

[00:18:24] Speaker 02:
One question.

[00:18:25] Speaker 02:
If we were to agree with Francis,

[00:18:27] Speaker 02:
then we would have to interpret subsection two consistent with subsection one, right?

[00:18:31] Speaker 02:
Would there be any basis to construe it differently?

[00:18:37] Speaker 04:
I think if you agreed with Francis, I think that you would need to be relatively consistent, but I think that that challenge presents the same thing that I was just talking about with Judge Barker is that the difference between subsection one and two is that the status

[00:18:54] Speaker 04:
the conditions of subsection one, that you are prohibited, you are on parole, you are a drug addict at the time, are things that can be factually true in some regard, for example, of prior conviction.

[00:19:06] Speaker 04:
But in regards to unlawful purpose, the problem with interpreting the statute that way is the objective reality of future events that may or may not have happened.

[00:19:14] Speaker 04:
The only way subsection two would ever apply then in Violet is if

[00:19:20] Speaker 04:
A crime had then occurred if law enforcement had not been involved, there had been a sale, then there had been an unlawful purpose that had come to fruition, and then the crime had been detected.

[00:19:32] Speaker 04:
And that clearly cannot be the intent of 922D, A5, or any of the other statutes, because if you have someone who's selling firearms, and they believe, for example, in this regard, it was brought up in the reply about firearm dealers,

[00:19:48] Speaker 04:
If the person selling the firearm, if, for example, an undercover agent hears that a firearm store is willing to sell to anybody, no background checks, doesn't care, anything can happen, they don't care where the firearm happens after that, and an undercover agent goes in and says, I have a felony, I'm addicted to heroin, I have all of these things, but I heard you don't care about that, and the firearm store sells them a firearm anyway, it doesn't matter that, it should not matter, under any interpretation of the language,

[00:20:18] Speaker 04:
that the undercover agent was not a felon, was not addicted to heroin because it's focused on the seller's belief at the time that the culpable conduct occurred.

[00:20:26] Speaker 03:
So here the district court said, didn't really worry about the officers, that part of it said, hey, you sold these guns in a parking lot in a car, you know, and so, you know, this is just that put you on, you know, put you on notice that, yeah, I mean, you knew this wasn't okay.

[00:20:46] Speaker 03:
Essentially, but the district court also did say You're young and you're not the most mentally sophisticated and gave some consideration to that in the sentence correct correct But just said didn't buy the mens rei argument correct so so but but she gave the the argument credit She looked at the totalia circumstances for example the the challenge in the objection which was on I think er record 68

[00:21:15] Speaker 04:
was that he didn't have the mens re in part because of his ADHD.

[00:21:18] Speaker 04:
And so what Judge Bashant, she engaged with Mr. Ferrari himself.

[00:21:23] Speaker 04:
She recognized he was young, that he had ADHD, he had these things.

[00:21:26] Speaker 04:
And so she discounted, for example, the comments that the agents made to him about the firearms going to Mexico and did not apply that enhancement.

[00:21:33] Speaker 04:
But then she engaged with him and said, look, ADHD, notwithstanding, the totality of these circumstances, this is in a parking lot, nobody's presenting ID, these things are short-barreled rifles, you're doing this for cash.

[00:21:47] Speaker 04:
The totality of this clearly means that they're going to be used for an unlawful purpose.

[00:21:51] Speaker 03:
Okay, thank you.

[00:21:53] Speaker 03:
Our panel's questions are answered.

[00:21:55] Speaker 03:
Thank you.

[00:21:55] Speaker 04:
Thank you, Your Honor.

[00:21:56] Speaker 03:
We'll give you two minutes for rebuttal.

[00:21:58] Speaker 03:
Thank you.

[00:22:04] Speaker 01:
Thank you, your honor.

[00:22:05] Speaker 01:
So I just want to touch on a couple of things.

[00:22:08] Speaker 01:
First of all, it is not true that it is impossible or implausible to prove future intent.

[00:22:13] Speaker 01:
Prosecutors do it all the time.

[00:22:15] Speaker 01:
That's often what an attempt crime is, is somebody who's taken a substantial step towards something but hasn't actually consummated it.

[00:22:24] Speaker 01:
So for example, in this case, the undercover agents tried to trigger this enhancement by having one of their agents say something to the effect of,

[00:22:33] Speaker 01:
these guns are going to be taken up to protect weed grows in Northern California, which is 924C.

[00:22:39] Speaker 02:
So clearly, that would be- I still think your biggest problem is the text.

[00:22:45] Speaker 02:
Why would Congress say reason to believe?

[00:22:49] Speaker 01:
Well, so I think that the plain meaning is of those words in their grammatical context- Reason to believe doesn't mean true.

[00:22:59] Speaker 02:
That's right.

[00:23:01] Speaker 02:
I have a reason to believe Santa Claus exists, but that doesn't necessarily mean he does, right?

[00:23:06] Speaker 02:
Reason to believe is not equated with true in my mind.

[00:23:09] Speaker 02:
Maybe you can help on that.

[00:23:11] Speaker 01:
So I think it's not just the phrase reason to believe.

[00:23:15] Speaker 01:
It's the full sentence.

[00:23:17] Speaker 01:
It's reason to believe that such conduct would result in the transport transfer, you know, the entire sentence altogether.

[00:23:22] Speaker 00:
What about an aggravated assault statute, hypothetically, that applied if someone assaults another person knowing or with reason to believe

[00:23:30] Speaker 00:
that it would cause death.

[00:23:33] Speaker 00:
You wouldn't say that that assault statute can only be violated by murder with actually death caused, right?

[00:23:39] Speaker 00:
Its focus is on the subjective mental state of the offender, right?

[00:23:45] Speaker 03:
I think that's probably right, Your Honor, but... Right, the fact that you're choking them and then you didn't choke them enough to kill them, you still would.

[00:23:53] Speaker 01:
But in fact, I think, so in that case, I think it would still be the same principle because you would be

[00:24:00] Speaker 01:
knowing or having reason to believe that that kind of force could cause death.

[00:24:04] Speaker 01:
So that would actually be true, that that kind of force could cause death.

[00:24:10] Speaker 01:
So it would be the same situation here where it's actually true.

[00:24:13] Speaker 01:
That the person intended to sell the firearm to or intended to use the firearm unlawfully and again Judge co I would just say our primary reason for believing you know I understand that your intuitions are that this sentence just focuses on belief, but

[00:24:33] Speaker 01:
Most of the courts who have confronted materially identical language in 922 D and in 922 a 5 have almost universally come to the opposite conclusion I'm not expecting you will concede because you don't ever but on the and in my two days with you But would you can see you this was a completely different case?

[00:24:53] Speaker 03:
below So your honor and so that being the case your

[00:24:59] Speaker 03:
Do you have to get de novo review here to win?

[00:25:04] Speaker 01:
Your Honor, I think our chances of winning are increased substantially on de novo review.

[00:25:11] Speaker 01:
Okay, well that feels I'm going to get out of here.

[00:25:14] Speaker 01:
I believe so.

[00:25:14] Speaker 01:
Okay.

[00:25:15] Speaker 01:
But we would just point to Waheed and Hong.

[00:25:18] Speaker 01:
Both of those cases make clear that it is claims that are preserved, not arguments, and the arguments in those cases were at least as close as the argument in this case.

[00:25:28] Speaker 01:
For example, in Hong, the defendant also objected to an enhancement based on

[00:25:34] Speaker 01:
And one argument went it was an obstruction.

[00:25:39] Speaker 01:
It was based on this is just a denial of guilt.

[00:25:41] Speaker 01:
Whereas on appeal, they said something, you know, made a different argument.

[00:25:45] Speaker 01:
They said, I didn't do it willfully.

[00:25:47] Speaker 01:
And also, it wasn't sufficiently in connection with the offense that was considered to be preserved.

[00:25:52] Speaker 01:
And this court ruled de novo.

[00:25:54] Speaker 01:
The government has never in any brief or oral argument.

[00:25:56] Speaker 03:
Let me find out if any colleagues have any additional questions.

[00:25:58] Speaker 03:
No, thank you.

[00:25:59] Speaker 03:
Okay.

[00:26:00] Speaker 03:
We've gone over that, but I want to thank both of you for being exceptionally prepared and very helpful in this argument.

[00:26:07] Speaker 03:
Thank you.

[00:26:08] Speaker 03:
Thank you.

[00:26:09] Speaker 03:
All right.

[00:26:10] Speaker 03:
This matter will be submitted.

[00:26:12] Speaker 03:
We will briefly recess to reconstitute the panel.

[00:26:16] Speaker 03:
We're going to come, Judge Koh and I are going to come out with Judge Nguyen for one additional case.

[00:26:21] Speaker 03:
Are the parties here for that?

[00:26:23] Speaker 03:
Okay.

[00:26:24] Speaker 03:
So, all right.

[00:26:25] Speaker 03:
I saw a hand there and so we'll end and we have some another hand on video.

[00:26:31] Speaker 03:
So, we will be just right back out.

[00:26:35] Speaker 03:
All right.

[00:26:36] Speaker 03:
Don't go anywhere.

[00:26:38] Speaker 03:
All rise.

[00:26:51] Speaker 03:
This court is taking a brief recess.