[00:00:00] Speaker 03: Your argument in United States versus green Thank you for taking the appointment on a pro bono basis [00:00:40] Speaker 03: All right. [00:00:41] Speaker 00: Good morning your honors and may it please the court Alex bottom and on behalf of Namir green I'd like to try to reserve two minutes for rebuttal and I will keep my eye on the clock. [00:00:48] Speaker 00: Thank you The district court erred by calculating the guidelines range as if mr Green had been convicted of the crime of carjacking When the stipulated facts in his plea agreement did not specifically establish every element of that offense I'm troubled by the fact that [00:01:05] Speaker 01: Mr. Green at his plea colloquy basically stipulated that he had committed the other carjacking the carjacking and the what were they six or eight other Hobbs Act robberies So why can't the district court take that as a concession? [00:01:24] Speaker 01: That he is in fact guilty of carjacking under the statute So I think two points on that [00:01:31] Speaker 00: First, the facts that we're looking at in applying this guidelines version have to be within the plea agreement itself. [00:01:37] Speaker 00: But even beyond that, I don't believe that he admitted at the plea colloquy that he committed a carjacking within the meaning of carjacking under the federal statute, which- Well, it doesn't say that, but he does say that the court could properly [00:01:51] Speaker 01: Consider and calculating the guidelines that he had as relevant conduct that he had committed these other Robberies and a carjacking so I'm a little bit puzzled as to why we're here arguing I appreciate the technical legal argument But I'm trying to look at it from the practical standpoint of the district judge who's doing the guideline calculation You know what's wrong under relevant conduct with assuming that he was guilty of carjacking [00:02:17] Speaker 00: Sure, so I just want to be very clear that government is not making a relevant car conduct argument here And I think the reason why is that this doesn't it is set forth in the plea agreement. [00:02:26] Speaker 01: That's clearly in front of us So district court engaged in an extensive colloquy with them when the rule 11 plea was taken So so I think we might be talking past each other what the plea agreement says is that [00:02:38] Speaker 04: He used a BB gun to intimidate and steal a car and while I understand addition on April 15th It should say it says August it should say I'm sure we're talking about the same sentence sure it's the one on page 6 of the agreement er 137 That's correct. [00:02:54] Speaker 04: Okay using a BB gun to intimidate a vehicle owner stole a vehicle namely a 2010 Honda Accord That's right Is there anywhere else in the plea agreement where there's where there's a discussion of this April 15th incident? [00:03:07] Speaker 00: I don't believe so judge so they can understanding that now that that's what you're referring to could you circle back to judge Talman's question Sure, so you know those facts while they might you know be a carjacking as we would colloquially use the term Carjacking in the statute has a very specific statutory definition Why are we looking at the statute rather than the guidelines because the guidelines? [00:03:32] Speaker 03: Do not require the same the same elements is they don't require the men's spray element so I'm looking at Carjacking in the in the guidelines and carjacking in the [00:03:51] Speaker 00: Commentary to the guidelines just says it means that taking or attempted taking of a motor vehicle from the person or presence of another by force and violence or by intimidation So tracks we said in the plea agreement Sure, so you're talking about the carjacking enhancement in the guidelines The problem is that there's nothing to tack that enhancement on to unless you first determined that the facts about the April 15th vehicle theft in the plea agreement specifically established [00:04:19] Speaker 00: a carjacking or as the government has argued here on appeal a Hobbs Act robbery. [00:04:23] Speaker 00: And so that's why you have to look at the statute. [00:04:25] Speaker 03: So the definition of carjacking. [00:04:27] Speaker 03: So I'm just wondering why we look at the statute. [00:04:29] Speaker 03: The definition of carjacking is pretty much the same as the guidelines commentary. [00:04:37] Speaker 03: I looked at dictates from that period and of them require a mens rea. [00:04:42] Speaker 03: So why would nobody has mentioned the mens rea does that? [00:04:47] Speaker 03: mean that his plea is not established carjacking. [00:04:53] Speaker 00: Sure. [00:04:53] Speaker 00: So we're talking about the application of 1B1.2C of the guidelines. [00:04:57] Speaker 00: 1B1.2C says that we can treat the defendant as having committed an additional offense to which he did not plead guilty only if every element of that crime is specifically established by the facts in the plea agreement. [00:05:11] Speaker 00: So we have to look at the statute to see what the elements of the crime are before we can. [00:05:16] Speaker 03: So what language requires us to look at 2119? [00:05:19] Speaker 03: I don't think it's referenced, is it? [00:05:22] Speaker 00: So guidelines 1B1.2C says that it applies when there is, quote, a stipulation that specifically establishes the commission of an additional offense. [00:05:32] Speaker 04: Counsel, there's two different arguments here, right? [00:05:35] Speaker 04: The first question is whether or not there was a pseudo offense, whether your client stipulated to all of the elements of the criminal statute, right? [00:05:41] Speaker 04: Correct. [00:05:42] Speaker 04: And Judge Akut is now going to the fallback argument that the government raised, which is, right, if we're into just the enhancement [00:05:48] Speaker 04: Now, then she gets to a different definition. [00:05:50] Speaker 04: That's what I think we're calling your attention to. [00:05:52] Speaker 00: OK. [00:05:52] Speaker 00: Sorry if I missed that. [00:05:54] Speaker 00: I think the problem is that to apply the enhancement, you have to have a pseudo offense to start with. [00:05:58] Speaker 00: Otherwise, there is nothing to tack the enhancement onto. [00:06:01] Speaker 04: Right. [00:06:02] Speaker 04: And I don't think the government argues that the, I'm going to call it the April 15th incident with the Honda, that that vehicle theft qualifies. [00:06:13] Speaker 04: On its own, it's not an offense that involved [00:06:18] Speaker 04: the offense he pled guilty to isn't an offense that involved a vehicle. [00:06:21] Speaker 04: So that can't be the enhancement. [00:06:23] Speaker 04: So you have to latch the enhancement on to, by its terms, on to a conviction that involved a vehicle. [00:06:31] Speaker 04: I think that's why the government comes forward with this, I think, somewhat creative argument, right? [00:06:37] Speaker 04: If you could engage in that. [00:06:38] Speaker 00: Sure, that's correct. [00:06:39] Speaker 04: Then they talk about this other incident because he pled to several Hobbs Act or to one Hobbs Act robbery. [00:06:46] Speaker 04: And I think their argument is that that could be treated as a sort of Hobbs Act robbery of the car. [00:06:55] Speaker 00: That's correct. [00:06:55] Speaker 04: I don't know how else to explain their theory, right? [00:06:58] Speaker 04: But if you do it that way, then you do get to the enhancement that Judge Acuta is talking about, right? [00:07:03] Speaker 00: Right. [00:07:03] Speaker 04: So if you could- That definition that's in the enhancement. [00:07:05] Speaker 00: Right. [00:07:06] Speaker 00: So I think I agree with what Your Honor is saying. [00:07:08] Speaker 00: There has to be an actual crime that arises specifically out of the April 15th incident. [00:07:14] Speaker 00: for us to even be in the conversation about whether we can tack on the guidelines enhancement. [00:07:18] Speaker 04: And that is because? [00:07:20] Speaker 00: The reason for that is because it's not relevant conduct for the other. [00:07:23] Speaker 04: He pled guilty to the one offense, just the one offense. [00:07:25] Speaker 00: That's correct. [00:07:26] Speaker 00: That's correct. [00:07:27] Speaker 03: Well, what are we doing with these pseudo counts? [00:07:29] Speaker 03: I didn't see the word pseudo in the US sentencing guidelines. [00:07:34] Speaker 03: And where does that come from? [00:07:35] Speaker 03: And what does it mean? [00:07:36] Speaker 03: How are we supposed to understand that? [00:07:38] Speaker 00: Sure. [00:07:38] Speaker 00: So I think it's a term that probation uses. [00:07:40] Speaker 00: But what it's basically refishing officer slang [00:07:43] Speaker 00: It appears to be perhaps, but what it's doing, I think, is listing out offenses to which 1B1.2C applies, where the criteria of the specifically established provision of the guidelines are met. [00:08:00] Speaker 00: And so it found that with respect to the other [00:08:04] Speaker 00: you know, convenience store robberies to which he did not plead guilty, that those offenses were specifically established as independent robberies under the guidelines. [00:08:14] Speaker 00: The question that we have here, though, is about the April 15th theft, because that's the only way that you can get to the carjacking enhancement, is if that April 15th incident on its own is a discrete federal crime, and the government, the probation officer got there by treating it as a federal carjacking, which we think was wrong, [00:08:33] Speaker 00: The government is trying to get there by treating it as a Hobbs Act robbery, which we also think is wrong. [00:08:38] Speaker 00: But the government is not arguing that you could tack the carjacking enhancement onto either the, you know, one of the other robberies. [00:08:44] Speaker 00: It's agreeing that you have, if you're going to apply it, it has to be out of this discreet April 15th incident. [00:08:52] Speaker 01: Mr. Bowman, you didn't challenge the lack of a factual basis to support the interstate commerce element of the Hobbs Act charge, did you? [00:09:02] Speaker 00: So I think in the district court, this was not being treated as a Hobbs Act robbery. [00:09:06] Speaker 04: But it is now. [00:09:07] Speaker 04: I agree. [00:09:07] Speaker 04: It's a fallback argument. [00:09:09] Speaker 04: I think it's really an argument that even if the court erred in its Braxton analysis because he didn't stipulate to all the elements of Hobbs Act robbery, excuse me, of carjacking, of the criminal offense, he did not stipulate to all those elements. [00:09:21] Speaker 04: So then the fallback is they're arguing that that would be harmless because we can treat this other incident that's in the plea agreement, which is a vehicle theft, we can treat it as a Hobbs Act robbery. [00:09:32] Speaker 04: And hence, Judge Tallman's question. [00:09:34] Speaker 04: Then you'd have to show, how would we get to interstate commerce? [00:09:39] Speaker 00: Right. [00:09:39] Speaker 00: And that's right. [00:09:40] Speaker 04: And the district court didn't address that, didn't reach it. [00:09:41] Speaker 00: Well, right. [00:09:42] Speaker 00: Nobody had to reach it in the district court because, again, this was treated in the district court as a carjacking and not a Hobbs Act robbery. [00:09:48] Speaker 04: So I think Judge Cr- OK, so but now here we are. [00:09:50] Speaker 00: Sure. [00:09:50] Speaker 04: And that's their fallback argument for harmless error, basically, is the way we understand it. [00:09:54] Speaker 04: I guess if we misunderstood this, and it did require drawing some pictures on the margin of the brief. [00:09:59] Speaker 04: But if we misunderstood this opposing counsel, [00:10:02] Speaker 00: That's exactly how I understand it. [00:10:04] Speaker 04: Okay, so Judge Talman asked the question I think we're all interested in, which is you haven't briefed. [00:10:08] Speaker 04: No one's briefed this interstate commerce element, right? [00:10:11] Speaker 00: So I think we did brief it in our reply brief. [00:10:14] Speaker 04: Sort of. [00:10:16] Speaker 04: Here, you mean here? [00:10:17] Speaker 04: Yes. [00:10:18] Speaker 01: Yes. [00:10:18] Speaker 04: Right, but not in the district court, and we haven't heard what the government has to say about it. [00:10:21] Speaker 01: And there's nothing in the factual [00:10:23] Speaker 01: a basis in the plea agreement that addresses the interstate commerce element. [00:10:27] Speaker 04: For any of the Hobbs Act violations. [00:10:30] Speaker 00: Yeah. [00:10:30] Speaker 04: So what is your position? [00:10:32] Speaker 04: What would we do about that? [00:10:34] Speaker 00: Well, I think it's a legal question that the court could address here. [00:10:37] Speaker 00: Do these facts about the April 15 vehicle theft specifically establish a Hobbs Act robbery? [00:10:43] Speaker 00: We think they clearly don't because there's nothing in there that would suggest an effect on commerce. [00:10:47] Speaker 00: But, you know, if the court is uncomfortable with the fact that the government hasn't briefed this, [00:10:53] Speaker 00: I think they could have briefed and they're answering brief. [00:10:54] Speaker 00: You're on plain error review. [00:10:56] Speaker 00: Sure. [00:10:56] Speaker 01: That's that's what's bothering me. [00:10:58] Speaker 01: It's a very tough Bar for you to clear in order to reverse and remand for a resentencing I mean I can see how the error occurred, but I'm really struggling to figure out where the harm is [00:11:15] Speaker 01: We could send it back and the court could impose the same sentence that it imposed. [00:11:20] Speaker 01: He committed what 40 robberies and carjackings. [00:11:24] Speaker 01: I mean, I don't think Willie Sutton robbed that many banks in the 1930s. [00:11:29] Speaker 04: But he fled to one. [00:11:30] Speaker 01: So right. [00:11:30] Speaker 00: He fled to one. [00:11:32] Speaker 04: And the court chose a mid-level, a mid-range guideline. [00:11:37] Speaker 00: Correct. [00:11:38] Speaker 04: Because there were a lot of equities sort of both ways. [00:11:40] Speaker 04: So it's tough to know what the court would do. [00:11:42] Speaker 04: But I certainly agree with Judge Taumann this might [00:11:45] Speaker 00: Result in the very same sentence it could your honor But I think it's important to note that the sentence that he received now if we take out the two-level guidelines Enhancement would be an above guideline sentence and the district court never suggested its record a variance upward It'd be hard to say that was an abuse of discretion given the criminal conduct that was before the district [00:12:06] Speaker 00: Perhaps, but the question is, on the third prong of plain error, is only is there a reasonable probability that he would receive a different sentence? [00:12:13] Speaker 00: And the Supreme Court has said that when there's a guidelines error, that's nearly always going to be satisfied. [00:12:19] Speaker 00: And the government is not disputing that if the guidelines range changes, that the court should send it back. [00:12:25] Speaker 00: The only argument that it's making is that the court could reach the same calculation in a different way. [00:12:29] Speaker 03: You're over time, but we'll give you a minute for rebuttal. [00:12:31] Speaker 00: Apologies for that. [00:12:31] Speaker 03: Thank you. [00:12:32] Speaker 01: We had lots of questions. [00:12:33] Speaker 03: Thank you. [00:12:33] Speaker 03: Yeah. [00:12:34] Speaker 03: We'll hear from the government. [00:12:40] Speaker 02: Good morning, Your Honors. [00:12:41] Speaker 02: May it please the court? [00:12:43] Speaker 02: Jenna McCabe on behalf of the United States. [00:12:47] Speaker 02: Starting with the issue about whether or not this carjacking enhancement could apply, regardless of whether or not the elements here for carjacking are met, I agree that in our papers we're discussing how that offense on that date constituted a carjacking. [00:13:05] Speaker 02: Our position is that that is the only reasonable inference [00:13:09] Speaker 02: that the district court could have made was that he had the requisite mens rea. [00:13:13] Speaker 02: However, in addition to that, while the carjacking enhancement could apply to the theft of that car on that date should that be determined to be a robbery, it is also possible that it could apply to the count of conviction as well because he fled in the carjacked car and as this court [00:13:32] Speaker 02: has held previously. [00:13:34] Speaker 04: Wait a minute, now you've lost me. [00:13:36] Speaker 04: I thought you were skipping the Braxton issue and going to the enhancement. [00:13:39] Speaker 04: Are you going back to the Braxton issue? [00:13:40] Speaker 04: I'm just trying to keep up. [00:13:42] Speaker 02: The enhancement issue, your honor. [00:13:43] Speaker 04: So you're not conceding the Braxton, or you're skipping the Braxton issue. [00:13:48] Speaker 02: I'm skipping the Braxton issue at this moment, but I'm happy to address that in detail as well. [00:13:53] Speaker 04: That's fine. [00:13:53] Speaker 04: OK, so go right ahead. [00:13:55] Speaker 04: I don't mean to interrupt. [00:13:56] Speaker 04: You're saying that the enhancement would apply because [00:14:00] Speaker 02: The enhancement would apply for the reasons that we laid out in our brief with respect to treating this as a robbery, but just to- Hold up, but on that we were just discussing, I don't know why because nobody's briefed interstate commerce. [00:14:13] Speaker 02: Yes, no one had the opportunity to brief interstate commerce to the district court. [00:14:18] Speaker 02: If we were given the opportunity to do so, we would have, but as this court pointed out, there is no specific reference to interstate commerce in the factual basis here. [00:14:27] Speaker 02: But the defense, in its opening brief, did concede that the robbery guideline should apply rather than the carjacking guideline. [00:14:38] Speaker 02: And because the guideline is the same for both with 2B3.1, I think the issue is really whether the two level and- So back up, if you could, please. [00:14:49] Speaker 04: There was a concession about the Hobzack robbery guideline applying, because he pled guilty to Hobzack robbery. [00:14:55] Speaker 02: Yes, Your Honor. [00:14:56] Speaker 04: So now we're talking about the enhancement. [00:14:58] Speaker 02: Yes. [00:14:58] Speaker 04: Because that added two points. [00:15:00] Speaker 04: And so to get there, I think you have to have this enhancement attached to something. [00:15:05] Speaker 02: Agreed. [00:15:06] Speaker 04: Right. [00:15:06] Speaker 04: OK. [00:15:07] Speaker 04: And so your, I think, very creative argument is that vehicle theft, and we just read the one sentence in the plea agreement that talks about the vehicle theft, and it uses the word intimidation. [00:15:15] Speaker 04: Yes. [00:15:16] Speaker 04: And that matches the definition for the enhancement, not for the statute, but for the enhancement. [00:15:21] Speaker 03: Yes. [00:15:22] Speaker 04: OK. [00:15:23] Speaker 04: But you still have to have a Hobbs Act robbery. [00:15:25] Speaker 04: You're treating that April 15th incident as a Hobbs Act robbery. [00:15:29] Speaker 04: And so you need to have all the elements. [00:15:32] Speaker 04: And there hasn't been a ruling on interstate commerce. [00:15:34] Speaker 02: There has not. [00:15:35] Speaker 02: That's correct, Your Honor. [00:15:36] Speaker 04: OK. [00:15:37] Speaker 04: And there hasn't really been a ruling on mens rea either. [00:15:39] Speaker 04: But he did stipulate to intimidate, which strikes me as coming awfully close. [00:15:44] Speaker 01: Yes. [00:15:45] Speaker 04: But I just don't know how to get around [00:15:46] Speaker 01: the interstate commerce could the district court consider the victim's statement at sentencing in order to fill the evidentiary gap here on the mens rea I mean she testified the fact that she was absolutely terrorized and thought he was going to kill her yes give up her car [00:16:06] Speaker 02: Yes, your honor. [00:16:07] Speaker 02: That victim specifically was the victim of another carjacking that this defendant had committed, not one of the dismissed charges or the one referenced on that particular date in the factual basis. [00:16:19] Speaker 01: Would it be appropriate for the district court to consider that as relevant conduct? [00:16:25] Speaker 02: Yes, that would be my position your honor that it should be considered as relevant conduct as we did discuss in our brief that that portion of the plea agreement where the defense agreed that the dismissed charges could be considered by the district court that in conjunction with the factual basis that he admitted to as well as the plea colloquy there's a number of citations that we have to the record where he is admitting to the carjacking admitting that the court can consider those facts and [00:16:53] Speaker 02: And so as relevant conduct. [00:16:55] Speaker 04: Do you have a citation to the record where he admitted a carjacking? [00:16:59] Speaker 04: The plea agreement is what we have to look to. [00:17:02] Speaker 04: And it does not admit a carjacking. [00:17:03] Speaker 04: That's the problem. [00:17:05] Speaker 04: I don't think mens rea is a problem, because he admitted to using the BB gun to intimidate, which strikes me as intentional use of force. [00:17:11] Speaker 04: And I don't think that's going to be the problem. [00:17:13] Speaker 04: But I just keep coming back to interstate commerce. [00:17:16] Speaker 02: Interstate Commerce, if I may just clarify your question, Your Honor. [00:17:20] Speaker 02: Interstate Commerce with respect to the Hobbs Act robbery or? [00:17:24] Speaker 04: You need the April 15th incident to qualify as a Hobbs Act robbery. [00:17:28] Speaker 04: Because you're not arguing the Braxton issue. [00:17:31] Speaker 03: Is that your argument that we should deem the April 15, 2023 action to be a Hobbs Act robbery? [00:17:41] Speaker 02: Thank you for clarifying. [00:17:42] Speaker 02: My position is that this court should consider it as a carjacking. [00:17:46] Speaker 02: And to find that under Braxton, all the elements are met with respect to this factual basis. [00:17:52] Speaker 03: That aside for a moment, you're disagreeing or you're not. [00:17:57] Speaker 03: Asking us to hold the April 15 2023 Conduct as a Hobbs Act property is that correct? [00:18:06] Speaker 03: I would argue that that would be our alternative as your fallback correct your honor Okay, so if we we disagree that that is the two and one nine offense section two and one nine offense then if we are [00:18:21] Speaker 03: Going with your fallback argument that it is a Hobbs Act robbery, Judge Kristen, what do we do about the interest in e-commerce requirements? [00:18:31] Speaker 02: Thank you, Your Honor. [00:18:32] Speaker 02: I'll address that specifically. [00:18:33] Speaker 02: So what we're dealing with here is just those facts that the court has gone through today. [00:18:40] Speaker 02: There isn't a specific reference to interstate commerce. [00:18:44] Speaker 02: My position would be that there is sufficient information in the pre-sentence report to support that. [00:18:50] Speaker 02: However, I will concede that it is not in the factual basis itself with respect to that date, that conduct of stealing the car, both between the paragraph of the plea agreement where he is agreeing that the dismissed charges can be considered and then also the factual basis itself. [00:19:07] Speaker 02: So that is an issue. [00:19:09] Speaker 02: However, we are raising it as a fallback because [00:19:14] Speaker 02: that interstate commerce had not been briefed in the opening brief or been relayed to the district court at the time of sentencing. [00:19:21] Speaker 01: It's a pretty easy inference to make on a carjacking charge that the vehicle had traveled in interstate commerce before it was stolen from its owner. [00:19:31] Speaker 02: Yes, Your Honor. [00:19:32] Speaker 01: That is a pretty easy inference to make. [00:19:35] Speaker 01: Unless it was a Tesla that was manufactured in Newark. [00:19:40] Speaker 01: And it was a Honda here. [00:19:41] Speaker 01: It was a Honda. [00:19:42] Speaker 04: But of course, there's other circuit authority that says that's not enough. [00:19:46] Speaker 04: I mean, you know the law on this. [00:19:47] Speaker 02: I do. [00:19:47] Speaker 04: So what do we do about that? [00:19:49] Speaker 02: So there is information about where this car was stolen from and the fact that it was at a gas station. [00:19:55] Speaker 02: Things could have closed down. [00:19:56] Speaker 04: But I think you couldn't prove it if you'd proved it. [00:19:58] Speaker 04: But this just didn't come up. [00:19:59] Speaker 04: It wasn't litigated. [00:20:00] Speaker 04: Yes, Your Honor. [00:20:01] Speaker 04: And you know the law on this. [00:20:03] Speaker 02: Absolutely, and I think that's kind of the issue that we're in because it wasn't raised with the district court So we didn't have an opportunity to address any of this or for hot to have the district court consider [00:20:16] Speaker 03: Yes. [00:20:16] Speaker 03: So let me move back from the fallback argument, which I think we understand, to your primary argument that the plea agreement says, let's see, in addition on, it should be April 15th, defendant using the BIPA begun to intimidate if ICCL owners stole of ICCL. [00:20:35] Speaker 03: How does that [00:20:38] Speaker 03: suffice given that section 2119 has very strong language about the mens rea. [00:20:46] Speaker 03: Can you explain that? [00:20:48] Speaker 02: Yes, your honor. [00:20:48] Speaker 02: So I just want to clarify what our position is with respect to the mens rea and I want to quote directly from Holloway on this. [00:20:56] Speaker 02: Holloway says that the defendant would have at least attempted to seriously harm [00:21:01] Speaker 02: or kill the driver if that action had been necessary to complete the taking of the car. [00:21:07] Speaker 02: So given that he has admitted that the BB gun was a dangerous weapon, that he used that dangerous weapon to steal the car, we believe that the communication of that intimidation is sufficient to show that if- To commit serious bodily injury or death? [00:21:24] Speaker 02: If necessary, and I think that's the critical point here is that if it was necessary to steal the car that he would have. [00:21:32] Speaker 02: used that BB gun further than he had to steal the car but the car owner had given it up to him at that point and so while the defense argues that he may not have wanted to hurt someone or he may not have planned to hurt someone that's not what's required for the carjacking mens rea it really is that conditional willingness to do so. [00:21:58] Speaker 02: Yes, Your Honor, it is what we are arguing is the only reasonable inference from what is in the plea agreement itself. [00:22:05] Speaker 04: The problem then is Braxton says we can't do that. [00:22:08] Speaker 04: You're just running headlong into Braxton. [00:22:10] Speaker 04: And I appreciate the position that you're in. [00:22:14] Speaker 04: I understand that your position is that you think this would be busy work and that you could prove this on remand. [00:22:20] Speaker 04: There's a lot of case law about the importance of calculating the guidelines correctly. [00:22:24] Speaker 04: As you know, of course, and the difficulty in this particular case, of course, is that there's this sentence. [00:22:30] Speaker 04: It's going to change this guidelines range and this sentence wouldn't be in it anymore. [00:22:35] Speaker 04: There's a very young defendant. [00:22:36] Speaker 04: These are very serious crimes. [00:22:37] Speaker 04: There were a lot of them. [00:22:39] Speaker 04: You know, you could look at this and say he got a heck of a deal in one way because a lot of he only had to plead a one offense. [00:22:46] Speaker 04: On the other hand, of course, there was a lot of other evidence in his side. [00:22:50] Speaker 04: And the district court acknowledged that in her on-record comments, which she understood. [00:22:54] Speaker 04: And then she picked a mid-guidelines range. [00:22:56] Speaker 04: So how do we know what would have happened? [00:22:58] Speaker 04: How can we really say this is harmless? [00:23:00] Speaker 02: So I completely understand your Honor's point. [00:23:03] Speaker 02: We don't know what would have happened, although I will note that the probation office was recommending an upward variance to the sentence that the district court gave. [00:23:12] Speaker 02: And then in the sentencing transcript, [00:23:15] Speaker 02: The district court specifically talks about why it's choosing that and says something along the lines of, I could have gone higher, but I'm not because of this mitigating information that the defense has provided. [00:23:28] Speaker 02: And if I may just make one point in response to the Braxton arguments that the defense is making, but also to respond to your honor's question. [00:23:36] Speaker 02: In Braxton specifically, the Supreme Court noted that that was tied to the specific facts of that case. [00:23:43] Speaker 02: And even went as far to say that a stipulation that the defendant had shot Addie Marshall without any qualification about his intent would perhaps even include the necessary intent here. [00:23:57] Speaker 02: Given that Braxton had left open the issue of whether or not the exact language needs to be included in the factual basis, I think the plea agreement here that includes both the agreement that dismissed charges could be considered and the factual basis, including that intimidation to steal the car with the use of a BB gun, is sufficient. [00:24:18] Speaker 04: But, counsel, Braxton is all about treating that agreement as a contract. [00:24:22] Speaker 02: Yes. [00:24:22] Speaker 04: And not drawing inferences. [00:24:24] Speaker 04: And that's your problem. [00:24:25] Speaker 04: And I don't hear you grappling with that problem. [00:24:28] Speaker 02: To grapple with that problem, the Braxton decision I think left open the fact that a court can make that inference given that it talked about how the facts of that case did not include [00:24:41] Speaker 02: that the defendant shot at Amar Shoal, and that if that was in there, the court may have come out differently. [00:24:48] Speaker 02: And so under plain error review, I think the district court here, if it had erred, it certainly was not clear or obvious, given that the mens rea for carjacking is qualitatively different from the mens rea for attempting to kill, given that the defendant in Braxton specifically pled not guilty at the time of the plea colloquy, did not have a plea agreement with the government, [00:25:09] Speaker 02: for the attempted murder charge and only was pleading to assault and then Yes, I agree that it is difficult, but I do not think that it Makes it such that this is reversible error here given all the differences between that decision and the facts that we have in this case and [00:25:33] Speaker 02: OK, we've kept you way over your time. [00:25:36] Speaker 02: Unless the Court has other questions, we'd urge this Court to affirm. [00:25:39] Speaker 02: Thank you. [00:25:39] Speaker 02: Thank you. [00:25:40] Speaker 03: And you have a minute for rebuttal. [00:25:45] Speaker 00: Thank you, Your Honors. [00:25:46] Speaker 00: I just want to start with this Court's decision in Lawton. [00:25:49] Speaker 00: And it says, I think the rule very clearly. [00:25:51] Speaker 00: A stipulation which supports two reasonable readings, one of which is inconsistent with guilt, is not a stipulation that specifically establishes a crime. [00:25:59] Speaker 00: So the government's thrown out two potential crimes here, carjacking and Hobbsack robbery. [00:26:04] Speaker 00: The question is, is there a reasonable reading of that one sentence in the plea agreement that is inconsistent with guilt for the crime of carjacking? [00:26:12] Speaker 00: The answer has to be yes. [00:26:13] Speaker 00: Nothing in the plea agreement suggests, much less specifically establishes, that he intended to kill or cause serious bodily harm. [00:26:20] Speaker 00: And with respect to, sorry, Judge Talman. [00:26:22] Speaker 01: If the plea agreement had been silent on the relevant conduct cases, [00:26:27] Speaker 01: Could the district court still have considered the dismissed charges as relevant conduct for purposes of the guideline calculation? [00:26:36] Speaker 00: So no, because of the definition of relevant conduct in the guidelines, which treats each robbery as a discrete event. [00:26:43] Speaker 00: So this April 15th theft, which took place a week after anything else mentioned in the plea agreement, is not relevant conduct for any of the other robberies. [00:26:51] Speaker 00: It's a fact the district court could consider its sentencing in applying the 3553 a factors certainly but it's important the district court starts with the correct guidelines range and Here there was a guidelines error that affected the range so the court should send it back for your position is that every play agreement has to contain a provision stipulating to the admissibility of the Dismissed charges because we sure see a lot of cases what where there are no such stipulations so [00:27:19] Speaker 00: I think the baseline point is that the guidelines normally use the offense of conviction to calculate the guidelines range. [00:27:26] Speaker 00: If the parties are going to want to do something else, then guidelines 1B1.2C says that yes, they have to include the stipulation that's [00:27:37] Speaker 01: But, for example, if there was an enhancement for the commission of the offense while the defendant was still on probation under probationary supervision on an earlier offense, he doesn't have to stipulate to that, does he? [00:27:49] Speaker 01: And he gets a two-level enhancement for that. [00:27:52] Speaker 00: Right, and that's why this 1B1.2 provision is very unique because it requires that the facts be included in the plea agreement. [00:28:00] Speaker 00: For many guidelines enhancements, they're factual issues that district courts can, you know, they could be litigated at sentencing. [00:28:06] Speaker 00: But here, [00:28:07] Speaker 00: It's all tied to what's in the plea agreement. [00:28:09] Speaker 00: And once the plea agreement was finalized, nothing could change that. [00:28:12] Speaker 00: So that's why the government's suggestion that they could do something on remand, nothing can change the plea agreement. [00:28:17] Speaker 01: What's your position with regard to the test? [00:28:20] Speaker 01: I don't know if it was testimony or just a statement by the victim. [00:28:23] Speaker 01: But could the district court consider that in fashioning the guideline calculation? [00:28:28] Speaker 00: No, not in calculating the guidelines range. [00:28:30] Speaker 00: Because again, 1B1.2C says that we're limited to looking at the facts in the plea agreement. [00:28:36] Speaker 01: So the court could consider it for purposes of enhancing, I shouldn't use the word enhancing, varying upward. [00:28:43] Speaker 01: Sure. [00:28:44] Speaker 01: Under 3553A. [00:28:45] Speaker 01: Sure. [00:28:46] Speaker 01: But it could not initially calculate the guidelines with that evidence in mind. [00:28:53] Speaker 00: That's exactly right, Judge Stoller. [00:28:55] Speaker 00: All right. [00:28:55] Speaker 00: OK. [00:28:55] Speaker 03: OK, we've taken you way over your time. [00:28:57] Speaker 00: Thank you, Your Honors. [00:28:58] Speaker 00: Thank you. [00:28:58] Speaker 01: That's a very interesting issue. [00:29:01] Speaker 03: OK, the case of United States versus Green is submitted. [00:29:05] Speaker 03: The case of United States V. Robert Lewis Carver is submitted. [00:29:09] Speaker 03: The case of Jaforo Mousissien versus Bondi is submitted. [00:29:18] Speaker 03: The case of Hukiche Nahui V. Bondi is submitted. [00:29:22] Speaker 03: And the case for Freedom Foundation versus Turner is submitted. [00:29:27] Speaker 03: And we're adjourned for today and for the week.