[00:00:01] Speaker 03: and welcome. [00:00:02] Speaker 03: Thank you so much for coming here. [00:00:04] Speaker 03: This is our last day of sitting here in Portland, and I wanted to especially thank everyone here who's made it so welcoming to be here, and specifically Chase Brearden, Natalie Battiste, [00:00:20] Speaker 03: Kathy Dodds, Robert Walsh, and all the court security officers who have just been incredibly warm and welcoming and very helpful. [00:00:26] Speaker 03: So thank you to each of you. [00:00:28] Speaker 03: Today we had a number of matters that have already been submitted on the record and the briefs. [00:00:35] Speaker 03: They are United States versus Mahan II. [00:00:39] Speaker 03: Uh, Lemako Leyva versus Garland, now McHenry. [00:00:44] Speaker 03: Um, Poliakov versus O'Malley. [00:00:46] Speaker 03: There's a new name for that defendant as well. [00:00:50] Speaker 03: Um, sorry, Kathy, did you? [00:00:52] Speaker 03: Okay. [00:00:53] Speaker 03: Sorry. [00:00:54] Speaker 03: It's a new name. [00:00:56] Speaker 03: Who is the new name? [00:00:57] Speaker 03: King. [00:00:57] Speaker 03: King. [00:00:58] Speaker 03: King. [00:00:58] Speaker 03: Thank you. [00:00:59] Speaker 03: Thank you. [00:01:00] Speaker 03: So those have all been submitted. [00:01:01] Speaker 03: That leaves two cases for oral argument. [00:01:05] Speaker 03: We'll start with United States versus Keyes. [00:01:07] Speaker 03: And I'm welcoming all counsel for both cases that if you feel like you said what you needed to say and we have no questions, you are cordially welcome to not use all your time. [00:01:19] Speaker 03: OK. [00:01:20] Speaker 03: With that, let's start with counsel. [00:01:30] Speaker 04: Good morning. [00:01:31] Speaker 04: May it please the court, Ms. [00:01:34] Speaker 04: Miles, ladies and gentlemen of the gallery, Andrew Colmets on behalf of defendant appellee, Scott Raymond Keast. [00:01:41] Speaker 04: Your honor, the question before the court is a narrow one. [00:01:46] Speaker 04: It is simply, does Mr. Key's prior conviction require, necessarily as an element, the use or threatened use of force against another person? [00:01:58] Speaker 04: And in answering that question, I'd like to direct the court to a Oregon Court of Appeals decision cited in my brief and also in a letter, Rule 28j letter I submitted yesterday. [00:02:13] Speaker 04: That case is State v. Gilbert. [00:02:16] Speaker 04: And I think Gilbert answers the question for us. [00:02:20] Speaker 04: And that is because in Gilbert, the defendant was charged with being an ex-con in possession of a firearm with the firearm enhancement language. [00:02:31] Speaker 04: The defendant argued before the Court of Appeals that the firearm enhancement did not apply [00:02:38] Speaker 03: because the enhancement would only apply when the threatened use or the use of the firearm facilitated or... Can I ask you, what is your best textual argument against the government's proposal that their intended target requirement isn't implicit in the unlawful use of a weapon with a firearm? [00:03:00] Speaker 04: I think Gilbert answers that question, Your Honor. [00:03:03] Speaker 04: The plain text of the statute itself contains the ex con, I'm sorry, the threatened use of a firearm, the firearm enhancement statute does not contain the victim-specific language that the UUW statute does. [00:03:25] Speaker 03: But if you do the combination, the fifth element from the firearm enhancement would add that element. [00:03:36] Speaker 04: Not necessarily, Your Honor. [00:03:37] Speaker 04: I think that that's because the firearm enhancement in 161610, at least under Gilbert, does not have to relate back to the underlying crime in any way. [00:03:53] Speaker 04: So any use of the firearm, as long as it is contemporaneous or during the commission of the offense, which here is possession with intent to use unlawfully against another, that crime is committed as soon as the possession is conjoined with the unlawful intent. [00:04:15] Speaker 00: And it can continue. [00:04:15] Speaker 00: Regardless of any attempted. [00:04:18] Speaker 00: I'm sorry, Your Honor. [00:04:19] Speaker 00: I didn't hear you. [00:04:19] Speaker 00: Regardless of any attempt or actual injury to a victim. [00:04:24] Speaker 04: Correct, Your Honor. [00:04:25] Speaker 04: And that possession with intent continues for, it could be moments, minutes, hours, even days, as long as the possession is still conjoined with the unlawful intent. [00:04:37] Speaker 04: Any use of a firearm during that period, even perhaps accidental, would subject an individual to the enhanced sentence. [00:04:53] Speaker 02: If we were to agree that the sentencing enhancement should not apply, what would the guideline range be, and what would the projected release date be for your client? [00:05:08] Speaker 04: Your Honor, he would go from a base offense level of 20 to a 14. [00:05:14] Speaker 04: I do not have [00:05:20] Speaker 04: his projected release date. [00:05:21] Speaker 04: Let me look at it in pleading. [00:05:24] Speaker 02: You can do it on rebuttal if you want to. [00:05:27] Speaker 02: OK. [00:05:28] Speaker 04: But it would reduce his total offense level by four levels, which would be a rather dramatic reduction. [00:05:35] Speaker 02: You said 20 to 14. [00:05:36] Speaker 02: Is that six or four? [00:05:38] Speaker 03: Six defense levels, I think you're saying. [00:05:43] Speaker 03: Do you have a view on the theoretical versus realistic possibility burden? [00:05:48] Speaker 03: I know the law's not exactly clear. [00:05:51] Speaker 04: Well, yes, Your Honor, I do. [00:05:52] Speaker 04: I think the realistic probability case law [00:05:58] Speaker 04: cases involving the categorical approach has been abrogated and I think... Abrogated or just said it doesn't apply when the statute, the text is clear? [00:06:12] Speaker 03: Completely abrogated seems like an overreach but... [00:06:16] Speaker 04: I would argue it has perhaps been abrogated, but in any event, the case cited in one of the government's 28-J letters, the De France case, I think specifically addresses this. [00:06:32] Speaker 03: But that didn't say it was completely abrogated, right? [00:06:36] Speaker 03: It just said the text is clear. [00:06:37] Speaker 03: then you're not required to show. [00:06:40] Speaker 04: Footnote 7 in that case indicates that at least there is some belief that the realistic probability test may no longer be viable in a categorical, a Taylor analysis. [00:06:55] Speaker 04: It's in footnote 7. [00:06:57] Speaker 04: However, the court is absolutely correct, assuming that the realistic probability test still does survive if the statute, as interpreted by state court authorities and within the plain text, is plainly overbroad. [00:07:16] Speaker 04: reaches conduct that wouldn't be the use or the threatened use of force against the person of another, then the realistic probability test is not required. [00:07:28] Speaker 03: All right. [00:07:28] Speaker 03: I don't have any more questions. [00:07:29] Speaker 03: Let me see if my colleagues do. [00:07:31] Speaker 03: Nope. [00:07:32] Speaker 03: Okay. [00:07:32] Speaker 03: You have four minutes and 20 seconds left for rebuttal. [00:07:36] Speaker 03: Thank you. [00:07:49] Speaker 01: May it please the court, Suzanne Miles for the United States. [00:07:52] Speaker 01: I believe that our briefing has addressed most of the issues that my opposing counsel has raised. [00:07:58] Speaker 01: I'm happy to answer any concerns or questions that the court has, but I don't want to use your time if there's nothing I can do to help. [00:08:06] Speaker 03: I don't think you responded to Gilbert, did you, in your brief? [00:08:10] Speaker 03: I know you did a 28-J, but I didn't really see. [00:08:12] Speaker 03: I think Gilbert is a hurdle for the government here. [00:08:17] Speaker 01: You want to address that, please? [00:08:18] Speaker 01: Sure. [00:08:18] Speaker 01: Gilbert does nothing more than what Dentel already does, which is distinguish UUW with a firearm from felon in possession with a firearm. [00:08:27] Speaker 01: The with a firearm enhancement aggravates whatever the underlying crime is. [00:08:33] Speaker 01: Felon in possession of a firearm doesn't require use or intent to threaten or harm another person. [00:08:41] Speaker 00: There are two different things, intent and use. [00:08:46] Speaker 01: A felon in possession of a firearm does not require any intent to harm another person. [00:08:53] Speaker 01: And Dentel says that specifically, that the element that UUW with a firearm has that felon in possession does not have is the intent to use a weapon unlawfully against another person. [00:09:07] Speaker 01: A felon in possession [00:09:09] Speaker 01: who is possessing a firearm, goes to a firing range, and shoots at a paper target has committed felon in possession of a firearm with a firearm. [00:09:19] Speaker 01: They've discharged the firearm. [00:09:20] Speaker 01: They're not allowed to hold it. [00:09:22] Speaker 01: And so there's nothing about that that requires the intent to use unlawfully against another person. [00:09:28] Speaker 01: UUW has that element. [00:09:30] Speaker 01: And that's what makes it a crime of violence, where felon in possession, even if aggravated. [00:09:35] Speaker 02: Well, UUW requires intent. [00:09:37] Speaker 02: to use it, but not actual use against the intended target. [00:09:43] Speaker 02: If the enhancement implies it requires use, but not in furtherance of the underlying UUW, is that correct? [00:09:53] Speaker 02: It requires use during the commission. [00:09:57] Speaker 02: So with intent, but not in furtherance of, correct? [00:10:01] Speaker 01: The court, I don't see a distinction between in furtherance of and during in the context of UUW. [00:10:08] Speaker 01: So you have to have the firearm. [00:10:10] Speaker 01: So the elements once enhanced. [00:10:12] Speaker 02: So do you have a Oregon State case that interprets the text as you're suggesting? [00:10:17] Speaker 01: I do. [00:10:19] Speaker 01: So once you take the elements and you import [00:10:23] Speaker 01: the definition of use for unlawful use of a weapon that Ziska provides us, which is to injure or threaten to injure. [00:10:32] Speaker 01: And then you also use the interpretation of use of a firearm that Hawkins and Harris provide with regard to the gun minimum enhancement. [00:10:41] Speaker 01: you're left with these elements, which is you need to fire or threaten to fire a gun while possessing it with the intent to injure or threaten to injure a specific other person. [00:10:56] Speaker 01: But you don't need to fire it at another person. [00:11:02] Speaker 01: What that creates, Your Honor, and I understand that that's exactly what the defense is arguing. [00:11:06] Speaker 01: They're arguing for a hyper-literal interpretation of the statute. [00:11:11] Speaker 01: No Oregon court has interpreted it that way. [00:11:14] Speaker 01: Oregon court has said that's not how it should be interpreted though, correct? [00:11:19] Speaker 01: no Oregon court has ever been posited with the question, as far as I can tell. [00:11:24] Speaker 01: I've never seen an Oregon court apply the statute that way, nor has the government ever provided to the court an argument that UUW with a firearm should be essentially [00:11:40] Speaker 01: I mean, what it turns into, if you take the defendant's hypothetical, is essentially a thought crime. [00:11:46] Speaker 01: If you have a firearm, you're standing completely by yourself, you discharge it, but while you do that, you have in your mind an intent to harm someone else, then under their incredibly literal reading... Well, isn't the underlying crime a thought crime? [00:12:00] Speaker 02: It's just possession with intent to harm another. [00:12:04] Speaker 01: If it hasn't ever been communicated, no Oregon court and no Oregon prosecutor, as far as I can tell, has ever applied it that way. [00:12:12] Speaker 01: I think, Your Honor, what we have at our hands here is the kind of ambiguity in the plain text [00:12:18] Speaker 01: that allows us then to go to Duenas Alvarez. [00:12:22] Speaker 01: It lets us do a couple things. [00:12:23] Speaker 01: Under De France, if we're looking even just at the plain text to see whether it's unambiguous, we can go to the legislative history. [00:12:32] Speaker 01: The legislative history of UUW is that it is a violent crime offense. [00:12:38] Speaker 01: You can see that in chamber. [00:12:40] Speaker 01: I think it's chambers. [00:12:42] Speaker 01: I'm sorry, it's not. [00:12:48] Speaker 01: It was Crawford, which was one of our 28-J letters. [00:12:51] Speaker 01: What you see in Crawford is the Oregon court distinguishing two aspects of UUW, the possession prong and the firing in an urban area prong. [00:13:03] Speaker 01: And what the court said, looking at the legislative history, is that under subsection A, which is what we're looking at here, this crime was always intended to prevent a risk of injury to a specific other victim. [00:13:17] Speaker 01: And you see that need for a specific victim in Garibay. [00:13:21] Speaker 01: You see it in McAuliffe, to some extent. [00:13:25] Speaker 01: And that's in contrast with what the Oregon legislature did under subsection B, which is firing a gun in an urban area, a drive-by shooting, where what it was trying to prevent was just the potential risk of harm to a bystander. [00:13:42] Speaker 01: And so UUW itself, subsection A, is [00:13:47] Speaker 01: about violence against a specific victim. [00:13:50] Speaker 01: You add into that the intent of the firearm enhancement, which, by the way, adds on a mandatory minimum of five years. [00:14:00] Speaker 01: And so what you have then is a substantial crime with a legislative history that is clearly focused and [00:14:09] Speaker 01: all of the case law that interprets the terms in between, use being very strictly interpreted to mean discharging or threatening to discharge with regard to the UUW, or I'm sorry, with the firearm enhancement. [00:14:24] Speaker 01: Use in UUW itself being very strictly interpreted to mean threaten, or I'm sorry, injure or [00:14:32] Speaker 01: intend to injure, threaten to injure in Ziska, a tightly interpreted statute aimed at firearm and gun violence. [00:14:43] Speaker 01: And the defense is asking you to read this more broadly. [00:14:46] Speaker 01: If we were standing in front of the Oregon Supreme Court right now and we were arguing [00:14:51] Speaker 01: about the interpretation of this statute, my colleague would be arguing very hard for the rule of lenity, and I would be hard pressed to have anything to say about it. [00:15:01] Speaker 01: If with those two competing interpretations, the rule of lenity requires that this court [00:15:06] Speaker 01: read the statute more narrowly, exactly as the Oregon courts have done. [00:15:13] Speaker 01: And I encourage this court to do the same thing. [00:15:16] Speaker 01: And once we have that ambiguity, you can use those canons of statutory interpretation. [00:15:20] Speaker 01: You can use rule of lenity. [00:15:23] Speaker 01: And you can use Duenas-Alvarez. [00:15:25] Speaker 01: And you can look for whether this is a theoretical possibility or a realistic possibility or a realistic probability. [00:15:33] Speaker 01: And that is where [00:15:35] Speaker 01: 20, 30, maybe 40 years of Oregon case law shows you that never once has Oregon interpreted this law or enforced it, particularly with a five-year mandatory minimum for the firearm enhancement in the broad way that the defense is now asking you to do. [00:15:53] Speaker 00: There are no cases where the example given by the defendant of the intent to use the gun against someone and trying it out by shooting it in the ground to make sure that it uses that by itself has never been prosecuted. [00:16:13] Speaker 01: That would be unlawful discharge of a weapon, which is a misdemeanor under Oregon law. [00:16:18] Speaker 01: I haven't found a single case. [00:16:20] Speaker 01: The defense hasn't provided one. [00:16:22] Speaker 01: And what I have done is a full survey of Oregon case law on UUW by itself, UUW with a firearm. [00:16:30] Speaker 01: And all I have been able to find is what I provided to the court, which is these are cases where guns are discharged or they're threatened at a victim. [00:16:38] Speaker 00: So the realistic possibility idea applies in this kind of a case? [00:16:43] Speaker 01: I believe it does. [00:16:45] Speaker 01: if you accept that the reading that the defense is giving you raises an ambiguity. [00:16:49] Speaker 01: And I posit that it could. [00:16:51] Speaker 02: I'm just not sure that's what the Supreme Court, I mean, because the Supreme Court has also said we're not supposed to, you know, when the statute on its face is overbroad, we're not supposed to ask for an example because of the reality of plea bargaining and all sorts of other things. [00:17:08] Speaker 02: It's not realistic to expect an example to be provided. [00:17:12] Speaker 01: And I would posit, Your Honor, what [00:17:14] Speaker 01: De France tells us is that if there is ambiguity in the plain text, and here that ambiguity is raised. [00:17:21] Speaker 01: If you take the interpretation that defense is offering, that incredibly literal reading of this statute as being a plausible interpretation of it, compared with the interpretation that every Oregon court has used this statute to say, which is also a plain reading of this statute. [00:17:41] Speaker 01: then that ambiguity can be resolved through statutory interpretation, through legislative history, and through looking not only at how Oregon has defined the terms within the statute, but also how Oregon has applied it. [00:17:59] Speaker 03: But if we disagree with you that there's ambiguity and we think it's evident from the text, then you would agree by de France and Taylor we're not [00:18:07] Speaker 03: required to show or shouldn't require the defendant to show a realistic possibility, correct? [00:18:11] Speaker 01: If you think that there is only one reading of this text that is plausible, then yes. [00:18:15] Speaker 01: And Your Honor, I see that I'm over time, but could I answer your question a little bit more completely? [00:18:20] Speaker 03: Just briefly, thank you. [00:18:21] Speaker 01: So I would encourage you to look at the cases that DeFrance cites where it is evident. [00:18:26] Speaker 01: Greisel, Chavez-Soles, Vidal, where the words of the statute itself created, added something that wasn't in a federal counterpart. [00:18:38] Speaker 01: Not just Amir could reread these words differently. [00:18:43] Speaker 03: Thank you. [00:18:44] Speaker 03: I don't have any further questions. [00:18:45] Speaker 03: Any further questions from my colleague? [00:18:46] Speaker 03: No, thank you very much. [00:18:47] Speaker 03: Thank you. [00:18:51] Speaker 04: Just very briefly, Your Honors, it's the defendant's position that the two statutes are clear, unambiguous. [00:19:01] Speaker 04: They are plain language and simple. [00:19:04] Speaker 04: There is nothing to be read into them. [00:19:07] Speaker 04: The government is requesting the court read in an additional element that the use or threatened use of a firearm must be directed at the person of another. [00:19:18] Speaker 04: Oregon Court of Appeals and Gilbert has answered the question. [00:19:23] Speaker 04: They specifically state, nothing in the language of the firearm enhancement requires that the use or threatened use of a firearm be in furtherance of the underlying felony charged. [00:19:41] Speaker 04: That's the answer. [00:19:42] Speaker 04: There is no requirement that the use or the threatened use of the firearm need to facilitate or be in furtherance of the possession or use. [00:19:51] Speaker 04: It simply has to be discharged. [00:19:53] Speaker 04: The firearm simply has to be discharged contemporaneous with the elements of the underlying offense. [00:20:00] Speaker 04: We know that the variant under which Mr. Keast was charged has already been held. [00:20:06] Speaker 04: The unenhanced variant has already been held in Willis to not be a crime of violence. [00:20:16] Speaker 04: The case is very similar to that in De France. [00:20:19] Speaker 04: into France, neither the prosecution nor the defense could point to a single case where the Montana statute was interpreted as the defense proposed. [00:20:30] Speaker 04: That was immaterial. [00:20:32] Speaker 04: I would ask the court to simply look at the plain language of the statute. [00:20:37] Speaker 03: All right. [00:20:38] Speaker 03: No further questions. [00:20:39] Speaker 03: Thank you very much. [00:20:39] Speaker 03: Thank you to both counsel for the very helpful arguments today.