[00:00:15] Speaker 05: Good morning. [00:00:15] Speaker 05: May it please the court? [00:00:16] Speaker 05: Dan Polson, assistant federal defender. [00:00:18] Speaker 05: I'm representing Eric Nabreja. [00:00:20] Speaker 05: This is an appeal from a supervised release revocation. [00:00:24] Speaker 05: There's a couple of issues in play, but the primary disputes are whether the government submitted sufficient evidence for the district court to find that Mr. Nabreja committed the offenses of robbery in the first degree, assault in the first degree, and assault in the second degree. [00:00:39] Speaker 03: This case arose from... Well, the judge saw the video. [00:00:42] Speaker 03: Yes. [00:00:43] Speaker 03: And are you disputing that based upon the review of that video, he could not see that, according to the video, that Mr. Nabarroja was stomping on someone's head? [00:01:00] Speaker 05: Well, we would actually take dispute with the district court's characterization of how the injuries were inflicted. [00:01:05] Speaker 05: Our primary focus, and I think the elements of the offenses that we're attacking include [00:01:10] Speaker 05: the serious physical injury, use of a dangerous instrument, and indifference, extreme indifference to human life. [00:01:17] Speaker 01: All of which essentially turn in the same question as to the seriousness of the injury. [00:01:24] Speaker 01: Is that right? [00:01:24] Speaker 05: Yeah. [00:01:24] Speaker 05: I mean, we're highlighting that because that's, I mean, the serious physical injury component, I think, is the weakest part of the government's case. [00:01:31] Speaker 05: Like I said, causation is another problem, and I'll touch on that briefly. [00:01:35] Speaker 05: But serious physical injury under Alaska law is a very demanding standard. [00:01:39] Speaker 05: And, you know, there are many Alaska cases where single strikes to the head that have resulted in serious physical injury have been over, I'm sorry, that have resulted in serious physical injury have nonetheless been overturned because the courts found that the person's hands and feet were not a dangerous instrument. [00:01:57] Speaker 05: And that was the government's theory in this case. [00:01:59] Speaker 05: This is an unarmed incident. [00:02:02] Speaker 05: So there's... Let's just back up for a minute. [00:02:04] Speaker 01: You agree and agree to the district or if you agree now be agreed in the district court that it was at least a third degree battery. [00:02:12] Speaker 01: Our position is that this case was overcharged and that the government's... But if it wasn't at least a third degree battery, the guidelines would be the same and the sentence would be valid and so on. [00:02:27] Speaker 05: Yeah, I think the government is arguing that this court can just simply affirm even if the court finds that the district court committed legal error. [00:02:33] Speaker 01: Well, that's what I'm asking you. [00:02:35] Speaker 01: I mean, there's something kind of, you know, confused about this case because I understand the argument is, well, maybe if it was one crime or two crimes instead of eight crimes, the sentence would have been different. [00:02:48] Speaker 01: I mean, is that basically what you're saying? [00:02:50] Speaker 05: Yeah. [00:02:50] Speaker 05: Again, I think that this court is obligated to reverse and remand if the district court made an error of law or if the findings were clearly erroneous. [00:02:57] Speaker 02: But usually that's if it affects the guideline. [00:02:59] Speaker 02: Like if the guideline is different, but they could have done the same sentence anyway, we say, no, no, go back and look at it again under the correct guideline. [00:03:06] Speaker 02: But I think you're admitting this is the correct guideline. [00:03:08] Speaker 05: Well, the question is when the court's doing the 3553A balancing while the court and the government's highlighting the fact that in a revocation proceeding, the seriousness of the offense is sort of, you know, minimized. [00:03:20] Speaker 05: Nonetheless, it is part of the court's analysis. [00:03:23] Speaker 05: They're looking at the nature and circumstances of the offense and the seriousness of the offense. [00:03:27] Speaker 01: No, but the nature and circumstances of the offense didn't change. [00:03:30] Speaker 01: See, that's what's unusual about this. [00:03:33] Speaker 01: It's not a factual, I mean, I know you also have factual dispute, but leaving that out, this set of disputes is simply, is it this Alaska crime or that Alaska crime? [00:03:44] Speaker 01: But it's not what happened. [00:03:49] Speaker 05: So I think there's a huge difference between saying that somebody committed assault in the first degree and nearly killed someone versus assault in the third degree by virtue of having... Well, there is for lots of purposes, but usually it makes a difference as to the available sentence. [00:04:05] Speaker 01: But in this instance, it doesn't. [00:04:06] Speaker 05: I think it absolutely does. [00:04:07] Speaker 05: I think it does. [00:04:08] Speaker 05: And I think that... Not as to the available sentence. [00:04:11] Speaker 05: If the court is finding that an individual committed assault in the first degree, I think the seriousness of that conduct, I think, has an anchoring effect for the court's assessment of what the ultimate sentence should be. [00:04:20] Speaker 01: No, I understand that. [00:04:21] Speaker 01: But it doesn't change the available sentence. [00:04:28] Speaker 01: Maximum sentence, if you want to call it that. [00:04:29] Speaker 05: I think it would be improper for this court to speculate that the ultimate sentence would be the same regardless. [00:04:34] Speaker 05: And again, I think this court is- Right. [00:04:35] Speaker 01: But that's a different question. [00:04:36] Speaker 01: It's what the district court would have done, not what she could have done. [00:04:39] Speaker 01: She could have done it the same. [00:04:41] Speaker 01: thing. [00:04:42] Speaker 05: She has the option of keeping the sentence the same. [00:04:45] Speaker 02: But not even just that. [00:04:46] Speaker 02: It's not even just that she could have done the same, but in fact, the exact guideline range to guide her would be the same, right? [00:04:52] Speaker 05: Right. [00:04:52] Speaker 05: And again, it's just not... I mean, in the courts deciding the ultimate sentence, the guidelines are, you know, the starting point. [00:04:58] Speaker 05: That's the baseline. [00:05:00] Speaker 05: But ultimately, the court is relying on the 3553A factors. [00:05:02] Speaker 01: But in this instance, unlike most guidelines, as I understand it, she couldn't go above it. [00:05:07] Speaker 05: Correct. [00:05:07] Speaker 05: I think the cap was 24 months. [00:05:09] Speaker 01: The cap was 24 months in any instance. [00:05:12] Speaker 05: Correct. [00:05:13] Speaker 01: It's not like the usual first conviction guideline where you can go up and go down, whatever, up to the maximum, up to the statutory maximum. [00:05:23] Speaker 05: Right, right. [00:05:24] Speaker 05: Yeah. [00:05:24] Speaker 05: But again, I think that the seriousness of the offense, while it's not like the critical most important aspect of the 35238 balancing, it still has a role to play. [00:05:33] Speaker 05: And so, you know, there's a possibility that the court could find that this wasn't assault in the first degree, and ultimately Mr. Nabreya gets a lower sentence. [00:05:41] Speaker 01: And I think... But the injury was whatever the injury was. [00:05:46] Speaker 01: What you call it is something else, but it was whatever. [00:05:50] Speaker 05: Well, and I would say that the record is very scant as to what the actual injuries were. [00:05:55] Speaker 01: It is scant. [00:05:55] Speaker 01: I mean, it was, I would say, badly tried. [00:06:00] Speaker 05: Yeah, and it's unusual in revocation proceeding, contested revocation proceeding, where the government doesn't offer up any photographs. [00:06:08] Speaker 05: There's no medical records. [00:06:09] Speaker 05: There's no medical testimony. [00:06:10] Speaker 05: There's no witness testimony. [00:06:13] Speaker 05: It's based, in this case, entirely on some very fleeting [00:06:16] Speaker 05: cursory descriptions from the case officers. [00:06:19] Speaker 02: But it's not just that because it's the video. [00:06:21] Speaker 02: I mean we've now watched the video. [00:06:22] Speaker 02: I understand. [00:06:23] Speaker 02: I don't really understand how what happened. [00:06:25] Speaker 02: So okay, you've admitted that the guideline range is correct even on your best case, right? [00:06:30] Speaker 02: The guideline range is correct. [00:06:31] Speaker 02: And then the judge has to choose within that guideline range. [00:06:34] Speaker 02: by watching the video. [00:06:36] Speaker 02: And I don't really understand how this, this is sort of another way to say Judge Berza's question, but whatever you, whatever legal label you put on it, the judge is basically watching the video and deciding where in this range should this person be. [00:06:47] Speaker 02: And I think this video is pretty serious. [00:06:48] Speaker 05: Well, here's the difference. [00:06:49] Speaker 05: And that is that I think the record reflects that the district court got an opportunity to watch the video in court. [00:06:56] Speaker 05: And I know that your honors have the actual video. [00:06:59] Speaker 05: You can review it and watch it as many times as you want. [00:07:02] Speaker 05: And trust me, I've watched the video many, many times. [00:07:04] Speaker 05: And it's very chaotic. [00:07:06] Speaker 05: There's a lot of moving parts. [00:07:07] Speaker 05: There's a lot of moving players. [00:07:08] Speaker 02: Well, that may be, but your client is definitely in there, definitely beating people up. [00:07:13] Speaker 05: Well, I would say that the government's characterization of what happened is... I don't want to say that they misled the court, but I think there was a lot of confusion about what the conduct was. [00:07:23] Speaker 05: Because if you had to go off of the government's argument at the revocation hearing, you would have... But they had the video. [00:07:30] Speaker 05: They had the video, but exactly, but there's a lot of confusion about the conduct that was directed at the two victims, because understand, the two victims, I think the video shows, I think on close examination, that the victims were injured by single punches to the face. [00:07:43] Speaker 05: If you had to go off of the government's description, you would think that they were on the ground and being kicked repeatedly in the head, and that is just not the case. [00:07:50] Speaker 02: It's some third person who was kicked in the head. [00:07:52] Speaker 02: Somebody was being kicked repeatedly. [00:07:53] Speaker 05: There's another individual on the ground. [00:07:54] Speaker 05: And I would also say that as much, as compelling as the video may be, [00:07:58] Speaker 05: The critical moments, and I would highlight the strike to Mr. Summers takes place, I think, at 1.45, 35. [00:08:06] Speaker 01: But it doesn't seem to be contested. [00:08:09] Speaker 01: You're not saying that the evidence is insufficient, that she had a broken nose, which had to be repaired by surgery, and that he had a concussion, and which had some effects over some period of time. [00:08:21] Speaker 01: Unspecified symptoms, yeah. [00:08:21] Speaker 01: Some mental effects over some period of time. [00:08:24] Speaker 05: Yeah, it's pretty vague. [00:08:25] Speaker 01: Vague, but it's not contested. [00:08:28] Speaker 05: Well, we're disputing whether or not that rises to the level of serious physical injury. [00:08:33] Speaker 01: I understand, but I just want to know what it is that we're disputing about, and that much is established. [00:08:40] Speaker 05: I don't think there's any dispute that the two victims were punched in the face, but I think there is a huge difference between that conduct and what the government, I think, was trying to keep. [00:08:50] Speaker 01: It's not the conduct. [00:08:50] Speaker 01: I'm trying to now focus on the injuries. [00:08:53] Speaker 05: Yeah, and then the injuries, again, are described in very cursory detail. [00:08:57] Speaker 01: And we would analogize this to... It's cursory, but it's specific to the degree that I described it. [00:09:02] Speaker 01: Is that right? [00:09:04] Speaker 01: It doesn't say how long she was... It doesn't say whether after she had the surgery she was still just figured. [00:09:14] Speaker 01: It doesn't say that. [00:09:16] Speaker 01: And it doesn't say whether she... [00:09:22] Speaker 01: was even what she looked like before she had the surgery. [00:09:28] Speaker 01: And it doesn't say, the guy who's colorful language about his problem is bell ringing, which I had to look up to find out what he was talking about, but apparently means getting hit in the head and having problems with that. [00:09:44] Speaker 01: So he had some [00:09:45] Speaker 01: you know, cognitive or mental problems afterwards for how long we don't know. [00:09:52] Speaker 01: I mean, that's basically what I get out of it. [00:09:54] Speaker 05: The only statement that I found in the record was several months after the assault, he was still experiencing the result of the concussion, the head trauma that he received. [00:10:01] Speaker 05: He had some outward scuffs and scrapes. [00:10:03] Speaker 05: He had his bell rung severely. [00:10:05] Speaker 05: But there's no description about what those symptoms were. [00:10:07] Speaker 05: Are we talking about periodic headaches? [00:10:09] Speaker 05: Are we talking about dizziness? [00:10:10] Speaker 05: Is he having trouble sleeping? [00:10:12] Speaker 05: There's a whole host of symptoms. [00:10:14] Speaker 01: No, I agree. [00:10:15] Speaker 05: That's extremely vague. [00:10:18] Speaker 03: So what you're saying is what the district court should have done. [00:10:21] Speaker 03: What was it that you think the district court should have done here? [00:10:24] Speaker 03: I guess that's what I need to understand. [00:10:26] Speaker 05: So this is a sufficiency of the evidence appeal. [00:10:29] Speaker 05: And again, I think the defense counsel argued that there is no question that there is criminal conduct. [00:10:33] Speaker 05: The question is, what's the proper characterization of that conduct? [00:10:38] Speaker 05: And we just think that characterizing this as assault in the first degree or assault in the second degree, which are reserved for offenses involving typically conventional weapons like knives or guns or bats or something like that, it's stretch. [00:10:51] Speaker 05: It's an overcharged case. [00:10:53] Speaker 05: That's our position. [00:10:54] Speaker 05: And I have approximately four minutes and 30 seconds or so. [00:10:56] Speaker 05: So I'm going to stand down and give the government an opportunity to present their case. [00:11:00] Speaker 05: But this is an interesting set of facts. [00:11:02] Speaker 05: I agree. [00:11:11] Speaker 00: May it please the court. [00:11:12] Speaker 00: Seth Bricky on behalf of the United States CFLE. [00:11:14] Speaker 00: Your honor, as we ask this court to affirm the district court's sentence and revocation of Mr. Debreha's supervised release, [00:11:22] Speaker 00: It was supported by sufficiency of the evidence. [00:11:24] Speaker 00: The district court only needed to find, of course, one violation. [00:11:27] Speaker 01: The evidence was really poorly put together at a minimum. [00:11:32] Speaker 01: There was no medical evidence. [00:11:34] Speaker 01: As he says, there were no photos. [00:11:36] Speaker 01: There was no description even by this officer who we have no idea how he knows anything anyway. [00:11:45] Speaker 01: what time period he was talking about. [00:11:48] Speaker 01: I mean, it has to be, what's the term in the statute? [00:11:51] Speaker 01: Persistent or prolonged? [00:11:53] Speaker 01: Prolonged. [00:11:54] Speaker 01: Whatever that means, we have no idea how long this persisted. [00:11:57] Speaker 01: We don't know whether the woman was actually visibly disfigured in any way when she had the surgery. [00:12:06] Speaker 01: We don't know hardly anything. [00:12:09] Speaker 00: Your Honor, I agree that there is scant evidence in the record about these conditions and their ultimate effects, certainly less than you would expect if this were charged in a criminal case context under beyond reasonable doubt standard. [00:12:21] Speaker 00: But in this case, to reflect on what the record actually shows, we have first the female victim who the agent testified had a severely broken nose that required reconstruction. [00:12:31] Speaker 01: Even how does he know? [00:12:32] Speaker 01: What does he know about this? [00:12:33] Speaker 01: We don't even know that. [00:12:34] Speaker 01: I mean, he's just some guy. [00:12:36] Speaker 00: He's not a doctor? [00:12:38] Speaker 00: No, Your Honor. [00:12:39] Speaker 00: He says he knew her and he spoke to her. [00:12:41] Speaker 00: And he's relaying what she reported to him. [00:12:44] Speaker 01: But she has to have prolonged disfigurement, basically? [00:12:48] Speaker 00: Prolonged disfigurement, impairment of health, or impairment of a member of the body. [00:12:52] Speaker 00: But prolonged? [00:12:53] Speaker 00: Yes, Your Honor, prolonged. [00:12:54] Speaker 00: And Alaska? [00:12:56] Speaker 01: For all we know, she had the surgery the next day and looked beautiful two weeks later. [00:13:03] Speaker 00: Your Honor, I don't know if that's a realistic inference from the record. [00:13:07] Speaker 00: one, could look at the video, see the force at which she was struck, and then hear the evidence about what the consequences of that was, some surgery. [00:13:14] Speaker 00: I don't think it's too far of an inference that reconstructive or plastic surgery of a broken nose would take a extended period of time to heal. [00:13:24] Speaker 02: Does Alaska view it that way anyway, or is it what would the injury have been if you didn't fix it with surgery? [00:13:31] Speaker 01: I'm wondering about that too. [00:13:33] Speaker 00: The case law, I think, is a little scant on this point as well, because we do have case law talking about broken bones requiring six weeks to heal. [00:13:45] Speaker 00: I look at the Olsen case as well as the Walker case, which Olsen cites. [00:13:52] Speaker 00: Six weeks of impairment was protracted. [00:13:54] Speaker 00: So that's really kind of the only benchmark that I see in the case law about broken bones being distinct from, say, a laceration that you just go to the hospital, the ER gets sutured up, and you would expect to heal quickly from. [00:14:07] Speaker 00: But I do think that a broken bone, a severely broken bone here, six weeks or, excuse me, significant surgery does represent... And what about the concussion? [00:14:17] Speaker 01: People often wake up from a concussion and they're fine the next day. [00:14:21] Speaker 00: And that certainly wasn't the case here because [00:14:24] Speaker 00: Unlike the broken nose, we do have a time frame for the concussion's lingering effects. [00:14:28] Speaker 00: What is it? [00:14:30] Speaker 00: The case officer said that he spoke to the defendant, followed up with, or excuse me, spoke with the victim, followed up months after the incident. [00:14:41] Speaker 00: Where is it? [00:14:41] Speaker 00: ER 38, Your Honor. [00:14:44] Speaker 00: The male victim sustained a concussion and was still presenting symptoms months after the assault, according to the case officer's testimony. [00:14:50] Speaker 00: I think the court... Months later? [00:14:51] Speaker 01: Where's the months later part? [00:14:58] Speaker 00: I followed up, or I'm reading off of Executive Director 38, I followed up with both her and the male victim for some time after the assault. [00:15:06] Speaker 00: The male victim, several months after the assault, was still experiencing the result of the concussion and the head trauma that he received. [00:15:14] Speaker 00: So there the district court had a timeline through which the district court could establish that prolonged impairment of health as required under the statute. [00:15:22] Speaker 02: So it seems that the district court thought that the head stomping happened to one of these two people, and it seems like it didn't. [00:15:29] Speaker 02: So what do we do with that? [00:15:30] Speaker 00: Your Honor, I would argue that the head stomping did happen to the female victim. [00:15:35] Speaker 00: On reviewing the video, what happens is Mr. Nabreja, the female victim, is approaching Mr. Nabreja from behind. [00:15:42] Speaker 00: He turns around and immediately punches her full force in the face. [00:15:46] Speaker 00: She's knocked prone. [00:15:47] Speaker 00: Then Mr. Nabreja's wife, his accomplice in this instance, [00:15:52] Speaker 00: then goes and stomps on her face multiple times as she's laying prone on the ground defenseless. [00:15:57] Speaker 00: And the government's theory is, yes, Mr. Nabreja punched her full force, did not stomp on her, but his accomplice for whom he is legally responsible for because they're acting in concert, she did stomp on the victim's face. [00:16:13] Speaker 02: But that's not what was presented to the judge. [00:16:15] Speaker 02: The judge seems to think the stomping was [00:16:17] Speaker 02: the defendant. [00:16:18] Speaker 00: I think there was a mistake that the judge mistakenly identified the two men who were grappling and that Mr. Nubreya was stomping. [00:16:25] Speaker 00: The testimony indicates that that was a third victim, a visitor to Alaska. [00:16:31] Speaker 02: Okay, I guess I'm confused. [00:16:33] Speaker 02: Now, I have watched the video several times, but I actually don't remember whether I think what you just said is clear or not. [00:16:37] Speaker 02: I sort of thought it was a third person, but I mean, let's assume for a moment that there's some ambiguity about whether it's [00:16:45] Speaker 02: the second victim or some third victim. [00:16:47] Speaker 02: If it was a third victim, would that affect, what would we do with that? [00:16:50] Speaker 00: The third victim, it wouldn't affect the robbery issue because the robbery is violence against any person during the course of the robbery. [00:16:57] Speaker 00: And this third victim is the person who tried to intercede and break up the fray. [00:17:01] Speaker 00: And if he gets stomped out because of that, I think that sustains the robbery conviction or violation. [00:17:10] Speaker 00: But as to the assault, he wasn't one of the victims contemplated by the assault charges in this case. [00:17:16] Speaker 01: No, it's not. [00:17:18] Speaker 01: So the answer to the question is it's irrelevant to this proceeding. [00:17:23] Speaker 00: Yes, Your Honor, except as it pertains to the robbery violation. [00:17:27] Speaker 01: Wait. [00:17:29] Speaker 01: My understanding is that even leaving aside the robbery, he was not the victim who was charged. [00:17:39] Speaker 00: To reflect on the robbery, the language of the robbery statute, it's users or attempted. [00:17:45] Speaker 01: Aside from the robber, I understand that he wasn't robbed, but he also wasn't the victim who was mentioned in the charges in terms of the assaults either. [00:17:57] Speaker 01: Correct. [00:17:58] Speaker 01: So therefore, he's irrelevant. [00:18:00] Speaker 00: No, Your Honor, because the robbery doesn't require the victim be the person who physical violence, the victim of the robbery be the person that physical violence is done upon. [00:18:08] Speaker 00: It can be any person. [00:18:09] Speaker 00: during the course of that robbery. [00:18:11] Speaker 02: So you're saying even if there was a mistake and the stomping only happened to a third person, we would still have the robbery offenses, but we might have to kick out the assault offenses. [00:18:21] Speaker 02: The more serious assault offenses, the first degree at least. [00:18:26] Speaker 00: Well, the government would still argue that the single punch delivered to the male victim in this case did result in serious physical injury. [00:18:34] Speaker 00: So the court could sustain on that ground. [00:18:36] Speaker 00: And with the female victim, she was, in fact, stopped by Mr. Embraja's accomplice, as well as punched. [00:18:41] Speaker 02: Well, but that's the hypo, is we're assuming that didn't happen, right? [00:18:44] Speaker 00: Correct, Your Honor. [00:18:45] Speaker 00: If that didn't happen, again, we'd be relying on the single punch theory that... And that would get you one count, but not two, I guess. [00:18:51] Speaker 02: I mean, this is sort of where this guideline thing becomes a problem. [00:18:53] Speaker 02: Like, it's possible that [00:18:55] Speaker 02: a few of these counts get kicked out, but you'd still have others, and then the guideline range is the same? [00:19:00] Speaker 00: Yeah, and the government agrees that this is somewhat of an odd case, because we have all eight charges, eight violations arising from a single interaction, a single transaction. [00:19:11] Speaker 00: Two of them are uncontested. [00:19:14] Speaker 00: And they carry the same guideline range. [00:19:17] Speaker 00: They're at the same classification of violation. [00:19:22] Speaker 00: on remand for resentencing, if the court were to impose a different sentence, I think that should be of concern to the court because that implies that there's some weighing of the seriousness of the offense, the need for punishment, that that robbery, a violation based on robbery is more significant than a violation based on assault of conduct. [00:19:41] Speaker 00: But I think that runs in the problem that Simtav and Mikbel present of punishing [00:19:48] Speaker 00: the severity of the underlying conduct with the court, which this court has instructed district courts not to do. [00:19:53] Speaker 02: Can I ask, say there's confusion, okay, so your theory is that the female victim was stomped on and punched. [00:20:00] Speaker 02: Yes. [00:20:00] Speaker 02: Is there any idea about whether the broken nose came from one or the other? [00:20:04] Speaker 00: I don't think that there's sufficient information in the record to say the crack happened when the punch was thrown versus the stomp of the face. [00:20:13] Speaker 00: I think it's, the district court fairly looked at the situation in a totality of [00:20:18] Speaker 00: Mr. Dureja punched her full force, his accomplice then stomped on her face. [00:20:23] Speaker 02: I mean, it seems a lot more likely that the broken nose happened from the punch and that the stomp probably didn't happen to her or else she'd be even more injured, right? [00:20:31] Speaker 02: Like, probably the stomp was a third person. [00:20:33] Speaker 02: That's how I watched the video. [00:20:36] Speaker 00: To be very clear, Your Honor, there were two people being stomped. [00:20:38] Speaker 00: I would encourage the court to take a look closely at what happens after the female victim is knocked prone by the punch. [00:20:46] Speaker 00: the woman in the purple onesie, Mr. Debrea's wife, then comes up and you can see her multiple times stomping on the victim's face while she's on the ground. [00:20:53] Speaker 02: Okay, I'll watch it again, but I mean, why doesn't she have other kinds of injuries then? [00:20:56] Speaker 02: Right? [00:20:57] Speaker 02: It's a little weird. [00:20:57] Speaker 02: I mean, she should have bruises on the side of her head or something. [00:21:01] Speaker 01: So, are there any, do you have any cases about this circumstance that is A, at the revocation stage, where the guidelines are essentially mandatory rather than [00:21:16] Speaker 01: advisory and B, the mistake is in the characterization of the guideline, the condition that was violated was not violating a state law. [00:21:36] Speaker 01: And the question is, how many state laws did he violate? [00:21:42] Speaker 01: It's an odd posture because ordinarily, [00:21:46] Speaker 01: you don't do a harmless error in a guideline situation, a sentencing situation. [00:21:51] Speaker 01: So do you have anything that would support the notion that we would do it here, nonetheless, given those odds, or at least non-typical circumstances? [00:22:03] Speaker 00: I haven't found any cases that even closely present this situation. [00:22:06] Speaker 00: I'm sorry, what? [00:22:07] Speaker 00: I haven't found any cases that even closely present this situation that we find ourselves here. [00:22:11] Speaker 01: You agree that in general, if this was an ordinary sentencing [00:22:16] Speaker 01: after a conviction, if the judge made a mistake, it goes back. [00:22:20] Speaker 01: We don't do a harmless error unless the judge, as I understand it, unless the judge says, and I would do the same thing anyway at the time of the sentencing, which didn't happen here. [00:22:31] Speaker 00: Correct, Your Honor. [00:22:32] Speaker 00: I do think that even if the third degree assaults were a lower class of offense, that would have presented a different guideline range, maybe even above the maximum still. [00:22:42] Speaker 00: But I do think in that situation, it would be appropriate to remand. [00:22:47] Speaker 00: But here, where the factors are still identical before the court, the court will still have the video, which is what the court made a sentencing decision on, I think [00:22:58] Speaker 00: The rationale of the court in imposing sentence was the need to protect the public. [00:23:02] Speaker 00: That's the factor that the court most heavily relied upon. [00:23:05] Speaker 00: And I don't think that shifts because we still have the violent conduct being the basis for the violation and the video, which the court was taking in totality of the circumstances when imposing. [00:23:17] Speaker 01: And the injuries, whether you call them serious or not. [00:23:20] Speaker 00: Correct. [00:23:22] Speaker 00: Um, so the facts don't change the legal definition of what, what the conduct qualifies as under Alaska law may change, but the facts, the dangerousness, the, the sentencing factors don't shift based on those legal distinctions. [00:23:36] Speaker 01: But also, I mean, it does seem important that the injuries were whatever the injuries were, because I mean, criminal law does care about the impact of [00:23:48] Speaker 01: I mean, if you punch somebody and nothing happens, that's a different criminal conduct, even though not because of anything you did. [00:23:58] Speaker 01: Then if you punch somebody and they fall to the ground and die, or almost die, or go into a coma, so it's not strictly turning on your conduct. [00:24:12] Speaker 00: In here, I would argue that the injuries remain the same. [00:24:16] Speaker 00: The broken nose under any theory of whether it was a robbery or an assault, the impact to the victims will still be the same, would still be the same on remand and wouldn't be appropriate to move from. [00:24:31] Speaker 00: Unless your honors have further questions, I'll see the rest of my time. [00:24:35] Speaker 02: Thank you, counsel. [00:24:36] Speaker 02: We have time for rebuttal. [00:24:44] Speaker 05: In a revocation proceeding, the court's ultimate goal is to impose a sentence that reflects the breach of trust. [00:24:51] Speaker 05: And I think that there is a huge categorical difference between the court finding that somebody committed a third degree assault versus something that is just one step below murder. [00:24:59] Speaker 05: And I think it does make a difference, not just in terms of the ultimate sentence. [00:25:03] Speaker 01: Well, it seems to me that if you focus on the breach of trust, which is correct, your point kind of goes the other way, because he [00:25:15] Speaker 01: certainly violated the condition that he not violates state law. [00:25:24] Speaker 01: And he did it in XYZ way, which is not disputed. [00:25:27] Speaker 05: As to what he did or what its impact was well, I think we are disputed is what what words you put on the impact essentially I think we are disputing that the conduct and the consequences I think those are very much in dispute in this case legal characterization of them, but you're not really disputing what happened well, I think there is a difference between [00:25:50] Speaker 05: I guess you're saying that, well, it doesn't matter if we call this assault in the third degree or assault in the first degree, the context is the same. [00:25:56] Speaker 05: I think that the legal distinctions are incredibly important. [00:25:59] Speaker 05: And ultimately, if it didn't matter, why did the government charge it as assault in the first degree and assault in the second degree? [00:26:07] Speaker 01: But we know that she broke her nose and her nose was broken and she needed surgery. [00:26:12] Speaker 01: And he had a concussion and had some after effects for some period of time. [00:26:17] Speaker 01: Apparently months, but leaving that out. [00:26:19] Speaker 01: So is there anything disputed about that much of it? [00:26:23] Speaker 01: What's disputed is whether that's sufficiently prolonged and sufficiently disfiguring and sufficiently impairing. [00:26:29] Speaker 05: It's the difference between an injury and serious physical injury. [00:26:32] Speaker 05: And I think that is a meaningful difference. [00:26:34] Speaker 01: Between an injury and what? [00:26:35] Speaker 05: Between an injury and a serious physical injury. [00:26:37] Speaker 05: I think there is a meaningful difference. [00:26:38] Speaker 01: Right, which is the words you put on it. [00:26:39] Speaker 01: But as to what actually happened, there's not a dispute. [00:26:42] Speaker 03: Regardless of which one, it's still a crime. [00:26:44] Speaker 05: Well, and I'd say that there's, when we talk about serious physical injury, we're talking about, you know, somebody who's permanently disabled, permanently disfigured, and that's just not the record that we have in this case. [00:26:54] Speaker 05: And, you know, an Alaska case law, I think, is pretty demanding about that standard for what qualifies as serious physical injury. [00:27:00] Speaker 05: And as far as causation, I want to touch on this very briefly. [00:27:03] Speaker 05: The government's argument is that Ms. [00:27:08] Speaker 05: Russell, you know, was kicked repeatedly in the head by Mr. Nobrea's wife, [00:27:13] Speaker 05: I think the facts, and again you can review the video as many times as you wish, she gets punched I think at 14338. [00:27:22] Speaker 05: I think that's what broke the nose. [00:27:24] Speaker 05: I think there's really no question about that. [00:27:27] Speaker 05: From that point forward, I think there's some sort of [00:27:29] Speaker 05: Glancing blows to the back of her head, but I think it's pretty clear that the broken nose was a result of being punched and again That's a single strike And so and you know miss Russell never loses consciousness. [00:27:41] Speaker 05: She's you know walking around. [00:27:42] Speaker 02: I think that's another important distinguishing fact here I think this may go to your extreme indifference argument, and I was trying to figure out under the Alaska law of first-degree assault [00:27:53] Speaker 02: It seems like if there was intent to cause serious physical injury, that would also qualify as first degree assault. [00:27:59] Speaker 02: So I was trying to figure out if the extreme indifference even matters if we disagree with you on serious physical injury. [00:28:05] Speaker 05: Yeah. [00:28:06] Speaker 05: Well, I think that the government charged it in the alternative. [00:28:08] Speaker 05: So I think the robbery one could be shown by if there was an attempt to cause serious physical injury. [00:28:18] Speaker 02: Even if no actual serious physical injury arose And I think the government's I think overreaching in that case Again, I was more focused on the first degree assault because that's where the extreme indifference to life or whatever the words are extreme indifference Argument comes up with the first degree assault. [00:28:35] Speaker 05: Oh, yeah. [00:28:36] Speaker 05: Okay. [00:28:36] Speaker 05: So yeah the extreme indifference I think the paradigmatic example is like Russian roulette, you know, like your [00:28:42] Speaker 05: holding a gun to someone's head, and you know there's a round in the chamber. [00:28:45] Speaker 02: And so what I'm asking you is, if you're right that there's no extreme indifference, you still lose if there was intent to cause serious physical injury. [00:28:53] Speaker 05: I don't think there's any evidence here that he, well, intent I think requires more than I think just a single punch to the head. [00:29:00] Speaker 05: which is again the conduct I think that resulted in these injuries. [00:29:03] Speaker 02: But isn't that just back to the same thing about whether this injury was serious? [00:29:08] Speaker 05: I think the analysis kind of collapses into itself. [00:29:12] Speaker 05: And both were charged? [00:29:14] Speaker 05: Yeah, I believe so, yeah. [00:29:16] Speaker 01: As to the revocation, not just as to the state, not in state court, but as to the revocation. [00:29:21] Speaker 05: Yes, I believe so. [00:29:23] Speaker 05: And this was relatively brief conduct Overall, I think the total time frame that we're dealing with is just a couple of minutes And I think that does distinguish this from the cases that we cited from Alaska, which I'm sorry can I just ask I actually thought the warrant Said a three which is the extreme indifference and that it's a two that would be the serious physical injury So I mean does it matter if it was not the thing charged if it's still the same crime? [00:29:49] Speaker 05: Um, well, I think there's, there's different ways that the government is trying to get about trying to achieve a robbery one. [00:29:55] Speaker 05: And I'm sorry, assault one. [00:29:56] Speaker 05: Um, and I think the absence of serious physical injury, I think it's pretty critical. [00:30:00] Speaker 02: Um, at least in the cases, sorry, sorry, it's just, if your answer to judge Burzane was wrong and it was charged one way and not the other instead of both, is there some reason that that matters? [00:30:10] Speaker 04: I don't believe so. [00:30:11] Speaker 02: Okay. [00:30:13] Speaker 04: And with that, I will stand down. [00:30:14] Speaker 04: Thank you so much. [00:30:18] Speaker 02: Thank you both sides for the helpful arguments. [00:30:20] Speaker 02: This case is submitted.