[00:00:01] Speaker 03: Well, good afternoon, and welcome to the Ninth Circuit. [00:00:05] Speaker 03: Thank you for taking time to hear this off our normal calendar schedule. [00:00:10] Speaker 03: We just have the one case set for today, and we'll go ahead and proceed with it. [00:00:17] Speaker 03: United States versus Perez, case number 23-1993. [00:00:25] Speaker 03: And we'll hear first from Ms. [00:00:29] Speaker 03: Richardson-Rover. [00:00:32] Speaker 00: Good afternoon, Your Honors, and may it please the Court, Elizabeth Richardson-Royer on behalf of Appellant Javier Perez. [00:00:39] Speaker 00: I plan to reserve three minutes for rebuttal, but I will watch the clock. [00:00:43] Speaker 00: Before I turn to the live issues before the Court, I wanted to just draw the Court's attention to several points of agreement that came out in the briefing. [00:00:51] Speaker 00: First, the parties appear to agree that the two appropriate places to start the guidelines calculations would be 2X1.1 for the kidnapping conspiracy count, [00:01:01] Speaker 00: and 2A1.5 for the murder conspiracy. [00:01:04] Speaker 00: And second, the parties agree that if 2X1.1 is the starting point, then the three-level reduction under 2X1.1B2 is appropriate. [00:01:14] Speaker 00: So in light of these agreements, it appears to me that two primary disputes remain, and I hope to address them both today, time permitting. [00:01:21] Speaker 00: First, the question is whether, under the kidnapping guideline, it's permissible to cross-reference to first-degree murder [00:01:30] Speaker 00: under 2A4.1B7, as the application note number four suggests, or whether the appropriate cross-reference is whatever offense was completed, which several other circuits have held. [00:01:44] Speaker 00: in which this case would be attempted murder. [00:01:46] Speaker 03: And Council, I take it that, I mean, that's a really interesting question, but seems to me we don't have to decide that because don't all roads lead to the question about whether the four level enhancement of life threatening injury was applicable here? [00:02:05] Speaker 03: Because if that was applicable, then the issue you just raised, [00:02:12] Speaker 03: doesn't need to be addressed, I guess if the four-way level enhancement was not applicable, then I guess we would have to address that issue. [00:02:19] Speaker 03: Is that the right way to think about that? [00:02:21] Speaker 00: That's how I see it as well. [00:02:23] Speaker 00: And the second issue that I wanted to address today is the four-level enhancement for the permanent or life-threatening injury. [00:02:29] Speaker 00: I think that if the court determines that that enhancement is not applicable, then it still has to reach the other question. [00:02:36] Speaker 00: So hopefully we'll have time to touch on both, but I'm happy to start with the- Can we start with the four level enhancement? [00:02:43] Speaker 03: I don't want to- Of course. [00:02:45] Speaker 03: But to me, I'd like to hear your argument on this. [00:02:49] Speaker 03: And maybe you can start with, when you read the language, it does say there has to be an injury. [00:02:54] Speaker 03: The text says there has to be an injury. [00:02:56] Speaker 03: What is the injury here that you think, and then why, in your opinion, would that not be life threatening? [00:03:07] Speaker 00: I think that, Your Honor, you've pointed to the exact problem with applying the enhancement in this case, is that we have to look at what the injury is and whether that injury is permanent or life-rending. [00:03:22] Speaker 00: And in this case, there just wasn't enough evidence about what injury the victim suffered. [00:03:26] Speaker 00: There was no medical testimony. [00:03:31] Speaker 02: Your client was accused of basically [00:03:35] Speaker 02: garroting, if that's the right term, the intended victim to the point of unconsciousness and an inability to even detect a pulse, and then throwing him off of a cliff in Mexico, believing him to have died. [00:03:55] Speaker 02: Why is that not a life-threatening bodily injury? [00:04:01] Speaker 02: Just applying reason and common sense [00:04:04] Speaker 00: To me, we have to make a distinction between the defendant's conduct and the injury that the victim occurs. [00:04:11] Speaker 01: And I don't defend the condom. [00:04:15] Speaker 01: The injury would have to be connected to the choking. [00:04:22] Speaker 01: Is there any evidence that they couldn't find a pulse? [00:04:24] Speaker 01: I thought the evidence was for the contraband. [00:04:26] Speaker 01: The only thing I see about that is, who is this person? [00:04:34] Speaker 01: The woman who was there testifying, she turned back, who was all bloody and stuff, gasping for air. [00:04:39] Speaker 01: I felt for the pulse, and I told them I'd felt a pulse. [00:04:43] Speaker 01: Is there anything to the contrary? [00:04:45] Speaker 00: No, Your Honor, not that I saw in the record. [00:04:49] Speaker 01: There's no evidence either that they didn't have a pulse or they had a weak pulse or anything like that. [00:04:55] Speaker 00: That's correct. [00:04:57] Speaker 00: I will say that because I didn't handle the original appeal, I have not read every single page of the entire trial transcript. [00:05:05] Speaker 00: But the parts of the record that I have reviewed, which I think are all of the relevant parts, don't reveal any evidence that he didn't have a pulse. [00:05:12] Speaker 03: And, you know, it's- But can we just, and I want to still take this in two steps. [00:05:16] Speaker 03: When we talk about bodily injury, the bodily injury is strangulation, right? [00:05:21] Speaker 03: Do you agree with that? [00:05:22] Speaker 00: I think strangulation is the act. [00:05:25] Speaker 00: And I think that the injury would have to be whatever injury occurred to the victim's body. [00:05:31] Speaker 01: He was somewhat injured by the strangulation in the sense that he lost consciousness. [00:05:37] Speaker 01: So the question isn't whether he was injured, it's whether it was a life threatening injury. [00:05:42] Speaker 01: Is that right? [00:05:42] Speaker 00: That's correct. [00:05:44] Speaker 00: And I think, you know, he also had marks, ligature marks on his neck. [00:05:48] Speaker 00: What we don't have is any evidence about whether the loss of consciousness [00:05:53] Speaker 02: Four years later, he still had leakage remarks on his neck. [00:05:57] Speaker 00: Well, when he testified at trial, he was asked if he had scarring, and he said, barely. [00:06:02] Speaker 00: So that's not the kind of disfiguring, you know, disfigurement that- Well, but that seems to go to permanent. [00:06:10] Speaker 03: If we take, I mean, you may be right, we'll hear from the government, but you may be right [00:06:16] Speaker 03: I mean, by the grace of God, it sounds like this guy survived. [00:06:21] Speaker 03: I mean, so it may not be permanent, but it's permanent or life threatening. [00:06:27] Speaker 03: And so let's take first principles here. [00:06:31] Speaker 03: How do we define life threatening? [00:06:33] Speaker 03: We have an application note that defines that as involving a substantial risk of death. [00:06:38] Speaker 03: Do we look to the application note or do you think that there is a different definition that we should apply to life threatening? [00:06:47] Speaker 00: I think the application note is appropriate in this case. [00:06:50] Speaker 00: I don't think there's a reason not to apply it. [00:06:52] Speaker 00: I don't see it as inconsistent with the text of the guideline. [00:06:54] Speaker 03: Well, if we apply that involving a substantial risk of death, what is the question we're asking? [00:07:03] Speaker 03: Is the question, when somebody is strangled to the point where they lose consciousness, there is a substantial risk of death? [00:07:11] Speaker 03: Is that the question that we're asking? [00:07:13] Speaker 00: I think that would be a good question to ask. [00:07:15] Speaker 00: And I don't think we have any information one way or the other in this record about whether the short loss of consciousness is a... But why do we need evidence of that? [00:07:28] Speaker 03: I mean, isn't the evidence that he lost consciousness? [00:07:31] Speaker 03: And then the question is, well, when you're strangled to the point of losing consciousness, is there a substantial risk of death? [00:07:38] Speaker 03: Can't you just figure that out? [00:07:39] Speaker 03: I mean, it sounds like this guy was [00:07:43] Speaker 03: the opposite of an eggshell plaintiff, but that doesn't matter. [00:07:47] Speaker 03: We don't ask, like, this was a, you know, healthy 30, 40-year-old man who, and I forget exactly the circumstances, but, you know, so he was less likely to die from strangulation, or maybe we do. [00:08:01] Speaker 03: I mean, if this had been an 80-year-old lady, would the analysis be different? [00:08:04] Speaker 00: No, I think the problem is that we don't have any medical testimony about whether the brief loss of consciousness and a strangulation is substantially likely to cause death. [00:08:14] Speaker 00: And that's where there's a lack of evidence. [00:08:17] Speaker 01: As a general matter, brief loss of consciousness is not likely to cause death. [00:08:23] Speaker 01: People faint all the time and can be out for a while. [00:08:26] Speaker 01: We also don't know how long he was out for. [00:08:28] Speaker 01: He was out long enough to get thrown off the cliff. [00:08:32] Speaker 01: Right. [00:08:33] Speaker 01: How long after that he revived, we don't really know. [00:08:38] Speaker 00: Well, it couldn't have been long because as he was falling down the cliff, he was able to grab a route and climb up and hail a ride. [00:08:47] Speaker 00: You know, during the ride away from there, he washed his face. [00:08:50] Speaker 00: He changed his shirt. [00:08:51] Speaker 00: He had his family pick him up. [00:08:52] Speaker 00: He drove not just back across the border, but all the way to Lancaster to a hotel. [00:08:56] Speaker 00: He never sought medical attention. [00:08:58] Speaker 00: He never needed medical attention. [00:08:59] Speaker 00: And so there just is an absence of evidence about whether this strangulation event was of the dangerous type that it meets the definition of life-threatening. [00:09:12] Speaker 02: And you know, you are- Are you forgetting something? [00:09:14] Speaker 02: Aren't you forgetting the testimony of the woman in the car that the purpose basically of driving this guy across the border in Mexico was to kill him? [00:09:28] Speaker 00: I don't dispute that at all. [00:09:32] Speaker 02: Isn't that relevant when the district court considers whether or not their intention to strangle him was to kill him? [00:09:41] Speaker 02: Isn't that life threatening if you, intending to cause the death of the victim, you put a ligature around his neck and choke him to the point of unconsciousness and then throw him off a cliff? [00:09:57] Speaker 02: I think reason and common sense has to play here in the analysis. [00:10:02] Speaker 00: Well, but the case law says we don't look at what the intention was or what the defendant's actions were. [00:10:08] Speaker 00: We look at the injury and there are cases in which it was clear that the defendant was trying to kill the person. [00:10:15] Speaker 00: and shot them at point blank sometimes. [00:10:18] Speaker 03: Here's where I would slightly disagree with you though. [00:10:21] Speaker 03: I mean, I think your proposition makes some sense in the abstract, but here where there is some question about how strong the injury, how egregious the injury was, [00:10:34] Speaker 03: Why isn't it, I mean, this wasn't just a random thing. [00:10:38] Speaker 03: They were trying, to Judge Tallman's point, they were trying to kill him. [00:10:42] Speaker 03: So why doesn't that enter in the equation that if there's some debate about how much injury there was here, the district court was within its discretion to look at the more extreme portion of that because they were trying to kill him. [00:10:59] Speaker 03: In fact, they thought that they had killed him, I think, is what I gather from this. [00:11:05] Speaker 00: It's my position that the intent, which again, I don't dispute that they were intending to kill him, is already accounted for in the attempted murder guideline itself. [00:11:15] Speaker 00: And so when we're seeking to enhance the sentence on top of the attempted murder guideline, because of the bodily injury that occurs, we don't look at the intent or what the defendants hoped to do. [00:11:27] Speaker 00: We look at what the injury was. [00:11:29] Speaker 00: And I think given [00:11:31] Speaker 03: I guess I'm not disagreeing with you, but I don't know why that isn't a factor that comes into what the injury was. [00:11:37] Speaker 03: I mean, let's take the intent aside. [00:11:40] Speaker 03: We have two people who were looking at him, thought he was dead. [00:11:45] Speaker 03: Like, is that not relevant to whether there was a substantial risk of death? [00:11:53] Speaker 00: that the opinions of these individuals about whether someone is likely to die have any bearing on whether... Not whether he's likely to die, whether he's likely to be dead then. [00:12:06] Speaker 03: I mean, they wouldn't have left. [00:12:08] Speaker 03: They threw him, correct me if I'm wrong, they threw him over the cliff because they thought he was dead. [00:12:14] Speaker 03: Like it wasn't like, oh, the guy's not dead, let's kill him by throwing him over the cliff. [00:12:18] Speaker 03: They thought he was dead. [00:12:20] Speaker 00: what they thought respectfully is really not relevant to the issue of what his injury was. [00:12:25] Speaker 00: And what we know about his injury is that he shortly after it occurred, walked out and went home. [00:12:30] Speaker 00: And so, you know, if there's an absence, if the court is not willing to say the evidence is insufficient here, one alternative would be to remand for further factual development. [00:12:40] Speaker 00: The Fifth Circuit did that a few years back in an unpublished case, it's 662, [00:12:46] Speaker 01: I mean, Morgan, they said that there was an injury, but they remanded to find out whether it was life threatening. [00:13:01] Speaker 00: And I think that would be appropriate here if the court wants to give the government, you know, a third bite of the apple. [00:13:07] Speaker 01: This issue was raised in the first case that seems to be the closest into this, you know, where there was a strangling. [00:13:15] Speaker 01: and they found that it was life-threatening. [00:13:17] Speaker 01: There was medical testimony, is that right? [00:13:19] Speaker 00: Correct. [00:13:22] Speaker 01: It wasn't all that vigorous. [00:13:24] Speaker 01: I mean, it just said, well, you can die from this, essentially. [00:13:27] Speaker 00: Well, I think that the expert also opined that she had been unconscious for a period of time, which is evidence that we don't have in this case. [00:13:36] Speaker 02: So is your position that there has to be medical evidence in all of these cases? [00:13:42] Speaker 00: No, I don't think so. [00:13:44] Speaker 00: But in this case where the victim seems to be not at risk of dying, if the government wanted to use this enhancement, I think medical evidence would have been helpful. [00:13:55] Speaker 02: And would the standard of proof be preponderance of the evidence, since it's a sentencing enhancement? [00:14:01] Speaker 00: Yes. [00:14:05] Speaker 03: Unless they call. [00:14:06] Speaker 03: Yeah, we'll give you time for rebuttal. [00:14:08] Speaker 03: Thank you. [00:14:09] Speaker 00: Thank you. [00:14:09] Speaker 03: We'll hear from the government. [00:14:13] Speaker 04: Good afternoon, Your Honors, and may it please the Court, Sean Nelson, for the United States. [00:14:18] Speaker 04: I can also start with the question of the life-threatening injury as well. [00:14:23] Speaker 04: I'd like to make two points factually at the outset. [00:14:28] Speaker 04: In the government supplemental excerpt of records at page 15, it talks that the female in the car, Ms. [00:14:35] Speaker 04: Flora Keno, felt for a pulse, found a weak pulse. [00:14:39] Speaker 04: One of the other conspirators said, nah, you're just feeling your own pulse. [00:14:43] Speaker 01: And at page... You say she felt a weak pulse. [00:14:45] Speaker 01: You just said she felt a pulse. [00:14:49] Speaker 04: It might have even been the word faint. [00:14:55] Speaker 04: Oh yeah, I had felt a pulse. [00:14:56] Speaker 04: Yes. [00:14:57] Speaker 04: Okay. [00:14:58] Speaker 03: That's correct. [00:14:59] Speaker 04: Is there another testimony that was fake or faint or weak? [00:15:04] Speaker 04: I'm sorry. [00:15:04] Speaker 04: What I was hoping to point to was on page 16 where one of the conspirators [00:15:10] Speaker 04: attempted to find respiration and found no evidence of him breathing. [00:15:16] Speaker 04: So that's, I think, in addition to being unconscious, not being able to breathe is another indicator of the life-threatening nature of this. [00:15:26] Speaker 01: I think this record, for example, in his finding said something to the effect of he had no heart or something like that. [00:15:33] Speaker 01: And there is actually no evidence of that. [00:15:35] Speaker 01: Is that right? [00:15:36] Speaker 04: I don't think there is no evidence of that. [00:15:40] Speaker 04: The fact that we have a somewhat [00:15:43] Speaker 04: unclear where the female says she feels a pulse, the other person at the scene says, well, you're probably just feeling your own pulse. [00:15:51] Speaker 04: But there is evidence of no respiration in addition to being unconscious. [00:15:57] Speaker 04: And I want to talk about the circumstances a little bit here, and I think Judge Verzahn is on to something with the Morgan case. [00:16:05] Speaker 04: But as I read the Morgan case, Morgan was [00:16:07] Speaker 04: sent back to the district court because the district court wasn't sure if it could consider some of these circumstances surrounding the injury and in that case we had a court didn't think it could decide itself that it was life threatening. [00:16:23] Speaker 04: I believe that the district court had said so you had the victim had been beaten put in the car and driven around and [00:16:33] Speaker 04: And then there were other quote unquote, we'll call them circumstances. [00:16:36] Speaker 01: And it was extremely cold and so on. [00:16:42] Speaker 04: Yeah, put in a snowy ditch covered with debris and left there after the beating. [00:16:48] Speaker 04: The district court was unsure whether it could consider those, we'll call them circumstances. [00:16:55] Speaker 04: And as I read your court's decision in that case, it went back to the district court so that the district court could, in fact, consider something like that. [00:17:05] Speaker 01: So the district court, as I understand it, could decide to determine whether these circumstances were life-threatening. [00:17:11] Speaker 04: Yes, whether that could be, as I read it, whether those circumstances could be part of the calculus in determining whether these. [00:17:20] Speaker 03: Well, but do you think we need, is your position, we need to be doing the same thing here? [00:17:23] Speaker 03: Or is that a fallback position? [00:17:25] Speaker 04: No, no. [00:17:26] Speaker 04: And in fact, by the 9th Circuit remanding the case in Morgan, so that the district court could consider the quote unquote circumstances, [00:17:39] Speaker 04: similar of being left in the snow and covered with debris, that it is proper for this court to consider the fact of him being thrown off a ledge in Mexico as being part of the life-threatening nature of these injuries. [00:17:55] Speaker 01: Just to be specific, you keep sort of misstating things. [00:17:59] Speaker 01: What Morgan said was, we remand for the district court to consider to whether a defendant's maltreatment of crime was life-threatening. [00:18:07] Speaker 01: But I believe... You can consider the circumstances in general or anything else, they determined that the circumstances were sufficient if they were life threatening. [00:18:19] Speaker 01: So, and here, I mean, it seems to me that the district court at least clearly aired as to what the evidence before him was as to whether it was life threatening. [00:18:32] Speaker 01: Because he said there was evidence that he didn't have a heart or didn't have a pulse, and that's not true. [00:18:37] Speaker 01: And he, yes, somebody said he wasn't breathing, but that person was clearly wrong because he was breathing. [00:18:48] Speaker 01: We know he was breathing. [00:18:50] Speaker 04: If he weren't breathing, he would have been dead. [00:18:55] Speaker 01: He wasn't not breathing and he did not have a pulse. [00:18:59] Speaker 01: So those facts are incorrect. [00:19:01] Speaker 04: Your Honor, I do believe there is evidence that he was not breathing at that point. [00:19:06] Speaker 01: He would have been dead, but he was breathing and he wasn't dead. [00:19:10] Speaker 04: Your Honor, respectfully, I think you can stop breathing but still survive after that. [00:19:14] Speaker 04: And so I think we have here evidence of a lack of respiration from the other male at the scene not sensing respiration. [00:19:24] Speaker 04: Now, again, this opposite of the eggshell plaintiff did somehow pull through. [00:19:29] Speaker 04: And your honor, what I was referring to here in my reading of Morgan. [00:19:36] Speaker 03: Can I ask about that question? [00:19:38] Speaker 03: Because it sort of goes to the standard that we're applying here. [00:19:41] Speaker 03: I mean, I take it government would agree that we're looking ultimately whether there's a preponderance of the evidence that the injury was life threat. [00:19:51] Speaker 03: Yes. [00:19:53] Speaker 03: Is that how we should frame this up? [00:19:55] Speaker 03: And so is it life threatening to [00:20:00] Speaker 03: the victim or is it life-threatening in general? [00:20:05] Speaker 03: Because those could be two different tests. [00:20:09] Speaker 04: And I think that gets a little bit tricky with how we apply some of these circumstances. [00:20:15] Speaker 04: And the injury should be of a caliber and seriousness to be life-threatening. [00:20:25] Speaker 03: And I think if- To anyone, to the common person, because again, my hypothetical, that would be very different if it's an 80-year-old lady or whether it's a young, healthy man, presumably. [00:20:38] Speaker 03: But there could be a whole bunch of factors that play into that. [00:20:41] Speaker 03: And what are we looking at? [00:20:44] Speaker 04: And I think in this case, I think being under the facts of this case, regardless of the age and vitality of the victim, [00:20:57] Speaker 03: Your point is strangulation that leaves marks is life-threatening. [00:21:01] Speaker 04: Strangulation that results in unconsciousness and an inability to perceive respiration in the victim, combined with being thrown off the ledge in Mexico, is a life-threatening injury. [00:21:13] Speaker 04: There is a substantial risk of death. [00:21:17] Speaker 01: What just combined with being thrown off the ridge after doing this? [00:21:20] Speaker 04: Well, that goes is similar to the guidelines commentary that talks about not giving them food, not giving them water, not giving them. [00:21:30] Speaker 01: As I understand what that's about is that there can be injuries that are internal injuries from lack of water and food and cold and so on. [00:21:43] Speaker 01: I mean, that are physical injuries, but are not violent injuries. [00:21:47] Speaker 01: And so somebody can be close to death from [00:21:50] Speaker 01: not being fed or from not having water. [00:21:55] Speaker 01: And that's why there was a remand in Morgan to find out whether what happened was in fact life threatening. [00:22:01] Speaker 01: It wasn't because putting them in, they didn't hold at all, that putting them in the trunk and treating them terribly was itself the injury. [00:22:15] Speaker 01: the life-threatening injury, it's that that can cause a life-threatening injury, and that's what they're trying to find out. [00:22:21] Speaker 01: So I don't see what throwing the person off the cliff had to do with anything when we know that he wasn't, in fact, injured at all by being thrown off the cliff, weirdly enough. [00:22:32] Speaker 04: I respectfully don't think we can say he wasn't injured at all. [00:22:34] Speaker 01: He had been thrown off the cliff. [00:22:36] Speaker 01: He had walked out of it. [00:22:37] Speaker 04: He climbed back. [00:22:38] Speaker 04: He was able to climb back. [00:22:40] Speaker 04: I don't believe that that doesn't show an injury. [00:22:42] Speaker 04: And, Your Honor, we're... What's the injury? [00:22:45] Speaker 01: Well, what is the injury? [00:22:46] Speaker 04: Murder. [00:22:48] Speaker 01: It's attempted murder. [00:22:49] Speaker 02: That's an injury. [00:22:50] Speaker 01: Well, no. [00:22:51] Speaker 01: What I want to know is, what's the injury being thrown off the cliff? [00:22:55] Speaker 01: What injury did he suffer? [00:22:56] Speaker 02: That it's a life-threatening action. [00:23:00] Speaker 01: But threatening isn't the standard here. [00:23:03] Speaker 02: But if we're looking at real conduct-based sentencing, why can't the district court properly consider all these factors under a preponderance? [00:23:13] Speaker 01: I can understand your point with regard to the [00:23:15] Speaker 01: strangling. [00:23:16] Speaker 01: I can't understand it with regard to being thrown off the cliff. [00:23:21] Speaker 03: Well, but I guess the better question, I mean, throwing someone off the cliff could lead, it could lead to life-threatening injury. [00:23:33] Speaker 03: What has to be shown here? [00:23:34] Speaker 03: And maybe this is what Judge Brezon's question is, is was there an injury shown? [00:23:39] Speaker 03: I mean, he climbed up, but that doesn't show that he didn't have an injury. [00:23:43] Speaker 01: I never went to the doctor. [00:23:46] Speaker 01: Never. [00:23:46] Speaker 01: There's no evidence to the God had any injury from being thrown off. [00:23:49] Speaker 01: There's evidence. [00:23:51] Speaker 03: I mean, do you agree with does the government agree with that assessment that there's not actually an injury shown from there's a potential injury from being thrown off a cliff, but there's not actual injury from being thrown off the cliff or we just don't know. [00:24:07] Speaker 04: I would agree that on this record, we don't have evidence of an injury being thrown off the cliff. [00:24:14] Speaker 04: However, that is the sort of deprivation that I think in Morgan at page 1188 was where the district court wasn't sure if it could. [00:24:27] Speaker 01: If it results in life threatening injury. [00:24:29] Speaker 01: That's why there was a remand in Morgan. [00:24:33] Speaker 04: Well, I think that [00:24:35] Speaker 04: I respectfully I read Morgan somewhat differently there that it's looking at the fact of isolating this victim in a freezing night covered with snow and debris on 1188 and [00:24:54] Speaker 04: Although the district court considers those acts to be the circumstances in which the beating takes place, the court considered only the beatings, but not the deprivations to be the relevant injuries. [00:25:06] Speaker 01: Could you switch briefly to the other question that your opponent never got to argue, and that is the application note with regard to the cross-reference? [00:25:19] Speaker 01: I think you're defending the validity of that application note, but I'm not sure I quite understand your argument. [00:25:28] Speaker 01: Sure. [00:25:29] Speaker 04: Yes, Your Honor, we are defending that application note in B7b, under B7b, application note four that directs us to look at the intended conduct. [00:25:42] Speaker 04: And let me start with when you read application note B, or I'm sorry, subsection B7B, there are two ways to do this. [00:25:53] Speaker 04: And it starts with another offense is committed in connection with the kidnapping and the, or, I'm sorry, let me start over there. [00:26:03] Speaker 04: B7B says we do this cross reference in kind of two situations. [00:26:09] Speaker 04: The first situation has two subparts. [00:26:11] Speaker 04: First, whether the kidnapping was the other offenses during the commission of another offense, whether the kidnapping happens during the kidnap the commission of another offense. [00:26:22] Speaker 04: or in connection with another offense. [00:26:25] Speaker 04: That's kind of one A and one B. Then we have two, which is another offense was committed during the kidnapping. [00:26:33] Speaker 04: And Smith and the cases cited by the defense apply that second prong. [00:26:39] Speaker 04: And I would submit to the court that second prong addresses a situation where the kidnapping was the point of the kidnapping and then another crime occurs during the kidnapping. [00:26:49] Speaker 04: But the first two prongs apply where there was another criminal objective that the kidnapping happened to be a part of. [00:26:58] Speaker 04: I would submit that that is what we had in this case. [00:27:00] Speaker 04: It's in fact what the district court found that the kidnapping was in connection with the plot to murder the victim. [00:27:07] Speaker 04: And in that situation where the kidnapping is but a means [00:27:14] Speaker 04: to achieve the larger criminal objective, application note four makes perfect sense. [00:27:21] Speaker 04: I could create an argument in which application note makes perfect sense even on the second full prong, but in this situation, unlike Smith, which was another offense was committed during the kidnapping, [00:27:36] Speaker 01: This kidnapping was done in connection with- So could you just run through then how, if he was kidnapped during the commission of or in connection with another offense, but still the only offense was attempted kidnapping. [00:27:51] Speaker 01: I mean, attempted murder, not murder. [00:27:53] Speaker 01: So how do we get to the murder? [00:27:55] Speaker 04: Because this is part of a conspiracy to murder. [00:27:59] Speaker 04: He was kidnapped as part of a conspiracy. [00:28:01] Speaker 04: The kidnapping happened as part of- So the other offense is not [00:28:07] Speaker 04: under 2X 1.1 with 2A 4.1. [00:28:16] Speaker 04: And what we have here is this conspiracy to kidnap, which was done to further the conspiracy to murder. [00:28:24] Speaker 04: So they're in connection with. [00:28:26] Speaker 01: And I thought that was the issue that you have some footnotes saying that you agree with the plaintiff on. [00:28:32] Speaker 04: I don't believe we agree with the plaintiff on that. [00:28:34] Speaker 04: the appellant on that point, Your Honor. [00:28:39] Speaker 01: Well, I thought that's what you were agreeing about, that you can't have, the other offense can't be a conspiracy to murder. [00:28:48] Speaker 04: That if we were doing, if we were going solely under 2A 4.1, but we somewhat have to when we're under 2X 1.1, which directs us to look at the intended conduct, not necessarily the offense, [00:29:04] Speaker 04: But here we are specifically being told to look at the intended conduct, which makes perfect sense under 2X1. [00:29:12] Speaker 01: The intended content, what you're talking about is anything that's in, my understanding is that it means that when you incorporate the guideline, you incorporate with it any enhancements for certain conduct. [00:29:30] Speaker 04: Yes. [00:29:31] Speaker 04: And then I think what we're arguing about here is then which conduct is applicable. [00:29:37] Speaker 04: And in cases of a conspiracy. [00:29:40] Speaker 04: you look at the intended conduct, because conspiracy is the most specific intent, specific intent crime there is. [00:29:48] Speaker 04: You have a specific agreement here, a specific agreement to kill this man in Mexico. [00:29:55] Speaker 04: And that sort of specific intent is what under 2X 1.1 we should be focusing on and punishing. [00:30:05] Speaker 04: And the argument of the defense [00:30:10] Speaker 01: In 2X1.1, any intended offense conduct, it's not the best phrasing etiology in the world, but it seems to me what it means is any conduct with regard to the attendant offense, which in this case is kidnapping, that can be established with reasonable certainty. [00:30:35] Speaker 01: So it would go back to the attempted [00:30:40] Speaker 01: So then the kidnapping provision says that you look at any offense that was, you know, whether you do it whichever sentence you use, it has to be an actual offense that was committed and that was attempted murder. [00:30:57] Speaker 01: So I don't, the intended conduct doesn't mean what was the intended [00:31:06] Speaker 01: It doesn't seem to me to mean the conduct intended by the conspiracy, but the conduct that is covered by the guidelines with regard to enhancements. [00:31:21] Speaker 04: Your Honor, so what I would point to you there is that in 2X1.1A, it says to take the base offense level from the guideline for the substantive offense, which would be the committed offense, plus [00:31:36] Speaker 04: any adjustments from such guideline. [00:31:40] Speaker 04: Such guideline. [00:31:41] Speaker 01: That is the guideline for the substantive offense. [00:31:44] Speaker 04: That's the guideline we're looking at. [00:31:46] Speaker 04: The guideline for the substantive offense. [00:31:48] Speaker 04: Such guideline for any intended offense conduct and that. [00:31:53] Speaker 01: So such guideline is the guideline for the substantive offense. [00:31:56] Speaker 01: That's what it says. [00:31:58] Speaker 04: The government's reading of that is the such modifies the intended offense conduct. [00:32:05] Speaker 04: Okay. [00:32:08] Speaker 03: All right. [00:32:10] Speaker 03: I think we have your argument now and you're over. [00:32:14] Speaker 03: I know we took you over. [00:32:14] Speaker 03: So I appreciate the time. [00:32:16] Speaker 03: Thank you. [00:32:17] Speaker 03: Yeah, thank you. [00:32:18] Speaker 03: We'll give two minutes for rebuttal. [00:32:28] Speaker 00: Okay, thank you very much for giving me the extra time. [00:32:31] Speaker 00: Um, I [00:32:33] Speaker 00: I guess I'll start with the issue that I didn't get a chance to address, although I think it is briefed pretty thoroughly. [00:32:39] Speaker 00: It makes no sense to apply 2A4.1B7 in completely different ways, depending on whether you get there directly through a kidnapping or whether you come through 2X1.1 [00:32:55] Speaker 03: And that's basically, I mean, your argument that you just said, that's basically what the other circuits have held. [00:33:01] Speaker 03: Have any of the other circuits adopted the government's argument here? [00:33:05] Speaker 03: I think there were just two other cases. [00:33:08] Speaker 00: There are only two cases. [00:33:10] Speaker 00: One of them is a kidnapping conspiracy where the 2X1.1 was applied to get to 2A4.1. [00:33:19] Speaker 00: And in that case, the court held that you couldn't [00:33:24] Speaker 00: use an incomplete offense. [00:33:26] Speaker 00: And I just don't see how you would apply that same provision differently depending on how you get there. [00:33:31] Speaker 00: You're applying the guideline because 2X1.1 tells you to do it. [00:33:35] Speaker 00: You should apply it consistently either way. [00:33:38] Speaker 00: So that argument really doesn't logically make sense to me. [00:33:42] Speaker 00: And then I just wanted to turn actually to Judge Nelson's question about whether we look at whether the injury is life threatening in a general sense or whether we look at whether it was life threatening to this victim. [00:33:54] Speaker 00: And I think we have to look at whether it's life-threatening to this victim. [00:33:57] Speaker 00: And that is what courts do. [00:33:58] Speaker 00: So when courts are taking testimony on how long the person was hospitalized. [00:34:02] Speaker 03: Why do we do that? [00:34:03] Speaker 03: Is that because of the application note? [00:34:05] Speaker 03: Or is that because that is the plain understanding of the text that life-threatening bodily injury has to mean the victim? [00:34:14] Speaker 00: I think it's both. [00:34:16] Speaker 00: I think that the text itself, if we're talking about a bodily injury, we're talking about an injury to a person. [00:34:21] Speaker 00: And it's really hard to divorce that from [00:34:24] Speaker 00: Reality it's hard to sort of abstract that into a hypothetical Effect of an injury and then I think the application. [00:34:31] Speaker 03: I mean, let's take the example where [00:34:34] Speaker 03: I mean, I shoot, you know, I shoot you, well, here's an example. [00:34:40] Speaker 03: I had a case a few years back in the outbacks of Alaska where they took somebody, they tied him up, they shot him four times point blank, thought he was dead. [00:34:52] Speaker 03: Turned out he's in Alaska. [00:34:54] Speaker 03: It was so cold, it brought his, you know, his blood flow down so much, he survives. [00:35:01] Speaker 03: You would say, and he effectively walks out of there, you would say that's not a life-threatening bodily injury because he walked out of there. [00:35:10] Speaker 03: But I would say you shot the guy four times point blank execution style. [00:35:15] Speaker 03: How could that not be life-threatening bodily injury? [00:35:20] Speaker 00: I think the enhancement, the way that I read it, is not intended to provide an enhancement based on the conduct [00:35:30] Speaker 00: that the defendants have committed, but rather to provide an enhancement for when somebody is grievously injured. [00:35:36] Speaker 01: It's basically like an attempt and a murder. [00:35:39] Speaker 01: If you do exactly what Judge Nelson said, and the guy dies, you are responsible for murder. [00:35:48] Speaker 01: But if he doesn't die, you're not responsible for murder. [00:35:50] Speaker 01: You're responsible for attempt and murder, because there is an element of criminal law that cares about what actually happened [00:35:58] Speaker 01: I remember from law school, I think the notion is that you're sort of deterring people from doing something that's going to cause the murder because even when it doesn't, but you also care about the results. [00:36:19] Speaker 01: That's what I understand this guideline to be. [00:36:24] Speaker 01: focused on what, because there are all kinds of other guidelines about using the gun and causing the injury and so on. [00:36:31] Speaker 01: But this one is only if the person is actually at risk of death. [00:36:35] Speaker 02: I just don't see the logic of that if the purpose of the guidelines is to reflect punishment for the actual conduct of the actor. [00:36:46] Speaker 02: Why can't you look at the actor's intent in trying to murder the victim as being life threatening? [00:36:55] Speaker 00: i think in criminal law in general we we often enhanced punishment for based on the injury or the financial loss or whatever it is that the victim actually suffers at that is what this guy wanted intended to do you know the fifth circuit case that i mentioned before when they remanded was almost exactly like what judge nelson's case was for this person was shot four times in his torso at close range was hospitalized and it was really really bad [00:37:24] Speaker 00: Sorry? [00:37:25] Speaker 03: And they still remanded it. [00:37:26] Speaker 00: They remanded it. [00:37:27] Speaker 00: So we are enhancing this because someone suffered an injury. [00:37:32] Speaker 01: Conversely, if you did have an 80-year-old lady who had a heart condition and so something, an eggshell victim, then you are responsible for the eggshell victim. [00:37:47] Speaker 00: Yes. [00:37:48] Speaker 00: I think we have to look at what the individual's injury [00:37:51] Speaker 00: was and whether that injury was life threatening to that individual human being. [00:37:57] Speaker 03: Okay. [00:37:58] Speaker 03: Well, look, thank you both. [00:38:00] Speaker 03: I don't mean to cut it off if either of my colleagues have more questions, but I think we've explored this well. [00:38:07] Speaker 03: Appreciate your preparation for argument and the case is now submitted. [00:38:12] Speaker 00: Thank you. [00:38:13] Speaker 03: Thank you both. [00:38:13] Speaker 03: That concludes our arguments for the day. [00:38:16] Speaker 03: Thank you, Your Honor. [00:38:17] Speaker 01: This court for this session stands adjourned.