[00:00:02] Speaker 00:
Good morning, Your Honors, and may it please the Court, Ruth Rogin, on behalf of James Panetta.

[00:00:06] Speaker 00:
I'd like to reserve two minutes for rebuttal, and I'll watch the clock.

[00:00:09] Speaker 00:
Nevada second-degree murder is not a crime of violence.

[00:00:12] Speaker 00:
Because the statute is also indivisible, the District Court miscalculated Panetta's guideline range, requiring re-sentencing.

[00:00:20] Speaker 00:
Nevada second-degree murder does not involve the use of force.

[00:00:24] Speaker 00:
NRS 200.010 includes drug provisions in subsections two and three, defining a second-degree murder to include any killings proximately caused by a controlled substance violation.

[00:00:36] Speaker 00:
Under Borden, the use of force for intentional conduct requires full awareness of the consequent harm.

[00:00:42] Speaker 00:
Here, however, the drug provisions hold a defendant liable for any proximately caused drug-related death, thereby punishing killings that are both unintended and unforeseen.

[00:00:53] Speaker 02:
Your client, as I understand it, you correct me if I'm wrong in my misapprehension of the facts, the victim of his offense

[00:01:04] Speaker 02:
broke into or entered into his home without permission?

[00:01:10] Speaker 02:
Is that right?

[00:01:11] Speaker 00:
So the facts underlying the second degree murder conviction, that relates to a killing over a property dispute.

[00:01:18] Speaker 00:
But here, for the purposes of the categorical approach, we don't inquire into that.

[00:01:22] Speaker 02:
No, I'm just asking factually what happened.

[00:01:24] Speaker 02:
And to cut to the chase, isn't it true that after the events on the property,

[00:01:32] Speaker 02:
your client chased the man down and beat him to death.

[00:01:36] Speaker 00:
Am I wrong about that?

[00:01:38] Speaker 00:
Slightly, Your Honor.

[00:01:39] Speaker 00:
My one correction would be that there was an earlier property dispute over a set of speakers.

[00:01:46] Speaker 00:
Later on, my client confronted that man and then he sought him out.

[00:01:51] Speaker 00:
He ended up beating him and that resulted in

[00:01:53] Speaker 00:
the person's death.

[00:01:54] Speaker 00:
I might do this conviction or the offense occurred when my client was only 15 years old.

[00:01:59] Speaker 00:
He received a sentence of 10 to 25 years in prison and ended up serving only the minimum of that sentence.

[00:02:04] Speaker 00:
But here for the purposes of the categorical approach, we don't care about the specific facts of the underlying conviction.

[00:02:10] Speaker 00:
Rather, here we look at the least egregious conduct that's criminalized by Nevada's second-degree murder.

[00:02:16] Speaker 00:
And as explained, it doesn't require the use of force because it doesn't require intentional conduct, and violations of the drug provisions also do not qualify as extremely reckless conduct.

[00:02:26] Speaker 00:
So extreme indifference to human life is addressed in a different provision about Nevada's second-degree murder, subsection one, and via the controlled substance violation does not have to be inherently dangerous

[00:02:38] Speaker 00:
because any controlled substance violation can be the predicate offense for the resulting killing.

[00:02:44] Speaker 00:
So if the government essentially concedes these arguments, the government instead tries to claim that these are violations of second degree felony murder.

[00:02:52] Speaker 00:
Even if that argument were correct, the government would still have to win that the statute is divisible.

[00:02:57] Speaker 00:
Regardless, the government incorrectly characterizes violations of these drug provisions as second degree felony murder, and we know this for four different reasons.

[00:03:06] Speaker 00:
So first, the drug provisions were enacted after the Nevada Supreme Court recognized second degree felony murder in Morris.

[00:03:14] Speaker 00:
Second, the drug provisions have been described as extensions of Nevada's statutory definition of murder not related to common law offenses such as second degree felony murder.

[00:03:25] Speaker 00:
Third, the two prerequisites that apply to second degree felony murder do not apply to violations of the drug provisions.

[00:03:32] Speaker 00:
So the Nevada Supreme Court has explained that the second degree murder requires an inherently dangerous felony that is an immediate and direct cause of the resulting killing.

[00:03:42] Speaker 00:
But with the controlled substance provisions, the only requirement is a proximate cause relationship between the controlled substance violation and the resulting death.

[00:03:51] Speaker 02:
If we were to agree with you and send the case back for re-sentencing,

[00:03:59] Speaker 02:
What would be the district court's options in terms of sentencing your client?

[00:04:04] Speaker 00:
So the district court would essentially be conducting a new sentencing, so it would be operating on a different guideline range.

[00:04:10] Speaker 00:
So the guideline range that we maintain is correct as 27 to 33 months, rather than the, I believe, 33 to 37 months that the district court... So she could take into consideration the nature of the offense?

[00:04:22] Speaker 00:
Can take into consideration the nature of the offense, and also we know under PEPR can take into account

[00:04:27] Speaker 00:
any intervening offense that have happened since sentencing.

[00:04:30] Speaker 00:
So the district court could ultimately end up with the same sentence.

[00:04:33] Speaker 01:
But importantly, this court has emphasized... Indeed, if the district court gave the same sentence, it would still be below the guideline ranges you've recalculated it.

[00:04:42] Speaker 00:
So it would be below the guideline range, but the dispute here was over whether it should be a consecutive or concurrent term.

[00:04:50] Speaker 00:
So the district court, if it did end up starting with a different guideline range, could end up varying downwards even further.

[00:04:55] Speaker 00:
And the sentence that we asked for here was still less than what the district court ended up giving.

[00:05:00] Speaker 00:
So the district court gave our client 24 months consecutive to a state term, so the sentence

[00:05:05] Speaker 00:
did not start counting until October of 2023.

[00:05:09] Speaker 00:
We asked for 27 months concurrent to the state term, which would have started the sentence counting in February of 2022.

[00:05:17] Speaker 00:
So that's the possibility of a different result here.

[00:05:19] Speaker 00:
The district court could end up going even lower than what it ended up giving the first time around.

[00:05:25] Speaker 00:
I also want to discuss briefly why it doesn't match the federal generic definition of second degree murder.

[00:05:31] Speaker 00:
So the federal generic definition requires

[00:05:34] Speaker 00:
for felony murder that it be the result of an inherently dangerous felony, but here violations of the drug provisions do not contain an inherent dangerous requirement because it incorporates all the Nevada drug offenses in Chapter 453.

[00:05:48] Speaker 00:
Moreover, the government has conceded our arguments in our brief that under the Model Penal Code, the treatises, common law, legal dictionaries,

[00:05:56] Speaker 00:
that controlled substance offenses are not examples of inherently dangerous felonies.

[00:06:00] Speaker 00:
Instead, they've been excluded from traditional understandings of what are dangerous felonies.

[00:06:06] Speaker 00:
The government's last resort in terms of the overbreath argument is relying on this court's decision in the United States versus Taylor.

[00:06:13] Speaker 00:
But there, this court did not address the arguments about overbreath for the drug provisions.

[00:06:18] Speaker 00:
Rather, it addressed whether implied malice equates to extreme recklessness under this court's decision in Begay.

[00:06:25] Speaker 00:
And because Taylor's an unpublished decision, it's not very helpful here.

[00:06:29] Speaker 00:
I next want to move on to divisibility fairly quickly.

[00:06:32] Speaker 00:
So the government, in terms of divisibility, ignores that the default presumption under Nevada law is that a jury need not be unanimous as to a particular theory of culpability for a single offense to sustain a conviction.

[00:06:45] Speaker 00:
And for second degree murder, the Nevada Supreme Court has described violations of the drug provisions as a theory of second degree murder.

[00:06:53] Speaker 00:
Moreover, it's recited as principle both with first-degree murder and saying that a jury does not have to be unanimous between first-degree premeditated murder or first-degree felony murder, even though these are different provisions within Nevada's law.

[00:07:07] Speaker 00:
Same thing with second-degree murder, as we point out in cases like Shuler.

[00:07:11] Speaker 00:
And then finally, the verdict form, as the Nevada Supreme Court described in, in decide versus state, provides no way to tell the basis for second-degree murder.

[00:07:21] Speaker 00:
That case involved second degree felony murder and second degree direct acts murder and the jury verdict form did not provide which theory the jury ultimately relied on.

[00:07:29] Speaker 02:
I take it we have no shepherd documents here.

[00:07:32] Speaker 00:
No, the government did not provide the shepherd documents.

[00:07:34] Speaker 00:
This is another reason why this court should vacate the sentence and not provide the government another opportunity to give them.

[00:07:41] Speaker 00:
The government argued for the modified categorical approach.

[00:07:44] Speaker 00:
in its sentencing memorandum before the district court, but failed to provide the Shepard documents with them.

[00:07:49] Speaker 00:
And in such circumstances where the government is on notice that it needs to provide these documents, but fails to do so, this court refuses to reopen the record for the government to provide them.

[00:07:59] Speaker 00:
But here, we don't even think we need to get to the Shepard documents because the statute is indivisible.

[00:08:05] Speaker 00:
Unless Your Honors have any further questions, I'd like to reserve the rest of my time for rebuttal.

[00:08:09] Speaker 01:
All right.

[00:08:10] Speaker 01:
Thank you.

[00:08:17] Speaker 03:
Good morning, Your Honors, and may it please the court, Nadia Ahmed, on behalf of the United States.

[00:08:21] Speaker 03:
Your Honors, it's important to note that none of these statutes addressing murder relating to controlled substances in anywhere in the four statutes that touch on this topic do you find the words strict liability or lack of intent.

[00:08:34] Speaker 03:
What, in fact, you do have are four statutes in the Nevada Revised Statute Code where they're talking about murder, where it may be second degree murder, where it may be manslaughter.

[00:08:45] Speaker 03:
Looking at the interplay of these four statutes, you can see, Your Honors, that controlled substances may rise to the level of second degree murder, but looking at the Nevada Revised Statute Code, specifically NRS 200.070, you see that it specifically says that involuntary manslaughter is the killing of a human being without any intent to do so.

[00:09:05] Speaker 03:
So there is clearly defined the absence of intent, so to speak, the strict liability that counsel talks about in their brief, as a manslaughter offense, but where there's

[00:09:15] Speaker 03:
either felony murder event, as it says in that statute section, then that rises to secondary degree murder.

[00:09:22] Speaker 03:
And, Your Honors, when you look at the basis for Pineda's argument, which is 200.010, it talks about these three different types of a murder.

[00:09:31] Speaker 03:
But both 2 and 3 tie back to it being a violation of Chapter 453.

[00:09:36] Speaker 03:
And when you look at specifically Section 3, which is referencing NRS 453.3325,

[00:09:44] Speaker 03:
There you see that it does require knowing activity, the knowing violation of that section for it to rise to a second degree or felony, excuse me, murder conviction.

[00:09:58] Speaker 02:
So when you... This case is going back in any event, isn't it?

[00:10:01] Speaker 03:
It is, Your Honor.

[00:10:02] Speaker 02:
We... You concede error on the inpatient, outpatient delegation?

[00:10:07] Speaker 03:
That's correct, Your Honor.

[00:10:08] Speaker 03:
This court's case law, it's clear that the district court had the duty to clarify whether that was inpatient or outpatient.

[00:10:15] Speaker 03:
So we've agreed that that should be remanded for that purpose.

[00:10:18] Speaker 02:
And listening to the responses from your friend on the other side, it sounds like Judge Doove would be fully within her authority to look at the full consequences of Pineda's behavior in re-senating.

[00:10:34] Speaker 02:
I put us to the task of this intricate surgery of the modified categorical approach and just have a do-over.

[00:10:47] Speaker 02:
What's wrong with that?

[00:10:48] Speaker 03:
Your Honor, the court could do that and it would make sense to do that where you have things like an unpublished Ninth Circuit decision under Taylor that specifically said,

[00:10:59] Speaker 03:
This is a second degree murder.

[00:11:01] Speaker 01:
But it wasn't talking about the controlled substance provision.

[00:11:03] Speaker 03:
You're correct, Your Honor.

[00:11:04] Speaker 03:
But my point only being that those statutes had been in it, like those portions of NRS 200.010 had been enacted when Taylor was considered.

[00:11:13] Speaker 03:
So under the categorical approach, for example, they would have had to be looked at under the idea that you look at the least probable conduct.

[00:11:20] Speaker 03:
So it's just with that context, and as the court has noted, this is messy in a way to go that route.

[00:11:26] Speaker 03:
But it's going back to the district court.

[00:11:28] Speaker 03:
the court certainly could send it back to the district court to look at the modified categorical approach.

[00:11:32] Speaker 03:
The truth is that this offense, based on at least the facts in the PSR, would fit the first prong and would make it a violent second-degree murder under the category.

[00:11:43] Speaker 01:
Tell me how that would work if the conviction were based on the controlled substance.

[00:11:48] Speaker 01:
Is that three or two?

[00:11:50] Speaker 01:
Whichever.

[00:11:52] Speaker 01:
What's the intent relate to?

[00:11:55] Speaker 01:
I mean, if you're a dealer

[00:11:56] Speaker 01:
and you sell controlled substance and it results in death, what intent is required to obtain a conviction under that provision of the Nevada Statute?

[00:12:06] Speaker 03:
So for it to under the Nevada Statute... The Nevada Statute?

[00:12:11] Speaker 03:
Yes, Your Honor.

[00:12:12] Speaker 03:
So looking at the controlled substance provisions, well first, Your Honor, I would just clarify this particular case, Pineda's prior conviction, is not in any way related to a controlled substance.

[00:12:22] Speaker 03:
addressing the court's question.

[00:12:24] Speaker 01:
Welcome to the categorical approach.

[00:12:26] Speaker 01:
We're all there.

[00:12:28] Speaker 03:
So looking at, from my read, Your Honor, of NRS 453.3325, there's a knowing requirement as to every one of those prongs, for example.

[00:12:40] Speaker 03:
So there is some knowledge that whatever the person did was facilitating the unlawful use of a controlled substance.

[00:12:49] Speaker 03:
It's essentially, Your Honor, what we argue is that that's why

[00:12:53] Speaker 03:
This codified endpoint 010 nonetheless functions in Nevada law as second degree felony murder because it's looking at the felonious conduct of that sale and the consequences of that, Your Honor.

[00:13:08] Speaker 03:
So the intent would be that they knowingly committed that felony is the argument that we make here relating to categorical.

[00:13:15] Speaker 01:
Well, I mean, if I were feeling more creative, I could probably come up with

[00:13:22] Speaker 01:
something that fits subsection two, caused by a controlled substance which is sold, given, traded, or otherwise made available, that might not be a felony in the first place.

[00:13:34] Speaker 01:
I mean, suppose you're just casual and somehow you've left drugs someplace where somebody else gets a hold of them and ultimately results in that person's death.

[00:13:46] Speaker 01:
You might not even have a felony for felony murder.

[00:13:51] Speaker 01:
It's a hard sell.

[00:13:53] Speaker 03:
Well, Your Honor, I understand that.

[00:13:54] Speaker 03:
And yet, there's this interplay with point 070, which specifically also says, in the absence of any intent, that's voluntary manslaughter.

[00:14:01] Speaker 03:
So I understand that the court, it is a dexterous exercise that we would have to do.

[00:14:08] Speaker 03:
But the modified categorical approach does work and is very clear, looking at these three prongs, and even by defense counsel's or appellate counsel's own argument, that there are different elements.

[00:14:18] Speaker 03:
And so the court,

[00:14:20] Speaker 03:
certainly could say under the modified categorical approach, this is a divisible statute and send it back.

[00:14:26] Speaker 03:
But then you still have the problem of the shepherd documents.

[00:14:28] Speaker 03:
Your Honor, looking at this court's cases, specifically the ones cited in the reply brief, it's clear that it's up to this court.

[00:14:37] Speaker 03:
And specifically the court in Pridget, the case cited most extensively in the reply brief, there the court made clear that if the government didn't have a full sum chance,

[00:14:49] Speaker 03:
because the district court relied on an erroneous legal argument to make that record, that it's totally permissible for this court to send it back on an open record.

[00:14:58] Speaker 03:
And that makes the most sense here, Your Honor, specifically because the district court did decide it categorically fit and did rely on Taylor.

[00:15:05] Speaker 03:
And so, again, Taylor is not published, but nonetheless, it was a persuasive authority for that court to rely on.

[00:15:11] Speaker 01:
So, and Prigit... District courts are put in the position of having to rely upon what they can find from us

[00:15:17] Speaker 01:
And sometimes what they find from us may not be a very close fit.

[00:15:22] Speaker 01:
I'm not sure would we need to instruct it to be an open record or there's going to be a re-sentencing.

[00:15:29] Speaker 01:
Is the door open?

[00:15:30] Speaker 03:
So, Your Honor, I would submit the door is open.

[00:15:33] Speaker 03:
The court should send it back with an open record.

[00:15:35] Speaker 01:
And the district court imposed a sentence which wasn't within the guideline range, presumably applying as the district court is supposed to do.

[00:15:44] Speaker 01:
3553, factors deciding this is the right sentence.

[00:15:48] Speaker 03:
That's correct, Your Honor.

[00:15:48] Speaker 03:
The court applied the guidelines, calculated them, and then varied downward to that 24-month sentence, which was below the guideline calculation that Pineda says on appeal applies.

[00:15:59] Speaker 03:
So Your Honor, we would ask the court to send it back for the second issue regarding inpatient, outpatient.

[00:16:05] Speaker 03:
If the court deems it divisible, which we submit that that statute is at a minimum divisible under the modified categorical approach, we would ask the court to send it back

[00:16:14] Speaker 03:
on an open record and not prevent the district court from looking at the underlying facts of that conviction, which again, Your Honors, by at least the facts that are recited in the PSR, and there's no dispute on them by any of the parties, was a violent offense.

[00:16:28] Speaker 03:
Does the court have any other further questions for me?

[00:16:31] Speaker 03:
Thank you, Your Honors.

[00:16:38] Speaker 00:
Judge Clifton, I want to start with your point about that there doesn't even need to be an underlying felony in the first place.

[00:16:43] Speaker 00:
That is correct for violations of the drug provisions.

[00:16:46] Speaker 00:
So subsection two references any violation of Chapter 453.

[00:16:51] Speaker 00:
In Chapter 453, Nevada includes all controlled substance offenses, which includes both misdemeanors and gross misdemeanors.

[00:16:58] Speaker 00:
So it's possible that the underlying controlled substance violation does not even have to be a felony, which is why the felony murder requirements would not necessarily apply.

[00:17:07] Speaker 00:
Second, the reason we know this is a strict liability statute is just by looking at the statutory scheme and case law.

[00:17:13] Speaker 00:
So I direct this court to

[00:17:14] Speaker 00:
NRS 453.333, which talks only about proximate causation in terms of the relationship between the controlled substance violation and the resulting death.

[00:17:26] Speaker 00:
From that provision, you can tell that the intent focus is only on the intent related to the controlled substance violation.

[00:17:33] Speaker 00:
There is no focus at all in terms of an intent for the resulting death.

[00:17:38] Speaker 00:
And this is confirmed by the cases that we cite in our brief.

[00:17:42] Speaker 00:
So I would direct this court to Shuler versus State

[00:17:44] Speaker 00:
and Bass v. State, in both of those cases, the Nevada Supreme Court only focused on the defendant's intent with respect to the drug violation, not with respect to the killing.

[00:17:54] Speaker 00:
And we know under Borden that the intent required for a violent felony is one that actually intends the resulting death, not just the underlying conduct.

[00:18:04] Speaker 00:
Lastly, I think this court should hold this to the existing record.

[00:18:08] Speaker 00:
I point this court to the cases that we cite in our briefs.

[00:18:10] Speaker 00:
The government must be held to the litigation choices it made in this case, and here the government in its sentencing memorandum argued for the modified categorical approach and acknowledged that it would need shepherd documents.

[00:18:22] Speaker 00:
By not providing those shepherd documents in the first place, it should not get a do-over on remand.

[00:18:28] Speaker 01:
But I'm not sure.

[00:18:29] Speaker 01:
If we say that it's not a categorical fit and

[00:18:35] Speaker 01:
don't say anything else is a really an argument left for modified categorical.

[00:18:40] Speaker 01:
It seems to me it's going to go back to the district court anyway and it would be a resentencing with whatever's on the table.

[00:18:46] Speaker 00:
Sure, but I think it would still, I think that is correct, Your Honor, but it would still matter for what the starting points, the guideline range that the district court uses.

[00:18:54] Speaker 00:
So at first claimed, I mean, say that the statute is indivisible for all of the reasons that we've provided in our briefs.

[00:19:00] Speaker 00:
But even then, if the court has to get to the modified categorical approach, I believe this court should just remand it on the existing record, at least with respect to that question, because the government has essentially forfeited its opportunity to introduce those documents in the first place.

[00:19:15] Speaker 00:
Unless this court has any further questions, we ask this court to vacate Mr. Pineda's sentence and remand.

[00:19:19] Speaker 01:
Thank you.

[00:19:20] Speaker 01:
Counsel, thank you both for your arguments this morning.

[00:19:24] Speaker 01:
And this case is submitted.