[00:00:00] Speaker 05:
We were here on United States versus Arnett, and this is 24-62-12, and we'll start with Mr. Lee.

[00:00:10] Speaker 04:
Good morning, Your Honors.

[00:00:11] Speaker 04:
I'm Josh Lee from the Colorado Federal Public Defender's Office, and I represent Mr. Arnett.

[00:00:17] Speaker 04:
This appeal challenges the sentencing court's imposition of a four-point enhancement that applies when a firearm defendant has also committed another felony.

[00:00:28] Speaker 04:
So I've raised two plain-error arguments against this enhancement, and I'm going to start with the first one today.

[00:00:35] Speaker 04:
And that's my argument that Mr. Arnett's alleged possession of marijuana was just a misdemeanor and not a felony.

[00:00:43] Speaker 04:
So possession of marijuana is a felony if the defendant has a prior conviction for a drug, narcotic, or chemical offense.

[00:00:51] Speaker 04:
And whether Mr. Arnett has a prior drug, narcotic, or chemical offense boils down to whether Section 844C's definition of that term is applied using a factual or categorical approach.

[00:01:06] Speaker 04:
Both the plain text of 844C

[00:01:10] Speaker 04:
and this court's binding precedent require the categorical approach.

[00:01:15] Speaker 02:
So let me ask you a question about your plain error framework.

[00:01:22] Speaker 02:
Even if you could show error, you have some plainness problems, I think.

[00:01:29] Speaker 02:
And my question really goes to your reliance on Martinez, Hernandez, Herrera, Roldan,

[00:01:35] Speaker 02:
So you have your the plain language of the statute argument, but you're also relying on those cases and the use of the word prohibits.

[00:01:44] Speaker 02:
It's essentially the same as prescribed.

[00:01:46] Speaker 02:
Can you speak to why we should endorse that view of plainness?

[00:01:51] Speaker 04:
Yes.

[00:01:52] Speaker 04:
So in terms of the prohibits being the same as prescribed.

[00:01:57] Speaker 04:
I believe that this court has prior plain error decisions.

[00:02:01] Speaker 04:
For example, um, then John that says a decision about one statute can be clearly generalizable to another statute and therefore render an interpretation of that statute, the second statute plain.

[00:02:19] Speaker 04:
And that's what we have here.

[00:02:21] Speaker 04:
So in Martinez Hernandez and Herrera rolled in,

[00:02:25] Speaker 04:
This court confronted two statutes that defined a predicate offense as one that prohibited certain behavior.

[00:02:34] Speaker 04:
And this court said, well, the word prohibits obviously directs us to the statute of conviction.

[00:02:40] Speaker 04:
And so here we have a statute that says a predicate offense is one that prescribes behavior.

[00:02:48] Speaker 04:
prescribes is just a synonym for prohibits.

[00:02:51] Speaker 04:
It directs us to the statute of conviction in exactly the same way.

[00:02:55] Speaker 04:
It's clearly the prior decisions because prescribed just means prohibits are clearly generalizable to this new statute and therefore render the airplane.

[00:03:08] Speaker 04:
But to be frank,

[00:03:09] Speaker 04:
It would be plain, even absent Martinez Hernandez and Herrera Rolland just based on the plain text of the statute.

[00:03:19] Speaker 04:
So this court has prior decisions such as the Jones case that I've cited in my brief that says the language of the statute itself can render an error plain.

[00:03:30] Speaker 04:
And just as a matter, so we've got one of two things.

[00:03:34] Speaker 04:
We're either looking to the facts or we're looking to the statute of conviction and just as a matter of plain language, facts cannot prescribe anything.

[00:03:45] Speaker 04:
Only the criminal statute can prescribe something.

[00:03:48] Speaker 04:
So, you know, if you tried to apply the factual approach to this statute, it just it wouldn't make any sense.

[00:03:56] Speaker 04:
So if we say, all right, Mr. Arnett, as a matter of fact, previously possessed cocaine, does his possession of cocaine proscribe the possession or trafficking of a controlled substance?

[00:04:10] Speaker 04:
It doesn't.

[00:04:11] Speaker 04:
That's just not good English to say that.

[00:04:15] Speaker 04:
And I think that that's what Martinez Hernandez and Herrera Roldan recognize.

[00:04:23] Speaker 05:
Can I ask you on plainness, you make a very persuasive argument if we were addressing this in the first instance, but if we are to be looking at whether it is an obvious error

[00:04:43] Speaker 05:
Candidly, how did the three of us say, I mean, when you had Judge Matheson's unpublished opinion, I thought you had a good argument.

[00:04:54] Speaker 05:
Well, Judge Matheson wasn't confronted, you know, with this argument.

[00:04:57] Speaker 05:
You cited a case saying that, well, I mean, it was unpublished and the argument hadn't been presented.

[00:05:04] Speaker 05:
And then in Simmons, your office presented exactly the same argument and this different panel said exactly the same thing.

[00:05:13] Speaker 05:
as Judge Matheson's panel.

[00:05:16] Speaker 05:
So now we have six judges in our court that said it's not only not obvious to them that you're right, but they disagree with you.

[00:05:25] Speaker 05:
So how do we say, well, Mr. Lee is obviously right.

[00:05:30] Speaker 05:
And our six colleagues who looked at, well, three of which looked at, of whom looked at exactly the same argument and said they are obviously

[00:05:39] Speaker 05:
Obviously wrong.

[00:05:42] Speaker 05:
It's sort of like crediting an argument when there was not a certificate of appeal ability.

[00:05:48] Speaker 04:
I mean, it's a quick, quick quibble with your question.

[00:05:51] Speaker 04:
So, I think, you know, my response on Shaw, right?

[00:05:55] Speaker 04:
It didn't have it before them.

[00:05:56] Speaker 04:
All right.

[00:05:57] Speaker 04:
On Simmons.

[00:05:58] Speaker 04:
It's important that that case itself was decided on plain error review.

[00:06:03] Speaker 04:
So I don't need to show that Simmons is clearly or obviously wrong.

[00:06:09] Speaker 04:
I just need to show that.

[00:06:11] Speaker 04:
I just need to show that it was wrong, right?

[00:06:14] Speaker 04:
That it was.

[00:06:16] Speaker 05:
But I keep doing it.

[00:06:17] Speaker 05:
I'm sorry, Mr. Lee.

[00:06:18] Speaker 05:
So I apologize to you.

[00:06:20] Speaker 05:
Forgive me.

[00:06:21] Speaker 05:
But, oh, yeah, if I wrote it, as Tim said, not only is it that it may be a stick to it, but he said it's it's not error.

[00:06:30] Speaker 05:
The categorical approach applies.

[00:06:33] Speaker 04:
No, he said that it's not plain.

[00:06:36] Speaker 04:
Judge Tempkovich ultimately said it's not plain that the categorical approach applies.

[00:06:41] Speaker 04:
But regardless, Simmons actually has the exact same problem that Shaw does in that it just does not confront the existence of 844C or the fact that it defines

[00:06:59] Speaker 04:
a predicate offense as one that proscribes behavior.

[00:07:03] Speaker 04:
You know, we're looking at unpublished decisions for whether they're persuasive and it just does not give any basis for reading prescribes in any other way than what I'm reading.

[00:07:18] Speaker 01:
Does Simmons give us anything that Shaw doesn't give us?

[00:07:22] Speaker 01:
Does Simmons build entirely off of Shaw?

[00:07:26] Speaker 04:
Simmons does build entirely off of Shaw, you know what I think what we would be looking for in terms of persuasive authority would be some alternative way of reading section 844 C Simmons doesn't cite or quote 844 C.

[00:07:45] Speaker 04:
doesn't give us any alternative way to read it or some way to distinguish a prohibit statute from a proscribed statute.

[00:07:54] Speaker 04:
And Simmons doesn't say anything about that either.

[00:07:57] Speaker 05:
But it does say Simmons' arguments analogizing 844 to seemingly parallel statutes is thus unconvincing.

[00:08:07] Speaker 05:
I don't disagree with you that he didn't address

[00:08:10] Speaker 05:
at least textually your argument, but he does say that the argument presented by your colleague is unconvincing.

[00:08:19] Speaker 04:
So, well, I'll just say that I orally argue that case, so I can't blame it on the colleague.

[00:08:25] Speaker 04:
So I'll take responsibility for that, for not presenting it clearly enough.

[00:08:32] Speaker 04:
That said, this is where I think that Simmons goes wrong on the plainness analysis.

[00:08:37] Speaker 04:
So what Simmons says is, hey, those were about different statutes.

[00:08:41] Speaker 04:
like they can't show it's plain because those were about different statutes.

[00:08:45] Speaker 04:
But that's contrary to what this court has said about plain error review.

[00:08:50] Speaker 04:
And Simmons did not undertake to say, are these prohibits cases clearly generalizable to 844C?

[00:08:59] Speaker 04:
And it went wrong in not undertaking that step.

[00:09:04] Speaker 04:
And they are clearly generalizable to 844C.

[00:09:08] Speaker 04:
So I think you sort of have

[00:09:11] Speaker 04:
There are the problems with Sean Simmons that render them not persuasive, but you also have these prohibits cases are binding.

[00:09:22] Speaker 04:
They're not distinguishable from this case.

[00:09:26] Speaker 04:
And if you have

[00:09:27] Speaker 04:
binding presidential authority that you must follow, it sort of renders non-binding persuasive authority immaterial.

[00:09:37] Speaker 04:
So I really think the order of operations should be, do we have binding precedent that requires this outcome?

[00:09:47] Speaker 04:
From my perspective, we do.

[00:09:49] Speaker 04:
These prohibits cases are just binding and indistinguishable.

[00:09:52] Speaker 04:
And if that's the case, these persuasive, ostensibly persuasive authorities just are not of any moment.

[00:10:00] Speaker 03:
That proposition, however, was not plain to the panel in Simmons, correct?

[00:10:07] Speaker 04:
Will you just say?

[00:10:09] Speaker 04:
That's right.

[00:10:10] Speaker 04:
And I just think that Simmons' plainness analysis itself is not binding.

[00:10:17] Speaker 04:
and is helpful to the court only to the extent that it's persuasive and it's not persuasive for the reasons that I said.

[00:10:25] Speaker 04:
They don't offer any reasons to suppose that the words prescribed can be read to permit a factual approach.

[00:10:34] Speaker 04:
And they don't offer any basis or any cognizable basis to distinguish Martinez, Hernandez, and Herrera-Roldan.

[00:10:44] Speaker 03:
If we agree with you,

[00:10:48] Speaker 03:
basically be saying that the panel and Simmons were plainly wrong?

[00:10:59] Speaker 04:
Not in Shaw.

[00:11:02] Speaker 04:
In Shaw, yes, you would have to say the panel is plainly wrong because they did not have the arguments before them.

[00:11:10] Speaker 04:
Simmons itself was decided on plainness grounds.

[00:11:15] Speaker 04:
So I think you just have to say that Simmons conducted its plainness analysis incorrectly because it didn't, you don't have to say plainly incorrectly.

[00:11:23] Speaker 04:
They conducted it incorrectly by not recognizing that the text of the statute itself or prior decisions clearly generalizable to this one can make an error plain.

[00:11:34] Speaker 04:
I also think it's important to say that it's not a subjective test.

[00:11:40] Speaker 04:
The Supreme Court has told us plain air review is not a grading system for judges.

[00:11:46] Speaker 04:
And this court has said in Macar that, you know, to air is human and to plainly air is also.

[00:11:54] Speaker 04:
So I think it's really more just an objective analysis and there's no need to like cast dispersions on prior panels just to say that, you know, one of them didn't have the arguments before them and the other one, we disagree with how they conducted their plainness analysis.

[00:12:11] Speaker 04:
I think that's the consequence of having unpublished decisions that aren't binding and those being in conflict with published presidential decisions.

[00:12:22] Speaker 04:
Unless there are further questions, I'll reserve the remainder of my time.

[00:12:31] Speaker 02:
I believe you're you're muted.

[00:12:42] Speaker 05:
Oh, thank you.

[00:12:44] Speaker 05:
Sorry, did you have something to ask?

[00:12:53] Speaker 03:
the question of constructive possession.

[00:13:02] Speaker 03:
Right, the second issue.

[00:13:04] Speaker 03:
Yeah, as I understand it, the drugs, even though the defendant said, oh, I have drugs in my car, they were sitting on the seat next to him, right?

[00:13:17] Speaker 03:
Yes, right, in the closed back seat.

[00:13:20] Speaker 03:
And this is immediately after

[00:13:22] Speaker 03:
they had observed people coming and going out of the club to

[00:13:30] Speaker 04:
That didn't happen.

[00:13:31] Speaker 04:
I didn't quibble with that in the government's answer brief, because I don't think it's material to whether the judge applied the wrong standard, but it was pretty clearly established at trial that the police officer was wrong about the people coming and going.

[00:13:45] Speaker 04:
He had written in his report that he couldn't see that and said for the first time at trial in contradiction to what he'd said in his report that he saw that.

[00:14:00] Speaker 03:
happen?

[00:14:02] Speaker 04:
I think it was pretty well established at trial through impeachment that it didn't, but regardless, the jury acquitted him of intent to distribute the drugs, and the judge didn't rely on that.

[00:14:15] Speaker 03:
Right, but that doesn't mean that they also said he did not possess them, and that's a serious question.

[00:14:23] Speaker 04:
Right.

[00:14:24] Speaker 04:
I agree with that.

[00:14:25] Speaker 04:
I think it's a question for the district court applying the correct standard.

[00:14:30] Speaker 04:
So the problem is we're not saying that the judge couldn't find that he possessed under the correct standard.

[00:14:38] Speaker 04:
We're saying the judge didn't find that he possessed under the correct standard.

[00:14:42] Speaker 03:
So you're saying that there are sufficient facts from which you could infer possession and intent to possess.

[00:14:50] Speaker 03:
It's just that the district court did not make that finding.

[00:14:53] Speaker 03:
Exactly.

[00:14:54] Speaker 02:
If that's your position, how do you get over the third prong of planning?

[00:15:04] Speaker 04:
So the third prong is not a sufficiency analysis.

[00:15:08] Speaker 04:
So the fact that the judge could find intent to possess

[00:15:14] Speaker 04:
and that it wouldn't be reversible clear error on appeal doesn't mean that the judge would make that finding.

[00:15:21] Speaker 04:
There's a reasonable probability that the judge wouldn't make that finding for all the reasons that I've laid out in my brief.

[00:15:28] Speaker 04:
It was his girlfriend's car.

[00:15:30] Speaker 04:
His girlfriend said it was her marijuana.

[00:15:33] Speaker 04:
The judge never said that he didn't find her credible on that, et cetera.

[00:15:37] Speaker 02:
But even if it's not a sufficiency analysis, don't we discern whether you meet your burden to show a reasonable probability by what the evidence showed?

[00:15:46] Speaker 04:
Yes.

[00:15:47] Speaker 04:
And I think that the evidence very strongly suggested that there was no intent to possess.

[00:15:54] Speaker 04:
I don't know that we would have a clear error finding, but I feel pretty confident that by a preponderance of the evidence that there was no intent to possess.

[00:16:02] Speaker 04:
And I think that that's what the judge would find on remand.

[00:16:05] Speaker 03:
Is there any evidence, as I understand it, it was in July that she acquired the drugs.

[00:16:14] Speaker 03:
And sometime between then and February of the next year, she decided she didn't really like those drugs.

[00:16:24] Speaker 03:
Do we know when the latter occurred?

[00:16:32] Speaker 03:
Is there any way to measure in the record when that occurred?

[00:16:38] Speaker 04:
No.

[00:16:39] Speaker 04:
What I do know is that there was a whole bunch of garbage in the car, not just this.

[00:16:45] Speaker 04:
And she testified like, look, this was just trash that I needed to throw out and hadn't, like all the other trash in my car.

[00:16:52] Speaker 04:
It kind of looked like my car, I guess.

[00:16:57] Speaker 03:
All right.

[00:16:58] Speaker 03:
Do we is there in the record pictures of the inside of the vehicle?

[00:17:04] Speaker 04:
Yes, there's body camera footage that shows the inside of the vehicle and all of the trash that was all over the car.

[00:17:13] Speaker 04:
OK, that's that's in the record on appeal.

[00:17:15] Speaker 04:
Again, though, I do think that these are all things for the district court to assess.

[00:17:21] Speaker 04:
And that there's plenty of evidence to say there's a reasonable probability that the judge might not find intent to possess.

[00:17:30] Speaker 04:
And that's based on it was his girlfriend's car.

[00:17:32] Speaker 04:
It was her marijuana that she said that he never had anything to do with the marijuana.

[00:17:38] Speaker 04:
The judge like never suggested that he didn't find her testimony credible.

[00:17:43] Speaker 04:
And so it's just, I think if you reach issue two, which I don't think you should, it's just a remand to the district court for him to apply the right standard.

[00:17:53] Speaker 05:
Thank you.

[00:17:54] Speaker 05:
Judge Rossman, did you have any questions?

[00:17:56] Speaker 01:
No, thank you.

[00:17:57] Speaker 05:
All right.

[00:17:57] Speaker 05:
Thank you.

[00:17:58] Speaker 05:
Uh, give me one second.

[00:18:01] Speaker 05:
Okay, we'll hear from Mr Bond.

[00:18:07] Speaker 00:
May it please the court separate bond on behalf of the United States.

[00:18:12] Speaker 00:
I'd like to start first with this question of constructive possession and

[00:18:16] Speaker 00:
In the court's analysis of that, the sentencing hearing, the court referred back to the testimony at trial showing that that was established possession of this, constructive possession of the marijuana.

[00:18:35] Speaker 00:
And that's very relevant here on the question of whether there was an error at all.

[00:18:41] Speaker 00:
because that trial construct the pattern jury instruction for constructive possession was what was presented to the jury.

[00:18:49] Speaker 00:
And so that is the presumption that the court applies the law correctly here is strengthened by the fact that the court was actually referring to the context where that proper standard had been applied when it- The court was really tired.

[00:19:12] Speaker 03:
back to the jury instruction.

[00:19:14] Speaker 03:
So what was there about the evidence that would make it clear that he possessed these drugs and that he intended to do so?

[00:19:25] Speaker 00:
Yes, Your Honor.

[00:19:26] Speaker 00:
I think that that is, as the court just reported,

[00:19:30] Speaker 00:
said there's ample evidence from the trial that did so.

[00:19:34] Speaker 00:
We have officers approaching a vehicle, and as they approach, they testify that it smelled strongly of marijuana.

[00:19:44] Speaker 00:
They arrive, they find the firearm under the man, and he admits immediately that there's marijuana in the car.

[00:19:51] Speaker 00:
They confirm that.

[00:19:52] Speaker 00:
They find it within an arm's reach of him in a paper bag on the seat and in a Walmart grocery sack

[00:19:59] Speaker 00:
on the floor, and this is in the testimony pages 269 of the volume one through 277.

[00:20:07] Speaker 00:
And also, this point wasn't actually addressed in the sentencing hearing, other than the reference back to the testimony of trial, but there was testimony that there was actually marijuana on the firearm itself.

[00:20:23] Speaker 00:
which is a very close nexus between the firearm and the marijuana, in fact, is approximately close as possible.

[00:20:31] Speaker 00:
And looking at some of the cases that the court applies in this standard under the proper intent to control standard, Little is a great example, although in

[00:20:50] Speaker 00:
In that context, there was actually the wrong standard that was given to the jury.

[00:20:56] Speaker 00:
And we're actually talking in a, which makes the point that this is actually a beyond reasonable doubt question in that case, rather than the preponderance finding that we're just reviewing here.

[00:21:07] Speaker 00:
And there, the court then said that intent to control can be inferred from the circumstances.

[00:21:18] Speaker 00:
in that case, even though the wrong standard was given to the jury, they found that that standard was harmless.

[00:21:25] Speaker 00:
This court found that that was harmless given the totality of the circumstances there and noting the time, the exclusive control of the person in the, what was there was a well house, a small little structure and the person had,

[00:21:47] Speaker 00:
defendant had exclusive control of it, had been in there.

[00:21:50] Speaker 03:
Let me say, if you're addressing my question, my concern is not about the confugality with the jury instruction and the wrong citation and the sentencing memorandum.

[00:22:02] Speaker 03:
My concern is, what evidence at trial was the district court referring to when it said, harken back to the trial?

[00:22:11] Speaker 03:
I'm talking about evidence, not this jury instruction stuff.

[00:22:15] Speaker 03:
Yes, your honor.

[00:22:16] Speaker 03:
The if you already explained it, don't use any more of your time.

[00:22:22] Speaker 00:
OK, well, I would say that that that testimony that I referenced there is that evidence there.

[00:22:29] Speaker 00:
And then at the sentencing hearing, the court really, really pointed to Mr. Arnett's knowledge of it and the close proximity of it to him.

[00:22:40] Speaker 00:
And I think those right there provide the permissible inference

[00:22:44] Speaker 00:
that is all that is necessary for this intent to control.

[00:22:48] Speaker 00:
And that should resolve that question for the court here.

[00:22:56] Speaker 00:
Yes.

[00:22:57] Speaker 00:
I'm sorry.

[00:22:58] Speaker 02:
Please finish your answer.

[00:23:01] Speaker 00:
Particularly under the plain error review of a preponderance finding.

[00:23:06] Speaker 00:
Yes, Your Honor.

[00:23:08] Speaker 02:
Turning to the 844C argument, do you agree that

[00:23:12] Speaker 02:
Sean Simmons just did not have occasion to pass on the argument that the appellant presents here.

[00:23:18] Speaker 00:
I would not agree with that.

[00:23:21] Speaker 00:
The plain text of 844 has both this term and its definition.

[00:23:29] Speaker 00:
And so I would say it was before the court in Shaw.

[00:23:33] Speaker 00:
The court had that.

[00:23:35] Speaker 00:
The pro se appellant there did

[00:23:42] Speaker 00:
did present this argument, claiming that the categorical approach should apply, which is enough for this court to review, not just the statutory prohibition, but its definition as well.

[00:23:54] Speaker 02:
OK, so let's assume that the court had in front of it 844, all of 844, and the definition, even though I don't think the case really talks about C. Let's just spot that the statute, that the appellant's argument here on the face of the statute may have been before the court in Shaw.

[00:24:11] Speaker 02:
But this argument about understanding and generalizing from our case law that talks about proscribes or prohibits to proscribes that that argument wasn't before the court in Shaw, right?

[00:24:26] Speaker 00:
I don't believe that.

[00:24:27] Speaker 00:
I don't recall whether it was before the court in Shaw.

[00:24:31] Speaker 00:
It was before the court in Simmons.

[00:24:33] Speaker 00:
And I'll note that the court in Simmons did find that the Herrera Roldan case was distinguishable.

[00:24:40] Speaker 00:
and did not dictate the outcome there.

[00:24:45] Speaker 00:
And that is the right interpretation because both Herrera Roldan and the Martinez Hernandez case made that tie of the prohibits to the categorical approach.

[00:25:05] Speaker 00:
at the conclusion of their art, their analysis of the text and context of that particular statutory prohibition or provision.

[00:25:16] Speaker 00:
And so I think that, you know, that's not some, you know, chivalry that has to be there.

[00:25:23] Speaker 00:
And if it's there, it automatically makes it requires the categorical approach.

[00:25:28] Speaker 00:
This, this still requires this complex statutory interpretation analysis of

[00:25:35] Speaker 00:
the full context of this statute, A and C, and their interactions together.

[00:25:42] Speaker 02:
But how can the word, just as a matter of common sense, how can the word proscribes implicate a factual approach?

[00:25:51] Speaker 00:
The way I would look at this statute, if we were working off a blank slate here, is that this prohibition in 844A

[00:26:04] Speaker 00:
is where you'd have to start before you get to a 44C.

[00:26:08] Speaker 00:
And that's, you know, except if he commits the instant offense after a prior conviction for any drug, narcotic, or chemical offense, chargeable under the law of any state, and thereby just drawing in all 50 states drug, chemical, or drug, narcotic, or chemical offenses.

[00:26:33] Speaker 00:
And then there we moved to the definition and.

[00:26:36] Speaker 05:
Okay, can I can I start?

[00:26:40] Speaker 05:
I don't want to interrupt you, but I want to make sure I'm following you.

[00:26:43] Speaker 05:
And I think I may have lost you.

[00:26:44] Speaker 05:
So what is it an eight forty four a that you're hanging your head on before we get to see I think.

[00:26:52] Speaker 00:
The in 844A, we have both this broader, this term is broader than any that I encountered in the categorical approach analysis, this drug, narcotic or chemical offense term, which is a broad term in and of itself.

[00:27:06] Speaker 00:
Then the chargeable under the law of any state, that itself expands this.

[00:27:14] Speaker 00:
And then we move to the definition where it means any offense, which prescribes the possession

[00:27:22] Speaker 00:
of any substance that's within the Controlled Substance Act.

[00:27:26] Speaker 00:
And so I think that that's right where we get into this factual approach that we have to look at whether, as the court indicated in Simmons, whether this was actually a, there is methamphetamine offenses and here we have marijuana cocaine offenses.

[00:27:48] Speaker 00:
I would argue that is consistent with a statutory language, or at a minimum, it's not plain from that statutory language that that has to require.

[00:27:58] Speaker 00:
And I think as the panel's questions earlier indicated, plainness really is the dispositive issue for this appeal.

[00:28:09] Speaker 00:
And I think it is the appropriate issue for the court to decide this one on because in

[00:28:16] Speaker 00:
One last thing as far as the error, this is a substantive felony that we're talking about.

[00:28:23] Speaker 00:
It is before the court here in a plain error sentencing context where it has been used by the guidelines.

[00:28:31] Speaker 00:
But applying the categorical approach to this pre-trial, pre-conviction setting of this felony offense here would

[00:28:44] Speaker 00:
I don't believe would be consistent with the intent of Congress, as indicated by the statutory reach of all the states, but also it doesn't have the Sixth Amendment concerns that

[00:28:58] Speaker 00:
that applied in desk camp.

[00:29:01] Speaker 00:
And as indicated by the court's Davis decision where it talks about on page 454, it discusses the pre-conviction context.

[00:29:12] Speaker 00:
And that doesn't raise those same concerns.

[00:29:16] Speaker 00:
And also in the Nijuan case where there was the question about, well, if this is defined as a aggravated felony, how does that apply in the

[00:29:26] Speaker 00:
enhancement in 1326 for aggravated felonies.

[00:29:32] Speaker 00:
And the Supreme Court found no constitutional issue with that because the government would have to prove beyond a reasonable doubt that it was, that it met the necessary prerequisites there, the $10,000 threshold.

[00:29:47] Speaker 00:
So that goes into the reason to be cautious about approaching the

[00:29:53] Speaker 00:
uh, plainness, uh, the error question here.

[00:29:57] Speaker 00:
Um, and the plainness is where it works best here.

[00:30:03] Speaker 00:
And that's, it's, it's very, uh, it is as, um, it would, the court would be hard pressed to find plainness here where two panels of this court have not found it with this presented with the same, or I would argue the same arguments and

[00:30:24] Speaker 05:
Mr. Bond, can I ask you about that?

[00:30:27] Speaker 05:
And I don't disagree.

[00:30:30] Speaker 05:
I mean, I don't think Mr. Lee would probably disagree.

[00:30:33] Speaker 05:
It is a little of a challenge for the defendant to say something is obviously wrong when you have two panels, whether they evaluate it under plain error or as preserved error.

[00:30:46] Speaker 05:
But to just follow up on what you said and to follow up on Judge Rossman's question,

[00:30:54] Speaker 05:
And forgive me if you've already answered this, but because I do understand, I think you're presenting a very good global argument based on A and C under 844.

[00:31:07] Speaker 05:
But if we narrow down just one, these three words, and maybe I shouldn't be taking these three words in isolation, offense which prescribes X.

[00:31:21] Speaker 05:
I really, you know, ever since I've saw this case, I've been trying to figure out, well, what is the response to Mr. Lee's argument?

[00:31:32] Speaker 05:
Why did Judge Tempkovich in that panel in Simmons find this argument unconvincing?

[00:31:39] Speaker 05:
I understand what Judge Matheson may not have because the argument wasn't presented.

[00:31:43] Speaker 05:
But how can't, like Judge Rossman says, how can an offense which prescribes

[00:31:51] Speaker 05:
be reasonably interpreted or even conceivably interpreted to require us to look at the facts and offense either prescribed something or it doesn't.

[00:32:06] Speaker 00:
I think that, I don't think that when Congress passed this act, they were anticipating the categorical approach to apply.

[00:32:17] Speaker 00:
I think that's very clear.

[00:32:19] Speaker 00:
That'll be true.

[00:32:21] Speaker 00:
And it's also clear that they intended for this to apply to any state.

[00:32:26] Speaker 00:
And I think that that is probably some of the, that plus the just overall breadth of this definition relative to the other controlled substance related offenses that have applied or have been applied

[00:32:44] Speaker 00:
I think that that is enough to show that those prohibits cases are distinguishable in this context.

[00:32:55] Speaker 00:
And I see I'm almost out of time.

[00:32:57] Speaker 02:
I have one follow-up question.

[00:33:01] Speaker 02:
If the categorical approach does apply here, does the government agree that Mr. Arnett lacks a qualified predicate?

[00:33:11] Speaker 00:
The government did not, did not challenge that.

[00:33:15] Speaker 00:
I believe that Cantu would probably be disposant there.

[00:33:20] Speaker 05:
Thank you.

[00:33:22] Speaker 05:
Judge Rossbender, Judge Berman, do you have any other questions?

[00:33:25] Speaker 05:
I don't.

[00:33:26] Speaker 05:
All right.

[00:33:27] Speaker 05:
Thank you, Mr. Lee.

[00:33:29] Speaker 05:
I apologize to you as well.

[00:33:32] Speaker 05:
It didn't do it on purpose, but that deprived you of your rebuttal time.

[00:33:37] Speaker 05:
I was very well presented by both sides.

[00:33:39] Speaker 05:
Thank you both.

[00:33:40] Speaker 05:
This manner submitted.