[00:00:21] Speaker 03: Next case this morning, United States versus Davis, number 245018. [00:00:30] Speaker 03: Counsel, you may proceed. [00:00:39] Speaker 04: Good morning, Your Honors. [00:00:41] Speaker 04: Assistant Federal Public Defender Amy Senia on behalf of the appellant, Cody Davis, may it please the court. [00:00:47] Speaker 04: This case asks the court. [00:00:49] Speaker 04: to recognize the common sense principle that a 20-year-old convicted of consuming alcohol underage has committed an offense similar to the quintessential juvenile status offense of consuming alcohol underage. [00:01:05] Speaker 04: The crux of a juvenile status offense is that it criminalizes bland conduct only because of the offender's age that would be entirely lawful for adults. [00:01:15] Speaker 04: Here, Mr. Davis was convicted for drinking a couple of beers [00:01:20] Speaker 04: in a private home with a few friends when he was just a few months shy of 21. [00:01:26] Speaker 04: Because this bland conduct would have been entirely legal in only five months time, common sense dictates that his offense is sufficiently similar to a juvenile status offense and should have received no criminal history points under the guidelines. [00:01:42] Speaker 04: This court should reverse. [00:01:47] Speaker 04: The guidelines require a common sense approach. [00:01:51] Speaker 04: 4A1.2C2 excludes juvenile status offenses, and offenses similar to them. [00:01:59] Speaker 04: And then the commentary directs courts to use a common sense approach to make that determination. [00:02:05] Speaker 04: And the commentary provides a list of potentially helpful factors, though it isn't a mechanical checklist, and allows flexibility, [00:02:14] Speaker 04: the court to look at some factors that might be more helpful than others in any given case. [00:02:20] Speaker 04: And here, using that common sense approach, his offense is similar to a juvenile status offense. [00:02:27] Speaker 04: I think the first step, that's the easiest way to resolve this case, is to determine whether underage drinking generally is a juvenile status offense, if the offender is under the age of 18. [00:02:38] Speaker 04: The government doesn't seem to dispute this, and we cite in many cases saying that. [00:02:44] Speaker 04: And so if everyone's on board with that, that makes this a very easy case. [00:02:49] Speaker 00: Because then what we're- Can you focus on the first two factors? [00:02:54] Speaker 00: Because that seems to be what the primary dispute is about. [00:02:59] Speaker 04: Sure. [00:03:00] Speaker 04: And so the punishment factors are really most helpful when we're comparing two different offenses. [00:03:09] Speaker 04: So if a defendant has a conviction for animal abuse and says, [00:03:14] Speaker 04: This is similar to a fish and game violation. [00:03:16] Speaker 04: We don't really have a gut sense of how similar those crimes are. [00:03:19] Speaker 04: So that's when we look to the statutory maximum punishments to see if they are punished similarly. [00:03:25] Speaker 04: That's a good way to assess seriousness. [00:03:28] Speaker 04: But here, we're talking about the exact same offense. [00:03:31] Speaker 04: We know that it's a juvenile status offense if the offender is under 18. [00:03:35] Speaker 04: And so then we don't need to look to the statutory maximum to determine the relative seriousness. [00:03:41] Speaker 00: It's just not that helpful. [00:03:42] Speaker 00: All right, let me clarify. [00:03:44] Speaker 00: Are you suggesting that these factors that the guideline commentary sets out aren't necessarily... Excuse me, Judge Morris. [00:03:52] Speaker 02: Yeah. [00:03:53] Speaker 02: Would you speak into your microphone, please? [00:03:55] Speaker 00: Sure. [00:03:55] Speaker 00: I'm sorry, Judge Kelly. [00:03:56] Speaker 00: Yeah. [00:03:57] Speaker 00: You know, I just realized, yeah, sorry. [00:04:00] Speaker 00: I'm asking if your position is that you don't really even need to go through all these factors in some cases such as the present case because the punishment isn't really relevant because they're just that similar essentially. [00:04:16] Speaker 00: And do you have any support for that? [00:04:19] Speaker 04: That's exactly right, Your Honor. [00:04:20] Speaker 04: And so I suppose my support would be some of the cases cited in the briefing, Bravo, Ward, [00:04:28] Speaker 04: Those cases talk about how, you know, you can look at punishment, it's sometimes relevant, but there might be better gauges of comparative seriousness. [00:04:39] Speaker 00: There's no case that says, that I'm aware of though, that you can basically skip a couple of those factors. [00:04:46] Speaker 00: I think the Griffin case... Because if the punishment is significantly different, [00:04:53] Speaker 00: Isn't that some indication that perhaps there is a difference, even though on their face they appear to be extremely similar? [00:05:01] Speaker 04: I think it could be in theory, but it's not here when you know that the underlying conduct is exactly the same, it's the same elements, it's the same offense, and then you also know what the actual conduct was in the case. [00:05:17] Speaker 04: It might be a different situation where we don't actually know what the underlying facts are, but here we do. [00:05:22] Speaker 04: And we know that they are exactly what you would expect of a juvenile status offense. [00:05:27] Speaker 04: He's just doing something that's illegal solely because of his age. [00:05:31] Speaker 04: And so the Ward case in the Seventh Circuit is really helpful on this because the crime there was underage possession of a firearm. [00:05:40] Speaker 04: And the court says that can be a juvenile status offense. [00:05:44] Speaker 04: It cannot be. [00:05:45] Speaker 04: It depends on the underlying facts. [00:05:47] Speaker 04: And so if it was criminalized, if he was convicted because he was 17 and had a firearm, then that is the quintessential juvenile status offense. [00:05:56] Speaker 04: But if you look at the underlying facts and actually he used the firearm in committing a felony that would be a felony for an adult, then it's not really a juvenile status offense at that point. [00:06:06] Speaker 03: What was the punishment in that case? [00:06:08] Speaker 04: The court didn't even talk about it. [00:06:10] Speaker 04: Apparently, the court didn't think that punishment was probative of assessing similarity. [00:06:15] Speaker 03: Well, the guidelines certainly do, though. [00:06:18] Speaker 03: And it seems like there's this conduct on the one hand and punishment on the other hand. [00:06:26] Speaker 03: And the criminal history guideline in general [00:06:31] Speaker 03: focuses on prior sentences of imprisonment. [00:06:35] Speaker 03: And that's what it looks at, is the prior sentence, not the underlying conduct. [00:06:40] Speaker 03: And these factors refer to comparison of punishments, perceived series of the offenses indicated by the level of punishment. [00:06:48] Speaker 03: And we had punishment here. [00:06:50] Speaker 03: It seems that factor favors the government. [00:06:57] Speaker 03: You point out that, well, [00:07:00] Speaker 03: Illinois is an outlier, and maybe it is. [00:07:04] Speaker 03: But wouldn't that support an argument, or wouldn't that more comfortably support an argument for a variance and not an argument about criminal history points? [00:07:19] Speaker 04: I don't think so, because I think the very fact that the guidelines typically look at level of punishment, that's the rule throughout this whole chapter, except for this one place. [00:07:29] Speaker 03: Well, no, it says punishment. [00:07:31] Speaker 03: The list of factors talks about punishments. [00:07:37] Speaker 03: And the criminal history provision is all about punishment. [00:07:43] Speaker 03: So I mean, I understand your point that you think conduct not only should be relevant, but maybe should even drive the whole issue. [00:07:53] Speaker 03: But I'm having a hard time squaring that with the guideline and even the factors. [00:07:59] Speaker 04: So I think the factor that talks, the second factor, it says the perceived serious of the offense as indicated by punishment. [00:08:07] Speaker 04: So it's not looking at punishment in a vacuum, it's looking at punishment to try to determine seriousness, and that might be a helpful way to determine that here. [00:08:16] Speaker 04: But if we look at the cases at Bravo, Griffin, Ward, and Landa, they all talk about how you can look at punishment, that's fine, but there's other things that you have to look at too. [00:08:27] Speaker 04: And that's the core conduct of the offense. [00:08:30] Speaker 04: Whether they're conceptually the same crime or similar crimes, what the actual conduct was, whether the offense had this bland quality that makes it similar to the other offenses listed, whether it shows a likelihood of committing future conduct, those helpfully track the other factors. [00:08:50] Speaker 03: Is there a standard of review, abuse of discretion? [00:08:53] Speaker 04: No, it's de novo. [00:08:55] Speaker 04: The parties agree on that. [00:08:57] Speaker 03: What if we think it's abuse of discretion? [00:09:01] Speaker 03: What happens to your argument? [00:09:04] Speaker 04: I don't think it. [00:09:07] Speaker 04: So I think the Abeta case is what says it's de novo. [00:09:10] Speaker 04: But if you think that it's abuse of discretion, I don't think that changes anything. [00:09:15] Speaker 03: Well, I just think when you have a five factor test that involves weighing different factors, why wouldn't we [00:09:27] Speaker 03: at least show some deference to the district court on something like that. [00:09:31] Speaker 04: Because the district court didn't waive the factors. [00:09:33] Speaker 04: The district court didn't understand the test. [00:09:36] Speaker 03: Oh, well, that's a different matter. [00:09:38] Speaker 03: I mean, if the court simply applied the wrong approach, is that the de novo standard? [00:09:47] Speaker 03: That would be de novo. [00:09:48] Speaker 03: But if the court actually went through and applied these factors, then would it be abusive discretion? [00:09:55] Speaker 04: I don't think so. [00:09:56] Speaker 04: I think it's still De Novo. [00:09:57] Speaker 03: Do you have any authority on that? [00:09:59] Speaker 03: I know you've agreed, but. [00:10:03] Speaker 04: I think the Griffin case says that the court just goes through the factors again, De Novo. [00:10:12] Speaker 04: The case that I said in the briefs wasn't better. [00:10:18] Speaker 04: You know, here, if the court didn't weigh the factors, there's nothing to defer to. [00:10:23] Speaker 03: I understand your argument. [00:10:25] Speaker 03: I don't want to belabor the point. [00:10:26] Speaker 02: Well, counsel, counsel, if we agreed with you, wouldn't remain the fuel, because the district court varied upward, regardless of [00:10:47] Speaker 04: So I think if your honor is... In other words, it didn't make any difference to him. [00:10:53] Speaker 02: I thought in reading the record here that he was confused on what was being argued in the first place. [00:11:01] Speaker 02: And the similar two never really got through. [00:11:05] Speaker 02: He was looking to see if it was the same as. [00:11:07] Speaker 02: And I think that's a different approach. [00:11:13] Speaker 02: A similar two has got to be meaning something. [00:11:17] Speaker 02: But when he varies upward, then it was within the statutory maximum regardless. [00:11:27] Speaker 02: And why wouldn't this be harmless? [00:11:29] Speaker 04: So it's the government's burden to show harmlessness. [00:11:31] Speaker 04: They haven't invoked it here. [00:11:33] Speaker 04: And it's not harmless because it's well established in this court that if there is an error that affects the guideline range, then we can't say that it's harmless because the guideline range is the anchor for the court. [00:11:46] Speaker 04: So even if the court ends up bearing upward, the fact that the guideline range should have been lower is what would have anchored the court in the first place. [00:11:54] Speaker 04: And I don't have the exact case offhand because we didn't talk about harmlessness in the briefs, but I'm happy to submit the 28J. [00:12:00] Speaker 04: That's well established if there's a Supreme Court case that says it as well. [00:12:03] Speaker 00: Since the district court did fail to conduct this inquiry, which to me is at least partly factual based on four and five, [00:12:17] Speaker 00: Maybe some of the factors are factual Wouldn't the answer be if we agreed with you obviously that it should have been conducted to remand it yet again and I Think this would be the third time maybe For for the court to conduct the inquiry it should have conducted in the first place And let it decide whether the the results of that inquiry would impact the sentence I think you could but I don't think that [00:12:43] Speaker 04: you need to or you should for just judicial economy. [00:12:46] Speaker 04: It's already before the court and the lodestar is common sense. [00:12:49] Speaker 04: So at the end of the day, we have these factors, but the court has said, really the factors are, it's not a mechanical checklist. [00:12:57] Speaker 04: The court says that in Griffin. [00:12:58] Speaker 04: And really they're just supposed to help guide the court's treatment of common sense. [00:13:04] Speaker 04: But here, when we know they're at the exact same crime, the core is exactly the same. [00:13:11] Speaker 04: We don't have to get into all of these factors. [00:13:13] Speaker 04: We can just go with our common sense understanding of these offenses. [00:13:17] Speaker 04: And so for that reason, I think the court wouldn't need to remand. [00:13:24] Speaker 04: I'll reserve the remainder. [00:13:25] Speaker 04: Thank you. [00:13:26] Speaker 03: Thank you. [00:13:39] Speaker 01: Valeria Lester for the United States, and may it please the court. [00:13:43] Speaker 01: I want to begin my time today by correcting an error that's in the government's brief. [00:13:48] Speaker 01: On page 11 of the government's brief, the government references an Illinois compiled statute that's found at chapter 705, article 5, part 170. [00:14:00] Speaker 01: That specific statute references [00:14:04] Speaker 01: the right of juveniles to be represented by counsel in juvenile court proceedings. [00:14:10] Speaker 01: That is the incorrect statute, and it transposes the first two numbers of the part, the one and the seven. [00:14:17] Speaker 01: The correct statute is the same chapter, Article 5, Part 710, which does address the types of punishments available in juvenile court proceedings. [00:14:27] Speaker 01: With my apologies, I'd like to address a few of Mr. Davis's arguments presented here today. [00:14:34] Speaker 01: First. [00:14:34] Speaker 02: What does similar to mean? [00:14:38] Speaker 02: If it doesn't mean similar to, what is similar to? [00:14:44] Speaker 01: Your Honor, similar to has been defined in the guideline provisions in Commentary Note 12A with the common sense approach. [00:14:55] Speaker 02: The idea being that... Okay, now what does that mean? [00:14:59] Speaker 02: What is a common sense approach to similar to? [00:15:02] Speaker 02: It's either similar or it's not, okay? [00:15:06] Speaker 02: Do you agree with that? [00:15:08] Speaker 01: Yes. [00:15:09] Speaker 01: Using the common sense multi-factor approach, one could arrive at whether or not the listed and unlisted offenses were similar. [00:15:18] Speaker 02: Okay. [00:15:19] Speaker 01: That common sense approach, yes, Your Honor. [00:15:23] Speaker 02: Now, using the common sense approach, if a kid is 14 and drinks, how much time does he get? [00:15:32] Speaker 01: I don't know the answer. [00:15:33] Speaker 01: He doesn't get any time. [00:15:35] Speaker 02: He doesn't get any time, OK? [00:15:37] Speaker 02: He's a juvenile. [00:15:38] Speaker 02: So if another juvenile, but he's a 19-year-old juvenile, does the same thing, and still an adult would not be guilty of either of those, why isn't that similar to using the common sense approach? [00:15:56] Speaker 01: Specifically in Illinois, Your Honor, the state of Illinois. [00:15:59] Speaker 02: I don't care about Illinois. [00:16:01] Speaker 02: I'm talking about the crime itself for the history. [00:16:07] Speaker 02: So isn't this similar to a juvenile offense? [00:16:15] Speaker 02: I disagree. [00:16:17] Speaker 02: You disagree, why? [00:16:19] Speaker 01: I disagree because, and Mr. Davis is asking this court to apply a categorical approach to those offenses. [00:16:27] Speaker 01: And that's not the goal of this petition. [00:16:31] Speaker 01: You're asking for a common sense approach? [00:16:35] Speaker 01: Yes, Your Honor, we're asking for a common sense approach. [00:16:37] Speaker 01: However, to say that categorically unlawful consumption by someone under the age of 18 is in fact a juvenile status offense [00:16:46] Speaker 01: does not give credence to what is a juvenile status offense. [00:16:50] Speaker 01: And because that does not... This court has used the juvenile status offense adopted in Archuleta, which includes the fact that an offense must occur by someone who's under the age of 18. [00:17:05] Speaker 01: It must include conduct that would be legal, but for the defendant's age, and it must be non-serious in nature. [00:17:15] Speaker 01: The non-serious in nature part is the piece that's critical here. [00:17:20] Speaker 01: Mr. Davis wants you to focus on the first two factors, which is age-specific only. [00:17:25] Speaker 01: However, when you focus on that third factor, the seriousness can vary from jurisdiction to jurisdiction. [00:17:34] Speaker 01: by creating a categorical approach that, or not a categorical approach, but a categorical finding that unlawful consumption is by per se a juvenile status offense is unfair. [00:17:46] Speaker 00: Serious in nature has much to do with the circumstances of the crime, just as much as it does the punishment. [00:17:54] Speaker 00: And in this case, Illinois just categorically punishes anything, all adult crimes. [00:18:04] Speaker 00: with imprisonment of up to one year. [00:18:06] Speaker 00: I mean, this is not some reasoned determination by the Illinois legislature that underage drinking by anybody under the age of 21 is a very serious offense. [00:18:18] Speaker 00: There's nothing like that here. [00:18:21] Speaker 00: And the circumstances of this particular crime certainly don't, under any common sense definition, come within a serious offense. [00:18:30] Speaker 00: He's at a residence, and there's underage drinking going on. [00:18:35] Speaker 01: I think that that a bit misrepresents what happened, respectfully, Your Honor. [00:18:40] Speaker 00: Well, do you see my point about the word serious? [00:18:42] Speaker 00: It's not just about punishment. [00:18:45] Speaker 01: Absolutely. [00:18:45] Speaker 01: And seriousness does also contemplate the underlying conduct. [00:18:49] Speaker 01: And that is clear across the cases as it references the third prong of a juvenile status offense, as well as the fourth and fifth factors of the multi-factor common sense approach. [00:18:59] Speaker 01: that courts can consider the underlying conduct. [00:19:02] Speaker 00: Well, speaking of the multi-factor common sense approach, it's interesting to me and I'm with Judge Kelly about what does common sense mean if it doesn't mean that in this case these two offenses are essentially similar. [00:19:14] Speaker 00: I mean, they're essentially identical. [00:19:18] Speaker 00: And the comment doesn't say the common sense approach requires you to take all of these factors into account and you've got to give [00:19:27] Speaker 00: particular consideration to any one of them it says you've got to the court should use a common sense approach that includes consideration of relevant factors such as and then it lists these factors I don't even think you have to look at these factors according to the comment it's what's relevant in that particular case [00:19:49] Speaker 00: And what would a common sense approach be in this case? [00:19:53] Speaker 00: And wouldn't it be to say, huh, underage drinking isn't a whole lot different between 18 and under and 21 and under? [00:20:03] Speaker 00: And in fact, perhaps it's even more significant for someone 18 and under than 21 and under. [00:20:10] Speaker 01: I think that it's more dangerous for someone under 18 and under to be drinking. [00:20:15] Speaker 01: However, that does not make them more culpable than someone who is over 18. [00:20:20] Speaker 01: An individual who is 18 to 20 years old who is drinking is more culpable than their juvenile counterpart. [00:20:27] Speaker 01: And that's the critical distinction here. [00:20:30] Speaker 01: While you do not have to consider it, and in a court's required to consider the common sense multi-factor approach, [00:20:37] Speaker 01: They are actually factors that help establish whether or not the offense is serious. [00:20:44] Speaker 03: And punishment. [00:20:44] Speaker 03: But apart from, I understand your argument about culpable being tied to age. [00:20:51] Speaker 03: But just looking again at conduct, whether it's a 17-year-old, no punishment, or at least no jail. [00:21:02] Speaker 03: 21-year-old, no punishment, no jail. [00:21:06] Speaker 03: 18 to 20 punishment jail, but same conduct across the board. [00:21:15] Speaker 03: Doesn't that make it all similar? [00:21:19] Speaker 01: I disagree, Your Honor, because there are factors taken into place by individual state legislatures. [00:21:25] Speaker 01: Specifically, they did this in Illinois where [00:21:28] Speaker 03: They believed that juveniles were less culpable and therefore... Well, I wasn't... Again, I was limiting my question only to the conduct part. [00:21:38] Speaker 03: I know that if you move to other factors, you're going to be able to make some arguments. [00:21:42] Speaker 03: But I'm just... On the seriousness of the... Just the conduct. [00:21:47] Speaker 03: What happened? [00:21:49] Speaker 03: Is there really any material difference? [00:21:52] Speaker 03: 17-year-old, 19-year-old, 21-year-old. [00:21:57] Speaker 03: do the exact same thing. [00:21:59] Speaker 01: I acknowledge that they're the exact same conduct. [00:22:01] Speaker 01: However, the age does play a fact into culpability. [00:22:06] Speaker 01: I disagree with Mr. Davis that individuals 18 to 20 are somehow less culpable than their juvenile counterparts. [00:22:13] Speaker 01: In this specific case, the law enforcement were called to an apartment building based on an underage drinking party. [00:22:20] Speaker 01: Now, they don't say it in the reports, but that suggests that there was some type of a disturbance that occurred [00:22:25] Speaker 01: at this apartment. [00:22:27] Speaker 01: That's not the bland house get-together described by Mr. Davis. [00:22:31] Speaker 02: Moreover, that one of the least- You're totally guessing at that, aren't you? [00:22:39] Speaker 02: The record doesn't support that. [00:22:40] Speaker 01: Your Honor, the record does reflect the fact that law enforcement were called based on an anonymous tip that there was an underage drinking party at an apartment complex. [00:22:49] Speaker 02: And if the kid had been 15, they would have said, go on home and don't do it again. [00:22:56] Speaker 02: that what's similar and what's common sense mean? [00:23:03] Speaker 01: Common sense in this case and based on Mr. Davis's conduct would mean that Mr. Davis at the time that he was in that apartment, the apartment holder acknowledged that there were underage children in the apartment prior to law enforcement arriving. [00:23:18] Speaker 01: Mr. Davis was a convicted sex offender and required to register. [00:23:22] Speaker 02: We're not talking about this, we're talking about the history. [00:23:27] Speaker 02: We're going into the history that resulted in his ultimate sentence. [00:23:34] Speaker 02: And if we look at just what he did, he's in jail, he deserves to be in jail. [00:23:42] Speaker 02: But the right calculation is the issue. [00:23:46] Speaker 01: And I agree, Your Honor. [00:23:48] Speaker 01: And the court is not required to take any of these factors. [00:23:51] Speaker 01: No factor is dispositive. [00:23:53] Speaker 01: Obviously, the government believes that the punishment Mr. Davis received in this case and the range of punishment contemplated by the state of Illinois are the most important factors. [00:24:03] Speaker 03: Well, did it decide that? [00:24:06] Speaker 03: I mean, I'm back to the point that was raised earlier. [00:24:10] Speaker 03: about whether the court even really said why the offense was not similar to a juvenile status offense. [00:24:18] Speaker 03: I mean, we really don't have much to go by in terms of where the district court came out on this. [00:24:24] Speaker 03: You're taking us through all these factors, but did the court even go through that analysis? [00:24:33] Speaker 01: The court didn't go through the full analysis. [00:24:35] Speaker 01: The court did, however, go through one of the factors. [00:24:37] Speaker 01: That's factor three of the [00:24:39] Speaker 01: common-sense approach, which is comparing the elements of the offense. [00:24:45] Speaker 01: The court did engage in an analysis of whether or not that was a juvenile status offense. [00:24:51] Speaker 01: Now, the court did not technically compare that with or engage in a similarity analysis. [00:24:59] Speaker 00: Which means it didn't go through the proper analysis. [00:25:01] Speaker 00: I mean, that's just clear here. [00:25:03] Speaker 00: I have another question. [00:25:05] Speaker 00: If this, if this individual had been five months older and he had drank huge amounts of whatever, and he's out in public and he's publicly intoxicated and he'd been arrested for public intoxication and convicted, that wouldn't count, would it? [00:25:25] Speaker 00: That would be excluded. [00:25:26] Speaker 00: It would be excluded. [00:25:27] Speaker 01: Yes, your honor. [00:25:28] Speaker 00: And what common sense approach does that make any sense to you? [00:25:32] Speaker 00: I am hesitant to compare Mr.. Well you have to because we're talking about common sense here, correct Mr.. Davis was not publicly intoxicated in this case right, but you were talking about how egregious a conduct it was to be at this party and underage drinking and to me public intoxication is included in the list of of prior convictions that are never counted never counted So he could have been any age [00:26:02] Speaker 00: Above the age of 18 and it wouldn't matter that public intoxication no matter how intoxicated he was Would not have counted That would be but it's gonna count. [00:26:14] Speaker 00: This is gonna count because he was underage drinking in a residence and the argument is that's not similar to underage drinking by an [00:26:27] Speaker 00: 18 year old or someone under the age of 18 it just it's kind of nonsensical frankly And Mr. Davis was not in fact drinking in public so I disagree that public intoxication would be the appropriate comparison I I'm just I'm saying it doesn't make sense that a crime like public intoxication is included on the list if a crime like underage drinking and [00:26:53] Speaker 00: Is not you know it's it's similar in the sense that's even more similar to a crime that is included juvenile status offenses like underage drinking so I just I'm struggling to see why this isn't similar using. [00:27:09] Speaker 00: a common sense approach. [00:27:12] Speaker 01: A crime that is also included in 4A1.2C1 is disturbance of the peace. [00:27:19] Speaker 01: And if someone was in their private home drinking and engaging in a party and that party disturbed [00:27:25] Speaker 01: the other residents, then that would be disturbance of the peace. [00:27:28] Speaker 01: And Mr. Davis's conviction would qualify under that. [00:27:31] Speaker 01: He received a 60-day sentence, two years of conditional discharge, and a fine. [00:27:36] Speaker 01: That would more than qualify for inclusion under C-1 based on disturbance of the peace. [00:27:42] Speaker 01: And disturbance of the peace would be a better representation than public intoxication in this case, because Mr. Davis was, in fact, in a private residence and was not publicly intoxicated. [00:27:54] Speaker 03: So where are you, if this court finds error, where are you on harmless error? [00:28:02] Speaker 01: Your Honor, we did not raise harmless error mainly because, and I agree with Mr. Davis in this point, if the guidelines were miscalculated, they do in fact need to be calculated. [00:28:14] Speaker 01: And I appreciate Judge Kelly's comment earlier about [00:28:19] Speaker 01: Judge Heil, the district court, upward varying in this case. [00:28:22] Speaker 01: However, he did upward vary a set number of levels from the established guideline range. [00:28:28] Speaker 01: Your Honor, I see I am out of time. [00:28:29] Speaker 01: May I finish my answer? [00:28:31] Speaker 03: Please do. [00:28:32] Speaker 01: He varied upward from the established guideline range. [00:28:35] Speaker 01: And therefore, if the guidelines were not correctly calculated, that would need to happen. [00:28:41] Speaker 03: Thank you. [00:28:42] Speaker 03: Thank you, Your Honor. [00:28:42] Speaker 03: Thank you, counsel. [00:28:44] Speaker 03: I think we have some rebuttal time. [00:28:49] Speaker 03: All right, thank you. [00:28:50] Speaker 03: The case will be submitted. [00:28:52] Speaker 03: This time, both counselors are excused.