[00:00:00] Speaker 03:
is United States versus Lewis.

[00:00:02] Speaker 03:
It's stocked at 24-6148.

[00:00:05] Speaker 03:
Counsel, welcome back.

[00:00:07] Speaker 03:
Proceed when you're ready.

[00:00:10] Speaker 02:
Thank you, Your Honor.

[00:00:11] Speaker 02:
Counsel, may it please the court, Shira Keval again for Mr. Joel Lewis.

[00:00:17] Speaker 02:
I'd like to focus today on the second issue in Mr. Lewis's brief, which is his challenge to the attempted murder cross-reference.

[00:00:25] Speaker 02:
Joel Lewis shot a police officer in the vest.

[00:00:28] Speaker 02:
He pled guilty in state court

[00:00:30] Speaker 02:
to shooting with intent to kill, and he pled guilty in federal court to unlawful gun possession.

[00:00:35] Speaker 02:
At his federal sentencing, he tried to point to his mental state that he was in the throes of acute alcohol withdrawal delirium to argue that he could not or did not form the specific intent to kill.

[00:00:48] Speaker 02:
He should have been allowed to make that argument, even though it was inconsistent with his admissions during his state court guilty plea, and this court should reverse.

[00:00:58] Speaker 02:
The district court aired because it misunderstood and misapplied Custis versus the United States.

[00:01:04] Speaker 02:
Custis is about recidivism enhancements and has no application here.

[00:01:08] Speaker 02:
The rule in Custis against collateral attacks only applies if the federal sentencing provision itself is triggered by the existence of a prior conviction.

[00:01:19] Speaker 02:
And Custis holds that in that situation, a defendant generally may not collaterally attack the validity of that prior conviction to argue that it shouldn't count.

[00:01:30] Speaker 02:
Here, we have a different enhancement that only asks what happened when the defendant had the gun and a different argument, again, about what happened when the defendant had the gun.

[00:01:40] Speaker 02:
The prior conviction only came up in response to Mr. Lewis's objection.

[00:01:47] Speaker 02:
On appeal, the government briefly defends the basis of the district court's ruling, but it generally pivots to a new argument about collateral estoppel.

[00:01:57] Speaker 02:
That was not the basis of the government's ruling below, and it cannot be the basis of the affirmance on appeal.

[00:02:04] Speaker 02:
First and foremost, collateral estoppel is an affirmative defense that must be invoked by the government in the district court

[00:02:13] Speaker 02:
In order to apply or it must be invoked by a party in the district court in order for it ever to apply in this case, the government explicitly disavowed reliance on this doctrine volume one page 195 note one in the record on appeal.

[00:02:31] Speaker 02:
And further, even if it hadn't been affirmatively waived is dead wrong.

[00:02:36] Speaker 02:
This court in Gallardo Mendez said that the government may not use a judgment following a plea of guilty to collaterally stop a criminal defendant from re-litigating an issue in a subsequent criminal proceeding.

[00:02:48] Speaker 02:
That rule applies here.

[00:02:51] Speaker 03:
Counsel, can I ask you, in conceding what you're saying, or at least for argument's sake, a question, does this one matter in that

[00:03:02] Speaker 03:
Certainly the district court, as it makes a preponderance finding fact for a guideline enhancement, can rely on a statement, whether it's sworn, whether it's in court, whether it's to the probation officer or a buddy on the street corner, can rely on that in assessing whether or not the conditions of the enhancement are met.

[00:03:23] Speaker 03:
Here we have a pretty good one, which is in a court of law, raised the right hand and said, I intended to kill,

[00:03:32] Speaker 03:
Apart from Custis, which I hear you on the collateral attack thing, or collateral estoppel, even if there were no application whatsoever of collateral estoppel, the district court still could say, you said that you intended to, and so I'm going to rely on that.

[00:03:52] Speaker 03:
And in other words, collateral estoppel, they don't need collateral estoppel to get that statement in front of the court.

[00:03:59] Speaker 02:
That's right, Your Honor.

[00:04:00] Speaker 02:
It's certainly evidence.

[00:04:01] Speaker 02:
And I think the reason that this situation doesn't necessarily arise very often in the case law is because generally it's going to be really hard to overcome your own admission in a prior proceeding.

[00:04:11] Speaker 02:
But we have a really different situation here.

[00:04:15] Speaker 02:
We have a person where from the moment that he spoke to police, and this is on the record,

[00:04:23] Speaker 02:
He says he didn't remember what happened.

[00:04:25] Speaker 02:
He asked what had happened.

[00:04:27] Speaker 02:
He's a 60-year-old man with no history of violence, even when he was addicted to crack cocaine in the 90s.

[00:04:33] Speaker 02:
We have extremely strong and uncontested evidence, not based on his own testimony or recollection, that he was in the throes of acute alcohol withdrawal delirium.

[00:04:43] Speaker 02:
We have statements about him saying things that made no sense from his fiance.

[00:04:49] Speaker 02:
from the police, from the EMTs, from the doctors.

[00:04:52] Speaker 02:
He responded to the treatment for acute alcohol withdrawal delirium.

[00:04:56] Speaker 02:
So it's easy in many cases, I think, but here I don't think that there is enough to show harmless error.

[00:05:06] Speaker 03:
You're wanting to say he can impeach himself because he's set up in the courtroom and said, I intended to kill.

[00:05:15] Speaker 03:
And all of the things that you just mentioned were so then, just as they're so now, whether it's alcohol withdrawal or whatever else.

[00:05:23] Speaker 03:
But there are also some pretty good facts the district court had as far as the officer hearing, I'm going to shoot you as he comes to the door and then point blank shot right in the chest.

[00:05:34] Speaker 03:
That's not bad evidence when you're looking at a guideline enhancement.

[00:05:38] Speaker 02:
Yeah, and Your Honor, I think that's why the knowledge element was met for

[00:05:44] Speaker 02:
Kind of knowing that it was a police officer for the official victim enhancement, but we're talking about specific intent and we have very clear, well established long established case law that when you are in your not right state of mind, you don't necessarily specifically intend the natural and probable consequences of your action.

[00:06:03] Speaker 02:
What should have happened and I think one of the reasons that this is not harmless, is that he should have been allowed to make this argument, and the government, excuse me, the district court should have asked him this question, or asked his counsel this question you pled guilty like why am I not going to consider that to be the definitive evidence in this case.

[00:06:22] Speaker 02:
You look at the sentence that Mr. Lewis got in the state court case.

[00:06:25] Speaker 02:
He was facing a life sentence.

[00:06:26] Speaker 02:
He entered an open plea and got six years.

[00:06:30] Speaker 02:
And we all know realistically how the criminal justice system works and the risk of going to trial and saying, I don't remember what happened, but I definitely didn't have specific intent.

[00:06:40] Speaker 02:
Look at, you know, I was in these alcohol withdrawal delirium, but look at also all these bad facts.

[00:06:45] Speaker 02:
That's a really risky defense.

[00:06:47] Speaker 02:
And in a in a practical level, people plead guilty when they have a favorable judge or favorable mitigation evidence that they could present.

[00:06:56] Speaker 02:
And Mr. Lewis never had the opportunity to discuss that in front of the district court judge to explain his plea.

[00:07:03] Speaker 03:
And a panelist can obviously overrule me.

[00:07:06] Speaker 03:
Where I thought we were going to be spending a lot of time is on the Second Amendment, because that's where I'm really needing the help.

[00:07:11] Speaker 03:
The guideline applications are fairly straightforward.

[00:07:14] Speaker 03:
Are you down to second?

[00:07:16] Speaker 04:
I very much agree with that.

[00:07:18] Speaker 04:
It's been frustrating to me a little bit when the council have a different view of what's important than at least I have a view of.

[00:07:27] Speaker 04:
I don't know about my colleagues, but I'm in complete agreement with you, Judge.

[00:07:32] Speaker 03:
Maybe we could go there next.

[00:07:34] Speaker 02:
Yes, absolutely, Your Honors.

[00:07:38] Speaker 02:
Harrison was a case that specifically addressed a circumstance where someone was charged with being a drug user, a user of marijuana, and there was no evidence that he was under the influence of marijuana when he possessed the firearm.

[00:07:57] Speaker 02:
We have a very similar situation here.

[00:07:59] Speaker 02:
We don't have an as applied challenge.

[00:08:01] Speaker 02:
but we do preserve that as applied challenge, but we do have the indictment that charges drug user and charges marijuana.

[00:08:08] Speaker 02:
And the implication, I think that the inescapable implication of Harrison is that remand is required for the same reason that it was in Harrison, which is that we have- I'm so sorry.

[00:08:21] Speaker 01:
I just have to stop you there.

[00:08:24] Speaker 01:
So help me understand the challenges you did bring.

[00:08:29] Speaker 01:
you did bring a facial challenge, but you did not bring an as-applied challenge.

[00:08:34] Speaker 01:
Is that what you just said?

[00:08:36] Speaker 02:
So below, there is no preserved as-applied challenge, but there is no waiver because it was included in the right to... I'm so sorry.

[00:08:52] Speaker 02:
I obviously am not quite as prepared for this as I should have been.

[00:08:58] Speaker 04:
Well, what you're saying, I think, is that it's not a theory, but it wasn't waived so we can consider it.

[00:09:05] Speaker 04:
But the key is we have to consider it under a plain error analysis, which puts it in a hole.

[00:09:11] Speaker 04:
But it's better to be in a hole than not to be in the game at all, I suppose.

[00:09:17] Speaker 02:
Yes.

[00:09:17] Speaker 02:
I mean, what I would say is that I think both the preserved facial challenge

[00:09:22] Speaker 02:
Because it was charged under, I know the statute itself covers lots of scenarios, but it was charged under one prong of the statute and the prong that was charged under was drug user.

[00:09:32] Speaker 02:
And that is the crime that we're talking about.

[00:09:34] Speaker 02:
That is a different and distinct crime from being a drug addict.

[00:09:37] Speaker 02:
So I think that even on the facial challenge, remand is required.

[00:09:41] Speaker 02:
And then I think on the as applied challenge,

[00:09:43] Speaker 04:
Um that I thought that the facial was abandoned completely because there's case law against you largely on that.

[00:09:52] Speaker 04:
I thought we were really dealing just with the as applied.

[00:10:00] Speaker 04:
No, your honor, you are still asserting facial.

[00:10:02] Speaker 04:
Okay.

[00:10:02] Speaker 04:
Well, then we'll address it but I like like the Phillips.

[00:10:09] Speaker 02:
I I really think it's as applied is so I can focus on the as applied.

[00:10:13] Speaker 02:
Um, the state of the record below and the evidence that may be considered, uh, even, even if you, I guess, if you consider everything, there is no evidence that he was under the influence of marijuana at any point where he possessed the gun.

[00:10:31] Speaker 02:
So we're talking about this statue being used to convict a person who was a irregular user of marijuana.

[00:10:42] Speaker 02:
or even if we say that somehow there's enough that he was a regular user of marijuana at the general time and no actual possession of the firearm while under the influence.

[00:10:53] Speaker 02:
That is not permitted under Harrison without a finding that the statute can constitutionally be applied to that conduct.

[00:11:01] Speaker 04:
That's what this case is all about.

[00:11:06] Speaker 04:
Harrison, I thought, said that if there's a risk that

[00:11:12] Speaker 04:
a person could lapse, you can treat that risk as a support for regulating the gun use.

[00:11:23] Speaker 04:
And here the guy was not, the defendant was not under the influence at the time, but wouldn't Harrison be applicable as direct authority?

[00:11:35] Speaker 04:
I guess that's my question.

[00:11:37] Speaker 04:
Isn't it a direct authority that this is okay?

[00:11:42] Speaker 02:
I don't understand the question because I don't understand what part of the holding would ever say that it's okay to apply this statute to this case.

[00:11:51] Speaker 04:
It's not a direct authority.

[00:11:52] Speaker 04:
It's presidential.

[00:11:53] Speaker 04:
I just I think what Harrison says is that a person who has vulnerabilities can have a regulation against them prohibiting gun use because not because they are currently alcoholic or drunk or

[00:12:11] Speaker 04:
under drugs, but rather because they present that risk.

[00:12:15] Speaker 04:
And isn't that a general proposition that could warrant the proceeding as it played out here?

[00:12:28] Speaker 02:
I don't believe that that is part of the holding.

[00:12:32] Speaker 02:
I think that when we're talking about addicts, that you have that risk, even if they're not presently intoxicated, that they're not able to control their own behavior.

[00:12:41] Speaker 02:
but that is a separate provision in the statute.

[00:12:44] Speaker 02:
So the question here is whether marijuana affects a person's judgment, decision-making, attention, inhibition, or impulse control, along with the long-term physical and mental effects of use of that drug when you are not presently under the influence.

[00:13:00] Speaker 02:
And the court may not consider capacious and subjective factors, like whether your group as a whole is responsible, ordinary, or able to exercise self-control

[00:13:10] Speaker 02:
these are unacceptable grounds for stripping the Second Amendment right.

[00:13:14] Speaker 02:
With those parameters there, and it says you can't rely on Congress, clearly Congress thought this was okay and that's not sufficient, that there need to be findings in the district court and that those findings need to justify imposing this regulation under the historical

[00:13:34] Speaker 02:
regulatory traditions that were identified in Harrison.

[00:13:38] Speaker 03:
For every prosecution, every 922G3, you think there has to be backbinding?

[00:13:45] Speaker 02:
I think at some point there will be controlling authority either from the U.S.

[00:13:48] Speaker 02:
Supreme Court or from the 10th Circuit about this, but until such time as they're controlling authority, this has got to happen somewhere.

[00:13:55] Speaker 02:
I believe that Harrison, it did not happen.

[00:13:58] Speaker 02:
I don't remember if it was a dismissal,

[00:14:00] Speaker 02:
But this has to happen somewhere.

[00:14:02] Speaker 02:
There is no court within this circuit, as far as I know, that has made these findings.

[00:14:06] Speaker 03:
So is the answer to the question, yes, in every instance, there has to be fact-finding for this crime?

[00:14:13] Speaker 02:
Until such time.

[00:14:16] Speaker 02:
Right now.

[00:14:17] Speaker 02:
Yes, right now, I do believe so.

[00:14:19] Speaker 02:
I don't believe that.

[00:14:20] Speaker 03:
Is that true even on plain air?

[00:14:21] Speaker 03:
And explain that to me, why it would be true on plain air.

[00:14:24] Speaker 02:
Yes, because what Harrison says is without that fact-finding, you cannot proceed with the prosecution.

[00:14:31] Speaker 03:
But Harrison says it's not plain error.

[00:14:34] Speaker 02:
Yeah, but it's plainly the case that without the fact-finding, you cannot proceed.

[00:14:40] Speaker 02:
Now, could the fact-finding come out either way?

[00:14:42] Speaker 02:
It could.

[00:14:42] Speaker 02:
I think that maybe would go to, well, I don't think it could.

[00:14:46] Speaker 02:
I should take that back.

[00:14:48] Speaker 02:
If the fact-finding could truly come out either way, that might be relevant to harm and prejudice.

[00:14:54] Speaker 02:
But that's not the case.

[00:14:55] Speaker 02:
I mean, we're talking about millions of people in the United States who use marijuana regularly but are not addicted.

[00:15:02] Speaker 02:
We're talking about stripping the Second Amendment rights of all of those people without ever having a judicial determination that that fits within the regulatory tradition.

[00:15:12] Speaker 02:
We can't do that.

[00:15:16] Speaker 01:
Judge Phillips, could I ask a couple of questions here?

[00:15:20] Speaker 01:
Yeah, I'd like to step back.

[00:15:24] Speaker 01:
Well, I guess I'll say your argument.

[00:15:27] Speaker 01:
In Harrison, we remanded for this factual determination and your client should get one too.

[00:15:36] Speaker 01:
I mean, that's essentially what your argument is.

[00:15:38] Speaker 01:
Yes, your honor.

[00:15:39] Speaker 01:
Okay.

[00:15:40] Speaker 01:
Well, then let me back up to the plain error standard.

[00:15:46] Speaker 01:
What was the district court's error here?

[00:15:50] Speaker 01:
The first component.

[00:15:52] Speaker 01:
What is the error?

[00:15:54] Speaker 02:
entering a conviction on this record without making that determination.

[00:16:01] Speaker 01:
Okay, basically the district court should have said, oh, this is an interesting case.

[00:16:07] Speaker 01:
You should have made it as applied challenge.

[00:16:12] Speaker 01:
That's what the district court should have recognized that.

[00:16:16] Speaker 02:
You know, Your Honor, obviously Harrison hadn't come out yet, but that doesn't matter on plain error review.

[00:16:23] Speaker 01:
But imagine that Harrison- I understand.

[00:16:25] Speaker 01:
I understand an error can become plain later.

[00:16:31] Speaker 01:
I get that.

[00:16:32] Speaker 01:
I guess I would say usually you have to have the district court make an error.

[00:16:43] Speaker 01:
How, I guess, articulating it, you can't convince someone, you have to tell them, oh, you have to make an as applied challenge here.

[00:16:51] Speaker 01:
You've got a great as applied challenge.

[00:16:53] Speaker 01:
That's the part I'm not understanding how that can be an error.

[00:16:58] Speaker 02:
So I frame it slightly differently.

[00:17:01] Speaker 02:
Imagine that Harrison had come out the day before.

[00:17:05] Speaker 02:
What I would expect the district court to do is say,

[00:17:07] Speaker 02:
What's happening in front of me right now, the factual basis that I have, all this information, is that this is the same thing that happened in Harrison.

[00:17:16] Speaker 02:
I have no reason to distinguish it.

[00:17:18] Speaker 02:
And the 10th Circuit just told me that this is not constitutional without having this type of fact-finding happen.

[00:17:25] Speaker 02:
We need to go back and have this type of fact-finding.

[00:17:28] Speaker 01:
I know, but he hadn't even brought the claim.

[00:17:32] Speaker 01:
I mean, you're asking.

[00:17:34] Speaker 01:
And correct me if I'm wrong, but you're asking the district court here to say, whatever the state of the law, you have a great as applied claim.

[00:17:46] Speaker 01:
You need to bring it.

[00:17:48] Speaker 01:
I'm wondering how that doesn't become acting as the, obviously as the defendant's attorney.

[00:17:55] Speaker 02:
And your honor, if he brought the as applied claim, then it would be preserved.

[00:18:00] Speaker 02:
Right.

[00:18:00] Speaker 02:
We say all the time, the district court of should have interrupted.

[00:18:03] Speaker 02:
You didn't object.

[00:18:04] Speaker 02:
You should have objected.

[00:18:05] Speaker 02:
Right.

[00:18:06] Speaker 02:
Because this is you wouldn't even quite phrase it that way.

[00:18:09] Speaker 02:
It's sort of like this error of this thing that is happening is plainly wrong.

[00:18:13] Speaker 02:
It can't happen in this way.

[00:18:16] Speaker 02:
But if Mr. Mr. Lewis had brought the as applied challenge, we would be here preserved.

[00:18:22] Speaker 02:
And I think unquestionably would prevail under Harrison.

[00:18:26] Speaker 02:
So I don't think that that is what we're talking about.

[00:18:29] Speaker 02:
The error is entering an unconstitutional conviction.

[00:18:34] Speaker 02:
That's the error.

[00:18:35] Speaker 02:
And the district court.

[00:18:37] Speaker 04:
But courts just don't have the roving commission to say, I know this is about A, but we find that there's a B problem.

[00:18:46] Speaker 04:
And so we'll reverse on B. We do require

[00:18:51] Speaker 04:
the issue to have been raised.

[00:18:54] Speaker 04:
If the issue is before us, I think we need to remand for a Harrison kind of finding as to the dangers of relapse and whether that would justify some restriction on gun use.

[00:19:15] Speaker 04:
But if that simply was not raised,

[00:19:18] Speaker 04:
If the as applied argument was not raised, how do we get it on the table?

[00:19:24] Speaker 02:
So your honor if the as applied argument had been raised it would be preserved This is not a rule 12 type claim, right?

[00:19:32] Speaker 02:
We usually say you can't raise the as applied challenge prematurely So the time to raise the as applied challenge is when all the facts are on the table And so all the facts are on the table

[00:19:43] Speaker 02:
It's entering this guilty plea.

[00:19:46] Speaker 02:
Certainly, the judge is on notice.

[00:19:47] Speaker 02:
There are potentially serious problems with this statute.

[00:19:51] Speaker 02:
He has the facts before him.

[00:19:54] Speaker 02:
And at that time, when it comes time for sentencing and he has all the facts in the PSR, it remains the case that he was not allowed to enter that conviction because

[00:20:07] Speaker 02:
What Harrison says is, absent this finding, absent these judicial determination, you cannot enter a conviction in the case.

[00:20:18] Speaker 04:
Well, I mean, if that's right, the remedy isn't to reverse things and say you're a free man or something, is remand for a hearing.

[00:20:29] Speaker 04:
And he may likely even be affirmed.

[00:20:33] Speaker 04:
So it's not like this necessarily is going to

[00:20:36] Speaker 04:
part the seas for anybody, but I am really troubled about what Judge Ive has mentioned.

[00:20:47] Speaker 04:
Can a judge just say, gosh, there's a really good as applied claim here and you didn't raise it, but we will and give you relief?

[00:20:56] Speaker 04:
I mean, I know we've had many cases, I've been on many, where we say, gosh, there was another argument that had it been raised, might have carried the day.

[00:21:05] Speaker 02:
And your honor, this is plain error and never is the argument raised when you're on plain error.

[00:21:11] Speaker 02:
But let's imagine, let's imagine that Harrison had struck down facially or the Supreme Court strikes down facially 922 G3.

[00:21:21] Speaker 02:
It will have been plain error in all of these G3 cases that are still on direct appeal that they allowed the person to be convicted under that statute.

[00:21:31] Speaker 02:
The argument here when we're talking about facial, as applied instead of facial, the actual application of the law is slightly more complex, but it's no different than that situation where there is a new case and that new case says entering this conviction was unconstitutional in the manner that it happened.

[00:21:52] Speaker 02:
And yeah, you didn't raise the claim, but that's the point of plain error.

[00:21:55] Speaker 02:
So I don't see why this is different.

[00:21:58] Speaker 04:
I think to the extent- So he is raising it on appeal,

[00:22:01] Speaker 04:
And so you're saying it's not like we're being his lawyer.

[00:22:04] Speaker 04:
He's being his own lawyer and they are raising it on appeal.

[00:22:07] Speaker 04:
He just, because it wasn't preserved all the time, we address issues that aren't preserved and you pay a penalty for that.

[00:22:15] Speaker 04:
But the penalty isn't you're kicked out of court.

[00:22:18] Speaker 04:
The penalty is you've got a higher burden.

[00:22:20] Speaker 02:
That's exactly right, Your Honor.

[00:22:21] Speaker 02:
And that's the burden that we argued in our reply brief.

[00:22:26] Speaker 03:
All right.

[00:22:27] Speaker 03:
Judge, you had a time.

[00:22:28] Speaker 01:
Nope, I'm good.

[00:22:31] Speaker 03:
Let me just ask when you say never on plain air is the claim raised.

[00:22:36] Speaker 03:
No, no, that's true.

[00:22:39] Speaker 02:
Okay, fair enough.

[00:22:41] Speaker 02:
Sometimes you raise an overall claim, but you miss the argument that you need.

[00:22:44] Speaker 03:
But either way- Or you raise the claim.

[00:22:46] Speaker 03:
You raise the claim and the Supreme Court hasn't ruled on it yet.

[00:22:49] Speaker 03:
And the court says, according to our circuit precedent, you lose.

[00:22:53] Speaker 03:
We'll see what the Supreme Court says.

[00:22:55] Speaker 03:
And then you appeal and the Supreme Court rules in the meantime.

[00:22:57] Speaker 03:
And the Supreme Court says, the defendant's right on that for our purposes.

[00:23:02] Speaker 03:
And it goes back in business.

[00:23:05] Speaker 03:
But the argument was raised, is the point.

[00:23:08] Speaker 03:
In other words, it was preserved.

[00:23:10] Speaker 03:
So it's not like plain error is a magic way of avoiding having to make your claim in district court.

[00:23:20] Speaker 03:
That's what I'm confused on.

[00:23:21] Speaker 03:
And if you have something that will help me, I'm all ears.

[00:23:24] Speaker 02:
Sure, Your Honor.

[00:23:25] Speaker 02:
I spoke too broadly.

[00:23:27] Speaker 02:
That is definitely a situation in which plain error review applies.

[00:23:31] Speaker 02:
It is also true that plain error review applies if you did not raise the claim below, but the law either was or later becomes clearly established.

[00:23:40] Speaker 02:
So there's no difference.

[00:23:42] Speaker 02:
between was or later becomes clearly established.

[00:23:45] Speaker 02:
Either way, the error is plain.

[00:23:47] Speaker 02:
And there's no difference.

[00:23:48] Speaker 03:
What's the authority for that?

[00:23:49] Speaker 03:
What's the authority to say, I didn't even mention this issue, but now I just read the Supreme Court reporter and they came out with a case that would have been great for me to have.

[00:24:00] Speaker 03:
So I'm going to raise that issue now in the 10th Circuit.

[00:24:03] Speaker 02:
I mean, that happened in Raheif all the time.

[00:24:05] Speaker 02:
It mattered on 2255 cases.

[00:24:08] Speaker 02:
if it had adequately been presented because of all the weird kind of habeas preservation issues.

[00:24:15] Speaker 02:
But if you were still on direct appeal and you had her a hate claim or let's say the maybe there's a lot like little and all of the other cases that are about the change in law or the clarity of law about instructions on constructive possession.

[00:24:32] Speaker 02:
Those were cases where no one asked for the constructive possession jury instruction to include

[00:24:38] Speaker 02:
the element of intent to exercise control.

[00:24:41] Speaker 02:
The law then became clear that that was an element and they 100% were allowed into court on direct appeal to argue that there was plain error and many of those cases got remanded.

[00:24:53] Speaker 02:
The only time they didn't get remanded was if there wasn't prejudice because it simply was not an element that was at issue in that case.

[00:25:00] Speaker 03:
But there was futility involved in that too.

[00:25:03] Speaker 03:
It would have been futile to raise it.

[00:25:05] Speaker 03:
having to address that and decide that question.

[00:25:08] Speaker 03:
It wasn't just a free pass, is my understanding of it.

[00:25:12] Speaker 02:
The futility is not addressed in any of those cases.

[00:25:15] Speaker 02:
There's no requirement of futility.

[00:25:17] Speaker 02:
Again, that's the 2255 standard.

[00:25:19] Speaker 02:
That is not a standard on direct review, and it does not appear in any of the direct appeal rehab cases or the direct appeal constructive possession cases, just as it is not something that should be an issue in this case.

[00:25:34] Speaker 01:
Can I just follow up on that though?

[00:25:36] Speaker 01:
The issue of construction, constructive possession was raised in those cases.

[00:25:46] Speaker 01:
The instruction may have been erroneous, but the issue, the claim was raised.

[00:25:54] Speaker 02:
There was an instruction.

[00:25:55] Speaker 02:
It didn't matter if the defense had asked for it.

[00:25:57] Speaker 02:
It was a model instruction.

[00:25:59] Speaker 02:
So I understand what you're saying.

[00:26:02] Speaker 01:
The district court actually did something instructed improperly because constructive possession was an issue.

[00:26:12] Speaker 01:
Is that not correct?

[00:26:14] Speaker 01:
That is correct.

[00:26:15] Speaker 02:
And that's why here the error isn't that he failed to hold a hearing standing alone.

[00:26:23] Speaker 02:
The error is entering a conviction for an offense based on facts that plainly could only be constitutional after one of these hearings.

[00:26:36] Speaker 02:
So I understand what you're saying here.

[00:26:38] Speaker 02:
There is a court action.

[00:26:40] Speaker 02:
It's different because it's not a jury instruction case, but there still is a court action.

[00:26:44] Speaker 02:
That court action is still erroneous.

[00:26:47] Speaker 02:
It is erroneous plainly under law that is now clearly established and the additional hook that your honors are looking for.

[00:26:55] Speaker 02:
We simply don't have this is not a suppression case where we're like no one filed a motion to suppress.

[00:27:01] Speaker 02:
where we have Rule 12 saying that you have to file that at a certain time.

[00:27:04] Speaker 02:
There is no waiver problem.

[00:27:06] Speaker 02:
There's no waiver doctrine that would apply in this situation.

[00:27:10] Speaker 02:
It is pure forfeiture and it's plain error.

[00:27:16] Speaker 03:
Any 922G3 plain error cases that support what you're saying that you're aware of?

[00:27:23] Speaker 02:
I'm not aware because Harrison is a unique remedy in is my understanding and what the different districts have done.

[00:27:31] Speaker 02:
So there are some districts who simply have said you can't do X or excuse me some not districts circuits that have said you can't do X and there's some circuits that have said this is totally fine.

[00:27:42] Speaker 02:
But the idea of a remand for this type of hearing was I think

[00:27:51] Speaker 02:
middle ground that was pretty unique remedy that this circuit created.

[00:27:58] Speaker 02:
So I don't have a case for you because it's just not something that I know of as having come up.

[00:28:03] Speaker 02:
So I also don't have a case that goes the other way.

[00:28:06] Speaker 04:
Understood.

[00:28:06] Speaker 04:
Thank you very much.

[00:28:07] Speaker 04:
I guess the other point about whether we're being the lawyer for the defendant or not needs to be looked at in the context that

[00:28:16] Speaker 04:
We would not be just raising this issue ourselves for the first point.

[00:28:20] Speaker 04:
The lawyers, in fact, raised it.

[00:28:22] Speaker 04:
They did raise it on appeal.

[00:28:23] Speaker 02:
That's correct, Your Honor.

[00:28:25] Speaker 04:
So we are not being their lawyers.

[00:28:27] Speaker 04:
They are raising it.

[00:28:28] Speaker 04:
And then we have to ask, is there an avenue by which it can be addressed?

[00:28:34] Speaker 02:
I think that's 100% correct.

[00:28:35] Speaker 04:
You're saying the avenue is plain error.

[00:28:39] Speaker 04:
You pay a penalty, but all the time we say that we can look at it under that higher standard.

[00:28:48] Speaker 04:
And that's what you're asking for here.

[00:28:50] Speaker 02:
Yes, Your Honor.

[00:28:51] Speaker 02:
That's exactly right.

[00:28:52] Speaker 02:
And also, Your Honor, I know I'm like radically out of time.

[00:28:57] Speaker 02:
Your Honor mentioned what the remedy would be.

[00:28:58] Speaker 02:
And I agree that it's not a vacator of the conviction.

[00:29:01] Speaker 02:
It's really a remand for this hearing.

[00:29:04] Speaker 02:
Because of that, if this court does remand,

[00:29:07] Speaker 02:
it should still address Mr. Lewis's sentencing arguments because otherwise all the district court will have to do is to hold this hearing.

[00:29:16] Speaker 02:
And then if it says this is constitutional, it would have no reason to revisit the sentencing arguments unless this court instructs it to.

[00:29:27] Speaker 03:
All right.

[00:29:28] Speaker 03:
Thank you, counsel.

[00:29:30] Speaker 03:
And we will turn over the keys to your opposing counsel.

[00:29:36] Speaker 03:
and you know what we're interested in.

[00:29:39] Speaker 00:
Of course.

[00:29:39] Speaker 00:
Thank you, Your Honor.

[00:29:40] Speaker 00:
May it please the court, D.H.

[00:29:42] Speaker 00:
Dilbeck for the United States.

[00:29:44] Speaker 00:
Let me address why Harrison did not establish that it was plainly erroneous to apply 922G3 to the appellant.

[00:29:55] Speaker 00:
It did not do so because at its core, Harrison presented a factually distinct

[00:30:02] Speaker 00:
as applied challenge.

[00:30:06] Speaker 04:
The only big difference would be the substance for which the defendant was addicted.

[00:30:12] Speaker 04:
Isn't that kind of the only significant difference?

[00:30:14] Speaker 04:
Just the substance was he addicted to, and that seems to be to be a pretty trivial distinction.

[00:30:21] Speaker 00:
No, Your Honor.

[00:30:21] Speaker 00:
I think the crucial distinction is that in Harrison,

[00:30:26] Speaker 00:
the defendant was a non intoxicated drug user.

[00:30:30] Speaker 00:
There's no positive test for marijuana like there was in this case.

[00:30:34] Speaker 00:
What this case presents, what this as applied challenge presents is whether it was plainly erroneous to apply the statute to someone who tests positive for marijuana immediately upon their arrest for possessing and firing a gun.

[00:30:50] Speaker 00:
Harrison doesn't speak to that question at all about

[00:30:54] Speaker 00:
applying the law to one who has tested positive for an unlawful substance.

[00:30:59] Speaker 00:
The case is silent on that.

[00:31:01] Speaker 00:
All that Harrison ultimately held in the end, well, the ultimate resolution, I suppose, as we've discussed, was a remand for a determination of whether that category of drug users, non-intoxicated drug users, posed a risk of future dangerousness such that 922G3 could apply to them.

[00:31:22] Speaker 00:
But the facts here

[00:31:23] Speaker 00:
are different from that involving, as it does, a defendant who was testing positive for marijuana, simultaneous with the gun possession.

[00:31:32] Speaker 04:
Testing positive, but I thought, correct me if I'm wrong, and I certainly may be.

[00:31:37] Speaker 04:
But I thought the testimony was that he was not then under the influence of marijuana.

[00:31:42] Speaker 04:
That's different from saying you didn't have residue in your blood.

[00:31:46] Speaker 04:
We know that lasts for a long time after the influence disappears.

[00:31:51] Speaker 04:
And so to me, the key is, was the two cases, this and Harrison, was that you weren't under the influence at the time, but you were addicted and the addiction

[00:32:07] Speaker 04:
created a danger that you could relapse and become dangerous if you had a gun.

[00:32:14] Speaker 04:
In Harrison, we said that that does justify some regulation on gun control.

[00:32:21] Speaker 04:
The question is, if it's a different substance but with the same context, would Harrison then be applicable as well?

[00:32:31] Speaker 04:
I don't see that the drug makes very much difference

[00:32:36] Speaker 00:
Again, I agree that the drug itself does not make difference, but the intoxication question does in light of the ruling in Harrison and the fact that we're on plain error review now.

[00:32:49] Speaker 04:
Am I wrong that in Harrison, as in our case, the defendant was not then under the active impairment of the drug involved?

[00:33:04] Speaker 00:
What we know here for certain is that immediately upon the appellant's arrest, it was tested positive for marijuana.

[00:33:15] Speaker 00:
Now, here now, really for the first time, the appellant is raising this question about whether that drug, that positive test is evidence of intoxication or not.

[00:33:30] Speaker 00:
That was

[00:33:31] Speaker 00:
not a factual dispute that was presented to the district court, understandably so, since this has applied challenge was never raised.

[00:33:39] Speaker 00:
And I think that fact, given the nature of the appellant's argument, only underscores why plain error review now would not be appropriate and why a remand wouldn't be appropriate either.

[00:33:51] Speaker 00:
As we cite in our brief, to the extent that the appellant's argument here now is resting on a factual dispute, whether

[00:34:00] Speaker 00:
the appellant was intoxicated or not that's being raised for the first time, plain error review is just simply not appropriate given that as the way the argument has been presented now, it would seem to by necessity suggest that the alleged error implicates the resolution of some kind of factual dispute.

[00:34:23] Speaker 04:
Thank you.

[00:34:29] Speaker 04:
I'm happy to address.

[00:34:30] Speaker 00:
Well, I'm happy to stay on the as applied challenge or I can move to the facial challenge if that would be beneficial to the panel.

[00:34:38] Speaker 00:
So you point me in the direction you'd like me to go.

[00:34:42] Speaker 04:
Well, I appreciate that a lot of council go where they want to go, even in spite of overwhelming evidence, the court is interested in something else.

[00:34:49] Speaker 04:
You're not guilty of that.

[00:34:50] Speaker 04:
So good for you.

[00:34:51] Speaker 04:
I think you got a good read on the panel.

[00:34:53] Speaker 04:
And my view is you, with that good read, I mean, it's impossible not to have a good read on this panel.

[00:34:59] Speaker 04:
You proceed however you think best.

[00:35:02] Speaker 00:
Well, I'll just address briefly the facial challenge.

[00:35:06] Speaker 00:
The government, of course, just merely show that there are at least some applications that are constitutional.

[00:35:15] Speaker 00:
Every circuit now that has addressed that question has said that there are some.

[00:35:20] Speaker 00:
And I think the decisions by the Eighth Circuit and the Fifth Circuit show that there are quite a lot of ways you can reach that conclusion.

[00:35:29] Speaker 00:
From our perspective, I think the most straightforward way for this court would be to say that the armed intoxication laws are an adequate historical analog to conclude that applying 922 G3, at the very least, to those who are actively intoxicated is constitutional.

[00:35:50] Speaker 00:
as a conclusion that the district court reached along with mental illness laws for fundamentally similar reasons.

[00:35:58] Speaker 00:
It doesn't take much of a leap from there to conclude that because there are at least some applications that are constitutional to actively intoxicated that the facial challenge can't survive.

[00:36:14] Speaker 00:
If there are no more questions on the Second Amendment issue, let me just briefly pivot

[00:36:21] Speaker 00:
the second issue, the one that was raised first.

[00:36:27] Speaker 00:
It's our position and remains, of course, that the district court correctly included this attempt to relitigate, intent to kill, was an impermissible collateral attack.

[00:36:37] Speaker 00:
We think this court, for reasons that we explain, could affirm that conclusion nonetheless on collateral estoppel grounds.

[00:36:44] Speaker 00:
But to the extent the court doesn't want to wade into those waters, I don't think it needs to for reasons that

[00:36:51] Speaker 00:
Judge Phillips' questions at the outset here started to hit at, related to the harmlessness of any error, assuming that there was any error.

[00:37:02] Speaker 00:
Judge Phillips, you brought up the appellant's guilty plea as one reason going towards harmlessness.

[00:37:12] Speaker 00:
And below, the appellant himself admitted to the district court that it could conclude that the guilty plea, quote unquote, carries the day and established

[00:37:21] Speaker 00:
by proof, by preponderance.

[00:37:22] Speaker 00:
But it's not only that.

[00:37:24] Speaker 00:
We know other uncontested facts from the record that go to this as well.

[00:37:30] Speaker 00:
The appellant shouting, I'm going to shoot you, firing point blank uniformed police officers after knowing from his partner that they're on the way.

[00:37:39] Speaker 00:
And I think it is critical here in this harmlessness consideration to take note of the fact that when the district court

[00:37:48] Speaker 00:
was considering the officer victim enhancement, it concluded that the appellant's mental state, whatever it might have been, did not prevent him from knowing that he was firing a gun point blank range at a uniformed police officer.

[00:38:05] Speaker 00:
And this court has said before that that scenario, the point blank range of firing a gun at another person, is quite heavy evidence

[00:38:17] Speaker 00:
an intent to kill, or at least a kind of circumstantial evidence can be derived from all of that.

[00:38:23] Speaker 00:
So it's all of those reasons we think any error here to the extent there was some was harmless.

[00:38:30] Speaker 00:
In my last few minutes, I might just make a similar line of argument about this final issue related to the supposed use of the court ordered mental examinations.

[00:38:43] Speaker 00:
Again, this is an issue being reviewed for plain error.

[00:38:46] Speaker 00:
It's our position, as we explained, that the government did not impermissibly use any statements from this court-ordered exam that the information it did present to the court about the appellant's substance abuse history at independent bases and a variety of other sources before the court.

[00:39:07] Speaker 00:
But again, at the end of the day, this is an issue that's being reviewed for plain error.

[00:39:14] Speaker 00:
It's not necessary for this court to attack head on the substantive issue because the appellant has fallen far short of meeting its burden in establishing plain error here to the extent there was any.

[00:39:29] Speaker 00:
To put it simply, the appellant just simply has failed to show a reasonable probability of having received a lower sentence had this error not occurred.

[00:39:40] Speaker 00:
And I'd offer three reasons why.

[00:39:43] Speaker 00:
First, this

[00:39:45] Speaker 00:
argument about dangerousness did not hinge solely on the appellant's past substance abuse.

[00:39:51] Speaker 00:
It was a repeated reference to the mixing of guns and alcohol, mixing of guns and domestic violence.

[00:39:59] Speaker 00:
Again, second, as I've indicated, there's ample independent bases for this information about the drug use beyond just what came in the court ordered examination.

[00:40:09] Speaker 00:
But most importantly on this point, the court's explanation of its sentence, which we quote at length in our brief, nowhere mentions drug abuse or even dangerousness.

[00:40:25] Speaker 00:
There's no reliance in the court's justification explanation of its sentence, no reliance on any statements from the court ordered examination.

[00:40:34] Speaker 00:
The justification was wholly separate and lengthy nonetheless.

[00:40:39] Speaker 00:
And I think that fact, more than any other, shows that the appellants simply cannot show a reasonable probability that it would have received a lower sentence.

[00:40:53] Speaker 04:
That is, in fact, the second issue that I was troubled about.

[00:40:59] Speaker 04:
And maybe you've given all the answer that you intend, or maybe it's available.

[00:41:09] Speaker 04:
But I was troubled that the district court did not allow the defendant to challenge the finding of a specific intent to kill because he had made that statement in the state court.

[00:41:32] Speaker 04:
We know that collateral estoppel does not apply in criminal cases to sentencing.

[00:41:42] Speaker 04:
And so my question is, should we remand on that second point for the district court to allow him to testify further about that topic?

[00:42:02] Speaker 00:
No, Your Honor, and it's our position that

[00:42:07] Speaker 00:
The answer is no for two reasons.

[00:42:09] Speaker 00:
One, for the harmlessness argument I've already discussed at some point now.

[00:42:14] Speaker 04:
Harmless because we look at what the court said, and that concession was never mentioned or relied upon.

[00:42:23] Speaker 04:
I don't want to misrepresent, so that's your first position.

[00:42:30] Speaker 04:
That's correct.

[00:42:31] Speaker 04:
Yeah.

[00:42:31] Speaker 04:
And go to the second one.

[00:42:32] Speaker 04:
I'm not trying to comment on it at all.

[00:42:35] Speaker 04:
I'm just trying to make sure I understand it accurately.

[00:42:37] Speaker 04:
Okay.

[00:42:37] Speaker 04:
And your second point?

[00:42:39] Speaker 00:
Our second point, I guess, goes more to the substance of the application of the collateral attack doctrine or the estoppel doctrine that, again, we think the district court simply got it right in applying the collateral attack doctrine.

[00:42:54] Speaker 00:
But this court could alternatively affirm for estoppel reasons as well.

[00:42:59] Speaker 04:
But my problem there is it didn't really seem like a collateral attack.

[00:43:04] Speaker 04:
I don't think he was trying to upset any prior finding or holding or legal consequence of anything that was done.

[00:43:13] Speaker 04:
So I thought that was a misrepresentation because there are certainly great restrictions on ability to collaterally attack things.

[00:43:21] Speaker 04:
But I think he was shedding that cloak by saying, I'm not trying to attack the validity of anything.

[00:43:28] Speaker 04:
I'm trying to simply be free of a estoppel argument, which the Supreme Court has said we are not fond of in criminal cases anyhow, so that I can reopen that sub sheet.

[00:43:42] Speaker 04:
That seems to me a very different matter, and I wouldn't characterize it as you have done, because so characterizing it would command the answer, of course.

[00:43:52] Speaker 00:
Your Honor, why we think it is properly seen as a collateral attack is simply this, that

[00:43:58] Speaker 00:
Attacking an essential element of a conviction is attacking the conviction in this sense that by attempting to relitigate intent, the appellant was in essence claiming that no factual basis existed for the conviction in the first place.

[00:44:18] Speaker 00:
And that's far more akin to the kind of constitutional collateral attacks that Custis says shouldn't be entertained in his

[00:44:28] Speaker 00:
far removed from the very limited kinds of collateral attacks that Custis allows.

[00:44:33] Speaker 04:
Well, I view a collateral attack as saying something else was wrong and it ought to be reversed or changed.

[00:44:38] Speaker 04:
And he's not saying that at all.

[00:44:40] Speaker 04:
He's simply saying, I did say something then, but now let me explain what I want to say now.

[00:44:48] Speaker 04:
And at the risk of- No, don't make everything in stone.

[00:44:52] Speaker 04:
I mean, so I don't really think this is a collateral attack.

[00:44:55] Speaker 04:
I think it is saying,

[00:44:57] Speaker 04:
I admit that and I can be impeached on that, but it's not a conclusive impeachment.

[00:45:01] Speaker 04:
That is, it's not a bar.

[00:45:02] Speaker 04:
It's a credibility thing.

[00:45:04] Speaker 04:
You can say I'm wrong because look what I said before, but I am entitled

[00:45:11] Speaker 04:
as all criminal defendants, already get the full story out.

[00:45:14] Speaker 04:
And I'm not the first person that says something once that I don't agree with anymore.

[00:45:19] Speaker 04:
We know it's not uncommon for defendants to plead guilty to crimes they didn't commit because of either a long interrogation or because they have decided it was a good bargain at the time and now they regret it.

[00:45:33] Speaker 04:
So they're not free of the consequences of their prior conduct, but it's not advanced as a bar to their claim

[00:45:40] Speaker 04:
look, I'm going to go to jail a long time.

[00:45:42] Speaker 04:
And I think I ought to get my president's story before a fact finder.

[00:45:50] Speaker 00:
Ed, I'm afraid I might run the risk of just repeating myself in response to your question.

[00:45:56] Speaker 00:
But instead of doing that, what I will say instead is to the extent you're unpersuaded on our collateral attack arguments, I think this court could readily affirm

[00:46:09] Speaker 00:
the outcome nonetheless on collateral estoppel grounds for some of the reasons that we've explained in the brief about why Gallardo-Mendez didn't obligate the district court to allow a relitigation of this issue.

[00:46:23] Speaker 00:
But in fact, in many ways, the underlying logic of the decision would seem to support estoppel in this unique context of a sentencing and not a trial.

[00:46:34] Speaker 04:
Thank you.

[00:46:38] Speaker 03:
All right.

[00:46:39] Speaker 03:
I don't see any further questions.

[00:46:41] Speaker 03:
And of course, council went way over and we'll take our share of the blame for that.

[00:46:47] Speaker 03:
Are there questions that would like to be asked on rebuttal or?

[00:46:51] Speaker 04:
Not for me.

[00:46:54] Speaker 03:
Okay.

[00:46:55] Speaker 03:
All right.

[00:46:56] Speaker 03:
Well, then I hope we can all agree.

[00:46:59] Speaker 03:
Just thank you for your arguments and helpful arguments.

[00:47:03] Speaker 03:
And the case is submitted.

[00:47:05] Speaker 03:
Councilor excused.