[00:00:00] Speaker 02: Case number 24-6077, United States versus Simmons, Mr. Lee. [00:00:20] Speaker 03: Good morning, Your Honors. [00:00:21] Speaker 03: I'm Josh Lee from the Colorado Federal Public Defender's Office and I represent Mr. Simmons. [00:00:26] Speaker 03: This appeal challenges the district court's ruling applying a four-point enhancement from the firearm guideline that's triggered if you possess a gun in connection with another felony. [00:00:38] Speaker 03: And Mr. Simmons did not challenge that ruling below, but it is claimed that the district court committed an error. [00:00:44] Speaker 03: So the offense that the district court relied on to impose the enhancement, simple possession of a controlled dangerous substance, is just a misdemeanor, whereas the enhancement requires another felony. [00:00:59] Speaker 03: The government doesn't dispute that the PSR, which the district court adopted, applied the enhancement based on Oklahoma's simple possession offense, and it doesn't dispute that that offense is a misdemeanor. [00:01:11] Speaker 03: So to that extent, this is a simple case. [00:01:15] Speaker 03: The court treated possession of a controlled dangerous substance as a misdemeanor when in fact it's a felony. [00:01:21] Speaker 03: It only gets complicated if you consider the government's arguments that the enhancement should be affirmed based on some offense other than simple possession of a controlled dangerous substance. [00:01:33] Speaker 03: But you actually don't have to consider any of that. [00:01:37] Speaker 03: The government's argument that Mr. Simmons was engaged in drug trafficking [00:01:42] Speaker 03: is a question of fact that the district court would have to consider on remand. [00:01:47] Speaker 00: Did the district court ever say, in imposing this four-level enhancement, I'm relying on your prior conviction in Oklahoma? [00:01:55] Speaker 00: I don't think so. [00:01:56] Speaker 03: No, the district court said that I'm relying on the [00:02:04] Speaker 03: the conduct in the car in this case. [00:02:08] Speaker 00: Well, of course, the PSR talks about having a prior. [00:02:13] Speaker 00: But here's what the court said. [00:02:16] Speaker 00: The offense conduct issue here is straightforward. [00:02:19] Speaker 00: Mr. Simmons, based on his criminal conduct, is prohibited from having guns. [00:02:25] Speaker 00: But on May 14, 2022, he was found at a hotel with three guns with various small quantities of illegal drugs [00:02:32] Speaker 00: as well as paraphernalia used in consumption and the sale of illegal drugs. [00:02:39] Speaker 00: So that's what I take to be the district court's ruling is that all of the scales, the baggies, the variety of drugs on two separate occasions that the district court knew about as well as the defendant's statement that he didn't use cocaine and hadn't done so for X amount of months and yet still had a quantity of cocaine [00:03:02] Speaker 00: That's the basis for the district court's ruling. [00:03:05] Speaker 00: So I think the district judge who was sitting in the courtroom today, he would say, now what? [00:03:09] Speaker 00: When you said that he relied on the prior Oklahoma conviction. [00:03:13] Speaker 00: We'll see that in the rest. [00:03:14] Speaker 03: I'm not saying he relied on the prior Oklahoma conviction. [00:03:17] Speaker 03: I'm saying that he relied on the instant conduct of possessing a controlled dangerous substance. [00:03:23] Speaker 03: Now what you read, [00:03:24] Speaker 03: was definitely not the district court's findings on this enhancement. [00:03:29] Speaker 00: Okay. [00:03:30] Speaker 00: And so he relied on possession, but he also says as used in consumption, so it could be personal, and the sale of illegal drugs. [00:03:38] Speaker 00: And you have to admit there's a lot of evidence there that suggests distribution. [00:03:45] Speaker 03: Couple of things. [00:03:46] Speaker 03: First, that wasn't the district court's finding on the enhancement. [00:03:49] Speaker 03: That's a totally separate part of the hearing. [00:03:51] Speaker 03: Second, that is not a finding that Mr. Simmons possessed the drug paraphernalia, and it's not a finding that the drug paraphernalia was actually used for distribution as opposed to these are things that can be used that way. [00:04:07] Speaker 03: If the district court thought that Mr. Simmons was engaged in drug trafficking, he would have said, looks to me like you're trafficking these drugs. [00:04:15] Speaker 00: It sure looks like he says that, consumption and the sale of illegal drugs. [00:04:19] Speaker 00: If he thought it was all personal possession for own consumption, including cocaine, which he says he doesn't even use, then I would think the court would have said that. [00:04:29] Speaker 03: So let me go back to the cocaine thing. [00:04:31] Speaker 03: He definitely never said that he doesn't use cocaine. [00:04:34] Speaker 03: He admitted to a long history of daily cocaine use. [00:04:38] Speaker 03: What he did say is, I haven't used it in six months, but the police took this cocaine from him before he could use it. [00:04:44] Speaker 03: So he definitely didn't use that cocaine because the police took it from him. [00:04:49] Speaker 00: Now, in terms of what the- Well, let me ask it this way. [00:04:52] Speaker 00: Do you agree that there is sufficient evidence here based on what was found at each of these arrests that would tie to distribution or could be seen as tying to distribution? [00:05:07] Speaker 00: First, the sheer variety of the drugs. [00:05:10] Speaker 00: Second, the scales and so forth that are oftentimes [00:05:13] Speaker 00: associated with distribution, that there would be sufficient evidence for the court to say, I'm giving you four levels for possessing a firearm in connection with those drugs. [00:05:25] Speaker 03: Yes. [00:05:26] Speaker 03: And there's also sufficient evidence that the district court could say, in my capacity as fact finder, I don't think it's been proven by a preponderance of the evidence that you are distributing. [00:05:37] Speaker 00: But the district court didn't go on because there was no objection. [00:05:41] Speaker 03: Right. [00:05:42] Speaker 03: And that's why we need to show that there's a reasonable possibility that the district court wouldn't find distribution absent the error. [00:05:52] Speaker 00: Can you really be silent when there are two alternatives like that and then come in? [00:05:58] Speaker 00: and criticize the district court for not having anticipated that on appeal you're going to raise an argument that you didn't raise in the district court. [00:06:06] Speaker 00: The district court looked at the evidence and said consumption in the sale of illegal drugs and not a peep. [00:06:13] Speaker 00: I would think the district court at that point would feel safe in saying, okay, they acknowledge. [00:06:20] Speaker 03: That wasn't the basis for the district court's application of the enhancement. [00:06:23] Speaker 03: There's two parts of the hearing. [00:06:25] Speaker 03: The district court was really clear. [00:06:27] Speaker 03: I'm first going to determine the guidelines range, and then after having done that, I'm going to go through the 3553A factors. [00:06:35] Speaker 03: He goes through the guidelines range. [00:06:36] Speaker 03: He applies the enhancement. [00:06:37] Speaker 03: He doesn't do anything except for adopt the PSR, which only is on simple possession. [00:06:42] Speaker 03: Then he goes to the end of the hearing and he's like, the things that you spoke about. [00:06:48] Speaker 03: And I think that at most what the district court is saying is, I have some concern that maybe there was some trafficking going on, which is not a finding by a preponderance of the evidence that Mr. Simmons trafficked these drugs. [00:07:04] Speaker 03: If he thought that, he would have said it. [00:07:06] Speaker 03: I think it's perfectly consistent to say, [00:07:09] Speaker 03: I'm concerned that there's stuff in this car that could be taken as trafficking paraphernalia without thinking that had been proven by a preponderance of the evidence. [00:07:20] Speaker 03: And there's lots of evidence that these drugs were for his personal use. [00:07:26] Speaker 03: You talked about a lot of drugs being found. [00:07:28] Speaker 03: He has a long history of abusing all of those drugs. [00:07:33] Speaker 03: There was also paraphernalia consistent with use in the car. [00:07:37] Speaker 03: There were pipes and torches. [00:07:39] Speaker 03: the drugs were in small quantities consistent with use in the car. [00:07:44] Speaker 03: You also mentioned like the scales. [00:07:46] Speaker 00: And brass knuckles. [00:07:47] Speaker 00: Don't forget the brass knuckles. [00:07:48] Speaker 03: That's true. [00:07:49] Speaker 03: Scales are not inconsistent with personal use and we don't even know that they belonged to Mr. Simmons. [00:07:54] Speaker 03: The district court didn't find that they belonged. [00:07:56] Speaker 00: Whose car was it? [00:07:57] Speaker 03: It was Mr. Simmons' car, and it was jointly occupied by Mr. Meadows, who, for all we know, could have been his drug dealer. [00:08:03] Speaker 03: But all of this goes to say that the district court didn't apply the enhancement based on distribution. [00:08:12] Speaker 03: And we're not supposed to be doing that for the first time on appeal. [00:08:15] Speaker 03: All we have to decide on appeal is, did the district court apply the enhancement for a plainly erroneous reason? [00:08:22] Speaker 03: It did. [00:08:23] Speaker 03: All it did was adopt the PSR. [00:08:25] Speaker 03: which the government admits was based on Oklahoma's simple possession offense. [00:08:29] Speaker 03: Then, for the third prong, the question is, is it reasonable to think the district court could think distribution wasn't proven by a preponderance of the evidence? [00:08:38] Speaker 03: Is there a reasonable prospect of him not making that finding on remand? [00:08:42] Speaker 03: And I think that there is, because of the joint occupancy, because of the ambiguity in the paraphernalia that was found. [00:08:51] Speaker 03: because of Mr. Simmons's long history of personal use of drugs. [00:08:57] Speaker 03: And neither the government nor the PSR writer below ever suggested that Mr. Simmons was trafficking in these drugs. [00:09:08] Speaker 03: So I do think that prongs one and two here [00:09:15] Speaker 03: are satisfied based on the PSR and the district court's adoption of the PSR as the basis for its ruling. [00:09:24] Speaker 03: And then the government's alternative distribution argument wasn't the basis of the ruling, and the only question is whether there's a reasonable probability that we can win on that fact finding on remand. [00:09:39] Speaker 02: The unpublished decision in Shaw [00:09:42] Speaker 02: If we were to adopt that position, would that be determinative on your categorical approach? [00:09:53] Speaker 03: So if you were to adopt Shaw, that would undermine our argument for the categorical approach. [00:10:00] Speaker 03: But I don't think that you need to reach the 844 issue. [00:10:05] Speaker 03: And if you do, Shaw is not published and it's not persuasive. [00:10:10] Speaker 03: So first of all, again, the only basis for the district court's ruling was Oklahoma's simple possession offense. [00:10:18] Speaker 03: The court didn't consider this 844 federal simple possession offense, so it's an alternative ground for affirmance. [00:10:26] Speaker 03: Considering that is discretionary, and the government has waived 844 as a consideration for an alternative ground for affirmance, and that's because [00:10:37] Speaker 03: It hasn't argued any of the factors that this court uses to consider whether to consider an alternative ground. [00:10:44] Speaker 03: So the court says things like, was it fully briefed below? [00:10:48] Speaker 03: Do you need to find facts in order to rule on this alternative ground? [00:10:53] Speaker 03: Was there a fair opportunity to litigate that below? [00:10:56] Speaker 03: The government didn't brief any of this. [00:10:58] Speaker 01: And I think what's even more... You briefed... I sort of had the impression the government was responding to your brief because you... [00:11:06] Speaker 01: You briefed that in the first instance almost as a, I'm not sure why. [00:11:11] Speaker 01: Basically, you kind of came to this bottom line that we don't have under the PSR. [00:11:18] Speaker 01: We don't have an offense that works here. [00:11:21] Speaker 01: But nevertheless, I'm going to talk about all these other offenses. [00:11:24] Speaker 01: And then the government responded to that, was the impression I had. [00:11:28] Speaker 01: But I'm not sure. [00:11:29] Speaker 03: So I think that we wanted to be really careful not to waive anything. [00:11:33] Speaker 03: I think we said from the very beginning, this is an alternative ground. [00:11:37] Speaker 03: We don't have to do this, but we want to be super careful not to waive anything. [00:11:41] Speaker 03: I don't think we were required to do that, but now it turns out that the government hasn't adequately briefed this. [00:11:47] Speaker 03: It hasn't even asserted that a non-categorical interpretation of 844 is the right one. [00:11:55] Speaker 03: So it's just like sometimes the defendant briefs harmless error preemptively in the opening [00:12:01] Speaker 03: Well, if the government doesn't give a meaningful response to that, this court treats it as a waiver. [00:12:06] Speaker 03: And here, Mr. Simmons preemptively briefed this 844 issue. [00:12:10] Speaker 03: The government never even said, actually, you did commit a felony under 844. [00:12:16] Speaker 03: It has only ever said, you can't win on plainness. [00:12:19] Speaker 03: But the plain error standard doesn't apply to this 844 issue, because I'm not challenging a ruling that applied 844. [00:12:28] Speaker 03: With the court's leave, I'll reserve the remainder of my time for rebuttal. [00:12:32] Speaker 02: You may. [00:12:32] Speaker 02: Let's hear from the government. [00:12:52] Speaker 04: May it please the Court, David Nichols on behalf of the United States. [00:12:57] Speaker 04: I'll begin by addressing a couple of the things that Council [00:13:02] Speaker 04: just brought to the court's attention, and start by stating the obvious. [00:13:06] Speaker 04: The lack of clarity by the PSR writer is what gives rise to this issue, and that is also brought before this court on plain error, because at no point did Mr. Simmons or his counsel object to it to ask the court what the court was thinking. [00:13:19] Speaker 04: But the PSR writer uses eight words to say why the enhancement applies. [00:13:24] Speaker 04: Those eight words taken together do not make a crime in either the federal or the state system. [00:13:29] Speaker 04: It is true that the government, in my reply brief, agreed that the dangerous word that is in there comes from the Oklahoma State statute. [00:13:38] Speaker 04: It does not mean the government agrees that that is what the court used to apply the enhancement. [00:13:44] Speaker 04: The lack of that clarity, as I say, those words require something to be added or subtracted in order to make out a felony crime. [00:13:51] Speaker 04: I do think that, as this court, you all have already observed, [00:13:56] Speaker 04: ample evidence in the record of the PSR that was not objected to, that the possession with intent to distribute crime could be made out. [00:14:04] Speaker 04: Again, because no one objected at the district court level, neither the district court nor the government had reason to amplify and build up that argument to clarify what it was. [00:14:13] Speaker 04: But the evidence is still in the PSR and was still before the court. [00:14:17] Speaker 04: And as has been already observed, it was, I would submit, in the district court's mind when it came time for sentencing. [00:14:24] Speaker 04: I'd also like to point out that, yes, it is true, as counsel observes, there are two parts to a sentencing hearing, but it is the same judge who's sitting in judgment of both of those. [00:14:34] Speaker 04: And I would submit that if you don't, as a defense at the district court level, if you don't ask him to clarify his thoughts during the objections phase, during the determination of guidelines phase, it doesn't detract from the fact that he is clarifying his thoughts in the later sentencing phase. [00:14:58] Speaker 00: I would also submit that... So if we knew that the district court were relying on the Oklahoma offense and not on the scales and brass knuckles and distribution evidence, which was undisputed, would we affirm or would we send it back? [00:15:17] Speaker 04: And if I understand your honor correctly, if we were to assume the district court were relying on Oklahoma's simple possession, then yes, I think it would be... Has the PSR and the AUSA kind of misled the court to by not explaining paragraph 24 better? [00:15:31] Speaker 04: I would agree that the AUSA, being myself, should have explained that better in the moment. [00:15:35] Speaker 04: But what I would point out that is crucial for what the district court might have been thinking about the enhancement is the word simple, which has been bandied about here, is not used at all in the PSR writer's paragraph about why [00:15:46] Speaker 04: the four points applies. [00:15:47] Speaker 00: All right, so if the district court thought it was relying simply on whether this was an Oklahoma felony and yet we look at the record and we see the words out of the district court's mouth that this also looks like distribution as I read them, then do we assume that the district court, if [00:16:10] Speaker 00: had been challenged on the Oklahoma felony offense basis would have said, oh, it's distribution? [00:16:17] Speaker 00: Or should we send it back and have the district court tell us? [00:16:21] Speaker 04: I would submit that what your honor has already read into the proceeding today shows us what the district court was thinking. [00:16:27] Speaker 04: I don't think there's a mystery about whether the district court thought there was at least the possibility that he was possessed in a firearm. [00:16:33] Speaker 04: in conjunction with the sale of the drugs that he had with it. [00:16:36] Speaker 00: The problem is the written word and the paragraph in the PSR doesn't say distribution. [00:16:43] Speaker 04: Yes, Your Honor, it also does not say simple. [00:16:45] Speaker 04: That's why when I say the PSR writer lacks clarity to base it on, the eight words it puts out don't make out. [00:16:51] Speaker 04: a felony in either system or a misdemeanor in either system. [00:16:54] Speaker 04: To say the felony of possession of controlled substance after prior conviction for a drug offense, that would make the federal drug possession statute. [00:17:04] Speaker 04: To add the felony possession of a controlled substance with the intent to distribute, that would also add it. [00:17:10] Speaker 04: The only way it does become something that I would submit [00:17:14] Speaker 04: would be sent back as if, in fact, the district court was mistakenly applying it based on the misdemeanor or simple possession statute in Oklahoma. [00:17:22] Speaker 04: And I submit that the record before both the district court and before your honors, that that's simply not what happened. [00:17:28] Speaker 04: There was an objective to evidence. [00:17:31] Speaker 01: Well, can I stop you there for a minute? [00:17:33] Speaker 01: I guess I want to make sure I understand your argument. [00:17:37] Speaker 01: If we agree with defendant here that the specific language in the PSR, which was adopted with no objection, no discussion by the district court, would seemingly refer to the Oklahoma drug possession statute by using the specific phrase, controlled dangerous substance. [00:17:57] Speaker 01: You both seem to agree that refers to the Oklahoma drug possession statute. [00:18:03] Speaker 01: And nobody objects. [00:18:04] Speaker 01: District court adopts it if we agree that [00:18:07] Speaker 01: That's what it was, and that was the offense. [00:18:11] Speaker 01: And we know that doesn't support the application of 2K21B, 6B now. [00:18:17] Speaker 01: Don't we reverse? [00:18:19] Speaker 01: What basis would we have for considering anything else or even remanding to the district court? [00:18:26] Speaker 01: I think the basis that this court... If it says what it says, and that's what the court adopted, and that's what we believe it says, why would we remand? [00:18:37] Speaker 01: or conduct an analysis on our own of other possibilities? [00:18:45] Speaker 04: I would say the most direct response to that is the fact that the district court doesn't adopt just paragraph 24A. [00:18:51] Speaker 01: It adopts the unobjected two portions of the entire PSR, which I submit is what the district court is... Paragraph 24A is specifically referring to the specific offense characteristics [00:19:03] Speaker 01: when adding the enhancement. [00:19:06] Speaker 01: I mean, that's fairly specific. [00:19:09] Speaker 04: Yes, but I would submit that it's not specific enough to say that. [00:19:12] Speaker 01: So we're supposed to take what's fairly specific and turn it into something ambiguous? [00:19:16] Speaker 01: Is that what you're saying? [00:19:18] Speaker 04: Well, I would first submit that the paragraph 24A, the language that the PSR writer uses, firearm in connection with the felony offense of possession of a controlled dangerous substance, including methamphetamine and fentanyl, if you [00:19:32] Speaker 04: I would say that's not as clear as Your Honor might be suggesting it is, simply because, as I said before, there are a multitude of things that that could have made out, but it doesn't actually make out anything. [00:19:44] Speaker 01: And yet possession of a controlled, dangerous substance, you agreed in your brief, seems to clearly invoke Oklahoma's drug possession statute. [00:19:51] Speaker 04: The word dangerous does, I would agree. [00:19:53] Speaker 01: I thought it was the controlled dangerous substance. [00:19:56] Speaker 01: Just dangerous? [00:19:57] Speaker 04: It's just the specific word dangerous is the only one that distinguishes between Oklahoma and the federal statute. [00:20:03] Speaker 01: So I think the PSR... That word does distinguish between the Oklahoma and the federal. [00:20:09] Speaker 04: Yes, it appears in the Oklahoma statute, not the federal statute. [00:20:12] Speaker 01: Okay. [00:20:13] Speaker 00: So are you making a harmless error argument that granted we're stuck with paragraph 24, we wish we could go back in time, we have to live with it, [00:20:23] Speaker 00: But if you send it back, it's going to be the same thing because the district court later said distribution and the evidence that was agreed to and not objected to in PSR is sufficient to support distribution. [00:20:36] Speaker 00: Is your argument harmless error? [00:20:37] Speaker 04: I believe to the extent this court believes there was an error, yes, I do believe it would be a harmless error. [00:20:43] Speaker 01: Did you make a harmless error argument in your brief? [00:20:45] Speaker 01: I didn't see any justification for [00:20:47] Speaker 01: That's what I'm trying to ask you. [00:20:49] Speaker 01: What is the justification, if we do think 24A is specific, what is the justification for bypassing that and on our own looking at other offenses? [00:21:01] Speaker 01: I didn't see any justification in your brief for that. [00:21:04] Speaker 01: You didn't argue harmless error. [00:21:06] Speaker 01: You didn't argue a firm on an alternative basis or anything else. [00:21:10] Speaker 04: I don't believe it's a... I'll start at the end of that. [00:21:12] Speaker 04: I don't believe it's an alternative basis. [00:21:14] Speaker 04: What's before the court is whether the district court, who was again not asked to clarify any of this at the sentencing level, was looking at the packet of information it knew about Mr. Simmons and about his various arrests and finding a felony drug crime that gave rise to that four-point enhancement. [00:21:30] Speaker 04: So regardless, I don't think it's an alternative basis to ask to have the court observe that there was ample evidence about possession with intent, as well as I would argue evidence that he had the federal crime of possession of controlled substance before him. [00:21:45] Speaker 04: Mostly because the district court, again, was not asked to clarify it at the time, but had evidence before it. [00:21:52] Speaker 04: I would submit to the court that the district court believed the four-point enhancement applied based on connection to another offense and based on what the district court said in its sentencing, I would submit that he believed that offense to be the possession with intent to distribute. [00:22:12] Speaker 04: So to that extent I do think that there is a basis for it and I do think that there's not, obviously ultimately the harmless error analysis asks that there be substantial possibility that things did not play out the way they did. [00:22:31] Speaker 04: And to Your Honor's earlier point, yes, I do believe that if we were to ask the District Court, he would likely say that he believed there was possession with intent to distribute evidence before him, which gave rise to the four-point enhancement. [00:22:50] Speaker 04: I would also observe that the Plain Air Review, as Your Honors know, is a rather protective review towards the District Court. [00:23:01] Speaker 04: To send it back based on the lack of an objection, the lack of being able to demonstrate clearly that the substance of rights were affected and would have played out differently would be to allow a defendant at the sentencing level to simply establish and set up an appeal by keeping mum, by not asking clarification, not objecting. [00:23:19] Speaker 04: So I would submit that that would be an inappropriate thing to do in this situation simply because the district court had before it [00:23:31] Speaker 04: All the evidence that we previously discussed and to the extent that an appeal is triumph of hindsight to come along now and have the appellant try to pick apart what the district court was making of all the evidence before it is somewhat both inefficient and also unfair to the district judge under a plain error review, which is also meant to shield the district judge in situations like this. [00:23:52] Speaker 04: So for that reason, I do think that [00:23:56] Speaker 04: when we look at the plain error analysis, yes, there has to be an error, the error must be plain, and the error must affect his substantial rights. [00:24:03] Speaker 04: So I would submit that on the third prong, certainly it fails. [00:24:06] Speaker 04: On the second prong, I don't believe the error was plain. [00:24:09] Speaker 04: The only way it becomes a plain error is if you do believe that the judge erroneously believed that possession was a felony in Oklahoma State's system, which I submit is unlikely given the fact that the district court judge has [00:24:23] Speaker 04: been a judge, has been a practitioner in the state of Oklahoma for a significant number of years, and would have been certainly not under the impression that Oklahoma's simple possession statute was a felony. [00:24:34] Speaker 04: So when we get to the sentencing phase and he is saying things like the possession and use and sale of controlled substances, that all speaks to someone who has evidence before him, I would submit, that he believed the firearm was possessed in connection with the potential sale of drugs. [00:24:53] Speaker 00: What about the cocaine? [00:24:55] Speaker 04: As Your Honor pointed out earlier, I think, as I said in my brief also, the cocaine is the most glaring example. [00:25:00] Speaker 04: Mr. Simmons in his PSR interview admits to using a great variety of drugs right up to the very day he's arrested in many cases, but makes a point to demonstrate that a significant amount of time passed where he did not use cocaine. [00:25:14] Speaker 04: So when you add that into the fact that he has [00:25:17] Speaker 04: I would argue, more drugs than any one person is going to use in a scenario. [00:25:22] Speaker 04: That speaks to someone who might be trying to offload them or distribute them. [00:25:26] Speaker 04: It's also relevant to point out, they are a small amount of drugs. [00:25:28] Speaker 04: There is no element in the crime of possession with intent that requires you to be a good drug dealer. [00:25:33] Speaker 04: It simply requires you to be with the intent to distribute those drugs. [00:25:37] Speaker 00: Where is the cocaine in the PSR? [00:25:43] Speaker 00: You're saying it's in the PSR, right? [00:25:45] Speaker 04: Yes, it stems from his second arrest, which happens when he's out on bond, the June arrest, which I believe PSR Paints is taking place at Walmart. [00:25:54] Speaker 04: And there's extensive discussion of that arrest related to the shoplifting aspect of it. [00:26:01] Speaker 00: Do you know a paragraph? [00:26:03] Speaker 02: 17. [00:26:03] Speaker 02: 17. [00:26:04] Speaker 00: Thank you. [00:26:12] Speaker 04: If I could briefly touch upon the question of the categorical approach, Your Honor mentioned the Shaw case. [00:26:17] Speaker 04: I do think I take some issue with the appellant's argument that that is not persuasive. [00:26:23] Speaker 04: This court has the published opinion in Romero, which I provided in my... [00:26:30] Speaker 04: 28J letter, which is 132F4 1208, which recognizes the fact that even in the context of plain error review, even unpublished opinions can be persuasive on the question of whether or not the district court committed plain error. [00:26:44] Speaker 04: So to the extent that we consider this as the federal crime of possession, I would submit it would not have been plain error for the district court to say you have the prior qualifying conviction to make this a federal possession of controlled substance, and therefore [00:27:00] Speaker 04: In light of Shaw, and I would submit Romero, that also could not have been a plain error that would require relief. [00:27:07] Speaker 00: Just back to cocaine for a second. [00:27:09] Speaker 00: I see in 17 it references the 2.7 grams of cocaine that were seized. [00:27:14] Speaker 00: But is it in the PSR that he told the PSR author, I don't use cocaine, or I haven't used cocaine for x months? [00:27:22] Speaker 00: You rely on that in your brief. [00:27:24] Speaker 00: I know you do. [00:27:25] Speaker 00: But what is there to show that the district court even knew about that? [00:27:30] Speaker 04: I do not have a reference for it to it in the PSR, but I do believe there is a section of the PSR where they inquire of a defendant about their substance abuse history. [00:27:38] Speaker 04: And there is a chart laid out on it where he has methamphetamine was used up to this date however many times a week or a day and it lays out each of the drugs. [00:27:48] Speaker 04: Cocaine is the only notable exception where he, I believe basically the only notable exception where he doesn't admit to using it substantially right up to the time of his arrest. [00:27:57] Speaker 00: All right, I guess you're talking about paragraph 77, substance abuse history, last used June, or 2021, frequency used daily. [00:28:08] Speaker 00: And then you're suggesting from that that he's admitted that he doesn't use the cocaine that he's found with. [00:28:15] Speaker 00: There's a little speculation there, I suppose. [00:28:18] Speaker 04: There is some, if I may ask you, I'm over time, if I could respond to that briefly. [00:28:22] Speaker 04: There is some. [00:28:24] Speaker 04: To your Honor's point, he says he stops using it, I believe, in September of 2021. [00:28:28] Speaker 04: This arrest happens in May of 2022. [00:28:30] Speaker 04: He says he last used. [00:28:33] Speaker 00: Maybe that's the last chance he had to have cocaine. [00:28:37] Speaker 04: It is possible, but he was out of custody and living his life up to the time he was arrested on May 14th for this offense. [00:28:44] Speaker 04: And the cocaine comes in the second arrest, which happens in June of 2022. [00:28:50] Speaker 04: So I'd submit that does, yes, it does call for some speculation, but I would submit that it speaks to someone who's not used it in that amount of time, but has acquired it in the context of sale. [00:29:01] Speaker 02: Thank you. [00:29:01] Speaker 02: Thank you, counsel. [00:29:03] Speaker 02: Mr. Lee, you have some rebuttal time. [00:29:16] Speaker 03: Your Honor, when he was a judge on this court, Justice Gorsuch says it's better to know on remand than to guess on appeal. [00:29:26] Speaker 03: Here what we have is we do know why the district court imposed this particular enhancement. [00:29:31] Speaker 03: He imposed it for possession of a controlled dangerous substance because he adopted the PSR and that's what the PSR said. [00:29:38] Speaker 03: So that was plainly erroneous. [00:29:40] Speaker 03: Then we get into [00:29:42] Speaker 03: You know, was the district court saying maybe he thought he was distributing? [00:29:46] Speaker 03: You know, the government described it as he's concerned with the possibility that it was possessed in connection with distribution. [00:29:54] Speaker 03: We don't know what the district court thought for sure. [00:29:56] Speaker 03: The record is too ambiguous. [00:29:58] Speaker 03: The facts cut both ways, and that favors a remand in this case. [00:30:02] Speaker 03: Thank you. [00:30:03] Speaker 03: Thank you, counsel. [00:30:05] Speaker 02: Counselor excused, and the case is submitted.