[00:00:00] Speaker 02:
Call case number 247009, United States versus staff.

[00:00:05] Speaker 03:
Ms.

[00:00:06] Speaker 03:
Schmidt.

[00:00:07] Speaker 03:
Thank you, Your Honors.

[00:00:08] Speaker 03:
I think before I start the argument, I think it's important to size up what this case is not about because of the nature of the record below.

[00:00:16] Speaker 03:
This case is not about anything dealing with the determination of the 922G conviction.

[00:00:28] Speaker 03:
This case is solely about sentencing law, both as to a challenge to the offense level calculation and to the criminal history points that were assessed against Mr. Stapp.

[00:00:45] Speaker 03:
Much of the law that is cited, I believe, in both briefs, we are looking at law where the recitation is involved in 922-G culpability cases.

[00:00:58] Speaker 03:
where evidence can be used even for different reasons other than sentencing.

[00:01:04] Speaker 03:
But that's not what we're talking about even though we have cited some of that law simply because that's where it resides in the record.

[00:01:14] Speaker 03:
We have two issues that we presented to the court.

[00:01:18] Speaker 03:
The first one deals with the unreasonableness of the offense level calculation under the guidelines.

[00:01:26] Speaker 03:
The second issue

[00:01:28] Speaker 03:
deals with the unreasonableness of the criminal history points as calculated by the district court and then giving rise to a guideline range that was determined, we submit, by error in the calculation of the offense level as well as error in the criminal history computation.

[00:01:51] Speaker 03:
Unless the court wants something different, I will just follow the outline that we have in the brief.

[00:01:58] Speaker 03:
The first issue is the issue of the court's reliance on hearsay evidence in the enhancement found in 2K21B6B, which allows it's sentencing enhancement in a 922G case if

[00:02:19] Speaker 03:
the government can prove by preponderance of the evidence that the defendant possessed a gun in connection with another felony.

[00:02:29] Speaker 03:
And the other felony that is involved in this case is, and I'm not going to use the legal terms, but basically that he had a stolen car and he possessed it.

[00:02:40] Speaker 03:
And that's how we're looking at that particular issue.

[00:02:46] Speaker 03:
A sentence must be reasonable.

[00:02:48] Speaker 03:
And under all of the law, the correct application of the guideline-based defense level enhancement requires correctly finding all predicate facts by a preponderance of the evidence.

[00:03:02] Speaker 03:
In this particular case, in all cases, the correct finding of predicate facts requires proof of facts by reliable evidence, not by unreliable evidence.

[00:03:14] Speaker 03:
And hearsay, and that is kind of the first part of this issue number one, is presumptively unreliable.

[00:03:24] Speaker 03:
If a hearsay statement bears minimal indicia of reliability, then it's permissible for a court to go forward.

[00:03:33] Speaker 03:
In this particular situation, we submit here and in our brief that that's really where the error occurred.

[00:03:42] Speaker 03:
And I know at least two of the judges here have been on panels talking about the Fennel case.

[00:03:49] Speaker 03:
And that's where we believe the error occurred in this particular situation.

[00:03:54] Speaker 02:
How is this case like Fennel?

[00:03:56] Speaker 02:
Pardon me.

[00:03:57] Speaker 03:
I'm sorry, Your Honor.

[00:03:58] Speaker 02:
Tell me how this case is like Fennel.

[00:04:00] Speaker 03:
Fennel stood for the general proposition that evidence is unreliable and is

[00:04:12] Speaker 03:
should not be used to prove the truth of the matter asserted, which is, of course, what we're always talking about in a hearsay section, and that a court should not enhance a sentence based on unsworn, unobserved, uncorroborated statements, hearsay.

[00:04:30] Speaker 03:
And we submit that that's what happened here, Your Honor.

[00:04:33] Speaker 03:
And that's how that directly relates to the Fennel case, which has been established law, I believe, since 1994.

[00:04:42] Speaker 02:
Indisha isn't there here of reliability we have It's ravine.

[00:04:47] Speaker 02:
I think that you're speaking of the girlfriend fence brother She I mean she we have body camera footage or I don't have it, but there was body camera footage so her demeanor and her voice was

[00:05:01] Speaker 02:
No.

[00:05:02] Speaker 02:
We have that, which is different than Fennel.

[00:05:06] Speaker 02:
We have the fact that she'd reported the vehicle stolen or someone had.

[00:05:11] Speaker 02:
And certainly you're... I apologize.

[00:05:13] Speaker 02:
And that supports her saying she didn't give him permission.

[00:05:17] Speaker 02:
He had an opportunity to explain, or but, what she was saying.

[00:05:21] Speaker 02:
I mean, I see this as different.

[00:05:24] Speaker 03:
And, Your Honor, I just disagree with...

[00:05:27] Speaker 03:
It's certainly the government argues that there's indicia of reliability.

[00:05:31] Speaker 03:
We do not argue that.

[00:05:32] Speaker 03:
As a matter of fact, we disagree with that.

[00:05:36] Speaker 02:
I don't see it as the same as Fennel is my point.

[00:05:42] Speaker 03:
And I understand.

[00:05:43] Speaker 03:
First of all, if you analyze our facts under the Fennel test, I don't believe there's any question that there is a complete lack of any sworn testimony of any sort.

[00:05:55] Speaker 03:
At the sentencing hearing, nobody testified.

[00:05:59] Speaker 03:
There is not any type of an affidavit involved in this particular case.

[00:06:03] Speaker 03:
So I think that it falls on the first prong of Fennel.

[00:06:08] Speaker 03:
The indish of reliability falls also.

[00:06:11] Speaker 03:
We submit that while the body cam evidence was admitted, there's absolutely no evidence that, or no person that testified at the hearing

[00:06:25] Speaker 03:
that they observed that, that they observed her demeanor or anything else.

[00:06:30] Speaker 03:
And importantly, her statements, we're always looking at what's the truth of the matter asserted.

[00:06:35] Speaker 03:
And the fact that she says, and this kind of bleeds into the second part of this argument, Your Honor, but the fact that she says it was my car and I didn't give consent, there's nothing that shows that it in fact was her car

[00:06:54] Speaker 03:
And that, in fact, she did refuse consent.

[00:06:57] Speaker 01:
Well, there's some evidence of that.

[00:06:59] Speaker 01:
I mean, the fact she declared it was her car, it would be some evidence that it was her title.

[00:07:03] Speaker 01:
And the fact that the police gave her the car back has to be some evidence that they were persuaded for unknown reasons that it was her car.

[00:07:14] Speaker 03:
And under the hearsay analysis, I don't disagree that there's some evidence.

[00:07:19] Speaker 03:
The question is whether it's reliable.

[00:07:21] Speaker 03:
But then, and this is, I'm going to conflate the first and second arguments here because I don't know that on this particular analysis I can separate them.

[00:07:29] Speaker 03:
But the second piece is that there was, in fact, proffered evidence that she was not the sole owner of the car.

[00:07:36] Speaker 03:
So that's why the truth of the matter that she asserts that it was her car, there's nothing where she asserts she was the sole owner of the car.

[00:07:45] Speaker 01:
There's nothing where she asserts... What proffered?

[00:07:47] Speaker 01:
That's not an issue in our case, is it, that the proffered evidence was rejected?

[00:07:52] Speaker 01:
What was the proffered evidence?

[00:07:54] Speaker 01:
Was it that he, the husband was the co-owner?

[00:07:58] Speaker 01:
What was the proffered evidence?

[00:07:59] Speaker 03:
Yes, Your Honor, there was proffered evidence.

[00:08:03] Speaker 03:
I don't even want to say it was contrary.

[00:08:06] Speaker 03:
reconcilable and consistent with what, even if you accept her hearsay statements as truthful, it's not inconsistent.

[00:08:13] Speaker 03:
His proffered evidence was that Damien, his brother, who was with them that night, gave him the keys.

[00:08:22] Speaker 01:
Well, yeah, but giving the key didn't mean he was an owner of the car.

[00:08:26] Speaker 01:
You could share a second key with somebody without giving them ownership to the car.

[00:08:30] Speaker 03:
That's true, but there was no evidence

[00:08:33] Speaker 03:
that, to the contrary, that he was not the owner of the car.

[00:08:37] Speaker 01:
I just want to make sure I understand.

[00:08:39] Speaker 01:
Was there proffered evidence that he, the husband, was a legal owner of the car?

[00:08:46] Speaker 01:
And if so, did the court ever rule on that proffer?

[00:08:51] Speaker 01:
That's what I want to know.

[00:08:52] Speaker 03:
A, the court did not rule.

[00:08:54] Speaker 03:
And that's a problem here.

[00:08:58] Speaker 03:
I understand what you're saying, Your Honor.

[00:08:59] Speaker 01:
Was there a formal proffer?

[00:09:00] Speaker 01:
A hereby proffer?

[00:09:02] Speaker 01:
No.

[00:09:02] Speaker 01:
That we can prove that the defendant, I mean that the husband was a legal owner of the car.

[00:09:08] Speaker 01:
Was that a proffered piece of evidence?

[00:09:10] Speaker 03:
No.

[00:09:11] Speaker 01:
I think that's the way I understood it, that that was not proffered.

[00:09:13] Speaker 01:
No.

[00:09:14] Speaker 01:
And if I... We're fine.

[00:09:15] Speaker 03:
I didn't intend to mislead the court, Your Honor.

[00:09:18] Speaker 03:
However, when it comes to the preponderance of the evidence standard on proving another felony,

[00:09:27] Speaker 03:
The fact of that felony under Oklahoma law, which is what was in play here, requires that a person, under the way this case played out, that, let me say this differently, ignoring the possibility that there could be another co-owner, which is, while there's no proffer, it's not unreasonable to assume here they were husband and wife, and ignoring the possibility

[00:09:56] Speaker 03:
And the undisputed proffer that Damien gave him the keys, that is insufficient to get to the point of finding that there was another felony that Mr. Stapp stole the car.

[00:10:15] Speaker 03:
And when you put that into the context of the fact that three of them went to the casino together, this isn't an unrelated person.

[00:10:23] Speaker 03:
These people were all together.

[00:10:25] Speaker 03:
They were at the casino.

[00:10:26] Speaker 03:
The proffer and the evidence that came out at trial is consistent with the facts.

[00:10:35] Speaker 03:
It's not unreasonable to assume that those facts support that Damian was in fact a co-owner of the car and that he gave consent.

[00:10:48] Speaker 03:
Our position is that with that sitting out there,

[00:10:51] Speaker 03:
It was error for the judge to find that the government bore its burden of proving that there was another felony involved on these facts.

[00:11:03] Speaker 03:
I will leave the rest of this unless the court wants to because I have a little bit over three minutes left and move on to the second primary argument in the brief.

[00:11:14] Speaker 03:
And I'm going to label this McGirt just for the purposes of the argument.

[00:11:20] Speaker 03:
This is difficult.

[00:11:22] Speaker 03:
We recognize this was not preserved.

[00:11:25] Speaker 03:
I don't want to attempt to mislead the court.

[00:11:27] Speaker 03:
We know that.

[00:11:28] Speaker 03:
Nevertheless, we are urging this court to take it up on the de novo review.

[00:11:32] Speaker 03:
This issue is circulating in the district court.

[00:11:35] Speaker 03:
There's one case in Brown where this was brought up and for reasons that I don't understand was not appealed to this court, but it's out there.

[00:11:44] Speaker 03:
And the question really is,

[00:11:47] Speaker 04:
Well, cancel cancel jump in, of course, you say you say that it's out there.

[00:11:56] Speaker 04:
Is this a question of 1st impression for this circuit?

[00:12:01] Speaker 03:
I believe what we're talking about may be a case of first impression in the whole country, Your Honor.

[00:12:07] Speaker 03:
We could not find it.

[00:12:08] Speaker 04:
Let me just ask you this.

[00:12:09] Speaker 04:
I would ask you about a case that was decided some time ago.

[00:12:15] Speaker 04:
And it's United States versus Garcia.

[00:12:18] Speaker 04:
It's one of our cases where we said that the sentencing guidelines don't permit collateral attacks on prior sentences except

[00:12:29] Speaker 04:
those alleging a complete denial of a right to counsel.

[00:12:33] Speaker 04:
Now, it seems to me that that answers this issue, but maybe I'm missing something.

[00:12:39] Speaker 04:
Could you address that case?

[00:12:40] Speaker 03:
I will try, Your Honor.

[00:12:41] Speaker 03:
I hope successfully.

[00:12:43] Speaker 03:
I think the easy way to explain this is that, thus far, the cases that have held that way happen to be cases that arose

[00:12:51] Speaker 03:
under the Sixth Amendment violation that was addressed in Gideon and then the progeny.

[00:12:57] Speaker 03:
But no court has ever said that is the only time that anything can happen.

[00:13:01] Speaker 03:
And we submit that McGirt is another time because McGirt held that the Hughes County Court did not have jurisdiction to hear those cases.

[00:13:14] Speaker 03:
The law that we have cited indicates that leads to the legal conclusion that those Hughes County cases are void as a matter of law.

[00:13:25] Speaker 03:
Now, when we're talking about the comparison with Garcia, first of all, Garcia, and I do think we kind of have to look at what the underlying theory of attack, if you will.

[00:13:39] Speaker 03:
Garcia was a case that was based on the defendant's collateral assertion of actual innocence.

[00:13:47] Speaker 03:
That's not what we've got in McGirt.

[00:13:49] Speaker 03:
McGirt is a straight-up jurisdiction case.

[00:13:51] Speaker 03:
It doesn't require opening the record.

[00:13:53] Speaker 03:
It doesn't require having any evidence.

[00:13:57] Speaker 03:
If you look at the pre-sentence report, and there's a conviction out of Hughes County, that conviction was obtained in violation of the sovereign rights of the Creek tribe.

[00:14:09] Speaker 03:
doesn't require opening a record.

[00:14:11] Speaker 03:
It's just like denial of counsel under the Sixth Amendment, the difference between ineffective assistance of counsel collateral attacks and denial of counsel.

[00:14:22] Speaker 03:
Easy to ascertain in a record.

[00:14:25] Speaker 04:
Did the defendant... Counsel, was there any denial of counsel in these previous convictions?

[00:14:32] Speaker 03:
No.

[00:14:33] Speaker 03:
But they were declared void by McGirt.

[00:14:36] Speaker 04:
Was there any challenge being made now to, other than the Indian country versus state, is there any suggestion that these convictions were invalid in any way, shape, or form?

[00:14:51] Speaker 03:
McGirt.

[00:14:53] Speaker 03:
Yes, that's exactly.

[00:14:55] Speaker 03:
In addition to McGirt.

[00:14:56] Speaker 04:
Apart from where

[00:15:00] Speaker 04:
Where they occurred, is there any question at this point that those were valid convictions other than McGirt?

[00:15:09] Speaker 03:
I'm out of time.

[00:15:10] Speaker 03:
May I respond to the question?

[00:15:12] Speaker 03:
Thank you, Your Honor.

[00:15:13] Speaker 03:
No.

[00:15:14] Speaker 03:
And we're not challenging the convictions in and of themselves.

[00:15:18] Speaker 04:
What's your best case to say that we should apply McGirt retroactively in this context?

[00:15:26] Speaker 03:
I don't believe it's a retroactive application of McGirt.

[00:15:31] Speaker 03:
It's the use of McGirt to impose new liberty deprivations to the client.

[00:15:37] Speaker 03:
We're not challenging the actual convictions.

[00:15:41] Speaker 03:
We're not doing that.

[00:15:42] Speaker 03:
We're simply saying that the effect is that you should not be able to use a truly, jurisdictionally void conviction

[00:15:53] Speaker 03:
down the road to continue punishing somebody under the reasonableness of the sentencing guidelines as we count points for criminal history.

[00:16:06] Speaker 03:
I have nothing else, thank you.

[00:16:07] Speaker 02:
Thank you, counsel.

[00:16:18] Speaker 00:
Good morning, may it please the court?

[00:16:20] Speaker 00:
Jared Lehman for the United States.

[00:16:22] Speaker 00:
To address one of the questions from the panel earlier, to my understanding, the issue of McGirt and prior final state convictions, according to my research, has not been fully litigated before this court.

[00:16:39] Speaker 00:
I believe this may be the first case in which this question is going to be before the court for consideration.

[00:16:45] Speaker 00:
I believe it comes to the court on a matter of plain review.

[00:16:49] Speaker 00:
And in looking at McGirt itself,

[00:16:52] Speaker 00:
I think McGirt recognizes that these former finalized state convictions are, in fact, going to remain final.

[00:17:01] Speaker 00:
And I'll read the smallest portion of the McGirt opinion itself, page 933 of McGirt opinion.

[00:17:10] Speaker 00:
Still, Oklahoma and the descent fear thousands of Native Americans like McGirt wait in the wings to challenge the jurisdictional basis of their state court convictions.

[00:17:22] Speaker 00:
But this number is adamantly speculative, should be admittedly speculative, because many defendants may choose to finish their state sentences rather than risk re-prosecution in federal court where sentences can be graver.

[00:17:36] Speaker 00:
Other defendants who do try to challenge their state convictions may face significant procedural obstacles thanks to well-known state and federal limitations on post-conviction review and criminal proceedings.

[00:17:48] Speaker 00:
So McGirt itself recognizes that there are going to be a number, I submit, of finalized state convictions that remain finalized absent this prospective understanding that the reservation status in Oklahoma is what we understand it to be today.

[00:18:04] Speaker 00:
And that's the case with this defendant.

[00:18:06] Speaker 00:
He had finalized state-level convictions that were used to enhance his criminal history score.

[00:18:13] Speaker 04:
Well, Counsel, the passage you just read didn't it indicate that

[00:18:17] Speaker 04:
certain defendants have been convicted in the state court may elect not to bring McGirt challenge.

[00:18:27] Speaker 04:
But here, Mr. Stapp is bringing a McGirt challenge to the use of these convictions to enhance his sentence.

[00:18:37] Speaker 04:
And, you know, just taking a step back, I mean, didn't McGirt, and for that matter, the Murphy decision grant habeas relief

[00:18:49] Speaker 04:
the lack of jurisdiction.

[00:18:51] Speaker 04:
Why wouldn't that apply here?

[00:18:54] Speaker 00:
The defendant hasn't applied for that here.

[00:18:56] Speaker 00:
That's why.

[00:18:57] Speaker 00:
So these convictions remain finalized.

[00:19:00] Speaker 04:
Oh, no.

[00:19:01] Speaker 04:
He's challenging and making a collateral attack on the use of these convictions because the state court, he's arguing he didn't have jurisdiction.

[00:19:14] Speaker 04:
Now, how's that any different from what Murphy and McGurk were arguing?

[00:19:20] Speaker 00:
Your Honor, I think the vehicle that Murphy and McGirt took is much different.

[00:19:24] Speaker 00:
They didn't wait until sentencing.

[00:19:25] Speaker 00:
They took affirmative steps to vacate those convictions through the federal court process that's available to them.

[00:19:32] Speaker 04:
They were both habeas cases.

[00:19:38] Speaker 04:
They didn't bring this up on direct appeal.

[00:19:40] Speaker 04:
They were both habeas cases.

[00:19:41] Speaker 00:
Indeed.

[00:19:42] Speaker 00:
They were collateral attacks.

[00:19:43] Speaker 00:
Yes, Your Honor, indeed.

[00:19:44] Speaker 00:
But here, however, we have a defendant who's waiting to collaterally attack his prior convictions at sentencing.

[00:19:48] Speaker 00:
And that's something this court has previously

[00:19:50] Speaker 00:
that a defendant cannot do.

[00:19:52] Speaker 00:
You cannot wait until sentencing to collaterally attack those convictions.

[00:19:56] Speaker 04:
OK.

[00:19:57] Speaker 04:
And you're relying on the case you were just talking about?

[00:20:00] Speaker 04:
Is that the best case?

[00:20:02] Speaker 00:
Yes, Your Honor.

[00:20:04] Speaker 04:
Garcia.

[00:20:05] Speaker 00:
Yes, Your Honor.

[00:20:05] Speaker 00:
I believe that it is.

[00:20:06] Speaker 00:
And it has been a little developed in this Court's unpublished opinions that I go through in my brief.

[00:20:11] Speaker 00:
But yes, Your Honor, that's correct.

[00:20:13] Speaker 04:
Well, if that's the case, then why are you saying we haven't addressed this issue?

[00:20:17] Speaker 04:
It sounds like your argument is that we have addressed this issue.

[00:20:20] Speaker 00:
Well, in a manner of speaking, yes, Your Honor, you certainly have addressed this issue.

[00:20:23] Speaker 00:
But as far as the retroactive application, as it were, of McGirt, this Court has not squarely issued a ruling on that that I'm aware of.

[00:20:35] Speaker 02:
Well, can you address what I understand the defense argument is here, which is that we should essentially extend Garcia to this situation,

[00:20:51] Speaker 02:
conviction that's void for jurisdiction.

[00:20:54] Speaker 02:
And why is that so much different than what we've said as far as ineffective counsel?

[00:21:01] Speaker 00:
I think a couple of things.

[00:21:02] Speaker 00:
Number one, I think McGirt itself doesn't recognize it being a new constitutional right.

[00:21:08] Speaker 00:
It's simply a new issue of statutory interpretation.

[00:21:12] Speaker 00:
And then when you read McGirt after Castro Huerta, it becomes clear that Oklahoma has some sort of jurisdiction

[00:21:20] Speaker 00:
within the reservation boundaries.

[00:21:22] Speaker 00:
And so the question really becomes, what kind of jurisdiction does Oklahoma have that remains within the reservation, within the borders of the states?

[00:21:31] Speaker 00:
And so if we are going to look at it in terms of jurisdiction, there's two particular types of jurisdiction that we can look at, subject matter jurisdiction and personal jurisdiction.

[00:21:41] Speaker 00:
The state certainly believes that it has full jurisdiction within its boundaries.

[00:21:47] Speaker 00:
So the state would have full jurisdiction, it believes.

[00:21:50] Speaker 00:
And I think you can look at that in terms of personal jurisdiction.

[00:21:53] Speaker 00:
It can't be subject matter jurisdiction because the defendant couldn't necessarily waive that.

[00:21:59] Speaker 00:
But if it's personal jurisdiction that the state retains, then the defendant could waive that.

[00:22:04] Speaker 00:
And so if we apply that personal jurisdiction standard, barring from civil law, if I can remember my civil procedure correctly, 12V1 subject matter jurisdiction has a very broad time in which that can be raised.

[00:22:17] Speaker 00:
The personal jurisdiction, however, has a very narrow time in which that can be raised as a defense.

[00:22:22] Speaker 00:
Applying that theory to these valid state convictions, a defendant could have chosen to waive personal jurisdiction at that time.

[00:22:31] Speaker 00:
I really don't want to go and face these charges that I've had in this defendant's case of assault and larceny.

[00:22:37] Speaker 00:
I don't want to go face those charges in the federal court because I might have to do much more time.

[00:22:42] Speaker 00:
It certainly could have been the defendant's choice to waive personal jurisdiction and stay in state court where there's a much better

[00:22:50] Speaker 00:
Sentencing framework, there's more opportunity for pardon and parole, things of that nature.

[00:22:55] Speaker 04:
I'm a little confused here.

[00:22:59] Speaker 04:
When I hear personal jurisdiction, I think of international shoe and minimum contacts and all that.

[00:23:06] Speaker 04:
And I haven't seen any discussion of personal jurisdiction in these Murphy-McGurk cases, the other cases you cited.

[00:23:19] Speaker 04:
Can we find any guidance in the McGirt context for the argument you're making?

[00:23:26] Speaker 00:
Those particular arguments haven't been developed quite fully at the federal court level.

[00:23:32] Speaker 00:
They're percolating in the state system.

[00:23:34] Speaker 00:
I'll refer the court to, for example, City of Tulsa v. O'Brien.

[00:23:40] Speaker 00:
It's the State Court of Oklahoma, Criminal Court of Appeals opinion.

[00:23:43] Speaker 00:
And that's percolating at that level.

[00:23:46] Speaker 00:
But looking at cash to AWERTA,

[00:23:48] Speaker 00:
At the Supreme Court level, it's clear that Oklahoma has retained at least some type of jurisdiction with an Indian country.

[00:23:55] Speaker 00:
So to say that these convictions of this defendant were totally without jurisdiction, I believe, is simply an incorrect statement in light of Castro's words.

[00:24:09] Speaker 00:
Pivoting to the hearsay at sentencing issue one in the appeal, it seems to me that the primary, the gravamen of the dispute is that the district court didn't side with the defendant's proffer.

[00:24:25] Speaker 00:
But although I submit its plain error review, even under a clear error type of review,

[00:24:30] Speaker 00:
What we're looking for is some sort of foundation in the record for those statements or for the court's findings.

[00:24:37] Speaker 00:
And if the court is choosing between one of two plausible explanations for the evidence before it, this court would not reverse the lower court's decision.

[00:24:47] Speaker 00:
And that's exactly what happened here.

[00:24:49] Speaker 00:
The United States submitted its evidence that the defendant stole a car.

[00:24:53] Speaker 00:
The defendant submitted his evidence via proffer that he did not steal a car.

[00:24:58] Speaker 00:
We have two plausible explanations.

[00:25:00] Speaker 00:
Either the defendant did steal a car or the defendant did not steal a car.

[00:25:03] Speaker 00:
The district court chose the explanation that the defendant did steal the car and applied the sentencing enhancement based on that application.

[00:25:11] Speaker 00:
And under a clear error standard review, this court would not overturn the district court's decision in that context.

[00:25:18] Speaker 00:
Plain error similarly applies, and there's nothing to overturn.

[00:25:22] Speaker 01:
Let me move to this possession of a weapon in connection with the unauthorized car.

[00:25:28] Speaker 01:
I'm troubled by that one.

[00:25:31] Speaker 01:
Because the district court said, well, he was emboldened.

[00:25:35] Speaker 01:
He acted more broadly to take that car because he had a weapon.

[00:25:40] Speaker 01:
He never used it or displayed it.

[00:25:42] Speaker 01:
But the court said, psychologically, it must have given him confidence to take that car.

[00:25:46] Speaker 01:
And that's why the weapon was in connection with the unauthorized car.

[00:25:53] Speaker 01:
It seems to me that on the facts, emboldenment has nothing to do with this case.

[00:26:00] Speaker 01:
needing emboldement from the weapon at all.

[00:26:03] Speaker 01:
The person he thought had authority gave him a key and said, take it.

[00:26:09] Speaker 01:
And he was going and going to come back.

[00:26:11] Speaker 01:
He wasn't had any nefarious intent to steal the car.

[00:26:17] Speaker 01:
He was doing what he thought he was authorized to do.

[00:26:19] Speaker 01:
So he had a weapon.

[00:26:21] Speaker 01:
So it was coincidentally with him.

[00:26:25] Speaker 01:
But I think it means it requires more than just a coincidental presence of the weapon while you're committing a crime.

[00:26:32] Speaker 01:
It has to be in connection with the crime and the connection that the district court said was emboldenment.

[00:26:40] Speaker 01:
And I don't think that there's anything in the evidence to support that he needed emboldenment, wanted emboldenment, or that the weapons provided

[00:26:48] Speaker 01:
any more likelihood that he would have taken that car.

[00:26:51] Speaker 01:
So could you address that issue of whether the possession of the weapon was in connection with as opposed to just happenstance to have been with him when the offense occurred?

[00:27:04] Speaker 00:
Your Honor, I don't know that that issue was squirreled before the court as being raised by the defendant, but regardless, possessing the weapon in connection with the stolen vehicle, I would agree with the district court that possessing this weapon emboldens you to take the car.

[00:27:20] Speaker 01:
But he didn't think he was taking it against the interest of anybody.

[00:27:23] Speaker 01:
He didn't think he had to defend himself against anybody.

[00:27:25] Speaker 01:
He was doing exactly what he thought the owners told him to do.

[00:27:28] Speaker 00:
I would dispute that that's what the evidence shows.

[00:27:31] Speaker 00:
The evidence shows that he had permission to sit in the car, not take the car, Your Honor.

[00:27:35] Speaker 01:
Well, that's what the owner of the car, the woman, said, but the man gave him a key.

[00:27:41] Speaker 01:
The husband gave him a key and said, take the car.

[00:27:45] Speaker 01:
As far as he knew, I just don't see on that evidence that there was any evidence that he was seeking the emboldenment of a gun in his pocket to do what the husband of the person that owned the car, who had a key and who gave it to him, just to take a short trip up to the casino to get some money to his hotel, get money and come back, not to do anything nefarious with the car.

[00:28:08] Speaker 01:
I don't see how he needed emboldenment under those circumstances at all.

[00:28:13] Speaker 00:
I think having a firearm in connection with a stolen vehicle would help you in additional ways.

[00:28:18] Speaker 01:
You're not arguing, are you, that every time you have a stolen weapon in your pocket, every crime that you otherwise might commit, you're going to be subject to possession of a weapon in connection with the crime that you're committing.

[00:28:32] Speaker 01:
You're not arguing that.

[00:28:33] Speaker 00:
No, Your Honor.

[00:28:33] Speaker 00:
But in looking at the facts of this case, the defendant

[00:28:37] Speaker 00:
The defendant could be emboldened with a firearm and the stolen car, and I'll point the court to the evidence about the defendant's arrest.

[00:28:46] Speaker 00:
The defendant could have used that firearm to defeat the arrest when he was caught with the car.

[00:28:53] Speaker 00:
So that is something that the defendant could have clearly been emboldened to do.

[00:28:55] Speaker 00:
So I think the district court was

[00:28:57] Speaker 00:
Well-founded.

[00:28:58] Speaker 01:
But there's no evidence that he was anticipating any arrests.

[00:29:01] Speaker 01:
I mean, it was just going to be to this hotel room and back.

[00:29:04] Speaker 01:
He wasn't fleeing.

[00:29:05] Speaker 01:
He wasn't trying to take the car and flee where you might think, well, somebody is going to try to counter me.

[00:29:12] Speaker 00:
Quite frankly, we don't know what the defendant's intent was.

[00:29:14] Speaker 00:
We know what his proffer was.

[00:29:15] Speaker 00:
He said, I was just going to go to the hotel to get my debit card.

[00:29:17] Speaker 01:
I mean, you can speculate, but I don't see any evidence to support a claim

[00:29:25] Speaker 01:
That that weapon was performing any emboldenment function for this defendant it again at your honor I was is this challenged here.

[00:29:34] Speaker 00:
I don't believe so your honor.

[00:29:35] Speaker 02:
I felt the same way I just didn't see that it was challenged this seemed to be Questionable to me too, but I didn't see any challenge to this in the in the briefing your honor I don't believe it's before the court

[00:29:53] Speaker 00:
With that, Your Honor, I would ask this Court to affirm the opinion below, or affirm the sentence below, and if there's no more questions.

[00:30:01] Speaker 02:
Any questions?

[00:30:02] Speaker 04:
Well, I'd like to return to the McGirt issue, as long as we have a minute to go.

[00:30:09] Speaker 04:
What do you make

[00:30:12] Speaker 04:
The OCCA's decision in Matloff, does that case, how does that case help you and does it decide the issue here?

[00:30:25] Speaker 00:
Your Honor, I apologize that the Matloff decision is not coming to me.

[00:30:30] Speaker 04:
All right, well let's switch over to Aaron's decision in Chekhov versus Kavty.

[00:30:39] Speaker 00:
It does, Your Honor.

[00:30:40] Speaker 00:
I have cited that in my brief.

[00:30:43] Speaker 00:
If you'll give me one second, I'll refresh my recollection.

[00:30:49] Speaker 04:
Well, in the time you have left, anything else you want to say that might help us on this one?

[00:30:56] Speaker 04:
Open-ended question.

[00:30:58] Speaker 00:
Your Honor, finality of convictions has to mean something.

[00:31:01] Speaker 00:
For whatever reason,

[00:31:04] Speaker 00:
the defendant in this case chose not to attack his final convictions and waited until sentencing to do so.

[00:31:09] Speaker 00:
There are a myriad of reasons why the defendant may have chosen not to do that.

[00:31:13] Speaker 00:
But regardless, as a matter of fact, the finality of that conviction has to mean something.

[00:31:19] Speaker 00:
We cannot wait until years after the fact to all of a sudden come and challenge something on a non-constitutional basis, by the way.

[00:31:26] Speaker 00:
There's no allegation that he was denied defense counsel.

[00:31:28] Speaker 00:
There's no allegation he was

[00:31:30] Speaker 00:
forced to testify against his own penal interest.

[00:31:36] Speaker 00:
So there's no constitutional issue there that he's raising.

[00:31:40] Speaker 00:
Whether the state may have had some type of jurisdiction at the time of that conviction is simply not relevant to the fact that it continues to be valid today at sentencing.

[00:31:51] Speaker 02:
Thank you, counsel.

[00:31:52] Speaker 00:
Thank you, your honor.

[00:31:58] Speaker 02:
Case will be submitted and counsel are excused.