[00:00:02] Speaker 02: Case number 13-3096 at L, United States of America versus Darius McKeever Appellant. [00:00:08] Speaker 02: Mr. Becker and Ms. [00:00:09] Speaker 02: Hernandez for the appellants and the Spades for the appellee. [00:00:14] Speaker 03: Good morning, Mr. Becker. [00:00:15] Speaker 05: Good morning, Judge Pillard, members of the panel. [00:00:17] Speaker 03: I just want to apologize that we had not ruled on the motion and that we are glad to give Ms. [00:00:22] Speaker 03: Hernandez seven minutes of time and Mr. Becker seven minutes. [00:00:25] Speaker 03: Of course, the government's time is adjusted accordingly. [00:00:28] Speaker 05: Thank you very much. [00:00:30] Speaker 05: The debate about whether 2x1.1 applies in this case depends almost entirely on interpretation, not of the guidelines, but defining what is said in the commentary attached to the guidelines. [00:00:46] Speaker 05: The government's argument relies on a model which held that pretty much because the guideline 2B3.1 does not explicitly say that it covers Hobbs Act conspiracies, then you must look to 2X1.1 as the basis for sentencing for the conspiracy [00:01:13] Speaker 05: But it takes the opposite approach when it comes to a defendant's assertion under 2x1.1 that he or she is entitled to the three-point reduction in sentence, as you can see from the argument they made in the Kennedy case in the Second Circuit that's appended to our library. [00:01:36] Speaker 05: Analytically, the Second Circuit's analysis in a moment doesn't make a lot of sense. [00:01:43] Speaker 05: It says that the elimination of a guideline specifically identifying the Hobbs Act 2E1.5 prior to 1993 meant that the commission affected a major policy shift. [00:02:02] Speaker 05: In other words, 2E1.3 said, this applies to the Hobbs Act. [00:02:07] Speaker 05: And all it said under that is that if you have a Hobbs Act defense, look to 2B3.1 for sentencing. [00:02:16] Speaker 05: And then 2B3.1, as far as the Second Circuit was concerned, prior to a motto, included conspiracies under the Hobbs Act. [00:02:28] Speaker 05: But because the commission to streamline the guidelines removed 2E1.3, 1.5, that somehow changed what 2B3.1 said. [00:02:45] Speaker 05: And then we are to look to 2X1.1, which covers intended conduct as well as actual conduct. [00:02:55] Speaker 00: The guidelines provision that was deleted in 1993 did not explicitly say that it applied to conspiracies under the Hobbs Act, though, right? [00:03:06] Speaker 05: That's correct, Judge. [00:03:08] Speaker 05: It merely said, if it's a Hobbs Act defense, go to 2B 3.1. [00:03:14] Speaker 00: And 2X 1.1 was still in effect, or was in effect at that time, right? [00:03:20] Speaker 05: Essentially, it is the same as it was then. [00:03:23] Speaker 00: So how does the presence of that particular provision, even back then, if we were back in 1992, exclude the possibility that both guidelines provisions could apply? [00:03:41] Speaker 05: Well, the Second Circuit said in Skowronski that it applied because you look to the statute of conviction. [00:03:53] Speaker 05: And the statute of conviction, the Hobbs Act, includes in one subsection A the substantive offenses of robbery or extortion and attempts and conspiracies to commit robbery and extortion. [00:04:08] Speaker 05: And so the Second Circuit even said back then, you look to the text of the statute to determine whether the guideline expressly, but there are lots. [00:04:20] Speaker 03: And that's your argument, right? [00:04:21] Speaker 03: Yes. [00:04:21] Speaker 03: Is that you look to the text of the statute, because the statute covers conspiracy, then you go to 2B3.1 as distinct from 2X1.1. [00:04:30] Speaker 03: 2X1.1. [00:04:32] Speaker 03: And I guess my question is, why [00:04:35] Speaker 03: How does that help you? [00:04:38] Speaker 03: Because the district judge seems to have found that in fact these individuals possess the guns during the conspiracy and if that's the case then it's either way it comes out the same. [00:04:50] Speaker 05: But well, we would dispute the fact that they actually possessed the guns or that the guns were part of the conspiracy. [00:04:58] Speaker 03: But we have to find that she clearly erred in that finding. [00:05:02] Speaker 03: Because she did find, with respect to at least Hopkins and Wallace, that they possessed the guns. [00:05:07] Speaker 03: And then as I read it, under 1B1.3, then McKeever is responsible for that as well. [00:05:14] Speaker 05: Well, I guess I would argue that for McKeever, the situation is somewhat different because McKeever arrived at the storage facility with three other people, none of whom had guns. [00:05:27] Speaker 05: He knew they didn't have guns. [00:05:29] Speaker 05: He didn't know what transpired in that car. [00:05:33] Speaker 05: at least by Benny Dean's account at his trial. [00:05:38] Speaker 05: And there's nothing in the government's case that disputes that, that Hopkins came to the car where Benny Dean and McKeever were sitting and didn't say anything about guns. [00:05:51] Speaker 05: So McKeever has no knowledge at that point that the guns were in the other car. [00:06:00] Speaker 03: B1.3, what needs to be found is that it was reasonably foreseeable, and there had been a bunch of discussion previously about guns and who was going to bring them, if they were going to have them. [00:06:12] Speaker 03: And then that occurred. [00:06:14] Speaker 03: So it has to be reasonably foreseeable, and it appears to have been based, at least arguably, based on the prior discussions. [00:06:22] Speaker 03: And then it did occur. [00:06:24] Speaker 05: But 1b1.3, to the extent that it applies to conspiracies, basically codifies Pinkerton. [00:06:33] Speaker 05: So it has to be an act, an intended act, of a co-conspirator that is reasonably foreseeable. [00:06:41] Speaker 05: Not an intended act of a police officer who cannot be a co-conspirator. [00:06:46] Speaker 05: and therefore cannot act in furtherance of the conspiracy. [00:06:50] Speaker 03: The premise of my question was that the district judge had found that the other two that happened in the laws had possessed the guns. [00:06:57] Speaker 03: So the government supplying them is not part of the way she finds the facts in the case. [00:07:04] Speaker 05: She made that finding. [00:07:06] Speaker 05: And I think that there are two issues there. [00:07:08] Speaker 05: One is I don't think that her sentence depends on that finding. [00:07:14] Speaker 05: She said that's an alternative reason. [00:07:16] Speaker 05: But the government's main argument certainly was that it applied because this was part of the conspiracy, regardless of whether the guns were there. [00:07:26] Speaker 05: And therefore, the gun bump applied. [00:07:32] Speaker 05: And she, I think, as her main finding, found that was the case. [00:07:38] Speaker 05: And then she said, but also, Hopkins and Wallace touched the guns. [00:07:46] Speaker 05: And A, I believe that there really was not any ever possession by them. [00:07:56] Speaker 00: In the, I guess, controlled substances statutes, some of them include, I think it's 841, includes both the substantive offense and conspiracy, right? [00:08:16] Speaker 05: That's correct. [00:08:17] Speaker 00: And how does the application of the guidelines there affect your argument? [00:08:23] Speaker 05: In fact, the commentary to 2X1.1 says that among the guidelines that expressly cover conspiracies, therefore not looking to 2X1.1, are all of the drug offenses, 2D1.123, all of those. [00:08:43] Speaker 05: And in fact, all of those guidelines have [00:08:45] Speaker 05: attempt and conspiracy in the title of the guidelines. [00:08:50] Speaker 05: There is one guideline in that list that's different. [00:08:53] Speaker 05: It is 2H1.1, which is offenses against individual rights. [00:08:59] Speaker 05: And there is nothing in that guideline that says anything about conspiracy, not in the text, not in the title, not in the commentary. [00:09:06] Speaker 05: You have to look to the statutes of conviction. [00:09:09] Speaker 05: that are included in the statutory references. [00:09:13] Speaker 05: One of them is 18 US Code 241, for example, which is conspiracy against individual rights. [00:09:23] Speaker 05: One of them is the genocide statute. [00:09:26] Speaker 05: And the third is in the Fair Housing Penalties and Violations Code section. [00:09:33] Speaker 05: And all of those. [00:09:35] Speaker 05: statutes specifically cover conspiracy. [00:09:39] Speaker 05: But there is nothing in the text of the guideline or anywhere in it that says that that guideline, 2H1.1, applies to conspiracies. [00:09:49] Speaker 05: But the commission specifically said it expressly covers conspiracy. [00:09:55] Speaker 05: And the thing to note about that. [00:09:57] Speaker 00: But doesn't it hurt you that the commission didn't make that express qualification for the Hobbs Act? [00:10:05] Speaker 05: I do not believe it does Judge Wilkins because in 1B1.2, note 2, it says the word includes means illustrative of. [00:10:15] Speaker 05: It is not an attempt to be exhaustive. [00:10:18] Speaker 05: So 2H1.1 is very much like 2B3.1. [00:10:24] Speaker 05: Nothing in the guideline refers to conspiracy, but the commission says that's expressly covering the conspiracy as well. [00:10:34] Speaker 05: And there are, in fact, 37 statutes in the statutory appendix, in the statutory reference statement, that specifically cite 2X1.1. [00:10:45] Speaker 05: Many of them are statutes that have a substantive offense and a subsection that covers conspiracy. [00:10:54] Speaker 05: And so the commission felt it necessary in those cases, in the statutory cross-reference, to say, if you have an offense under this, you look at both the substantive offense and 2X1.1. [00:11:09] Speaker 05: because there is a section in that substantive offense that deals with attempts of conspiracy. [00:11:16] Speaker 05: And they did not do that with 2B3.1, which they could have done. [00:11:21] Speaker 05: So the commission should not be presumed to have excluded 2B3.1 merely because it didn't specifically say something. [00:11:35] Speaker 05: I think everything in the structure of the guidelines and its cross-references says that a statute that clearly covers both the substantive offense and the conspiracy offense should be viewed as falling outside the scope of 2X1.1. [00:11:56] Speaker 05: And at this point, if you have no further questions, I will relinquish. [00:12:12] Speaker 02: May I please the court? [00:12:14] Speaker 02: I'm Carmen Hernandez. [00:12:15] Speaker 02: I represented Mr. Wallace in the district court. [00:12:23] Speaker 02: To respond first to the court's question about what the district court found, the district court did find that the fact that two defendants handled the firearms that were handed to them by the agents meant that they had possessed the firearm during the conspiracy. [00:12:41] Speaker 02: There's a couple of arguments to that. [00:12:43] Speaker 02: The government's position below was that the conspiracy did not become a conspiracy until they entered the storage cube. [00:12:51] Speaker 02: The government's position was that no conspiracy had actually been agreed on until they reached the storage cube. [00:13:00] Speaker 02: So to that extent, I think the district court was, and I objected to that, below. [00:13:08] Speaker 02: And the reason for that was my client, for example, is with the agents twice in the beginning. [00:13:14] Speaker 02: And then he doesn't meet with them again until that one day. [00:13:18] Speaker 02: And in fact, there was a trial, a subsequent trial. [00:13:23] Speaker 02: And the evidence there, and I believe we brought this out at the Sensen hearing, is that there was no [00:13:33] Speaker 02: There was no discussion of what they were going to do other than they showed up. [00:13:37] Speaker 02: My client, the two guys who were in the car were cousins. [00:13:40] Speaker 02: So my client is a cousin to Mr. Hopkins, who was there throughout all the meetings. [00:13:45] Speaker 02: With respect to 2B3.1, Your Honor, what's clear, the commentary in 2B3.1 says explicitly that this is [00:13:54] Speaker 03: Actually, I wonder if this is one of the issues you were planning to address, but the sentencing manipulation question about whether one of the questions I have is whether the defendants raised the arguments, each of them, where in the record they raised the argument that the government's proffering at least should have been considered as a factor in the sentencing. [00:14:21] Speaker 03: Was that something you were planning to address? [00:14:23] Speaker 02: I can address it. [00:14:28] Speaker 02: The judge was clearly aware of it. [00:14:29] Speaker 02: She held an evidentiary hearing at sentencing. [00:14:32] Speaker 02: I mean, that's when we got a lot of the information. [00:14:34] Speaker 02: So there's no question she understood what we were arguing. [00:14:38] Speaker 02: There is a state of, and it's cited in our brief, in the sentencing memo that I filed, I list that as one of the mitigators. [00:14:53] Speaker 02: At page 14, ECF document 56, I state that... I saw that. [00:15:04] Speaker 03: Did McKeever and Hopkins make the same objection? [00:15:11] Speaker 02: Mr. Hopkins was sentenced separately. [00:15:19] Speaker 02: a different hearing, so he wasn't present there. [00:15:22] Speaker 02: Mr. McKeever and Mr. Wallace were sentenced together and our arguments as the court accepted them. [00:15:31] Speaker 02: We didn't repeat ourselves. [00:15:33] Speaker 02: We tried not to repeat ourselves. [00:15:34] Speaker 02: We're defense attorneys, so we repeat ourselves all the time. [00:15:37] Speaker 02: But it was clear that the court was accepting joint arguments. [00:15:42] Speaker 02: And one person made the argument. [00:15:43] Speaker 02: She accepted it. [00:15:44] Speaker 01: Well, Hopkins counsel says that the first plea proceeding refers specifically to sentencing enhancement. [00:15:51] Speaker 02: Correct. [00:15:51] Speaker 02: And I'll be candid with the court. [00:15:55] Speaker 02: Part of the problem was that until this year when the court decided bigly, the notion of sentencing entrapment as a mitigator was prohibited by this court in a series of cases that the court had decided. [00:16:12] Speaker 02: And that was part of the reason it was not made more directly. [00:16:16] Speaker 02: And then this, I believe in 2015, the court decided bigly and sort of reversed [00:16:24] Speaker 02: the line of cases that have held that sentencing entrapment. [00:16:29] Speaker 02: But it is part of your argument here on appeal. [00:16:31] Speaker 01: Yes. [00:16:32] Speaker 01: Well, what I'm suggesting is that Hopkins counsel appears to use the word sentencing hands-on, specifically. [00:16:38] Speaker 02: Yes. [00:16:40] Speaker 01: I mean, you're apologizing for something, and I'm not sure why, because it looks like it's specifically raised. [00:16:45] Speaker 02: It was specifically raised by Hopkins. [00:16:49] Speaker 02: It was specifically raised by Hopkins at a separate sentencing hearing. [00:16:53] Speaker 02: That's the only reason. [00:16:56] Speaker 02: And there's no question that the court understood. [00:16:57] Speaker 02: Part of the problem is none of us realized the nature of this case. [00:17:03] Speaker 02: Since that time, I've handled a couple of more of these reverse dinks. [00:17:06] Speaker 02: And the fact is that ATF has prosecuted thousands of these cases across the country. [00:17:15] Speaker 02: And Hopkins makes those arguments here, which were properly made perhaps below. [00:17:22] Speaker 02: I guess a follow-up question, Ms. [00:17:24] Speaker 03: Hernandez, is did the court fail to address that argument? [00:17:28] Speaker 03: Is that your position that the court failed to address it? [00:17:31] Speaker 02: The court failed to address it. [00:17:32] Speaker 02: The court failed to address it explicitly. [00:17:35] Speaker 03: And did counsel, after sentencing, bring that to the court's attention? [00:17:41] Speaker 02: Do we make a specific objection after she imposed sentence? [00:17:45] Speaker 02: No. [00:17:48] Speaker 02: Although I don't believe that's the practice after you've made arguments and the court imposed a sentence. [00:17:56] Speaker 02: We do not in this district, for the most part, get up and say we take exception to one, two, three, four. [00:18:01] Speaker 02: The judges. [00:18:04] Speaker 00: Did the judge here give counsel an opportunity to do that? [00:18:10] Speaker 02: I don't believe so, Your Honor. [00:18:13] Speaker 02: It certainly wasn't invited. [00:18:15] Speaker 02: I'm not suggesting that if I had gotten up and said I take exception to X, Y, and Z, but the court didn't say are there any exceptions. [00:18:22] Speaker 02: I've been in other districts where judges say, in the 11th Circuit, the district court judges will tell you take exception to a particular ruling right now. [00:18:31] Speaker 02: But especially Judge Hovell, it's understood that if you've written something or if she's aware of something, then she accepts that as we don't need to make another objection. [00:18:49] Speaker 02: Beyond the, and I say it, 2B3.1, structurally, under the guidelines, starts out at a very high offense level. [00:18:59] Speaker 02: Compare that to the drug guideline, which starts at six and then adds a whole bunch of enhancements. [00:19:04] Speaker 02: 2B3.1 starts at a very high offense level because it takes into account the threat of violence in a robbery. [00:19:12] Speaker 02: It takes into account all the harms that you would [00:19:16] Speaker 02: consider are involved in a robbery. [00:19:18] Speaker 02: And then it adds the firearm enhancement only when the firearm is actually used during the robbery. [00:19:27] Speaker 02: And that's the background commentary to the robbery guideline. [00:19:31] Speaker 02: The background commentary to 2B3.1 explicitly says, possession or use of a weapon, physical injury, and unlawful restraint sometimes occur during a robbery. [00:19:43] Speaker 02: The guideline provides for a range of enhances where these factors are present. [00:19:46] Speaker 02: And there's a whole series, and 1B1.3 also, the relevant conduct guideline, also refers to the difference in the robbery guideline. [00:19:56] Speaker 02: A lot of the guidelines talk about intended harm. [00:19:59] Speaker 03: Can you address a little bit more? [00:20:01] Speaker 03: I'm just not sure that I follow why the guidelines arguments could make a difference for your clients unless you can deal with the fact that the judge found that these individuals possessed the guns. [00:20:18] Speaker 03: And I did hear you respond to that when you first stood up and saying that the government changes its theory. [00:20:22] Speaker 03: Is that, in your view, [00:20:26] Speaker 03: ground for us to find that the judge clearly erred? [00:20:29] Speaker 03: Yes. [00:20:30] Speaker 03: In finding that Hopkins and Wallace possessed the guns and that the conspiracy began before they entered the storage unit? [00:20:37] Speaker 03: Yes. [00:20:38] Speaker 03: So you're asking us to find that the judge's possession determination was a clear error? [00:20:44] Speaker 02: Yes. [00:20:45] Speaker 02: And I argued it to Judge Hovell, and she rejected it. [00:20:50] Speaker 02: And not only did the government stand up [00:20:52] Speaker 02: government's position was that the conspiracy was formed inside the cubicle. [00:20:58] Speaker 02: Because the defendants had been at different meetings. [00:21:02] Speaker 02: One attended two meetings. [00:21:03] Speaker 02: Another one attended three different meetings. [00:21:04] Speaker 03: Right, and that's where they all come together. [00:21:06] Speaker 02: And that's the first time. [00:21:07] Speaker 02: And one of them, Benny Dean, who ends up going to trial and gets acquitted, shows up for the first time, first and only time, at that cubicle. [00:21:16] Speaker 02: There's no discussion inside the car about these are the firearms we're going to use for the, when the firearms are handled, there's no discussion about the robbery inside the car. [00:21:31] Speaker 02: So they're handled, obviously, because it's part of the sting, it's part of the ATF sting. [00:21:41] Speaker 02: It's part of the ATF sting, and they're trying to set up a situation where they're in possession of a firearm. [00:21:46] Speaker 02: The defendants never grow firearms to the laundry. [00:21:50] Speaker 02: And so there's no discussion. [00:21:52] Speaker 02: They're handled, they're taken back, and they're not taken into this storage tube. [00:21:57] Speaker 02: So even though there's a lot of talk, and there's a lot of trash talk, and my client in particular, there's references to he's always drunk. [00:22:05] Speaker 02: When he enters the storage cubicle, he's got a cup, he's drinking something, and the government pours more liquor into his cup. [00:22:19] Speaker 02: From a policy point of view, it's an awful setup. [00:22:22] Speaker 02: It's an awful sting. [00:22:24] Speaker 02: And to then enhance these gentlemen for a firearm when they didn't bring one, it's just not in the interest of justice. [00:22:35] Speaker 02: Also, another argument that was made is if you're going to enhance for a firearm, at least do it for a firearm that is for a dangerous weapon rather than a firearm. [00:22:45] Speaker 02: Because the firearms that were shown were not operable. [00:22:49] Speaker 02: And that would reduce the offense level by two levels instead. [00:22:53] Speaker 02: It would have been a three level enhancement instead of a five level enhancement. [00:22:57] Speaker 02: The firearms were inoperable. [00:23:01] Speaker 02: They were never brought into the storage cubicle. [00:23:04] Speaker 03: Was that the inoperableness argument raised by defense counsel below? [00:23:09] Speaker 03: And that was in the sentencing memorandum? [00:23:12] Speaker 03: Yes. [00:23:15] Speaker 02: And it also was during the sentencing hearing. [00:23:17] Speaker 02: and I'm happy to file a letter. [00:23:20] Speaker 00: Did you argue that in your brief? [00:23:22] Speaker 02: I'm sorry, Your Honor. [00:23:24] Speaker 00: Was that in your brief? [00:23:26] Speaker 00: That argument in your brief? [00:23:27] Speaker 00: To us. [00:23:28] Speaker 02: I'm not 100% certain, Your Honor. [00:23:33] Speaker 02: I'm happy to file a letter. [00:23:35] Speaker 02: I'll look at it when I sit down, and I'll let the court know. [00:23:39] Speaker 03: Thank you. [00:23:40] Speaker 02: Thank you. [00:23:52] Speaker 04: May it please the court, Lauren Bates on behalf of Appellee of the United States. [00:23:56] Speaker 04: I'd like to begin by talking about the guidelines application of section 2X1.1. [00:24:01] Speaker 04: I think as the court has recognized and Judge Pillard has pointed out, I don't know that this court needs to reach the issue of whether 2X1.1 applies given the factual findings and rulings. [00:24:14] Speaker 04: made by the district court regarding the applicability of the gun enhancement. [00:24:19] Speaker 04: But it's the government's position that 2X1.1, as the district court found, does apply. [00:24:25] Speaker 04: And that's because of the explicit reference in guideline section 2X1.1C that directs that it applies where the guideline for the substantive offense, here the robbery guideline, section 2B3.1, [00:24:43] Speaker 04: does not expressly cover attempts, solicitations, or conspiracies. [00:24:48] Speaker 04: And following up on that, the commentary, the notes, give some examples of guidelines that do expressly cover attempts, solicitations, or conspiracies. [00:24:58] Speaker 04: And 2B3.1 is not listed there. [00:25:01] Speaker 04: So looking at what the directive is in the guidelines, it is to look at whether the guidelines section covers attempts, solicitations, or conspiracies, not whether the statute [00:25:13] Speaker 04: whether the statute of the offense covers attempts, solicitations, or conspiracies. [00:25:19] Speaker 04: And that's the argument that the majority of circuits who have considered this issue have followed, that this is a question of whether a guideline section here, 2B3.1, expressly covers conspiracies, not a question of whether the Hobbs Act. [00:25:37] Speaker 00: Let me ask you a question. [00:25:39] Speaker 00: So if we agree with that argument about the effect of 2X1.1C, is it the case that every guideline that the manual references as being one that expressly covers a conspiracy, that every guideline says that? [00:26:05] Speaker 04: So I think that this question picks up on one of the arguments that Appellants Council made regarding 2H1.1. [00:26:12] Speaker 04: And I agree that that is probably the most difficult guideline to reconcile that's listed in that list. [00:26:19] Speaker 04: But I would say that you would both look at 2H1.1 and the fact that the commission, in considering what that guideline was intended to cover, believed by listing it in that section, either [00:26:32] Speaker 04: correctly or mistakenly that it expressly covered. [00:26:35] Speaker 04: But regardless, you don't have either one here for the robbery guideline 2B3.1. [00:26:40] Speaker 04: You don't have any words that you can point to in the robbery guideline that expressly indicate that it covers attempts, conspiracies, or solicitations. [00:26:49] Speaker 04: And it is also not listed as a guideline section that does expressly cover attempts, conspiracies, or solicitations. [00:26:58] Speaker 00: So I'm not sure that this- But we do have the guideline, I guess it's the appendix, statutory appendix. [00:27:07] Speaker 00: And for that statute for whatever it is, 1951, it doesn't list 2X1.1 as applying to it, right? [00:27:16] Speaker 00: So that's the commission giving some guidance as to what guidelines apply to that statute. [00:27:22] Speaker 04: So I think that that's the commission giving guidance as to the substantive offense guideline that applies to that statute. [00:27:28] Speaker 04: I don't know that that answers. [00:27:30] Speaker 04: For example, there's no separate, stepping away from conspiracy, which is what we have, there is no separate [00:27:37] Speaker 04: statute that charges an attempt in federal law. [00:27:42] Speaker 04: And so if you look at each list in the statutory appendix, you will not find that for every statute that could also criminalize an attempt, that there is a list of 2X1.1 also applying. [00:27:58] Speaker 04: But it has to. [00:27:59] Speaker 04: That is the only way that you can [00:28:02] Speaker 04: deal with and address attempts under the guidelines for certain crimes. [00:28:07] Speaker 04: So I don't know that the [00:28:09] Speaker 04: whether or not 2X1.1 is explicitly listed in the statutory appendix is really the dispositive inquiry here. [00:28:18] Speaker 04: Because again, being faithful to the directions in 2X1.1c and the text of 2B3.1, it simply does not expressly cover conspiracies. [00:28:28] Speaker 00: Why shouldn't some sort of rule of lenity type consideration apply here where it's not clear? [00:28:38] Speaker 04: I don't know that this is really a situation where the rule of lenity would apply, and I'm not sure in all cases, as the pounds have pointed out, that application of 2x1.1 is really [00:28:53] Speaker 04: not in the interests of the defendants given that it also provides for reductions where the offense was not near completion at the time. [00:29:02] Speaker 04: So I'm not sure that really the rule of lenity could be applied to this context where the guideline is just one that accounts for the circumstances of an attempt at conspiracy or solicitation and the fact that [00:29:14] Speaker 04: Sometimes those crimes are not near to completion and therefore you get a reduction and because of the nature of those crimes, because of the fact that there are multiple participants jointly liable for the crime, there needs to be taken into account some direction to the district courts on to how to account for that conduct in applying the offense enhancements. [00:29:34] Speaker 04: And that's what the court used here of how to understand when [00:29:38] Speaker 04: Two people are handling the guns, but one is not. [00:29:41] Speaker 04: How to take that conduct into account, given that this was a conspiracy, where there was an agreement amongst all of the appellants to participate in this offense. [00:29:53] Speaker 04: And as the district court found, the offense included the possession of firearms. [00:29:57] Speaker 03: Let me ask you about that, Ms. [00:29:59] Speaker 03: Bates, if you could respond to defense counsel's argument that she clearly erred in finding gun possession in this case because, as they contend, the government had asserted that this was a conspiracy that only was formed in the storage unit. [00:30:17] Speaker 04: So both in that clear exactly where the appellants are now pointing to as to the government's assertions, to the extent that it's based on the [00:30:28] Speaker 04: facts to which the defendants agreed to at the time of their pleas. [00:30:33] Speaker 04: I don't know that that that is not an assertion on the basis of the government. [00:30:37] Speaker 04: To the extent the defendants, you know, in their pleas agreed to participation on that final day in April 4th, the government was still [00:30:44] Speaker 04: In the course of the sentencing hearing and in presenting its evidence as to the applicable enhancements, the government presented evidence of all of these meetings, the sequence of meetings, and asked the court to consider all of that in determining whether the relevant enhancements applied. [00:31:02] Speaker 04: And the district court, I think, regardless of the government's positions, whether they were articulated in the manner appellants suggest, [00:31:12] Speaker 04: Regardless of that, the district court made a finding. [00:31:15] Speaker 04: The district court explicitly found, and this is on page 135, I'm sorry, on page 100 of the October 9, 2013 transcript, which is the evidentiary hearing and then the sentencing of Wallace and McKeever, that the conspiracy began as to Hopkins and Wallace early in March [00:31:35] Speaker 04: And as to McKeever, no later than March 19th. [00:31:38] Speaker 04: That is all well before the April 4th meeting where the guns were handled and possessed. [00:31:44] Speaker 04: And then the subsequent discussion of the use of those firearms occurred inside the storage unit. [00:31:50] Speaker 03: And you say in your brief that if defendants had raised the sensing entrapment argument, quote, discussion of the point would have been in order, close quote. [00:32:01] Speaker 03: Do you think that they did raise this? [00:32:05] Speaker 04: I don't think that they asserted a sentencing entrapment argument as it related to the five point gun enhancement in the manner that is necessary to require a district court to specifically under Bigley address that argument. [00:32:23] Speaker 03: This is of course pre-Bigley and they did [00:32:26] Speaker 03: raise in their sensing memoranda and I think at least Hopkins lawyer raises again orally in the hearing this smells of entrapment come on these guys were you know at least you have to take this into account just you know they arrived without any guns the government thrust them into their hands I think the district court finds it looks surprised and it seemed like they were asking for you know [00:32:50] Speaker 03: at least take this into account in sentencing in a discretionary fashion. [00:32:54] Speaker 04: I don't disagree that the parties ask the district court to take into account the entire circumstances of this offense and argue that that should be a mitigating factor. [00:33:06] Speaker 04: But that's not the same as raising sentencing entrapment as related to the five-point gun enhancement. [00:33:13] Speaker 04: They argue this whole offense was created by the police. [00:33:17] Speaker 01: They mentioned enhancement. [00:33:20] Speaker 01: So I'm not sure where you think it falls short. [00:33:23] Speaker 01: Are you arguing it wasn't articulated the way I, you would have articulated it, having thought about it carefully? [00:33:31] Speaker 01: Because one counsel said, so there's basically an argument to be made that there's a kind of sentencing enhancement that occurred by the undercover officers. [00:33:38] Speaker 01: Now, that's pretty straightforward to me, especially when you know the facts in this case. [00:33:43] Speaker 01: So why is that not enough? [00:33:47] Speaker 04: So as to Hopkins or Wallace, who has pointed to the sentencing memorandum filed, that argument with those words is not there. [00:33:56] Speaker 04: It's an argument for general facts supporting mitigation, and the district court considered that. [00:34:01] Speaker 04: The district court considered and stated on page 135 of the sentencing hearing as to Wallace and McKeever, [00:34:06] Speaker 04: that she considered that the offense was, quote, created by the police. [00:34:10] Speaker 04: So that argument was considered by the district court. [00:34:14] Speaker 01: Well, then maybe an answer is we're not comprehending the district court's answer. [00:34:21] Speaker 01: I mean, if you're conceding that the district court are arguing that the district court got it, and this was her explanation, [00:34:29] Speaker 01: then as an appellate judge, my response might be, I'm not sure I understand what that answer was, so we should send it back for clarity. [00:34:37] Speaker 01: Does that make sense? [00:34:39] Speaker 01: Because what you're now arguing is correct. [00:34:43] Speaker 01: I don't understand it. [00:34:44] Speaker 01: If the district court understood sentencing enhancement was being raised and said what you said, then my response as an appellate judge is, I hear you, but I don't understand you, so I have an obligation to send it back. [00:34:55] Speaker 01: This is a criminal case. [00:34:58] Speaker 04: I recognize that. [00:34:59] Speaker 04: And I think my response would simply be that the district court understood, knew in great detail what the facts were that led to the pleas in this case and the convictions in this case and recognize that [00:35:12] Speaker 04: The offense was one that was created by the police and sentenced each appellant to the low end of the applicable guideline range. [00:35:19] Speaker 04: What didn't happen here and what appellants are now claiming is that they did not ask the district court to specifically vary below the guidelines because of the fact that the gun enhancement was applied and under bigly [00:35:36] Speaker 04: if they had specifically asserted that this court has found that the district court should have directly and expressly addressed that given the pre-Booker case law of this jurisdiction. [00:35:47] Speaker 03: And you don't assert that she directly and expressly addressed that, do you? [00:35:52] Speaker 04: So I think we assert that [00:35:54] Speaker 04: without using, because the issue is not teed up with the specificity that appellants are now asserting, she didn't address that with any great degree of specificity. [00:36:06] Speaker 04: But I would say that her general statement of a recognition that the offenses as a whole were created by the police would render a remand, even if there's a question as to whether or not a particular appellant raised this [00:36:20] Speaker 04: Sentencing entrapment as to the five-point gun bump with the requisite specificity would render a remand unnecessary here, given that she not only was considering whether the gun enhancement was created by the police, but she considered that this entire offense and the arguments that the entire offense was created by the police in imposing and crafting her sentence here. [00:36:41] Speaker 03: And we have great both respect for and empathy for the district courts and all the issues that they need to be addressing and taking into account in a sentencing like this. [00:36:50] Speaker 03: And it's very fast moving. [00:36:52] Speaker 03: It's very complicated. [00:36:53] Speaker 03: But it is really curious when you look at the record that she says, quote, you know, I understand that this is created by the police. [00:37:00] Speaker 03: I clearly understand. [00:37:01] Speaker 03: And it's for that reason. [00:37:03] Speaker 03: And then it's sort of a cut or there's something dropped in the, [00:37:11] Speaker 03: in the decision. [00:37:12] Speaker 03: She says, it's for that reason, coupled with the fact that obviously you can't exercise very sensible judgment, but that's not an excuse for a crime. [00:37:20] Speaker 03: But I'm going to sentence consistent with the low end of the guideline. [00:37:23] Speaker 03: So she says, it's for that reason. [00:37:25] Speaker 03: And then she doesn't say, it's for that reason what? [00:37:30] Speaker 03: And so it's funny, because in a way, she acknowledges that the argument was made. [00:37:35] Speaker 04: Well, I think that I would respond that my interpretation, at least, of the transcript there is that it's for that reason that she sends me to the low end of the guideline. [00:37:44] Speaker 04: She's simultaneously inserting and interrupting with the idea that she doesn't believe that these individuals are not responsible for their acts, which were some of the arguments made, especially as to Wallace, that he was intoxicated at the time and didn't know what he was getting into. [00:37:58] Speaker 04: She finds, and she repeatedly through the transcript finds, you guys, you knew what you were getting into. [00:38:03] Speaker 04: There were discussions. [00:38:04] Speaker 04: They not only kind of took [00:38:06] Speaker 04: handled at least two of the appellants the guns, but they talked about torturing the store owner with a curling iron. [00:38:12] Speaker 04: They talked about if they needed to that they would shoot the police with these firearms. [00:38:16] Speaker 04: So she's, I think, there responding to these arguments of, you know, I can't say that this was just created by the police. [00:38:23] Speaker 04: You got yourselves involved in this and went along with this and made, you know, statements that were pretty egregious as the government had argued. [00:38:33] Speaker 00: But what part of what [00:38:35] Speaker 00: the district court said tells us that the district court understood that it could use the created by the police argument to go below the guidelines rather than just sentence at the lower end of the guidelines. [00:38:51] Speaker 04: I mean, I think that it's the recognition that she understood that it was created by the police, and that nonetheless, she thinks a sentence at the low end of the guidelines is appropriate. [00:39:01] Speaker 04: She gave no indications there that she believed that this was, given their willingness and participation, a set of offenses that warranted a variance. [00:39:14] Speaker 04: I think that that's the argument that we have based on this record, to the extent that this court disagrees that this is [00:39:21] Speaker 04: was not an adequate discussion. [00:39:23] Speaker 04: I agree that a remand is what would be the next step. [00:39:27] Speaker 04: I just don't think that that's required given what occurred here. [00:39:31] Speaker 04: If there's no additional questions, we just ask that the judgments of the district court be affirmed. [00:39:42] Speaker 03: Thank you. [00:39:43] Speaker 03: Mr Becker, if you'd like some rebuttal, we'll give you two minutes. [00:39:51] Speaker 05: Thank you, Judge Piller. [00:39:53] Speaker 05: Let me start with that last point. [00:39:55] Speaker 05: The judge acknowledged that the guns were in this clearly because of the police. [00:40:00] Speaker 05: And every time she was pressed on the fact that the defendants really didn't bring the guns, they didn't intend the guns to be there, she reverted to, but this was, they all intended violence. [00:40:12] Speaker 05: And violence is an element of a Hobbs Act defense. [00:40:16] Speaker 05: Regardless of whether there's a gun there, violence is part of a Hobbs Act defense. [00:40:21] Speaker 05: So the fact that there was violence intended doesn't get to the issue of the gun bump. [00:40:27] Speaker 05: It only gets to this was a Hobbs Act defense. [00:40:31] Speaker 05: To come back to the government's [00:40:33] Speaker 03: But doesn't that cut both ways? [00:40:35] Speaker 03: Because the question is, was the argument made to her adequately so that she would know? [00:40:41] Speaker 03: Or are we in Clear Island? [00:40:43] Speaker 03: Was the argument really presented to her such that she should have known that that was what you were asking for? [00:40:47] Speaker 05: I think the argument was made, although they did not say, except for perhaps Mr. Zucker in Hopkins' sentencing, did not say sentence entrapment or sentence factor manipulation. [00:41:01] Speaker 03: So where was it made if they didn't say those things? [00:41:03] Speaker 05: Well, I think they all argued that in their arguments about the fact that the defendants didn't bring the guns to this event, they all said these sentences shouldn't be enhanced because [00:41:18] Speaker 05: The guns were brought by the police. [00:41:20] Speaker 05: But remember, Bigley found that it was plain error. [00:41:23] Speaker 03: You don't have specific places that you want to direct us to look for your best case on that, do you? [00:41:28] Speaker 05: I think we, at least in the reply brief, we did focus on that, Judge Pillard. [00:41:34] Speaker 05: I don't have the sites before me. [00:41:35] Speaker 05: But remember, Bigley was decided, says that it was plain error for the judge to fail to consider it. [00:41:42] Speaker 05: So, but I'd like to get to the point of the government starts with 2X1.1C and it reads expressly in that statute, in that rule as meaning explicitly. [00:41:55] Speaker 05: this court in a case called US v Robinson in 1996, interpreted expressly in another way. [00:42:03] Speaker 05: It said clearly. [00:42:05] Speaker 05: That in the guidelines, when it says expressly, it also means clearly. [00:42:11] Speaker 05: And the statutory reference in 2B1.3 is to [00:42:18] Speaker 05: 1951. [00:42:18] Speaker 05: And to 2113, if you look at the Hobbs Act and you look at the bank robbery statute, 2113, the Hobbs Act clearly defines conspiracy as, within that offense, the bank robbery statute doesn't deal with conspiracy. [00:42:39] Speaker 05: It relies on 371, the general conspiracy statute, to which 2S 1.1 very clearly applies. [00:42:49] Speaker 05: The guideline does explicitly refer to the Hobbs Act in the statutory reference, and the government asks you to ignore that. [00:42:59] Speaker 05: On the issue of whether the, I'm sorry. [00:43:10] Speaker 05: What's going on? [00:43:12] Speaker 03: I think, Mr. Becker, that your time has expired. [00:43:15] Speaker 01: Thank you. [00:43:16] Speaker 03: So I did want to recognize that Ms. [00:43:19] Speaker 03: Hernandez, did you also want to rebuttal? [00:43:25] Speaker 03: Can I give you one minute? [00:43:36] Speaker 02: Your Honor, on the expressly covers, [00:43:39] Speaker 02: 2X1.1 says expressly, if the guideline, unless the guideline expressly covers conspiracy, the government says, well, that means it has to be in the caption of the guideline. [00:43:51] Speaker 02: But the statutory index for a hopsack robbery expressly sends you to 2B3.1. [00:44:01] Speaker 02: So I would argue to the court that that is expressly covers under the guideline. [00:44:06] Speaker 02: Thank you. [00:44:07] Speaker 02: And then with respect to, you had asked. [00:44:09] Speaker 03: Thank you, Ms. [00:44:10] Speaker 03: Fernandez. [00:44:11] Speaker 02: Can I give you a site from this appendix? [00:44:16] Speaker 02: The supplemental appendix from pages 190 to 195 is the argument over when the conspiracy was forged. [00:44:28] Speaker 02: And at one point, the judge was asked to move on, I've heard. [00:44:32] Speaker 02: So that whole argument is clearly [00:44:36] Speaker 02: clearly discussed. [00:44:38] Speaker 02: On the low end finding, district court judges always give low end unless there's some aggravator. [00:44:46] Speaker 02: If the robbery had actually been, if the conspiracy had actually been completely forged by these defendants and actually carried out, the guideline range would have been, and they had actually walked into a [00:45:00] Speaker 02: the store to make a robbery, the guideline range would have been exactly as it was here. [00:45:06] Speaker 02: So the mitigators in this case were not taken into account. [00:45:13] Speaker 03: Thank you. [00:45:13] Speaker 03: Thank you. [00:45:14] Speaker 03: And I do want to recognize that both Mr. Becker and Ms. [00:45:17] Speaker 03: Hernandez are court-appointed counsel. [00:45:21] Speaker 03: And we're very grateful to you for your able service this morning. [00:45:24] Speaker 03: And especially, Ms. [00:45:25] Speaker 03: Hernandez did not know until she arrived this morning whether she would in fact be called upon. [00:45:30] Speaker 03: Thank you very much.