[00:00:01] Speaker 06:
Case number 14-3053, United States of America versus Roger Redrick, appellant.

[00:00:06] Speaker 06:
Ms.

[00:00:07] Speaker 06:
Wright for the appellant, Ms.

[00:00:08] Speaker 06:
Bragg for the appellee.

[00:00:10] Speaker 06:
Please.

[00:00:11] Speaker 06:
Good morning.

[00:00:11] Speaker 06:
May it please the court, Lisa Wright representing Roger Redrick.

[00:00:15] Speaker 06:
I'd like to reserve three minutes for rebuttal.

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Mr. Redrick's 15 and a half year ACCA sentence must be vacated in light of the intervening Supreme Court decision in Johnson v. United States.

[00:00:26] Speaker 06:
The ACCA residual clause is now plainly unconstitutional and Mr. Redrick does not otherwise have three qualifying priors, meaning that his maximum penalty authorized by Congress is 10 years.

[00:00:37] Speaker 06:
In light of Johnson, Mr. Redrick's prior drug conviction is his only qualifying predicate.

[00:00:43] Speaker 06:
Neither Maryland

[00:00:44] Speaker 06:
Robbery is a dangerous weapon, nor DC armed robbery is an enumerated offense under ACCA, nor does it qualify under the violent felony provision, because it does not have, under the element of force clause, because in the words of the statute, it has no, it does not have as an element the use, attempted use, or threatened use of physical force against the person of another, with physical force having been defined as strong physical force, violent force.

[00:01:08] Speaker 01:
Can I just ask a conceptual question to get us started in terms of framework, which is that you don't take issue with the proposition that if the Maryland robbery offenses do qualify under a non-residual clause part of ACCA, then plain error review would apply and we would find that the error was not plain.

[00:01:30] Speaker 06:
I think we would find probably that he was not prejudiced under the plain error standard.

[00:01:35] Speaker 01:
Okay, so it all turns, and the way you're conceiving of the case, the sustainability of the conviction does turn on whether we think that the Maryland priors qualify under the non-residual clause parts of ACCA.

[00:01:48] Speaker 06:
That's right, categorically qualified, right.

[00:01:52] Speaker 06:
That's right.

[00:01:55] Speaker 06:
As I said, Curtis Johnson defines violent force in a not unanimous way.

[00:02:01] Speaker 06:
So there's the Maryland RDW statute and the DC armed robbery.

[00:02:06] Speaker 06:
And as your honor's saying, Maryland really does control.

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And as to that crime, the analysis is really quite simple.

[00:02:15] Speaker 06:
Because Maryland itself defines robbery with a dangerous weapon as just a means, one means of committing

[00:02:22] Speaker 06:
the indivisible crime of common law robbery in Maryland.

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And common law robbery in Maryland does not have, as an element, physical force against a person or another.

[00:02:33] Speaker 06:
Under Mathis and the Maryland law, Maryland law says it is simply a triggering, aggravating fact.

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not just a means and Maryland has said that over and over again.

[00:02:49] Speaker 02:
Well there are some Maryland cases to the contrary, aren't there?

[00:02:54] Speaker 06:
I don't think so.

[00:02:55] Speaker 06:
All the cases say that there's only one crime, one substantive crime of robbery and that

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that there are not two crimes, and that the two statutes that Mr. Redrick was convicted of at the time before there was 46 and 48, neither of those statutes creates any offense, let alone two offenses.

[00:03:14] Speaker 06:
They simply fix the penalties for the one crime of robbery, and that if you have the aggravating fact of a deadly weapon, then you are subject to a greater penalty.

[00:03:25] Speaker 02:
If, in fact, Marilyn described

[00:03:31] Speaker 02:
the crime as a weapon part, only an enhancement.

[00:03:40] Speaker 02:
Yet, nevertheless, treated the weapon aspect of the crime always as an element.

[00:03:50] Speaker 02:
Would then the convictions qualify under the federal statutes?

[00:03:57] Speaker 06:
No, because

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What Maryland says controls, and Mathis makes that clear, and you can opt, I think, if you have it like, for example, pre-apprendi, I believe the U.S.

[00:04:10] Speaker 06:
Attorney's Office in this jurisdiction used to charge, they opted to charge the drug quantity in the indictment.

[00:04:16] Speaker 06:
That didn't make it anything other than a sentencing enhancement, and I'm sure there were places in courtrooms where the judge said, you know, I know

[00:04:24] Speaker 02:
I think you're challenging the factual aspect of my hypothetical.

[00:04:29] Speaker 02:
Suppose Marilyn had always treated the weapon aspect as if it was an element, although the court said it was an enhancement.

[00:04:42] Speaker 06:
Well, I guess I'm saying that you can have a custom or believe it's the better practice to submit something to the jury.

[00:04:49] Speaker 06:
And that doesn't mean that you think it's an element, that Maryland thinks it's an element.

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And they've said it's not an element.

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They've said it's a sentencing factor.

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And you can submit an aggravating fact to the jury without converting it into an element.

[00:05:01] Speaker 06:
Maryland law decides, Maryland decides what is going to happen.

[00:05:05] Speaker 02:
Well, now turning the matter more in your favor, is it at all clear to us that Maryland did put the sentence, put the weapon issue to the jury?

[00:05:19] Speaker 06:
I don't think it is.

[00:05:20] Speaker 06:
I don't think it is.

[00:05:22] Speaker 06:
There's a pattern jury instruction, but that doesn't mean anything.

[00:05:25] Speaker 02:
That's a jury instruction.

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Who developed it?

[00:05:29] Speaker 06:
I imagine a committee.

[00:05:30] Speaker 02:
I think it's called... It was about a bunch of lawyers.

[00:05:33] Speaker 02:
There's nothing indicating that the judge ever bought it.

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It's called something that suggests... I think it's a title that suggests... No, no, I read it.

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I can't find any indication of any judge

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in Maryland accepted that.

[00:05:50] Speaker 06:
Right.

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And interestingly, I mean, even the pattern instruction that they suggest, hey, let's put this back to the jury.

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It says for, if you're going to do robbery with a dangerous weapon, you must find all the elements of robbery.

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And then it says, and you must also prove that a defendant committed.

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It doesn't call it an element.

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And in the commentary to this instruction, it actually says that robbery with a dangerous weapon is not a separate offense.

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So it doesn't even seem to be

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saying, you know.

[00:06:18] Speaker 02:
Suppose it's confusing as to whether or not Maryland treated the dangerous weapon as an element of the crime or not.

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Do you lose under the clear errors test?

[00:06:35] Speaker 06:
No, because I think that what has to be playing is the Johnson error.

[00:06:40] Speaker 06:
When we're talking about the... I'm sorry, plain error.

[00:06:43] Speaker 06:
Yeah, we're talking about the force clause.

[00:06:46] Speaker 06:
We're just trying to determine if there's been harm from that trainer.

[00:06:50] Speaker 02:
Did you follow my question?

[00:06:51] Speaker 02:
I think so.

[00:06:52] Speaker 02:
It's uncertain.

[00:06:53] Speaker 06:
Yeah.

[00:06:54] Speaker 02:
Why don't you lose under plain error?

[00:07:02] Speaker 06:
Because I, well, I don't think...

[00:07:05] Speaker 06:
I guess that comes down to the question of the burden under plain error.

[00:07:11] Speaker 01:
Which is on you.

[00:07:12] Speaker 06:
But as a legal matter, I mean, I don't know how much more clear it could be, to be honest.

[00:07:17] Speaker 06:
Maryland said it literally in every case, and they even used the word means in the Darby case.

[00:07:22] Speaker 01:
Right, but I think the fact that they used the word means, in other words, it could be a purely semantic

[00:07:28] Speaker 01:
descriptor, right?

[00:07:29] Speaker 01:
That they could describe it as a means, but then the way they treat it is actually as an element.

[00:07:34] Speaker 01:
And when I say treat it as an element, and I think what Judge Silverman meant when he says treat it as an element is as an element as we conceive of it as a matter of federal constitutional law.

[00:07:42] Speaker 01:
In other words, it's submitted to the jury for proof beyond a reasonable doubt and is a precondition to enhancement of the penalty.

[00:07:49] Speaker 01:
And if it does that, the fact that it calls it a means wouldn't matter because it would be functioning as an element for federal law purposes.

[00:07:57] Speaker 06:
I don't think we know that it is submitted to the jury.

[00:08:01] Speaker 01:
Right.

[00:08:01] Speaker 01:
And then the question becomes, suppose we don't know, and we can ask a couple questions about that.

[00:08:05] Speaker 01:
But if we don't know, then under plain error, as I understand plain error, the burden is on you to show that the error is plain or obvious.

[00:08:15] Speaker 01:
And if it's unclear, then that's not typically a case where we would say the error is plain.

[00:08:21] Speaker 01:
Or am I missing something?

[00:08:22] Speaker 06:
Well, I think I've met the burden by pointing to the Maryland law.

[00:08:27] Speaker 06:
say, well, this could be semantics is undermining the facial applicability of these statements from the state of Maryland, which the Mathis Court says we have to respect and defer to, that they define their own common law.

[00:08:41] Speaker 01:
So I'm looking at the Supreme Court's language in Henderson about plain error.

[00:08:44] Speaker 01:
It says the rules requirement that an error be plain means that lower court decisions that are questionable but not plainly wrong fall outside the rule scope.

[00:08:54] Speaker 01:
And it sounds like if it's not clear whether Maryland treated the weapons part of it as an element, that sounds to me like it's questionable, in which event it would fall outside the rule under the Supreme Court's direction.

[00:09:10] Speaker 06:
Well, I think Henderson, though, is talking about the error has to be plain.

[00:09:13] Speaker 06:
And we have met that.

[00:09:14] Speaker 06:
I think we're only talking about, as he's shown, prejudice.

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And I would point out, under Sarrow,

[00:09:21] Speaker 06:
Under CERO, the prejudice on a sentencing error is much less demanding than on a normal.

[00:09:27] Speaker 01:
So can I just ask you a question about that?

[00:09:28] Speaker 01:
Because I think the question of whether we're talking about the error being plain or the question of whether we're talking about prejudice depends on how we define the error.

[00:09:36] Speaker 01:
And if the error is the application of ACCA, right?

[00:09:41] Speaker 01:
Because I think your argument would be it was erroneous to apply ACCA because we now know from Johnson that the residual clause can't be a basis for applying ACCA.

[00:09:51] Speaker 01:
But if the error is the applicability of ACCA, then ACCA might still correctly apply if the Maryland convictions qualify under non-residual clause parts of ACCA.

[00:10:03] Speaker 02:
You've agreed to that proposition, and you agree?

[00:10:07] Speaker 06:
That he would still qualify, that he would not be harmed by the error.

[00:10:12] Speaker 02:
No, no, no.

[00:10:14] Speaker 02:
I think if I understood Judge Srinivasan,

[00:10:17] Speaker 02:
He's simply getting you to agree that if the Maryland convictions qualify, it doesn't matter that the residual clause was implicated.

[00:10:31] Speaker 02:
It wouldn't matter.

[00:10:31] Speaker 02:
It doesn't matter to the outcome.

[00:10:33] Speaker 02:
Right.

[00:10:33] Speaker 02:
Okay.

[00:10:34] Speaker 02:
So everything turns on the Maryland convictions.

[00:10:37] Speaker 06:
Right.

[00:10:39] Speaker 06:
What I was going to say,

[00:10:40] Speaker 01:
And just to add a little bit, which is that I think as I understood it, it doesn't matter for purposes of whether there's been an error.

[00:10:49] Speaker 01:
I understand what you're saying is that we ought to kick it down to prejudice, though, to the latter two prongs of plain error.

[00:10:56] Speaker 01:
But I'm focused on the first two prongs of plain error, whether there's been an error that's plain.

[00:11:00] Speaker 01:
And if you define the possible error as the application of ACCA, which is sort of how I came into this thinking about this, but you might be able to convince me that that's wrong, then the applicability of ACCA wouldn't be plain error if the Maryland convictions allow for applicability of ACCA because they come in under a non-residual clause part of ACCA.

[00:11:23] Speaker 06:
I understand your question, I think.

[00:11:25] Speaker 06:
And I would point the court to McBride, the Sixth Circuit case that I think we cited last week.

[00:11:31] Speaker 06:
Because there, they defined it as, you know, the claim I'm making is that the only way I qualify is under the residual clause.

[00:11:41] Speaker 06:
And that's plainly changed.

[00:11:47] Speaker 01:
So that would definitely be true.

[00:11:48] Speaker 01:
If we had a case in which it was true that everybody understood ACCA applied because of the residual clause, then of course there's plain error.

[00:11:58] Speaker 01:
Because the only way you get under ACCA is by a clause that the Supreme Court has deemed to be unconstitutional.

[00:12:04] Speaker 01:
But if there's another basis to get under ACCA, then I guess the way

[00:12:10] Speaker 01:
It seems like one would conceive of it is whether there's been plain error in the sense of whether it was plainly erroneous to apply ACCA given that there's other bases on which ACCA might apply.

[00:12:21] Speaker 06:
Well, let me say this.

[00:12:22] Speaker 06:
I mean, I think we presume that the district court apply the law correctly and applying the law correctly at the time.

[00:12:28] Speaker 06:
the court would have found him liable under the residual clause, but not under the force clause.

[00:12:35] Speaker 06:
And so therefore, that's the error.

[00:12:36] Speaker 06:
That's the error.

[00:12:38] Speaker 06:
He found him liable.

[00:12:39] Speaker 06:
He's presumed to have found him liable under the residual clause.

[00:12:41] Speaker 02:
I don't understand that at all.

[00:12:43] Speaker 02:
I don't understand that at all.

[00:12:48] Speaker 02:
Even if the district judge had explicitly relied on the residual clause, and the three Maryland convictions were indisputedly

[00:12:58] Speaker 02:
covered under the force clause, there would not be error.

[00:13:03] Speaker 06:
There would not be error, but it would be because there was no harm, not because there was no plain error.

[00:13:07] Speaker 06:
Not because the error isn't obvious.

[00:13:10] Speaker 02:
I don't agree with you.

[00:13:11] Speaker 02:
I don't see that at all.

[00:13:13] Speaker 02:
If the district judge presses a button that is the wrong button, but there's the right button there as a matter of law, there's not an error.

[00:13:24] Speaker 02:
You see what I mean?

[00:13:26] Speaker 02:
He hit the wrong button, but we would go up on appeal.

[00:13:31] Speaker 02:
Do you know, at that point, it would be up to us to decide whether there was a legal basis.

[00:13:37] Speaker 02:
Well, I agree that we would lose the plenary standard.

[00:13:39] Speaker 02:
But you haven't.

[00:13:40] Speaker 02:
Look, counsel, that's getting you away from your major argument, which is the Maryland convictions don't qualify.

[00:13:48] Speaker 06:
That's right.

[00:13:49] Speaker 06:
So even if, I'll say even if, that this is not just a means, but it's been treated as an element, or it is an element, the Maryland RDW statute still does not meet the standard of having as an element the use, attempted use, or threat, and use of force, physical force, against a person or another.

[00:14:08] Speaker 06:
And there's two reasons for that.

[00:14:09] Speaker 06:
One, Maryland law does not require that the force be used against a person, but encompasses property as well.

[00:14:16] Speaker 06:
And two,

[00:14:17] Speaker 06:
the physical force that's required by the state of Maryland is a de minimis, unlawful touching, no matter how slight, and that does not meet the level that the Supreme Court set out in the Curtis Johnson case of strong physical force.

[00:14:31] Speaker 06:
And so for both of those reasons, Maryland can't, Maryland robbery is a dangerous weapon, even if it is its own separate crime, contrary to what Maryland has always said.

[00:14:39] Speaker 06:
And remembering again that my client was convicted pre-apprendi.

[00:14:46] Speaker 00:
So why is Apprendi irrelevant?

[00:14:50] Speaker 00:
Just explain your argument there.

[00:14:54] Speaker 06:
Well, there's an argument, although I don't concede it, that after Apprendi, then the sentencing factor has to be an element, that federal law makes it an element.

[00:15:04] Speaker 06:
But before Apprendi, Maryland was free to treat it as a non-element, and that was at the time that he was convicted.

[00:15:14] Speaker 06:
of robbery with a dangerous weapon.

[00:15:16] Speaker 06:
It was definitely a sentencing enhancement, and any judge could have said, well, I know there's this pattern jury instruction, but that's a sentencing enhancement for me to decide.

[00:15:25] Speaker 06:
I'm not going to give it.

[00:15:26] Speaker 00:
But I guess the government's argument, I just want to make sure I understand your response to the government's argument, which I believe is that under the Camps and Taylor and

[00:15:39] Speaker 00:
that this is a matter of what is an element as a matter of federal law.

[00:15:45] Speaker 00:
And all we care about is what the statute says.

[00:15:49] Speaker 00:
It doesn't matter what he was actually convicted of.

[00:15:54] Speaker 00:
As far as what facts were found by the jury, we don't have to look at the plea agreement or the verdict form or the indictment or the evidence or anything else.

[00:16:04] Speaker 00:
And so in that sense, we know today that federal law means element includes anything that does increase the maximum sentence, and here the RDW statute does that.

[00:16:19] Speaker 00:
So that's all we care about as of now.

[00:16:23] Speaker 00:
It doesn't really matter if it wasn't treated that way at the time of the conviction.

[00:16:30] Speaker 06:
But I mean, it's almost like there's two

[00:16:33] Speaker 06:
It's like the statute has changed, and he was convicted under the old version, not the new version.

[00:16:37] Speaker 06:
So you're looking, I agree that you look only at the statute, but you have to look at the statute as it existed at the time he was convicted of it.

[00:16:45] Speaker 06:
So he was, if that's true that Apprenti changed the law, then he was convicted under truly a different, you know, RDW crime.

[00:16:52] Speaker 02:
This is your answer, Congress acted pre-Apprenti, and so the question is what the statute intended.

[00:17:01] Speaker 02:
And your argument, which I understand.

[00:17:14] Speaker 02:
I guess I'm saying Apprendi is irrelevant to the Maryland elements.

[00:17:19] Speaker 02:
I understand your argument because what is before us is the interpretation of the federal statute.

[00:17:27] Speaker 02:
And Apprendi comes out way after.

[00:17:30] Speaker 02:
You can't go back and use Apprendi to interpret the federal statute that was passed long before Apprendi.

[00:17:37] Speaker 02:
That's your argument, basically.

[00:17:38] Speaker 02:
Have I understood it?

[00:17:40] Speaker 06:
I mean, I was thinking of Apprendi more as how it bears on

[00:17:43] Speaker 06:
the elements, because what we really are doing is looking at comparing the elements.

[00:17:47] Speaker 02:
I thought mine was a softball question.

[00:17:49] Speaker 06:
I know, I'm sorry.

[00:17:50] Speaker 06:
I can tell that, and I'm sorry.

[00:17:52] Speaker 06:
I think I am confused, I'm sorry.

[00:17:55] Speaker 06:
But you look at a mismatch of the elements.

[00:17:57] Speaker 06:
But I understand what you're saying, that Apprendi came out after ACCA was passed.

[00:18:02] Speaker 06:
That is definitely correct.

[00:18:04] Speaker 02:
I think there is a constitutional question concerning the prior Maryland convictions, but it's not based on Apprendi.

[00:18:11] Speaker 02:
But even I'll save that for the government.

[00:18:14] Speaker 01:
On the prior Maryland convictions, you have three arguments as to why those don't count.

[00:18:21] Speaker 01:
One is that Maryland didn't treat it as an element.

[00:18:24] Speaker 01:
Two is that it didn't involve the requisite physical force.

[00:18:28] Speaker 01:
And three is that it didn't involve the requisite physical force against a person, right?

[00:18:33] Speaker 01:
So as to all three of those, I guess I come back to this question, which is that if it's questionable,

[00:18:41] Speaker 01:
If it's not clear whether you're right on all those, it may not be clear that you're wrong.

[00:18:47] Speaker 01:
But if it's not clear that you're right, where are we?

[00:18:50] Speaker 01:
Because under plain error review, the question would be, was it plainly erroneous to apply ACCA?

[00:18:55] Speaker 01:
And although it may not be obvious that the Maryland offenses do count, if it's not obvious that the Maryland offenses don't count, then it seems like plain error would say that there's not been a plain error in applying ACCA.

[00:19:09] Speaker 06:
I don't think the obviousness qualifies the harm.

[00:19:13] Speaker 06:
It only qualifies the error itself.

[00:19:16] Speaker 01:
And actually, in the sentencing context, I really, I think that's... But then, but we're just getting back to how you define the error then.

[00:19:22] Speaker 01:
If I think of the error as the application of ACCA,

[00:19:25] Speaker 01:
then even if you're right that obviousness qualifies the error, meaning the application of ACCA, then that's exactly what I'm asking you, is it's not obvious that ACCA's erroneously applied because the Maryland offenses don't obviously fall outside the... So you define the error in that way.

[00:19:43] Speaker 06:
But even then, I mean, I think it is obvious because the Maryland courts have said

[00:19:48] Speaker 06:
it applies to force against property.

[00:19:50] Speaker 06:
How much more of an obvious mismatch could there be when the ACCA says persons and Maryland common law robbery says property?

[00:19:57] Speaker 01:
Well, but those statements, that statement didn't matter in either of those cases, right?

[00:20:01] Speaker 01:
Because I don't think either of those cases in fact involved, as I recall there were two of those cases, and I don't think either of them in fact involved the use of force against property.

[00:20:10] Speaker 06:
I think that is correct, but I think I would point the court to

[00:20:15] Speaker 06:
Aparicio-Soria, which was the Maryland resisting arrest case.

[00:20:21] Speaker 06:
And that was also dicta.

[00:20:23] Speaker 06:
And the court totally relied on that, even though it could find no other case.

[00:20:27] Speaker 06:
They just said, look, when a state says it, that's it.

[00:20:33] Speaker 06:
And we also have the Supreme Court in Johnson very clearly defining the element of force differently than Maryland

[00:20:41] Speaker 06:
has so clearly said over and over any unlawful touching, no matter how slight.

[00:20:45] Speaker 06:
So I just think there's an obvious mismatch, even if that's how you define the error.

[00:20:52] Speaker 01:
And how did you define the error?

[00:20:53] Speaker 01:
What's the alternate universe from the way that I'm looking at it?

[00:20:56] Speaker 06:
Well, the error is that the judge, we presume the judge followed the law and he held him responsible under the

[00:21:03] Speaker 06:
residual clause, and that was obvious error in light of the intervening decision.

[00:21:08] Speaker 01:
And it just seems to me the difficulty with that, if that's the way in which one needs to conceive of error in order to see the case the way that you're seeing it, the difficulty with that is we just don't know why ACCA was applied because there's nothing in the record as to the predicate for ACCA.

[00:21:25] Speaker 01:
Unlike a case in which there's a sentencing transcript and one can see that, okay, on the probation report and everything that says ACCA was applied because of the residual clause,

[00:21:33] Speaker 01:
You may well be right that as a Realpolitik matter what was going on on the ground all the time is that ACCA was being applied because of the residual clause.

[00:21:41] Speaker 01:
But when we look at the record that we have before us, we don't know that that happened.

[00:21:45] Speaker 06:
I would point the court to Sheffield on that actually.

[00:21:48] Speaker 06:
I believe Sheffield has a similar situation with the attempted robbery and they say we can't tell.

[00:21:53] Speaker 06:
And they nevertheless rule for the defendant.

[00:21:56] Speaker 02:
Well, Counsel, I'm still puzzled about that.

[00:21:58] Speaker 02:
Suppose the district judge had explicitly relied on the residual clause.

[00:22:05] Speaker 02:
And nevertheless, there were three Maryland convictions which clearly comply with the federal statute.

[00:22:16] Speaker 02:
Would there be error?

[00:22:18] Speaker 05:
There would be error, but there would be no harm.

[00:22:21] Speaker 05:
And I would not, we might not appeal that.

[00:22:23] Speaker 02:
It would be a mistake.

[00:22:24] Speaker 02:
There wouldn't be an error.

[00:22:26] Speaker 02:
Right?

[00:22:27] Speaker 02:
It wouldn't be an error.

[00:22:29] Speaker 02:
because the judge pushed button A, but as a matter of law, he had to look at B, too, and B was available.

[00:22:36] Speaker 05:
Well, I don't think he has to look at B, actually.

[00:22:39] Speaker 02:
Well, in other words, when the question

[00:22:56] Speaker 02:
their Maryland convictions would satisfy.

[00:22:59] Speaker 06:
I don't think that's the way courts are looking at this.

[00:23:02] Speaker 06:
I can try to submit something on that.

[00:23:04] Speaker 00:
Wouldn't it be like an abuse of discretion if the trial court has a discretionary ruling to make and the judge relies on grounds A?

[00:23:18] Speaker 00:
and it turns out that ground A is legally erroneous.

[00:23:23] Speaker 00:
But the judge could have relied upon ground B. Wouldn't it be, well, maybe it was an abuse of discretion, because relying upon something that's a mistake as a matter of law is per se an abuse of discretion, the way that the appellate courts look at it.

[00:23:45] Speaker 00:
But it's harmless.

[00:23:48] Speaker 00:
But typically, we don't do that.

[00:23:53] Speaker 00:
Typically, if there is an abuse of discretion, we send it back.

[00:24:01] Speaker 06:
That's correct.

[00:24:02] Speaker 06:
And I mean, especially in the sentencing context.

[00:24:04] Speaker 06:
when in CERO you don't – the burden on us is so much less than in a trial case.

[00:24:10] Speaker 06:
And in fact, it's sort of like a reasonable likelihood we're trying to get the correct result here.

[00:24:15] Speaker 06:
I think CERO is very strong.

[00:24:16] Speaker 01:
So I think all of that makes some sense, except if, as you have bought into the notion that plain error applies, then what we're talking about is a situation in which an objection should have been raised but wasn't.

[00:24:28] Speaker 01:
Okay, now I get that the law was not in your favor at the time.

[00:24:31] Speaker 01:
But we – Henderson tells us that the way we conceive of the universe now is that as if an objection should have been raised but wasn't, therefore the burden is on you to show plain error.

[00:24:41] Speaker 01:
And I think the point Judge Silverman is making is if the error is the application of ACCA,

[00:24:46] Speaker 01:
then it seems right that even if the district judge did rely on the residual clause, there wasn't an error with respect to the application of ACCA because there was other bases for applying ACCA that turned out to be, by hypothesis, indisputably correct.

[00:25:03] Speaker 06:
Well, I do agree that if he qualifies under the Maryland RDW statute, I was actually thinking, sort of rethinking, like in cases I was reading, that

[00:25:15] Speaker 06:
because of this intervening change, it's possible that plain error is not the test because, sorry, because this has been such a dramatic reversal and that it's in the category of total futility, I guess is the word.

[00:25:37] Speaker 02:
When you get to that point, what are we to make of the fact that the plea explicitly held open the question of

[00:25:46] Speaker 02:
a challenge to a sentence which is illegal.

[00:25:51] Speaker 02:
I mean, that's why we can definitely... It's sort of puzzling why it's plain error on that when you leave that issue open.

[00:25:59] Speaker 02:
It almost looks like that goes up to the Court of Appeals de Nova.

[00:26:04] Speaker 02:
Yeah, I mean, it's clear.

[00:26:05] Speaker 02:
So I understand why you're puzzled by even why plain error applies.

[00:26:11] Speaker 02:
And I think Justice Breyer once wrote an opinion, which he was puzzled about that, too.

[00:26:15] Speaker 06:
That may be something that I am taking back.

[00:26:23] Speaker 01:
Well, I see that if the carve-out was for a Johnson type of claim.

[00:26:28] Speaker 01:
But for a blanket carve-out for any illegal sentence,

[00:26:31] Speaker 01:
it seems like it would be quite a different view of the law than what I understand to be the state of the law now, that by carving out an ability to challenge an illegal sentence period, which means anything, any case that might come along on any issue that has to do with an illegal sentence, that you've somehow overcome plain error as if you made an objection to every conceivable illegal sentence.

[00:26:54] Speaker 06:
I think that it would be limited to this notion like reading McBride is what got me thinking about this, because McBride is saying you can't relinquish

[00:27:00] Speaker 06:
something that didn't exist.

[00:27:01] Speaker 06:
And I'm starting to think, well, how can you forfeit something that doesn't exist?

[00:27:05] Speaker 06:
Because the law was foreclosed against you.

[00:27:07] Speaker 02:
But forfeiture just gets you to plain error.

[00:27:11] Speaker 02:
Right.

[00:27:11] Speaker 02:
But I don't have this problem that we're discussing.

[00:27:14] Speaker 02:
You're really suggesting it's plain error plus?

[00:27:17] Speaker 02:
Yes.

[00:27:18] Speaker 02:
I understand.

[00:27:20] Speaker 02:
No other questions?

[00:27:21] Speaker 01:
Thank you.

[00:27:28] Speaker 02:
Apropos of that point, counsel, you would agree

[00:27:31] Speaker 02:
that if the district judge had explicitly relied on the residual clause, you would concede at this point that it was plain error.

[00:27:39] Speaker 04:
Absolutely.

[00:27:40] Speaker 02:
Absolutely.

[00:27:41] Speaker 04:
Absolutely.

[00:27:42] Speaker 04:
I mean, well, no, no, no.

[00:27:44] Speaker 04:
I'm sorry.

[00:27:44] Speaker 04:
If the court... Boy, that's a... I misunderstood what you said.

[00:27:48] Speaker 04:
I take it back.

[00:27:49] Speaker 04:
Let's rewind.

[00:27:50] Speaker 04:
Well, I thought you said this in your brief.

[00:27:53] Speaker 04:
Huh?

[00:27:53] Speaker 04:
No, my point was...

[00:27:57] Speaker 04:
Perhaps I'm misunderstanding the question.

[00:27:59] Speaker 02:
If the district judge had explicitly relied on the residual clause, which Johnson concluded is unconstitutional, you would agree that was plain error?

[00:28:10] Speaker 04:
No, I would not because there's other ways to get there.

[00:28:14] Speaker 04:
There's other buttons to push.

[00:28:16] Speaker 04:
Here, the question is, did he wrongly apply ACA?

[00:28:21] Speaker 02:
Well, I thought in your brief you suggested that.

[00:28:24] Speaker 02:
then if he had relied on the residual clause, it would have been plain error.

[00:28:27] Speaker 02:
And I think you've taken that position in other courts.

[00:28:31] Speaker 02:
Haven't you?

[00:28:33] Speaker 02:
At VU, I mean the Justice Department.

[00:28:35] Speaker 02:
I have this ancient view that there's only one Justice Department.

[00:28:40] Speaker 02:
That's going to come along.

[00:28:41] Speaker 04:
That's going to come along for you.

[00:28:44] Speaker 04:
I think the point that may have been, I'm trying to remember whether that was something that we raised in our waiver argument.

[00:28:54] Speaker 04:
But one thing I wanted to make clear from the beginning was that the government has absolutely no interest in the defendant and the appellant serving an illegal sentence.

[00:29:03] Speaker 04:
And that's why that provision is in all plea agreements.

[00:29:07] Speaker 04:
But if the sentence was not illegal, then he should be held to the benefit from us and obligations of his bargain, because the government gave up a lot in reliance on that ACCA concession.

[00:29:20] Speaker 02:
But if I was correct in reading your brief, and if you haven't withdrawn that position, or it was as you initially stated, that if the

[00:29:35] Speaker 02:
We wouldn't be here.

[00:29:37] Speaker 02:
You would agree that it was plain error.

[00:29:38] Speaker 02:
You wouldn't even be here on appeal.

[00:29:41] Speaker 04:
As a policy matter, the Justice Department has taken the position that if we conclude that there was an illegal application of the law, we won't erect procedural barriers.

[00:29:53] Speaker 02:
And that is true.

[00:29:55] Speaker 02:
If a district judge explicitly relies on the unconstitutional residual clause, you won't contest.

[00:30:00] Speaker 02:
That's true.

[00:30:01] Speaker 02:
And here... Okay.

[00:30:04] Speaker 02:
So you've agreed with my initial point.

[00:30:06] Speaker 02:
All right, then.

[00:30:08] Speaker 02:
If that's true, then it certainly follows

[00:30:11] Speaker 02:
that if the district judge relies on Maryland convictions and they are not qualified under ACCA, then that also would be a case in which you would conceive as plain error.

[00:30:26] Speaker 02:
That's true.

[00:30:27] Speaker 02:
Okay.

[00:30:28] Speaker 02:
So, then the question comes, what about these Maryland convictions, right?

[00:30:35] Speaker 02:
Exactly.

[00:30:35] Speaker 02:
That all turns down.

[00:30:37] Speaker 02:
Why isn't it almost de novo in front of us?

[00:30:43] Speaker 02:
That goes to the question that both Judge Srinivasan and I have been worried about, when it's a little unclear as to what Maryland did.

[00:30:54] Speaker 02:
Now, your argument in the brief was Maryland required proof that a defendant used a deadly weapon.

[00:31:06] Speaker 02:
Is that your position?

[00:31:07] Speaker 04:
Yes.

[00:31:09] Speaker 02:
But the problem with that

[00:31:20] Speaker 02:
Isn't that correct?

[00:31:21] Speaker 04:
No, I would say that's... Where do you find that?

[00:31:24] Speaker 04:
I looked at all the cases.

[00:31:25] Speaker 04:
With respect to the statute or with respect to this particular conviction?

[00:31:30] Speaker 02:
I can't find anything in Maryland in the cases or the statute which indicates the question of whether or not a robber used a deadly weapon.

[00:31:42] Speaker 02:
The deadly weapon aspect went to the jury.

[00:31:45] Speaker 04:
All of the cases that were cited by appellant and where language was plucked out saying robbery.

[00:31:51] Speaker 02:
No, no, no.

[00:31:52] Speaker 02:
I'm asking you.

[00:31:53] Speaker 02:
Where do you find any indication that that issue went to the jury?

[00:32:00] Speaker 04:
Well, it's undisputed that that's the way.

[00:32:03] Speaker 04:
I understand the question, but just as a couple foundational matters, it's undisputed that it was charged that way in Maryland.

[00:32:09] Speaker 04:
And it's undisputed.

[00:32:10] Speaker 02:
That's not what I'm asking.

[00:32:13] Speaker 02:
Where did it go to the jury?

[00:32:21] Speaker 02:
went to a jury.

[00:32:23] Speaker 04:
I think it can be inferred from all of the Maryland cases.

[00:32:27] Speaker 02:
Where can it be inferred?

[00:32:28] Speaker 04:
In the Brooks case, for example, in which the question was the sufficiency of the evidence of the armed element.

[00:32:36] Speaker 04:
And when the challenge was to the armed element that a toy pistol wasn't sufficient to satisfy that element, and the court agreed with the defense, and the court concluded that the defendant could not be convicted of robbery with a deadly weapon, only with robbery.

[00:32:51] Speaker 02:
But that still doesn't answer the question.

[00:32:53] Speaker 02:
whether the deadly weapon issue went to the jury.

[00:32:56] Speaker 02:
Now, the reason that is relevant, is it not, is if it never went to the jury, it could not have been an element, right?

[00:33:07] Speaker 04:
No, I don't think that the Supreme Court would say that if you look under Mathis.

[00:33:12] Speaker 02:
Ah, that's crucial.

[00:33:13] Speaker 02:
Here we are.

[00:33:15] Speaker 02:
You're saying that under Maryland law, it would have been perfectly constitutional

[00:33:21] Speaker 02:
for the deadly weapon to be an element of the crime and yet not go to the jury?

[00:33:32] Speaker 04:
No, I'm not saying that, except in a plea situation.

[00:33:37] Speaker 04:
My point was that in Mathis... Wait a minute.

[00:33:39] Speaker 02:
The question is, follow that.

[00:33:41] Speaker 02:
Could the deadly weapon

[00:33:48] Speaker 02:
be, could someone be convicted without that issue going to the jury?

[00:33:54] Speaker 02:
No, not under Apprendi.

[00:33:56] Speaker 02:
No, forget Apprendi.

[00:33:58] Speaker 02:
I can't.

[00:33:59] Speaker 02:
No, no.

[00:34:00] Speaker 02:
Apprendi didn't establish this proposition.

[00:34:03] Speaker 02:
This proposition goes back to the Tom Eisen law school, which is, in memory of man runneth not to the contrary.

[00:34:10] Speaker 02:
An element of a crime must go to a jury as a matter of constitutional law.

[00:34:14] Speaker 02:
Exactly.

[00:34:15] Speaker 02:
Way before Apprentice, right?

[00:34:17] Speaker 02:
Exactly.

[00:34:17] Speaker 02:
So if we do not know whether the question of the use of a weapon went to the jury in Maryland, we can't possibly know whether it's an element of the crime for federal purposes.

[00:34:31] Speaker 04:
I think we can know that it went to the jury in the usual course, because robbery and robbery with a deadly weapon are charged separately.

[00:34:41] Speaker 04:
There are separate and greater penalties for RDW.

[00:34:45] Speaker 04:
But that could be true as in a sentencing.

[00:34:48] Speaker 02:
It could be, and it could have been, but there is absolutely no... So you want somebody to go to jail for another five years based on a guess.

[00:34:56] Speaker 04:
No, there's absolutely no indication that it was a sentencing enhancement and applied later.

[00:35:03] Speaker 02:
What do you mean?

[00:35:04] Speaker 02:
The Supreme Court said it was a sentencing enhancement.

[00:35:07] Speaker 04:
In these cases, in all of these cases that we've cited from Maryland,

[00:35:11] Speaker 04:
The deadly weapon was charged, and the defendant was convicted of that.

[00:35:19] Speaker 04:
And the challenge, in fact, the challenge in those cases was to the very existence of the crime RDW, or armed robbery.

[00:35:28] Speaker 04:
All of those cases, the challenge wasn't, do they have to prove this to the jury or not?

[00:35:36] Speaker 04:
The challenge was, because this heightened aggravated crime

[00:35:41] Speaker 04:
It grows out of the common law and is not specifically spelled out other than as a penalty in the statute.

[00:35:51] Speaker 04:
The argument that the defendants made in those cases was, this is not a crime.

[00:35:56] Speaker 04:
This is not a crime that exists.

[00:35:58] Speaker 01:
Can I ask you a question, which is along these lines, which is, first of all, I take it that there's the pattern jury instructions, which I understand there's issues with who develops pattern jury instructions.

[00:36:08] Speaker 01:
But the fact that it's in a pattern jury instruction would be one indication that it might have gone to a jury.

[00:36:14] Speaker 01:
But I guess the question is,

[00:36:17] Speaker 01:
What is your view on what we should do on a plain error review if it's unclear whether it went to a jury?

[00:36:26] Speaker 01:
So under Apprendi, in order to be an element for federal purposes, the fact should have gone to a jury.

[00:36:33] Speaker 01:
If not,

[00:36:35] Speaker 01:
Whatever Maryland called it, it doesn't qualify as an offense for federal constitutional purposes.

[00:36:38] Speaker 01:
It can't be a basis on which to enhance the sentence.

[00:36:41] Speaker 01:
But if it's unclear whether, as a matter of historical record, this issue went to the jury under Maryland law, where does that leave the government under plain error review?

[00:36:55] Speaker 04:
Well, let me start my answer with, obviously we know, I disagree that it's unclear, that it didn't go to the jury in general.

[00:37:04] Speaker 01:
Do you know of any case that makes clear that it did go to a jury?

[00:37:10] Speaker 01:
I haven't heard you describe one in response to Joe Silverman's questions.

[00:37:14] Speaker 04:
Well, I guess I infer that from the sufficiency cases.

[00:37:18] Speaker 01:
You know, the actual... Those are your best cases?

[00:37:21] Speaker 04:
Yes, absolutely.

[00:37:22] Speaker 01:
I mean, I was charged with that and... So let's just hypothesize that that's, as you say, an inference.

[00:37:29] Speaker 01:
Okay.

[00:37:30] Speaker 01:
And let's just say that I put that in the zone of at least unclarity.

[00:37:35] Speaker 03:
Possible.

[00:37:35] Speaker 01:
So if we're in the zone where we think it might well have gone to a jury, but we can't know for sure, where does that leave you, the government, vis-a-vis Plain Air Arabia?

[00:37:45] Speaker 04:
Well, on plain error review, of course, the burden is on the appellant.

[00:37:49] Speaker 04:
And I think here, there's no suggestion.

[00:37:52] Speaker 04:
There's nothing on which this court could conclude that there was error, let alone that the error was plain.

[00:38:01] Speaker 04:
I don't think it matters whether the court specifically said residual clause or not.

[00:38:08] Speaker 04:
But just so the record's clear, there's no indication that that was said here.

[00:38:12] Speaker 04:
And in fact, it's more likely that the force clause or the elements clause was in the court's mind because that's what our problem has been analyzed.

[00:38:22] Speaker 02:
Let me just pursue the point that both Judge Srinivasan and I are concerned about.

[00:38:28] Speaker 02:
You may have slightly different views on this, but let me just pursue this.

[00:38:35] Speaker 02:
Plain error, strangely enough,

[00:38:38] Speaker 02:
depends on the way it appears to the Court of Appeals, not the district judge.

[00:38:44] Speaker 02:
We could say in this case there's plain error without any criticism of the district judge because the law is different by the time it comes to us.

[00:38:53] Speaker 02:
Now I'm thinking that the case before us is a situation where a defendant would be hit with five more years because of alleged prior convictions

[00:39:08] Speaker 02:
in Maryland that qualify under the federal statute.

[00:39:12] Speaker 02:
And it's uncertain.

[00:39:14] Speaker 02:
We have no idea whether those convictions work under the federal statute or not.

[00:39:21] Speaker 02:
Now I think it's monstrous to impose that sentence on a defendant without having any clear idea whether those Maryland convictions qualify or not.

[00:39:36] Speaker 02:
And that would seem to me, it would be plain error now to do that.

[00:39:43] Speaker 02:
Because we don't.

[00:39:45] Speaker 02:
In a situation where it's absolutely uncertain, generally, we don't hold a defendant liable for commission of a crime.

[00:39:53] Speaker 02:
Lenity itself comes into play there.

[00:39:57] Speaker 04:
But the way that the plain error doctrine has evolved, and this puts me in mind of, you know, years and years ago, there used to be something called the supervening authority doctrine.

[00:40:06] Speaker 04:
And that would, if there was supervening authority between the time at which the court had applied the law and later, there would, that, that, that was... Well, there is supervening authority in the Thompson case.

[00:40:20] Speaker 04:
Now, the way the plain error law has evolved, jurisprudence has evolved, the, we look at whether it was plain now.

[00:40:29] Speaker 02:
And by doing that... If this case were before me as a district judge now,

[00:40:34] Speaker 02:
I would absolutely reject the notion that the Maryland convictions qualify under the federal statute.

[00:40:41] Speaker 02:
No question, because nobody can establish to me that the issue of the weapon went to a jury.

[00:40:49] Speaker 02:
Therefore, it could not be an element of a crime under federal law, under federal constitutional law.

[00:40:56] Speaker 04:
But Mathis instructs us to, I don't think any of the Supreme Court cases that have examined elements, elements versus means, or as the categorical approach was developed over the recent history, I don't think any of those courts have looked for absolute proof that a given statute went to, a given element went to a jury.

[00:41:20] Speaker 04:
The court looks at what's the definition of an element.

[00:41:29] Speaker 02:
which it has two elements, robbery and deadly weapon.

[00:41:33] Speaker 02:
But the deadly weapon point can go to the judge.

[00:41:36] Speaker 02:
We couldn't possibly regard that as a crime qualifying under the federal statute because it would have been unconstitutional.

[00:41:44] Speaker 02:
I agree with that.

[00:41:45] Speaker 02:
And you can't hit a defendant with an increased sentence based on unconstitutional convictions.

[00:41:51] Speaker 04:
I agree with that entirely.

[00:41:53] Speaker 04:
But the point is that courts like this one and the Supreme Court, when analyzing those statutes,

[00:41:59] Speaker 04:
don't, they apply judgments about what happens in the usual case.

[00:42:06] Speaker 04:
And they look to things like, we're instructed, you look to things like jury instructions and the statute itself and the structure of that law in that context.

[00:42:17] Speaker 04:
And if you do that, if you look at those things.

[00:42:19] Speaker 02:
Do you have a case involving jury instructions?

[00:42:22] Speaker 02:
All you have is jury instructions made up by lawyers.

[00:42:26] Speaker 02:
That 10 cents, it gets you on a trolley car.

[00:42:29] Speaker 04:
But it also suggests that it's an issue that goes to the jury.

[00:42:33] Speaker 04:
I understand that maybe it didn't have to.

[00:42:36] Speaker 04:
And there were times, especially here in this jurisdiction in DC years ago, when things didn't go to the jury that we now know should have gone to the jury and do go to the jury now.

[00:42:46] Speaker 04:
I understand that point.

[00:42:48] Speaker 02:
It's got nothing to do with Apprenti.

[00:42:50] Speaker 02:
This has got to do with constitutional law going way back.

[00:42:52] Speaker 01:
It seems to me the question is,

[00:42:55] Speaker 01:
What has the Supreme Court told us about how we apply plain error review?

[00:42:59] Speaker 01:
Because I think part of what makes this situation seem very difficult, even potentially monstrous, is that we're necessarily in a situation in which the error was not evident to anybody at trial.

[00:43:13] Speaker 01:
It just wasn't there until Johnson comes along a lot later.

[00:43:17] Speaker 01:
So it seems odd to conceive of this to be a plain-error situation at all because there wasn't even an error at that time, let alone a plain one.

[00:43:25] Speaker 01:
But we know from Henderson and Johnson

[00:43:28] Speaker 01:
that even though the error only becomes manifest on appeal because of an intervening decision, we're still supposed to, per Supreme Court direction, treat this as a plain error case, i.e.

[00:43:37] Speaker 01:
as a case in which the defendant, by hypothesis, should have raised an objection that everybody knew would go nowhere.

[00:43:44] Speaker 01:
And if we're in that situation where we're in this kind of almost fictional world where the defendant was under the burden of needing to raise an objection that we knew at that time would have gone nowhere,

[00:43:58] Speaker 01:
then we're just kind of bought into this notion that plain error review applies.

[00:44:02] Speaker 01:
And in a normal situation where a defendant fails to raise an objection that the defendant is supposed to raise, plain error is harsh.

[00:44:09] Speaker 01:
And so we're kind of in this conundrum because we're supposed to apply a harsh standard in a situation in which the occasion for the standard to apply doesn't seem necessarily deserving of a harsh result because everybody understands that the defendant, that the objection would have gone nowhere.

[00:44:25] Speaker 04:
But the corollary is of that rule that we now treat it as plain error is that the defendant now gets the benefit of the improved legal landscape.

[00:44:37] Speaker 04:
So that is the trade-off, and that's the trade-off that the court has determined over the years, is the way, the function of the plain error standard.

[00:44:46] Speaker 04:
And I think that that makes, given the way plain error jurisprudence has developed, it makes perfect sense.

[00:44:55] Speaker 04:
I mean, you can look at it the other side and say, why should they get the benefit of the law now when the court was deciding, given the landscape then?

[00:45:03] Speaker 01:
So is it your understanding of the way plain error applies now that if the law, if Maryland law was ambiguous, that inures to the government's benefit, even though I think we all appreciate that the consequences of that are substantial.

[00:45:20] Speaker 01:
But if Maryland law was ambiguous on whether the fact of the weapon went to the jury, then the error

[00:45:27] Speaker 01:
in applying ACCA was not plain and the government gets the benefit of that.

[00:45:32] Speaker 01:
Is that your understanding?

[00:45:33] Speaker 04:
Because when I asked you that before... Well, when I think about it, I guess when I'm thinking about the error, I'm thinking about the error being the application of the way that the statute is... The application of what?

[00:45:48] Speaker 04:
Well, I think we're on the same page on that.

[00:45:52] Speaker 01:
I'm not sure what page I'm on, but I'm trying to understand from you what page the government's on, because if the error in your view is the application of ACCA,

[00:46:03] Speaker 01:
then it's possible that there wasn't plain error because the Maryland defenses make the application of ACCA not plainly erroneous.

[00:46:12] Speaker 01:
And then the question would be, well, is that true if Maryland law was ambiguous on whether what we will call the element went to the jury?

[00:46:21] Speaker 04:
Well, I think that's the plain and obvious part, honestly.

[00:46:25] Speaker 02:
You see, but the problem that bothers me is normally when we look at criminal law and we ask

[00:46:37] Speaker 02:
And if the law was not clear to the defendant, it's a matter of many years of jurisprudence, we conclude that the defendant can't be convicted.

[00:46:50] Speaker 02:
So here we have a situation where it's quite unclear what Maryland law was.

[00:47:00] Speaker 02:
Arguably, at least, if it's very unclear what Maryland law was,

[00:47:07] Speaker 02:
with the enhancement.

[00:47:10] Speaker 02:
You see the way it can be phrased that way?

[00:47:14] Speaker 04:
I do see how it can be phrased that way.

[00:47:16] Speaker 04:
I think the error, the clear error, and the lack of clarity is that there were no cases, there were no cases at the time this decision was made by the district court and there are no cases today.

[00:47:29] Speaker 04:
saying that Maryland robbery with a deadly weapon is not ACCA eligible.

[00:47:35] Speaker 04:
So there's no case law telling the court that the court then or now that the court did the wrong thing.

[00:47:43] Speaker 02:
Yeah, strange situation where somebody goes to jail for five years more than he might have because we don't know.

[00:47:52] Speaker 04:
Well, it certainly is intuitive.

[00:47:53] Speaker 04:
I mean, I'm not sure.

[00:47:55] Speaker 04:
I think it's important to take a step back and look at the big picture.

[00:48:00] Speaker 02:
That's where I was.

[00:48:02] Speaker 02:
The more steps back I get, the more it seems like injustice.

[00:48:05] Speaker 04:
Well, I think it's important to remember the purposes of the Armed Career Criminal Act.

[00:48:10] Speaker 04:
And I think it's important to remember the Supreme Court's recent

[00:48:15] Speaker 04:
rules that idea that, and this doesn't go to whether it went to the jury or not, but to some of the arguments Appellant has made, that fanciful hypotheticals are not sufficient.

[00:48:25] Speaker 04:
There has to be kind of a realistic possibility, probability, not a mere theoretical possibility, that the statute could be applied in a unconstitutional way.

[00:48:36] Speaker 02:
Let me go back to ask one more question.

[00:48:38] Speaker 02:
Well, go ahead.

[00:48:39] Speaker 02:
One more question.

[00:48:41] Speaker 02:
One thought, one thing that troubled me is,

[00:48:45] Speaker 02:
You have a footnote in your brief saying you don't concede that plain robbery wouldn't be a violent felony, yet the Justice Department has conceded exactly that point in the Fourth Circuit.

[00:49:00] Speaker 02:
How the devil can you take a different position in this circuit than you're taking in the Fourth Circuit?

[00:49:05] Speaker 04:
It's not as clear as that, Your Honor, I have to say.

[00:49:07] Speaker 04:
In the Fourth Circuit, there are cases in which the government has not conceded that as well.

[00:49:13] Speaker 02:
Oh, so you're taking inconsistent positions in the Fourth Circuit.

[00:49:15] Speaker 02:
Apparently.

[00:49:16] Speaker 04:
I just learned this last week.

[00:49:20] Speaker 02:
Given my biography, this is rather offensive to me.

[00:49:23] Speaker 04:
Well, no, Your Honor, the government, we're trying very hard to

[00:49:27] Speaker 04:
work as a whole, as one department.

[00:49:31] Speaker 02:
That's nice to hear.

[00:49:32] Speaker 04:
And we're getting, we and the US Attorney's Office here in DC are obviously getting guidance from main justice about how to approach this.

[00:49:39] Speaker 04:
But as the court knows, this has been a rapidly evolving area of the law.

[00:49:44] Speaker 04:
And in the cases that were cited as the government having made concessions, those cases are distinguishable.

[00:49:51] Speaker 04:
The guidance.

[00:49:52] Speaker 02:
The government's concession was a matter of law, whatnot.

[00:49:56] Speaker 02:
related to facts.

[00:49:57] Speaker 02:
So I just wanted to suggest that it was a little troubling to have you drop a footnote saying you're not necessarily agreeing with your own Justice Department.

[00:50:05] Speaker 02:
Well, the guidance from our Justice Department is... Is as confusing as the Maryland law?

[00:50:13] Speaker 04:
Way more confusing.

[00:50:14] Speaker 04:
The Maryland law is very clear.

[00:50:16] Speaker 04:
The Maryland law...

[00:50:20] Speaker 04:
I think that the Maryland law makes it clear that the armed version of the event is a felony.

[00:50:28] Speaker 00:
Excuse me.

[00:50:30] Speaker 00:
Let me ask you some questions about that.

[00:50:33] Speaker 00:
So let's suppose in Bethesda, Maryland, someone's having a fancy dinner party and a person walks past with a baseball bat and sees lots of nice cars parked outside.

[00:50:50] Speaker 00:
and yells into the house, throw money out here or else I'm gonna start bashing in the headlights and taillights and windows of all these Mercedeses and BMWs and et cetera that are out here.

[00:51:09] Speaker 00:
And the people inside decide to throw their wallets and purses and whatnot outside through the window.

[00:51:19] Speaker 00:
and the offender picks up all those wallets and purses and runs off.

[00:51:26] Speaker 00:
Is that a Maryland robbery RDW?

[00:51:32] Speaker 04:
I think it is and I think it would qualify as a under ACCA because to the extent it doesn't meet the generic requirements of robbery, it would meet the generic requirements of extortion, which is an enumerated offense.

[00:51:46] Speaker 00:
Okay, so do you concede that it doesn't meet the requirements of robbery?

[00:51:53] Speaker 04:
Of robbery.

[00:51:53] Speaker 00:
I'm sorry, of the elements clause.

[00:51:56] Speaker 00:
Of the force, the elements clause.

[00:52:01] Speaker 04:
I'm not I'm not I'm not quite willing to get ready to concede that explain how it does meet those elements.

[00:52:11] Speaker 04:
It means those elements because the the analysis that the Supreme Court has told us to engage in is

[00:52:23] Speaker 04:
to look at reasonable, we can posit all kinds of creative hypotheticals.

[00:52:31] Speaker 04:
And the point is to, there has to be an obligation to point to a case in which something like that actually happened, in which the statute actually was applied that way.

[00:52:41] Speaker 04:
But I'll assume for a minute, obviously, that that hypothetical did occur.

[00:52:50] Speaker 04:
For the application of ACCA, we looked at federal law and what are the federal definitions.

[00:52:55] Speaker 04:
It doesn't matter what Maryland would call that RDW, Maryland with the Dangerous Weapon, or whether it would call it extortion.

[00:53:06] Speaker 04:
We look at whether those meet the elements under the federal standards.

[00:53:10] Speaker 04:
And under those standards, that would apply.

[00:53:14] Speaker 04:
But I think it's important to remember that it is, in general, hard to posit ways in which an armed robbery is conducted without threatening the person or without threatening bodily injury.

[00:53:29] Speaker 04:
And we haven't discussed the other methods that the appellant has posited as ways that it could happen, poison or so on.

[00:53:38] Speaker 04:
But I think in their standard armed robbery, it's pretty unlikely to imagine

[00:53:43] Speaker 04:
someone say pointing at having a gun, wanting money from somebody, and threatening to shoot a car as opposed to the person.

[00:53:52] Speaker 04:
And perhaps that's why we don't see cases like that.

[00:53:56] Speaker 04:
I'm not saying it couldn't happen.

[00:53:59] Speaker 00:
The statute says section 488 at the time of these convictions said robbery or attempt to rob with a dangerous or deadly weapon or accessory thereto.

[00:54:12] Speaker 00:
So it just says with it.

[00:54:16] Speaker 04:
So... Case law has concluded that has, well, I don't know if this is where the court's going, but case law has made it clear that it requires use of the weapon, not just having a weapon, which is one thing that may set it apart from D.C.'

[00:54:27] Speaker 04:
's statute.

[00:54:29] Speaker 00:
So we're supposed to look at the case law and not just what the statute says.

[00:54:34] Speaker 04:
Yes, that's what the court tells us to do.

[00:54:36] Speaker 00:
Okay.

[00:54:37] Speaker 00:
And so the case law says that it means it has to be used

[00:54:43] Speaker 00:
But it doesn't say that it has to be used against a person, right?

[00:54:51] Speaker 04:
Well, the definition of robbery itself is that the person be put in fear, either be harmed or be put in fear of bodily harm.

[00:55:03] Speaker 02:
I don't know.

[00:55:04] Speaker 02:
Judge Wilkins' hypothetical sounded pretty real to me.

[00:55:08] Speaker 02:
I'd have thrown my wallet out of me.

[00:55:11] Speaker 04:
I would have too, but I just think you would have also thrown it out if the person came at you.

[00:55:18] Speaker 02:
I'm not clear whether that's extortion.

[00:55:20] Speaker 02:
That's a difficult question in itself.

[00:55:26] Speaker 02:
I think it means... I mean, your argument is if it's not armed robbery, it necessarily falls in extortion.

[00:55:33] Speaker 02:
I'm not sure that's correct.

[00:55:35] Speaker 02:
The only case... How do you define the consent part of extortion?

[00:55:40] Speaker 04:
I realize that this isn't binding, but I think it's instructive for the court to look at Judge Bates's opinion more, because he did analyze this, and I think he analyzed it well.

[00:55:52] Speaker 02:
Of course, he's post-apprentice.

[00:55:54] Speaker 02:
He's post-apprentice.

[00:55:55] Speaker 04:
Yes, but well, that's an interesting point I wouldn't mind addressing, because Apprentice is a constitutional law that reinforces the constitutional

[00:56:09] Speaker 04:
basic constitutional principles that we did learn in law school and that have been in existence long before Apprendi.

[00:56:15] Speaker 02:
But the point is, Apprendi is saying this is- That's not so clear, because after all, the Supreme Court had rejected that notion again and again and again until Justice Scalia finally got five votes.

[00:56:28] Speaker 04:
Well, I guess where I'm going is that the Apprendi decision, if it states a constitutional concept that has to be applied,

[00:56:37] Speaker 04:
There's every reason to believe.

[00:56:39] Speaker 04:
And if Maryland happened to wrongly apply it, first of all, we don't have any evidence of that, that Maryland wrongly applied it and didn't follow what's constitutional.

[00:56:51] Speaker 04:
But if you look at the cases, Mathis, every case that's been decided, I didn't go back and compare exactly when the priors occurred in relation to Apprendi.

[00:57:01] Speaker 04:
But in one of them, there were three priors, not from the Supreme Court, but from a recent circuit case, there were three priors from 35 years ago.

[00:57:10] Speaker 04:
Clearly, that's before Apprendi.

[00:57:11] Speaker 04:
And those were analyzed in the same way.

[00:57:15] Speaker 04:
So I don't think that Apprendi should be, and that whole concept should be and can be, completely ignored.

[00:57:21] Speaker 04:
Certainly, you know, a defense wants to take advantage of it all the time, and I don't think it's right to say if we composite a way in which it was unconstitutional a long time ago, even though there's no indication that that happened here, then you can not count the crime.

[00:57:43] Speaker 04:
I mean, just as an overall thing, it's important, I think, to not be engaging in too many fanciful notions of how these statutes could apply.

[00:57:54] Speaker 04:
You could come up with an explanation for why nothing counts.

[00:58:04] Speaker 04:
No murders, no murders with guns.

[00:58:10] Speaker 04:
The act of pulling a trigger is just as indirect, you might say, as the act of putting poison in someone's drink.

[00:58:17] Speaker 04:
So the fact that the court specifically said the application of the categorical approach, which asks you to look at the least amount of crime that could be committed under a statute, is not an invitation for the application of legal imagination.

[00:58:37] Speaker 04:
So I think we have to be careful about that and I urge you to affirm the sentence in the judgment below.

[00:58:43] Speaker 01:
Thank you.

[00:58:45] Speaker 01:
Mr. Wright, we'll give you two minutes back.

[00:58:49] Speaker 06:
I want to, on the plain error topic, I do want to say that, you know, in Brody we argued that it was forfeited and the government agreed.

[00:58:57] Speaker 06:
But really, Brody was different because the issue there was to camps and the issue was out there and could have been raised and was not and this is very different.

[00:59:07] Speaker 06:
So I want to say that.

[00:59:08] Speaker 06:
And even if plain error does apply, the error doesn't have to be an erroneous sentence.

[00:59:15] Speaker 06:
The error has to be a legal error that harmed the defendant and the

[00:59:19] Speaker 06:
within the meaning of Sarah, which is very generous.

[00:59:21] Speaker 06:
And we get the presumption under Mooling, the benefit of a presumption, which can help us get over any burden we have, that the judge applied the law correctly.

[00:59:30] Speaker 06:
And in that case, he would not have applied the force, certainly because it was at least, if it is ambiguous.

[00:59:35] Speaker 06:
And one more thing I would like to say about the ambiguity is that Justice Kagan said in Mathis that this is not supposed to be hard.

[00:59:41] Speaker 06:
This is not hard to, it won't be hard to look at state law.

[00:59:44] Speaker 06:
And I sort of, I feel like,

[00:59:47] Speaker 06:
you know, I'm pointing to very clear case law, and that if this kind of ambiguity isn't enough, then I feel like, you know, we must be doing it wrong, honestly, because Mathis says it shouldn't be hard.

[00:59:59] Speaker 06:
I mean, I understand that, I mean, there's a lot of times that a state won't even have law.

[01:00:04] Speaker 06:
That's hard.

[01:00:05] Speaker 06:
We have law.

[01:00:06] Speaker 06:
If this case isn't an easy case, I don't, I don't, then Mathis just isn't gonna work.

[01:00:12] Speaker 06:
Nobody could ever win under it.

[01:00:15] Speaker 01:
Yeah, it depends on which way it's hard, because it's also one way it could be easy is to every ambiguity.

[01:00:20] Speaker 01:
I mean, in other words, the ambiguity has to cut in somebody's favor.

[01:00:23] Speaker 01:
And it could be easy to cut the ambiguity in either person's favor and get out of the inquiry fairly straightforwardly.

[01:00:28] Speaker 01:
But the question is.

[01:00:31] Speaker 06:
If this were back in front of the district court, he couldn't apply this.

[01:00:34] Speaker 06:
We would ask the court to vacate the sentence and remand for re-sentencing to a sentence of no more than 10 years.

[01:00:40] Speaker 01:
Thank you.

[01:00:41] Speaker 01:
Thank you, counsel.

[01:00:42] Speaker 01:
The case is submitted.