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Case number 14-3037, United States of America versus Paya Cho Capote, Appellant.

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Ms.

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Rowland for the Appellant, Ms.

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O'Lanitz for the Appellate.

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Ms.

[00:00:13] Speaker 00:
Rowland, good morning.

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May I please the court?

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At sentencing, the District Court made three important factual findings.

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It found that Mr. Capote engaged in a shootout in the residential streets of the city, and that's at page 11 of the sentencing transcript.

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that two eyewitnesses identified the defendant as being involved in a gunfight, and that's at page 12, and that two eyewitnesses identified Mr. Capote as participating in the gunfight, and that's at page 48.

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Those findings were based on the government's proffer, which Mr. Capote disputed.

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that one witness saw men running up and down the street while shots were being fired and that he or she saw Mr. Capote, a neighbor, also running, but not running up and down as the government misstates in its brief.

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which I think you had referenced.

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The judge also says that, references the shooting that you're talking about, and it says, combined with the loaded gun found in his possession during the car stop in the same month.

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And then the next paragraph talks about, it's the association of defendants' drug addiction with guns that is very important.

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Given that she also referenced the combination with the loading guns found in this possession, and that it is that association of guns with drugs that was very important to her, how do we know that this April 4th incident was determinative?

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We don't know, and that in words to the benefit of the defendant.

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We don't know what the district court

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would have done and there's nothing in the record that would allow this court to speculate and find that the sentence would have been the same.

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This incident which she ascribed to the defendant was clearly the most

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shocking.

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She referred to it as chilling.

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It was actual use of a gun, as opposed to simply possession.

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So it was qualitatively different than... What I'm trying to figure out is whether it was qualitatively different in a way that had any effect on her sentence, given that she specifically said what was very important to her

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What is the presence of the other combination, the association of guns with the drugs?

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The other gun that she's referring to was simply possession.

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In this incident she's... Which is when he was convicted.

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Well, in this case,

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When you dispute the gun possession.

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Well, in this case, there was a gun.

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But I'm referring to the incident before the search warrant in this case when there was a gun.

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He was stopped at a sobriety test.

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Right.

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There was a gun in the house.

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There was a gun in the car.

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Right.

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So I'm referring to those as simply possession.

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This incident is qualitatively different when she finds that he engaged in a shootout on the residential streets of the city, referred to that conduct as chilling.

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I think it is quite a bit different.

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She imposed a sentence that was 31 months higher than it had to be.

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Certainly, if she had imposed a sentence of 120 months,

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You know, we might not be arguing about harmless error, but she didn't.

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She imposed a higher sentence.

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And she certainly considered it.

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She considered it based on findings that were not supported by the record.

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And then on the page, if I could ask you one other question, I'm sorry.

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It's a little hard because of the number.

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I think it's page 50.

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She says, as I mentioned, I do plan to impose a guideline sentence in this case.

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I couldn't find any other place that she had mentioned that before.

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Has she previously signaled that she was going to stay within the guideline range in this case?

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Not that I'm aware of.

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The only thing I can think of is when she explained to the defendant how it all works and the offense level that she had come to.

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But I don't know of any explicit reference to, certainly nothing before the sentencing hearing.

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But if she had been committed independently of this whole April 4th incident?

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the shooting incident on the street, if she had already been committed to sentencing within the guidelines range before even discussing that, and since she went to the very bottom of the guideline range, how would that affect your argument?

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Well, I don't think she would have any basis for predetermining the sentence without hearing from, you know, reading the PSR, reading the submissions by the parties, and hearing their arguments.

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So, I mean, that would be error if she predetermined without consulting those.

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Pardon me?

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I'm sorry, if her commitment was during the sentencing, having looked at everything submitted to her, I don't know when she made this mention, but if she had already committed that sentencing that she was going to stay within the guidelines range,

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Well, her decision was based on all of the information and based on her findings.

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And the information wasn't enough to support a preponderance finding.

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And her findings were incorrect.

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Two witnesses did not identify Mr. Capote as being involved or participating.

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And there's no status hearing or anything after the trial where she says,

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No matter what, I'm going to send it to you under the guidelines, which, of course, would be error.

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Can I just go back to the initial line of questioning, which concerns the notion that she did mention the gunfight, and then she mentions other things, too, and then takes them into account in combination?

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So what's the standard of harmlessness that applies, if that's the issue?

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I mean, the court has to determine whether... I mean, the court could affirm if it found that under no circumstances would she have imposed a different sentence, but... By what standard?

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Because I guess what I'm asking is...

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If we, for us, for purposes of assumption, let's just assume for purposes of this, I know it's contested and I'm not saying that it's definitively true, but that there isn't enough evidence on the gunfight based on what she had said earlier.

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But then, as Judge Millett points out, she doesn't talk just about the gunfight, she talks about the other

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gun incidents, possession incidents with him, and then she says, that's what I'm taking into account.

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If there wasn't enough evidence on the gunfight part, what's the standard by which we would assess whether it's enough that she mentioned the other gun incidents as a basis for affirming the sentence?

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The court would have to determine that she would have

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imposed the same sentence, even if she hadn't considered his alleged participation in the gun fight.

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By what?

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Beyond a reasonable doubt?

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Pardon me?

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What's the harmlessness standard?

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If we're talking about harmless error, maybe we're not, but I assumed that we were talking about harmless error.

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If we are, what's the harmless error standard that we would apply?

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OK, the question is, if she hadn't mentioned that at all, if that were not in the case.

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Or if it was error for her to take into account.

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the gunfight because there wasn't enough evidence on the gunfight.

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Is your view that we would apply harmless beyond a reasonable doubt, or what's the... I'm assuming we're talking... Maybe I'm wrong.

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My assumption is that we're in the land of harmless error at this point.

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Well, actually there is... I think a close reading of Gall would suggest that where there is procedural error, there is no analysis of prejudice.

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That it goes back to the district court for

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a sentencing without procedural errors.

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But that's if she relied on erroneous facts.

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You don't want me to jump in, but I think what I'm trying to figure out is how do we know what she relied on?

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What is our test for that?

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Well, I don't think there's any other reasonable reading of the transcript.

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She does mention the other incident, but this is the only incident that she expounds on that she calls chilling, that she's

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And it is qualitatively different than possessing a gun.

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What troubles me is that she did a 180.

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I mean, at the trial, she said, we have clarity about his ducking down.

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We have clarity about his picking something up and so forth.

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But he lived there.

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He could have been picking anything up.

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I mean, she couldn't have been, to me anyway, clearer that that was not going to be 404B evidence because it wasn't

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evidence of his involvement in the gunfight, then she says, it's as if she forgot what she had said before because she says what is clear after having said the only clarity we had during trial was that he was there and he picked something up and so forth, what is clear from the defendant's involvement and participation in the gunfight.

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That's completely different from her first reaction to the evidence she heard.

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And I think you're right that Gall says that we've two steps.

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First, we decide if there's any significant procedural error, such as selecting a sentence based on clearly erroneous facts.

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That's what worries me about this.

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Yes, and I do think that her

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earlier, the judge's earlier ruling should inform the court's reading of what she said at sentencing.

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And I don't think that you can fairly read this, the sentencing transcript

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to mean that that was an insignificant factual finding?

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Well, maybe it's not harmless at all then at this stage of the analysis.

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I'm not sure, but I guess the question is, if we accept for argument purposes what Judge Henderson has spelled out, which is that she initially thought that there just wasn't enough there on the gunfight.

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And then later on at sentencing time, the gunfight is taken into account in some measure, but other things are taken into account too.

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then when we're faced with that, and we assume we discount the gunfight part on the theory that at time A, the gunfight was viewed to be not enough, and we say that that carries through to time B, well, we still have something left.

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We have the other stuff.

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And I think the court would have to be absolutely convinced that the district court would impose the same sentence without the clearly erroneous factual findings.

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And there's nothing on this record that would suggest that.

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The record suggests that she was very concerned about that and not that it was, you know, that the other incidents were of equal importance or more important.

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I'm just curious as to how one writes the legal test in this setting, because we really are trying to figure out what the sentence was based on.

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And imagine you could have a case where a judge lists 10 or 15 things.

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one of which it turns out to be is a clearly erroneous fact.

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The rest are not.

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And would the legal rule be in that case as long as it's mentioned?

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Or how?

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I understand that's not the case.

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I understand this is much tougher, but I'm trying to read out the rule.

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I can certainly imagine a case where there are many factors and perhaps some insignificant factor would not cause the court to remain in the case.

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But we really don't have that case here.

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Here we have a very dramatic, frightening incident that he's accused of participating in compared to a possession of a gun.

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There's far more discussion about this incident.

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She uses words that show that she's

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More affected by that than she is by the gun possession So maybe a factor of how much overt reliance there seems to be on the perhaps I would also suggest that you know what we're asking for is a remand for the sentencing and the court has held in other cases for example in Sarah that

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You don't have to have, we're not going to have another trial.

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The standard of review is more lenient toward the defendant because we're not using a lot of resources.

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We're just asking the court to reimpose sentence without the erroneous factual findings.

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All right.

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Thank you.

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Mr. Leonard.

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Good morning, and may I please record Bannliners for the United States.

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The government's view is not that the trial court was inconsistent at sentencing with its ruling on the 404B motion.

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But even if the court thought that she was... Well, what changed?

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I mean, there wasn't any new evidence.

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She was pretty categorical at the 404B stage.

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I have two answers to that, Your Honor.

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What changed is that the defendant was convicted of possessing the firearm that was found in his home on May 9th.

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That was not evidence that the district court could take into consideration in figuring out whether to admit the evidence related to the April 4th shooting because that would have been impermissible bootstrapping.

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It was the same caliber and so forth, wasn't it?

[00:15:27] Speaker 03:
It was the same caliber, Your Honor.

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It was the same caliber as 14 of the 29 shells that were found immediately outside the defendant's residence on April 9th.

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And so... You actually make a lot of the fact that it was the same shell casings, but...

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How common is this type of firearm in crimes in the city?

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Well, there's obviously no evidence in the record of how common a .45 is.

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I think a .45 is relatively common.

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It's not uncommon.

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It's not uncommon.

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And this defendant possessed three different .45 caliber

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weapons within a six month period.

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He possessed the one found in his car on April 27th.

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I'm just trying to evaluate the, get any sense of how relevant, and again maybe this is something we just, the district court would need to address on remand, your point that you keep making that there was the casing, at least 14 of the 29

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shell casings were of the same type as a gun that was found in his house and in his car.

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If that's common, one of the most common weapons, I don't know, in the district, then that really means a lot less than if it were rare or unique.

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The fact that this defendant possesses .45 caliber guns, that's apparently his weapon of choice.

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The fact that that type of gun was found in his car on April 27th, just three weeks after the shooting incident, and a different one was found in his house just five weeks after the shooting incident makes it highly relevant that 14 of the shell casings were found immediately outside the defendant's home in conjunction with the fact that the defendant was seen bending down as though to pick something up off the ground and was seen running back and forth with a group of men during the shooting incident.

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But did you misspeak or was it five days later that they retrieved these shell casings?

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It happened on April 4th.

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Did you say on April 9th they retrieved them?

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I'll just misspoke.

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The next day, on April 5th, they retrieved the shell casings.

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The firearm was found in his car three weeks later on April 27th.

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A different firearm was found on May 9th, and yet a third .45 caliber firearm was found in his car in Maryland on October 27th.

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And so the- You do a lot of prosecutions.

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How often are you in drug, the guns involved in crime, just in your own experience, I'm just asking the question out of my own ignorance.

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How often is it a .45 that's used in drug crimes?

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You don't have to give me a percentage, common, uncommon?

[00:18:05] Speaker 03:
It's not uncommon, Your Honor.

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But again, I don't think the commonality has anything to do with whether the fact that the district court either changed her mind or her finding that the defendant... I read your argument.

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I thought your argument was different because I thought the argument that you were pressing in your brief

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was not that later on because of the other evidence concerning the .45 it was more likely that in fact he was using a .45 at the gunfight.

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I thought your argument was that it doesn't matter because

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She might have discounted the notion at time A that he was shooting with a gun, but that's not to the exclusion of the suggestion that he might have been doing something else at the scene, like picking up shell casings or helping people who were there.

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I thought that was the focal point of your argument.

[00:18:49] Speaker 03:
That is the focal point of the argument we made in the brief.

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I was responding to Judge Henderson's suggestion that the district court did a 180.

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that she found completely different facts at the time of sentencing than she had found.

[00:19:00] Speaker 04:
Right, and I thought your response, I thought your response was that it's not a 180 because what she was talking about at the first time was whether he was shooting.

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What she was talking about the second time was included things beyond shooting like being on the scene but helping picking up casings and things like that.

[00:19:16] Speaker 04:
Yeah, sure.

[00:19:19] Speaker 00:
So you read the language from her sentencing, from the sentencing transcript, what is clear from the government, from the defendant's involvement and participation in the gunfight, that that could consist of picking up casings,

[00:19:36] Speaker 03:
Immediately before that, the trial court says we don't know the precise reason for the gunfight or the defendant's precise role.

[00:19:43] Speaker 04:
Right, but I guess I raised this argument because I wanted to ask some follow-up questions about it along the lines of what Judge Hendricks is asking because

[00:19:51] Speaker 04:
It's hypothetically conceivable that someone is at the scene of a gunfight and all they're doing is picking up shell casings.

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I don't deny that that's physically possible.

[00:20:01] Speaker 04:
But it doesn't seem that that's what she was thinking about.

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Because what she ends with, and this is the statement you really focus on, is that you take into account all this evidence and what it shows is that he was clearly prepared to use a gun as part of his illegal drug business.

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But I don't understand what picking up shell casings has to do with using a gun.

[00:20:22] Speaker 04:
We don't ordinarily think of using a gun as being on the scene of a gunfight, but all you're doing is not actually shooting.

[00:20:28] Speaker 04:
All you're doing is picking up shell casings.

[00:20:30] Speaker 04:
That doesn't seem like evidence of using a gun as part of the illegal drug business.

[00:20:35] Speaker 04:
That sounds like somebody who happens to be at the scene of a gunfight and their custodial instincts take over and they want to sweep up some shell casings.

[00:20:42] Speaker 03:
It just seems different.

[00:20:44] Speaker 03:
I don't think it's different, Your Honor, because she didn't say he has used a gun.

[00:20:48] Speaker 03:
She said he's prepared to use a gun.

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He was constantly armed.

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He constantly had guns in conjunction with drugs, both during the May 9th search warrant and the October 27th search warrant.

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And he wasn't fleeing the scene of a gunfight.

[00:21:01] Speaker 03:
He was involved and participated in it.

[00:21:03] Speaker 03:
She recognized that we didn't know his precise role, but he was running up and down the street with a group of men

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He was picking up items off the ground.

[00:21:11] Speaker 03:
This is someone who, if he was not in fact firing at the time, was involved in the gunfight in a meaningful way beyond simply fleeing as... I also read, by the way, when she says, and you're right to focus on the statement, but when she said she didn't know the precise role,

[00:21:28] Speaker 04:
I think the way you're reading it is we don't know the precise role in the sense that we don't know whether he was shooting or whether he was doing something else.

[00:21:34] Speaker 04:
When I think of somebody being at a gunfight and the statement is made, we don't know what their precise role was, what I think is not that we don't know whether he was shooting, it's that we don't know whether he instigated it, we don't know how many shots he fired, we don't know which team he was on.

[00:21:48] Speaker 04:
That kind of stuff determines what your role is, not whether you're actually

[00:21:52] Speaker 04:
wielding a gun and using it?

[00:21:54] Speaker 03:
Well, I think her use of that language reflects her use of similar language at the hearing on the motion, in which she recognized that, and in her written order, in which she recognized that no one saw the defendant with a gun in his hand.

[00:22:07] Speaker 03:
No one put the defendant in a position of firing shots during the gunfight, but they nevertheless put him in a position of being involved in that gunfight.

[00:22:15] Speaker 03:
And that

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evidence, or that finding that he participated and was involved in a gunfight is supported by a preponderance of the evidence.

[00:22:25] Speaker 02:
What do you mean by, I think you said in a material way, if he wasn't shooting, he wasn't seen even holding a gun, there's no evidence at all, or even argument by you to use a lookout.

[00:22:38] Speaker 02:
What was his involvement?

[00:22:40] Speaker 03:
The involvement was that he was running up and down with a group of men, so we would be speculating as to his involvement, and that's exactly what the district court refused to do.

[00:22:50] Speaker 03:
She just said that he participated and was involved in it.

[00:22:53] Speaker 03:
Two separate witnesses put him involved in this gunfight, and that's why... Well, what do you mean by involved?

[00:23:02] Speaker 03:
He could have been picking up shells.

[00:23:05] Speaker 03:
A witness saw him reaching down as though he were picking something up, so picking up evidence of his involvement in the gunfight, or picking up evidence of others' involvement in the gunfight.

[00:23:15] Speaker 03:
Running up and down the street with other men could be to, as you said, act as a lookout, could be to encourage others, could be to support others in their shooting during this gunfight.

[00:23:27] Speaker 02:
And then as, look, that's what I'm really trying to understand.

[00:23:29] Speaker 02:
So before conviction,

[00:23:32] Speaker 02:
The judge's view was whether it was that or just trying to get out of the way is entirely speculative.

[00:23:40] Speaker 02:
It doesn't cross the preponderance line.

[00:23:43] Speaker 02:
It's equal or just as likely, I think were her words.

[00:23:46] Speaker 02:
And then by convicting him of possessing a gun in his house about a month later, your view is that changed how that was no longer speculative because

[00:24:00] Speaker 03:
What she said in her written order was that him running away was equally or perhaps more likely than him firing a gun during the gunfight.

[00:24:11] Speaker 03:
She didn't say him merely being there and being involved in some way.

[00:24:15] Speaker 03:
She said that

[00:24:17] Speaker 03:
that the government intended to argue that he was firing a gun during the gunfight, and her specific language that the court references in her order is comparing his firing a gun during the gunfight with these other things that she found to be equally plausible inferences.

[00:24:34] Speaker 03:
And she didn't say at sentencing that she finds that he was firing a gun during the gunfight, and that's why she was giving him the bottom of the guideline sentence that she imposed.

[00:24:43] Speaker 03:
She in fact said that it was his

[00:24:46] Speaker 03:
the fact that he was prepared to use a gun, which is amply supported by the three guns found in his possession over the course of the six months, and that his drug conviction was associated with guns, which again is amply supported by the evidence, both of the gun found for which he was convicted in this case as well as the gun in his car during the October 27th.

[00:25:07] Speaker 04:
It might be amply supported in the sense that

[00:25:10] Speaker 04:
I think a judge could base a sentence on stuff that's completely independent of the gunfight.

[00:25:17] Speaker 04:
But here, she clearly took into account the gunfight.

[00:25:20] Speaker 03:
She took into account his involvement and participation in the gunfight, which, again, is supported by a preponderance of the evidence and is not contrary to her ruling on the 404B, which she said was a close issue.

[00:25:33] Speaker 03:
But she nevertheless found it to be more prejudicial than probative because the government's clear intention was to argue that the defendant was firing the gun during the gunfight.

[00:25:41] Speaker 03:
And she thought that that was incredibly prejudicial given that no one put a gun in his hand.

[00:25:46] Speaker 03:
But that's not different than what she found at sentencing, which was that he was

[00:25:50] Speaker 04:
Now, if we saw, if we read the sentencing part related to the gunfight as concerning exclusively shooting, so not some other role, let's just, I know you'd dispute that, but let's just bear with me for a second, and we thought that she was referring to the possibility that he was shooting in both, then you don't take issue with the notion that at that point, the evidence of the gunfight has to drop out, and what you're left with is the other indicia of gun use.

[00:26:18] Speaker 03:
Certainly, if the court read it as finding that he was shooting, the government would concede that a remand is necessary for the district court to clarify on what basis she was now finding that.

[00:26:29] Speaker 03:
And the government thinks that could be supported by the fact that he was later convicted of having a gun in that precise location of that precise caliber on May 9th.

[00:26:38] Speaker 04:
But that's not something that she based it on.

[00:26:40] Speaker 04:
All right, so you have to remand to spin out that theory.

[00:26:43] Speaker 03:
To spin out that theory.

[00:26:44] Speaker 03:
But the fact that he participated and was involved in this gunfight is amply supported, and no remand would be necessary.

[00:26:51] Speaker 03:
And even if the court disagreed with that.

[00:26:52] Speaker 04:
Wait, but no, no.

[00:26:53] Speaker 04:
Why wouldn't anybody remand business?

[00:26:54] Speaker 04:
Because if you accept my hypothesis, which is that she was talking exclusively about shooting both times.

[00:27:00] Speaker 03:
I'm saying, I'm disagreeing with that hypothesis.

[00:27:04] Speaker 03:
If that hypothesis is incorrect, then her finding that he was involved with and participated in the gunfight is amply supported by the evidence and is nonetheless harmless error, given the many other guns in this defendant's possession in a very short period of time.

[00:27:20] Speaker 04:
And on harmless error, what's the standard by which you think you need to show that the error was harmless?

[00:27:24] Speaker 04:
Now we're talking about a situation, as I understand it, in which

[00:27:27] Speaker 04:
You're with me in saying that we're discounting the evidence of the gunfight because, by hypothesis, her two findings are mutually exclusive, and you would agree that you'd have to remand for her to square that.

[00:27:39] Speaker 04:
Then your argument would be, but even if you take that out of the equation altogether, you're still left with the other things she mentioned about his gun use.

[00:27:46] Speaker 03:
Yes, Your Honor.

[00:27:47] Speaker 03:
So if it's constitutional error, such as occurred in the post-Booker cases with application of mandatory guidelines, this court applied harmless beyond a reasonable doubt to non-constitutional error, the court has applied the typical harmless standard analysis.

[00:28:04] Speaker 03:
Which is it?

[00:28:07] Speaker 03:
I'm not sure, Your Honor.

[00:28:08] Speaker 03:
I know that the Supreme Court recently discussed the fact that facts of sentencing must be proven by clear and convincing evidence.

[00:28:15] Speaker 03:
I don't remember if they said that was required by due process or if they merely read that as required by various statutes in the sentencing guidelines.

[00:28:24] Speaker 04:
If it's required by due process, then the judgment standard would apply and it would be harmless beyond a reasonable doubt?

[00:28:29] Speaker 04:
Yes.

[00:28:31] Speaker 00:
OK.

[00:28:31] Speaker 00:
Let me ask you about something else.

[00:28:32] Speaker 00:
I've got from the motions hearing, the court said,

[00:28:36] Speaker 00:
You have clarity that Mr. Capote, from two witnesses, was on the street.

[00:28:42] Speaker 00:
You have clarity that Mr. Capote ran into his house.

[00:28:44] Speaker 00:
You have clarity from the witnesses' accounts that he was ducking behind cars.

[00:28:49] Speaker 00:
Now, that's of emotions, hearing.

[00:28:51] Speaker 00:
And I didn't look at their trial testimony.

[00:28:54] Speaker 00:
But then it's sentencing, she says.

[00:28:57] Speaker 00:
And in this case, two eyewitnesses identified Mr. Capote as participating in such a gunfight outside his home.

[00:29:06] Speaker 00:
Did they change during trial?

[00:29:08] Speaker 00:
Did they... Those witnesses did not testify at trial because the government... Alright, so when they did, the only time they did testify, she characterized their testimony as he was on the street, he ran into his house, he was ducking behind cars, and that changes to two eyewitnesses identified him as participating in such a gunfight.

[00:29:31] Speaker 03:
So this was all based upon the government's proffer of what the witnesses would say.

[00:29:36] Speaker 03:
They never actually testified.

[00:29:37] Speaker 03:
That proffer is in the record materials.

[00:29:40] Speaker 03:
It's also described in the court's order.

[00:29:42] Speaker 03:
But the participation and involvement that she was discussing both times is him running up and down the street with a group of men while gunshots are being fired and him ducking behind cars shortly after the gunshots are fired as though he were retrieving items from the ground.

[00:29:57] Speaker 03:
before going into his house, as well as the 14-45 caliber casings of the 29 total found in the immediate vicinity of his house.

[00:30:06] Speaker 03:
And so that was, in sum, the government's proffer that she was discussing.

[00:30:10] Speaker 00:
So you think when she says, during sentencing, two eyewitnesses identified the defendant as participating in such a gunfight, that does not

[00:30:24] Speaker 00:
contradict, that is, participating in such a gunfight, what she said was proper at motions that they saw him near his house, ducking behind a car, and reaching for something.

[00:30:36] Speaker 03:
I don't think it does contradict.

[00:30:37] Speaker 03:
And as I was saying earlier, Your Honor, I'm not changing my argument, but supplementing it.

[00:30:43] Speaker 03:
The argument is that it doesn't contradict, but to the degree it does, she has additional evidence she can take into account at sentencing.

[00:30:48] Speaker 03:
that she didn't have at the time of the 404B ruling, which is his conviction for possessing a .45 caliber.

[00:30:55] Speaker 04:
But for which you agree a remand would be necessary, since she didn't take that into account in the first instance.

[00:31:01] Speaker 03:
Well, a remand would only be necessary if the court reads the trial court's finding as finding that he was shooting on.

[00:31:09] Speaker 04:
Right, but I think even by your own argument, we'd be reading it that way, because what you're talking about is completely independent evidence of other gun use.

[00:31:16] Speaker 04:
So you're right.

[00:31:19] Speaker 04:
If you could square the seeming inconsistency by saying that the first time she was only talking about shooting, and the second time she was talking about picking up shell casings in addition to shooting, then we never get to the other evidence of gun use.

[00:31:29] Speaker 04:
But in order to take into account the other evidence of gun use, we're presuming that she was talking about shooting both times, and your argument is, well, she could still sustain that based on this other evidence of gun use.

[00:31:40] Speaker 04:
And all I'm saying is, but for that, we need to remand because she didn't do that the first time.

[00:31:44] Speaker 04:
Yes, that's correct.

[00:31:45] Speaker 00:
I've got one more question, and that is this.

[00:31:48] Speaker 00:
She also says that his involvement and participation in the gunfight, whatever it was, combined with the loaded guns and so forth, she then concludes he was clearly prepared to use a gun as part of his illegal drug business.

[00:32:04] Speaker 00:
First of all, he was acquitted of the 924C, that is,

[00:32:11] Speaker 00:
use or possession of carrying a gun in connection with drug trafficking.

[00:32:15] Speaker 00:
I know she can consider it as relevant evidence, irrelevant conduct, but if you buy that his participation consisted of picking up shell casings and she then uses that as part of her conclusion that he was prepared to use a gun as part of his

[00:32:37] Speaker 00:
illegal drug business, then aren't you saying picking up shell casings is enough to, not to support a 924C because he was acquitted of that, but is enough to show that he was prepared to use a gun in the drug trade?

[00:32:56] Speaker 03:
Putting entirely putting aside the April 4th shooting incident, the evidence supports a finding that he was prepared to use a firearm as part of his illegal drug trade.

[00:33:05] Speaker 03:
He was found with a firearm, a loaded firearm, in his car on April 27th.

[00:33:10] Speaker 03:
That gun was taken away.

[00:33:11] Speaker 03:
Two weeks later on May 9th,

[00:33:13] Speaker 03:
Officers executed a search warrant at his house in which they found the same caliber firearm and drugs those were taken away Three or four months later on October 27th officers performed a search warrant of a different residents of his in Maryland They again found drugs.

[00:33:28] Speaker 03:
They again found a 45 caliber firearm as well as 45 caliber shells and empty

[00:33:36] Speaker 00:
Okay, but the only time there was ever the firing of a gun was on April 4th.

[00:33:42] Speaker 03:
Right, Your Honor, but the fact that he either constantly re-armed himself or owned numerous firearms while engaging in the drug traffic, in the drug trade, amply support by preponderance the conclusion that he was prepared to use a firearm as part of his drug trade.

[00:33:56] Speaker 03:
It's not as though one was taken away and he gave up on owning guns.

[00:33:59] Speaker 03:
He either owned several or he constantly re-armed himself.

[00:34:02] Speaker 03:
as he was actively dealing a substantial amount of drugs.

[00:34:06] Speaker 03:
So regardless, even entirely putting aside the April 4th shooting incident, the conclusion that he was prepared to use a firearm in the course of his drug trafficking business was amply supported by the evidence.

[00:34:19] Speaker 03:
For those reasons, we'd ask the trial court to be affirmed.

[00:34:21] Speaker 03:
Thank you.

[00:34:21] Speaker 03:
Thank you.

[00:34:22] Speaker 00:
Does Ms.

[00:34:23] Speaker 00:
Rollin have any comments?

[00:34:27] Speaker 01:
I would like to make two quick points.

[00:34:31] Speaker 01:
One is that at page 12 of the sentencing, the court said the other evidence in this case shows that the defendant possessed guns and that there's no surprise that he also used them.

[00:34:42] Speaker 01:
As disturbing as it is that he would engage in a shootout on the residential streets of the city.

[00:34:48] Speaker 01:
I don't think with that statement there could be any claim that she was finding that he might have picked up shell casings or done something else.

[00:34:55] Speaker 01:
I also wanted to point out that the government had two opportunities to provide more evidence beyond just the proffers of what the witnesses would say if they hadn't.

[00:35:06] Speaker 01:
The court asked for more evidence before she ruled on their 404B motion, and they did not provide more evidence.

[00:35:16] Speaker 01:
At sentencing, the defendant disputed the allegations and the government still did not come forth with any evidence.

[00:35:27] Speaker 00:
What was the trial evidence of the shootout?

[00:35:31] Speaker 01:
There was none.

[00:35:33] Speaker 00:
OK.

[00:35:35] Speaker 01:
Because she excluded it.

[00:35:36] Speaker 01:
That's right.

[00:35:37] Speaker 01:
OK.

[00:35:39] Speaker 01:
We ask that the court remain the case for re-sentencing.

[00:35:42] Speaker 01:
Thank you.