[00:00:00] Speaker 03: Case number 20-1313, United States of America versus Xavier Jamel Orange, also known as Xavier Louis Jamel, also known as Xavier J. Lewis, also known as Xavier J. Orange at balance. [00:00:14] Speaker 03: Ms. [00:00:14] Speaker 03: Wright for the balance, Mr. Hahn for the appellee. [00:00:18] Speaker 01: Ms. [00:00:19] Speaker 01: Wright, please proceed whenever you're ready. [00:00:22] Speaker 05: Thank you. [00:00:22] Speaker 05: Good morning. [00:00:23] Speaker 05: May it please the court, Lisa Wright for Xavier Orange. [00:00:26] Speaker 05: I'd like to reserve two minutes for rebuttal. [00:00:29] Speaker 05: Sentencing counsel here was ineffective in failing to raise meritorious challenges to two enhancements that together more than doubled Mr. Orange's guideline range, the crime violence enhancement and the extended magazine enhancement. [00:00:44] Speaker 05: As to the crime of violence enhancement, that was applied to Mr. Orange's prior attempted assault with a dangerous weapon or attempted ADW. [00:00:53] Speaker 05: In 2018, [00:00:55] Speaker 05: This court in Brown relied on the attempt commentary in finding that attempted ADW was a crime of violence. [00:01:03] Speaker 05: But by the time of Mr. Orange's sentencing, the Supreme Court had decided Kaiser. [00:01:09] Speaker 05: And after Kaiser, it was clear that the attempt commentary could not be relied on to expand the clear text of the crime of violence guideline. [00:01:19] Speaker 05: And indeed the government does not claim that the text of the guideline [00:01:23] Speaker 05: contains any genuine ambiguity that would justify deference to the sentence and commission's commentary. [00:01:29] Speaker 05: So looking just at the plain text of the guideline, it's clear that DC Attempted ADW does not, quote, have as an element the use, attempted use, or threatened use of physical force against a person of another. [00:01:43] Speaker 01: Because even- If we're starting with text of the relevant guideline, the relevant guideline is 2K2.1. [00:01:52] Speaker 01: Correct. [00:01:53] Speaker 01: Yes, and that guideline says, use the meaning given in not just for be 1.2 but for be 1.2, and the application. [00:02:09] Speaker 01: And the application out to for be 1.2 expressly includes attempts. [00:02:21] Speaker 05: Which section of 2K 2. [00:02:26] Speaker 05: Is that referring to an application note in 2K 2.1? [00:02:29] Speaker 05: I'm sorry. [00:02:31] Speaker 01: Yes. [00:02:32] Speaker 05: Yes, the application note one, yes. [00:02:35] Speaker 01: It says crime of violence. [00:02:37] Speaker 01: Right. [00:02:38] Speaker 01: Which is undefined in 2K. [00:02:41] Speaker 01: Right. [00:02:42] Speaker 01: As the meaning given that term in the text of 4B 1.2, [00:02:51] Speaker 01: and the application note of 4B1.2. [00:02:55] Speaker 01: So even if you were correct that in a 4B1.2 case, the application note in 4B1.2 goes beyond the text of 4B1.2, this application note says use the other one. [00:03:15] Speaker 01: It picks up attempt. [00:03:18] Speaker 05: I mean, it's simply a cross-reference. [00:03:21] Speaker 05: So I guess I would say that to the extent the cross-reference commentary is basically invalid under Kaiser, it can't be incorporated through another commentary to 2K 2.1. [00:03:36] Speaker 05: I mean, it's still just commentary and it's just really invalid under the circumstances. [00:03:49] Speaker 05: think the government's even claiming now that the commentary, you know, is effective. [00:03:56] Speaker 05: And of course, the same language is interpreted in ACCA and other statutes without any commentary. [00:04:02] Speaker 05: So it does seem like it's surplusage to some degree. [00:04:05] Speaker 01: That's fair. [00:04:06] Speaker 01: Both sides treat 2K2.1 as co-extensive with [00:04:12] Speaker 01: or B1.2 and maybe that's a perfectly good answer for you. [00:04:16] Speaker 01: I'm just not sure it's right, but go ahead. [00:04:18] Speaker 04: Okay. [00:04:20] Speaker 04: Ms. [00:04:20] Speaker 04: Wright, can I also ask you, how should we think about Kaiser in the context of the guidelines? [00:04:26] Speaker 04: Because the guidelines are themselves not binding and the commentary is not binding. [00:04:33] Speaker 04: So we're looking at a non-binding interpretation of a non-binding guidelines. [00:04:39] Speaker 04: So does Kaiser even apply in that context? [00:04:44] Speaker 05: I think so. [00:04:45] Speaker 05: I mean, Congress does approve the guidelines and the commission, you know, passes them through a formal process. [00:04:57] Speaker 05: And then the commentary, I mean, Stinson said that the commentary was entitled to some deference. [00:05:09] Speaker 05: And Stinson has basically been restricted now by Kaiser. [00:05:14] Speaker 05: So I guess Stinson treated the guidelines like other regulations, more or less. [00:05:20] Speaker 05: I understand it's not exactly the same, but, and certainly in Winstead, Stinson was treated as applicable to the guidelines. [00:05:32] Speaker 04: Well, but in Winstead, that was at a time when the guidelines were still treated as binding. [00:05:39] Speaker 05: Um, I, cause it wasn't, yeah, I think so. [00:05:43] Speaker 05: Oh, well, I mean, the case was only a few years ago. [00:05:46] Speaker 05: Um, I guess the, I'm not sure of the year. [00:05:51] Speaker 05: Well, maybe I think it was post-booker that that's occurred. [00:05:57] Speaker 05: I'm not, yeah, but it was like 2011 or 12 that he was sentenced. [00:06:02] Speaker 05: So that was post-booker. [00:06:04] Speaker 05: Um, [00:06:06] Speaker 05: So, I mean, our argument looking at the text is very simple that because even a completed assault only requires, you know, either an attempt to use force or a threat to use the force with, you know, through use of a weapon that. [00:06:23] Speaker 02: This case all comes down, does it not, to the argument that an attempt to threaten exceeds the [00:06:36] Speaker 02: a crime or violence. [00:06:40] Speaker 05: That's right. [00:06:41] Speaker 02: That's the key issue in the case. [00:06:45] Speaker 05: It is. [00:06:46] Speaker 05: I mean, I think technically an attempt to attempt to use force is also a step removed, but I think it's a lot clearer when you think of it in terms of attempt to threaten that our point is much clearer. [00:06:59] Speaker 05: And it's just one step removed from what is called for. [00:07:05] Speaker 05: The government has now acknowledged that a defendant can satisfy the elements of attempted ADW by attempting to threaten use of force against a person, for example, by getting a weapon and traveling to get the victim with the intention of committing an ADW by threat, or that is by an intent to frighten ADW with danger. [00:07:28] Speaker 02: The government's argument is your position is really artificial. [00:07:32] Speaker 02: never in a million years would anybody be prosecuted for an attempt to threaten. [00:07:39] Speaker 05: That was their argument, I think, but unless I'm misinterpreting the letter they sent yesterday, I think they're acknowledging now that such crimes do exist and do equate to attempted assault, dangerous robbery. [00:07:57] Speaker 02: I'm sorry, I didn't see the letter yesterday. [00:08:02] Speaker 05: It's just a simple one paragraph letter if I can pull it up. [00:08:14] Speaker 01: I have it. [00:08:18] Speaker 01: It concedes that the statute covers the hypo everyone's talking about, about the defendant who goes to the victim's house and is picked up on the doorstep. [00:08:30] Speaker 02: Greg, you mean the guidelines, not the statute? [00:08:33] Speaker 02: I'm sorry, yeah. [00:08:38] Speaker 02: So what's, I'll be interested to hear what the government's case is now. [00:08:42] Speaker 05: Yeah, I mean, with that out of the way, it just seems like clearly council failed to raise a meritorious objection and whether or not, you know, the only issue really remaining is should he have seen it? [00:08:54] Speaker 02: And I think that given that he was pointed- No, no, no, there's another issue, an important issue in the case, which is, is there really any prejudice [00:09:03] Speaker 02: I mean, it's hard to imagine a district judge more annoyed at a defendant and more anxious to impose a tough sentence regardless of the guidelines. [00:09:20] Speaker 05: Right. [00:09:20] Speaker 05: I mean, I was going to deal with prejudice separately. [00:09:22] Speaker 05: I guess I would say the only issue as far as whether he was deficient was whether he would have recognized it. [00:09:28] Speaker 05: And we think that because of the sort of breadcrumb trail he was given to Winstead and [00:09:33] Speaker 05: Stinson and, you know, basically Kaiser is all about the Seminole Rock deference that was discussed in Winstead. [00:09:43] Speaker 05: And if you Google, I mean, if you Westlaw Stinson, up pops Kaiser. [00:09:47] Speaker 05: So he should have seen it now, but I'm happy to address the prejudice. [00:09:54] Speaker 01: I mean- Yeah, just before you get to that, just one question on deficient performance, which is, [00:10:00] Speaker 01: I mean, it has to be more than just failing to raise an objection that turns out to be meritorious, right? [00:10:11] Speaker 01: Because otherwise Strickland completely swallows up any obligation to preserve issues. [00:10:21] Speaker 05: I understand what the court's saying, but I think that in this case, [00:10:27] Speaker 05: there is a foreshadowing or what I guess they talked about the building blocks and bridges. [00:10:32] Speaker 05: And also in Winstead, there was a discussion of like, this was out there, this was available and why wouldn't you raise it if there's something that creates these building blocks for you. [00:10:44] Speaker 05: And I would say there were special circumstances here even in that really alerted council that he needed to dig in and find this or look at the thing carefully. [00:10:52] Speaker 05: I mean, you don't even have to look that carefully, honestly, but the fact that [00:10:56] Speaker 05: the enhancement was a surprise, the government wasn't arguing it. [00:11:02] Speaker 05: And even after the PSR, I guess at that point the government did, well, that's a little unclear, but the point is it's a red flag when the government has agreed that something doesn't apply and then it comes up as a surprise and it creates such a large addition to the guideline range. [00:11:25] Speaker 05: And [00:11:26] Speaker 05: Also, I think it's pretty established that this categorical, first of all, defense counsel's ability to understand the guidelines is like a core competency of a defense lawyer, including the categorical approach. [00:11:38] Speaker 05: And really the fact that it may be counterintuitive sometimes or result in some odd outcomes is almost more the reason that you don't assume anything and that he should have like carefully [00:11:52] Speaker 05: looked at this and of course Stinson, I mean, Brown itself says there's no Stinson argument here. [00:11:58] Speaker 05: All he had to do was put Stinson into Westlaw and he would have seen, oh look, Stinson's been even narrowed more greatly and there was already Winstead. [00:12:09] Speaker 05: So I guess I just think there couldn't be more of a like taking them by the hand to find this issue. [00:12:17] Speaker 05: So even if you may not [00:12:19] Speaker 05: If you're the only first person to ever think of something, maybe, but when it's out there, what is the justification for council to not raise it is what I would say. [00:12:30] Speaker 02: Was this an assigned council? [00:12:35] Speaker 05: I'm not sure if he was retained or appointed. [00:12:40] Speaker 05: I'm not sure. [00:12:42] Speaker 05: It was a person outside our office, but I don't know. [00:12:46] Speaker 05: I can't remember. [00:12:47] Speaker 05: I think he may have been retained. [00:12:50] Speaker 05: I don't want to say that for sure. [00:12:53] Speaker 01: You don't dispute the general proposition that the error has to be obvious. [00:12:59] Speaker 01: You're just saying this one was. [00:13:02] Speaker 05: It was obvious. [00:13:03] Speaker 05: I mean, it has to be, yeah, obvious, available. [00:13:07] Speaker 02: Which case do you think made it obvious? [00:13:11] Speaker 02: Winstead or Brown? [00:13:13] Speaker 05: I guess [00:13:16] Speaker 05: Winstead, but Brown pointed him to Winstead and then Stinson also and Kaiser. [00:13:22] Speaker 05: I mean Stinson and Kaiser and Winstead, those three, it's there. [00:13:25] Speaker 02: I agree with you that Winstead was really a major opinion. [00:13:34] Speaker 02: I'm teasing, of course, since I wrote it. [00:13:35] Speaker 01: Brilliant opinion. [00:13:37] Speaker 05: Indeed. [00:13:38] Speaker 05: Act-breaking. [00:13:41] Speaker 05: I want to point out to the council, council, you know, more on deficient performance. [00:13:47] Speaker 05: Okay. [00:13:47] Speaker 05: I just, yes. [00:13:49] Speaker 01: I am interested in prejudice as well. [00:13:51] Speaker 05: Okay. [00:13:52] Speaker 05: I was just, I was just going to point out that council, you know, it appears, wasn't familiar with the categorical approach at all. [00:13:58] Speaker 02: So, I mean, that's a little bit of a flavor here of kind of he wanted to go over to the superior court to check the facts in the case. [00:14:08] Speaker 05: Correct. [00:14:09] Speaker 05: So, I mean, [00:14:10] Speaker 05: does seem like he was in over his head on this whole issue, but in a little bit of digging would have brought this up. [00:14:18] Speaker 05: So on the prejudice, I wanted to, if we're turning to that, I guess if the court's referring to the, I mean, obviously when the guidelines change, there is Martina's, Marina Martinez, I think it is, I'm not getting that correct perhaps, [00:14:39] Speaker 05: indicates that normally, of course, we would assume that that there's a reasonable probability that the sentence would change. [00:14:46] Speaker 05: And we understand that here. [00:14:48] Speaker 01: Unless the district court otherwise makes clear and this is clear as can be. [00:14:54] Speaker 05: Well, it's it's not what it doesn't do. [00:14:56] Speaker 05: It's just general. [00:14:58] Speaker 05: It's just saying whatever the guidelines are, I would give you this sentence. [00:15:03] Speaker 05: And if that is enough, then that is no, no, no, no. [00:15:06] Speaker 02: He went further. [00:15:08] Speaker 02: He went further actually commenting that the prior sentences were inadequate. [00:15:13] Speaker 02: And then this fellow was really dangerous with his arsenal of guns. [00:15:19] Speaker 02: I mean, it was pretty it was dripping with the judges comments were dripping with concern that this fellow should be put away for a long time. [00:15:29] Speaker 02: Well, that's true. [00:15:30] Speaker 05: But I would say that the judge was not addressing a specific alternative and saying, if this, then I would still do that. [00:15:39] Speaker 05: He wasn't even aware of these issues. [00:15:42] Speaker 05: This is in a situation where defense counsel says, I object to such and such. [00:15:47] Speaker 05: And the judge says, well, I disagree with you, but even if you're right, then the judge knows what he's considering. [00:15:53] Speaker 05: Here, these are issues the judge couldn't have considered them and justified [00:16:00] Speaker 05: variance from these ranges when he wasn't aware of the arguments that made these ranges appropriate. [00:16:06] Speaker 01: Think of how this issue comes up. [00:16:15] Speaker 01: The government makes a deal on the assumption that neither adjustment applies and it produces one range. [00:16:26] Speaker 01: Then the probation office figures out, oh, well, maybe one of the two ranges, one of the two adjustments applies and it produces a different range. [00:16:38] Speaker 01: And then the judge figures maybe the second adjustment applies and it produces a third range. [00:16:46] Speaker 01: I mean, that's a pretty structured decision tree of, [00:16:53] Speaker 01: figuring out which of the two options applies. [00:16:55] Speaker 01: And that leads you to a defined guideline range. [00:16:59] Speaker 01: And that's the background against which he says, regardless of whether the adjustments apply, I would come out to this sentence. [00:17:08] Speaker 05: Well, I don't think he was referring at all to the crime and violence enhancement. [00:17:13] Speaker 05: He didn't have any, he specifically asked counsel, are you objecting to that? [00:17:17] Speaker 05: And he said, no. [00:17:18] Speaker 05: So at that point, that's off the table. [00:17:20] Speaker 05: I mean, that is not what the judge is thinking about when he's saying that he would vary. [00:17:27] Speaker 05: I'm not saying he can't vary, but he needs to, under Gall, he needs to, and under Parks, this court's decision of Parks, he needs to explain why the particular range that he's alternatively considering isn't sufficient [00:17:44] Speaker 05: And here it was just a lot more general than that. [00:17:47] Speaker 05: And if we allow, if court can just say that sort of general statement that this person's terrible and this is the sentence I would pick no matter what, that's no different than not making the judge decide, calculate the guidelines at all, because it totally insulates the guideline calculations. [00:18:04] Speaker 04: Aren't those standards though, the standards that you're stating, the standards we would apply on direct appeal, [00:18:11] Speaker 04: Whereas here we're just trying to consider the question of prejudice and whether there's a reasonable probability that the judge would have given the same sentence, which I think from the record here, it's amply clear that there's certainly at least a reasonable probability that he would do so. [00:18:29] Speaker 05: Well, I think the reasonable probability standard is very favorable for us. [00:18:35] Speaker 05: It's a very low standard. [00:18:37] Speaker 05: And it's generally satisfied whenever the range changes because otherwise what's really happening here is the judge just saying, I don't care what the guideline range is. [00:18:46] Speaker 05: But yet he seemed to care what the guideline range was when he thought it was 46 to 57 and he picked the top, the high end of it. [00:18:54] Speaker 05: And then, you know, it's a bit of a, I guess I would say somewhat of a [00:18:59] Speaker 05: he must have cared about the range because otherwise it's kind of a strange coincidence that the one number that is the sufficient but not greater than necessary number. [00:19:06] Speaker 04: If the exceptions in Molina Martinez don't apply here, what would the district judge have to say in order to? [00:19:15] Speaker 05: He would have to say that even if you're at level 14 or even if you're at level 20, which were the, I guess, [00:19:27] Speaker 05: Pick say if you were at this range this not just that I would do it, but I would do it because that range. [00:19:35] Speaker 05: Justifies a deviation of 30 months, you know if it was really 21 to 27 I would find that a deviation of 30 months was justified because of the following reasons or and also I would you know. [00:19:48] Speaker 05: whatever range we're talking about, he needs to think about that extent of the deviation is what I mean. [00:19:54] Speaker 04: Do you have any cases where court has opposed that type of standard in effective assistance context? [00:20:04] Speaker 05: I guess Parks is not, I'm not recalling the exact context of Parks, whether that was an effectiveness or I'm not sure I have to double check that. [00:20:20] Speaker 05: And I'd have to think about that. [00:20:21] Speaker 05: I mean, there's many, many cases where this court has said that that's what you have to do. [00:20:25] Speaker 05: And that's what Gaal says you have to do. [00:20:27] Speaker 05: You can't just say, and this court had a case before Gaal, I think, where a court was saying, I don't even need to calculate the range because I'm telling you right now, this is the sentence that's sufficient, but not greater than necessary. [00:20:41] Speaker 05: And this court said, you can't do that. [00:20:42] Speaker 05: And then Gaal came out and said, that's right. [00:20:45] Speaker 05: You can't do that because you have to, [00:20:48] Speaker 05: Calculate the range as a starting point and an anchor and a benchmark. [00:20:51] Speaker 05: And then that creates a gravitational pull that you have to pull back against and you got to know how much gravitational pull you got to overcome to get to the 57 months here. [00:21:01] Speaker 05: Was it 30 months? [00:21:02] Speaker 05: He wasn't even considering that the range might've been 21 to 27 because nobody had argued that that had been given up. [00:21:13] Speaker 05: So I don't know if the court is interested in hearing about the, [00:21:18] Speaker 05: extended magazine at all, but I'm obviously like to argue that, but there's no other questions. [00:21:28] Speaker 01: It's pretty straightforward from the brief. [00:21:30] Speaker 01: So thank you, Ms. [00:21:31] Speaker 01: Wright. [00:21:32] Speaker 01: Thank you. [00:21:33] Speaker 01: Questions from my colleagues. [00:21:35] Speaker 01: Thanks, Ms. [00:21:36] Speaker 01: Wright. [00:21:36] Speaker 01: We'll hear from you, Mr. Hahn. [00:21:39] Speaker 00: Thank you, Your Honor. [00:21:40] Speaker 00: May it please the court, Brian Hahn for Pelley, the United States. [00:21:44] Speaker 00: Appellants trial counsel in this case [00:21:46] Speaker 00: did not perform deficiently by not challenging the crime and violence enhancement or the high capacity magazine enhancement in the way that appellant claims an appeal because neither challenged. [00:21:58] Speaker 02: Here's my question to you. [00:22:01] Speaker 02: Isn't the question of the categorical nature of a past crime fundamental to Supreme Court in our cases? [00:22:11] Speaker 02: And isn't it rather clear that this counsel [00:22:15] Speaker 02: appointed or retained didn't even understand this fundamental point of the categorical nature of the prior crimes. [00:22:29] Speaker 00: I would agree that the categorical approach is the way that it's really well settled at this point. [00:22:35] Speaker 02: No, but I'm saying that this is so fundamental and this council obviously didn't understand that, which is sort of astonishing. [00:22:43] Speaker 02: That comment I have to go over to the Superior Court to check the facts is almost a dreadful indication of ignorance. [00:22:55] Speaker 00: Well, I think that what happened in this case, and especially with that comment, is that maybe he was speaking out of turn. [00:23:04] Speaker 00: Maybe he wasn't quite clear at the time. [00:23:06] Speaker 00: But the court did give him a continuance. [00:23:10] Speaker 00: There was a continuance in the sentencing. [00:23:11] Speaker 00: And he was able to at least look into the issue and later say that he wasn't challenging the enhancement. [00:23:22] Speaker 02: And so I think that if he had looked at looked into the issue and decided the categorical approached in her didn't help him. [00:23:34] Speaker 02: Yeah, yeah, I think that if he had done that, I don't recall anything in the record that indicates that. [00:23:41] Speaker 00: Well, I don't think that he made any comments after the sentencing. [00:23:46] Speaker 00: He didn't explain why he wasn't challenging the enhancement after the continuance. [00:23:53] Speaker 00: He just said that he wasn't. [00:23:55] Speaker 00: But if he had looked at the case law, of course, he would have found Brown [00:23:59] Speaker 00: And Brown says, even though it does leave open this sort of stinson Kaiser argument that appellant is raising now, Brown does say that assault with a dangerous weapon is a crime of violence as is attempted assault with a dangerous weapon is a crime of violence under the sentencing guidelines. [00:24:19] Speaker 00: And so I think that counsel, even if he was not fully prepared at the time the judge raised for the first time [00:24:27] Speaker 00: whether or not this enhancement applied, that he was given the opportunity to do the work and came up with a decision that did not challenge the health policy. [00:24:38] Speaker 02: But he did not consider the point that you concede in the letter you filed yesterday. [00:24:47] Speaker 02: He did not even consider that. [00:24:49] Speaker 00: Well, I think we just don't know what he considered or not. [00:24:52] Speaker 00: Well, he didn't say it. [00:24:55] Speaker 00: That's correct, Your Honor. [00:24:57] Speaker 00: He did not say that he considered it. [00:25:00] Speaker 00: And I think that given the posture, this is why this court often remands ineffective assistance of counsel claims if they could be meritorious for hearings in the first instance by the trial court judge. [00:25:17] Speaker 00: That's why the Rashad standard exists. [00:25:23] Speaker 00: You want us to remand? [00:25:25] Speaker 00: No, what I'm saying is that if this court believes that the argument would have been meritorious, then yes. [00:25:35] Speaker 01: I think we have to remand to inquire into why he didn't raise it. [00:25:42] Speaker 01: You don't think you have a different argument that [00:25:46] Speaker 01: This was a debatable enough legal question. [00:25:50] Speaker 01: I mean, we have Harrington versus Richter and Deust and lots of cases that say it's not deficient performance to make a reasonable mistake. [00:26:01] Speaker 00: So I agree with that, Your Honor. [00:26:02] Speaker 00: I agree that both our legal argument has to have been obvious and that it has to be meritorious. [00:26:10] Speaker 00: And so I think that in sort of discussions you've been having with Appellants Council [00:26:15] Speaker 00: I think Winston in fact says this, that the error in Winstead that council made, the legal argument he should have made was an obvious one. [00:26:23] Speaker 00: And that in this case, this legal argument wasn't an obvious one. [00:26:31] Speaker 02: And so- That's a fair point because the hypothetical of an attempted threat is almost in some respects metaphysical. [00:26:45] Speaker 00: I think that's right, Your Honor, and I think it's important to understand that attempted assault with a dangerous weapon, at least I'm not aware of any cases in DC that talk about it as a standalone crime, and generally it comes up as part of plea bargaining. [00:27:03] Speaker 00: that the defendant and the government agree for the defendant to plead guilty to attempted assault with a dangerous weapon instead of just assault with a dangerous weapon because it deniers to the benefit of the defendant. [00:27:16] Speaker 00: It reduces maximum sentence. [00:27:18] Speaker 00: It reduces the sentencing guidelines, the voluntary ones in DC. [00:27:22] Speaker 00: And so that's usually attempted assault with a dangerous weapon. [00:27:25] Speaker 00: It's sort of a creation of plea bargaining there. [00:27:29] Speaker 01: put aside for a second, the question of deficient performance and the question of what the government would charge. [00:27:39] Speaker 01: So just as a matter of substantive criminal law, do I correctly understand your letter from yesterday to concede that Ms. [00:27:53] Speaker 01: Wright's hypothetical, the statute does cover that hypothetical. [00:27:59] Speaker 02: You mean the guidelines? [00:28:02] Speaker 01: It is attempted, I think I mean the statute. [00:28:07] Speaker 01: It is attempted ADW under DC law when the ex-boyfriend is bringing the gun to wave it around, never intends to commit a battery and the police stop him. [00:28:23] Speaker 01: That violates the statute even though [00:28:29] Speaker 01: So why isn't that enough to make this not a crime of violence under the categorical approach? [00:28:40] Speaker 01: Because that's one hypothetical nonviolent application. [00:28:46] Speaker 00: So I think it's because the threatened use of force encompasses that. [00:28:51] Speaker 00: I think that when the boyfriend is traveling with a gun, [00:28:55] Speaker 00: intending to threaten his ex-girlfriend or partner, or what the case may be, that he, because he has committed a substantial step towards committing an assault with a dangerous weapon, intending to threaten this person with a weapon, and he has the intent to do so, that he is threatening the use of force there. [00:29:23] Speaker 00: And I'd also argue that [00:29:25] Speaker 00: In fact, the use of the dangerous weapon here also makes that threatening behavior a use of force. [00:29:36] Speaker 00: Because whether or not, as this court said in Brown, adding a dangerous weapon makes crime inherently violent and materially increases the risk that violence will ensue. [00:29:49] Speaker 00: This is 892 F3rd at 403. [00:29:52] Speaker 00: And because attempt requires the intent to commit every element of the offense, this is including the use of a dangerous weapon to threaten someone, that also makes this attempted assault with a dangerous weapon a crime of violence. [00:30:12] Speaker 02: That sounds like how many angels can stand on the head of a pin. [00:30:18] Speaker 00: I'm not sure that's [00:30:19] Speaker 00: That's quite right, Your Honor. [00:30:21] Speaker 00: And I think that the plurality of circuits at least agree that that's the case, that attempted crimes of violence such as Hobbs Act robbery and various murder statutes are in fact also crimes of violence, even though, for example, Hobbs Act robbery can be committed by putting the victim in fear or using intimidation. [00:30:43] Speaker 02: Right. [00:30:44] Speaker 02: You agree with the Taylor opinion of the Fourth Circuit. [00:30:48] Speaker 00: I do not, Your Honor. [00:30:50] Speaker 00: It's a good try, but I think that Walker, St. [00:30:55] Speaker 00: Hubert, Smith, Dominguez, those cases have the better argument. [00:31:02] Speaker 01: If we disagree with you on the substantive criminal law point and think that the attempted threat hypothetical [00:31:17] Speaker 01: does not involve violence, but we also think that the defendant hasn't shown that a case like that would ever be prosecuted. [00:31:30] Speaker 01: How should we come out? [00:31:33] Speaker 00: I think that this court could follow the path that the Second Circuit took at McCoy in that case. [00:31:40] Speaker 00: In that case, as McCoy says, [00:31:44] Speaker 00: And I think quoting a Supreme Court case that I can't remember at the moment, but we need to look at the categorical approach, not hyper-technically, but realistically. [00:31:54] Speaker 00: And that if there isn't actually a situation where this ever practically would come to light, that it should still count as a crime or violence under the categorical approach. [00:32:07] Speaker 00: Sorry. [00:32:08] Speaker 01: That comment about [00:32:11] Speaker 01: Don't use too much legal imagination. [00:32:14] Speaker 01: Does that go to the scope of the law or what the government is actually prosecuting? [00:32:22] Speaker 00: I think it goes to the scope of the law, Your Honor. [00:32:25] Speaker 00: I don't think that's a choice by the government whether or not to prosecute it. [00:32:31] Speaker 00: And I think that the reason why that is, is because McCoy points to whether or not there are any cases that talk about that specific scenario. [00:32:42] Speaker 00: If there are no further questions, I would just say also that in this case, there was no prejudice to the defendant, to appellant here, because as the trial court said, you know, no, anything less than a sentence that he was imposing would not be sufficient to comply with the purposes of sentencing. [00:33:01] Speaker 00: And the court made very clear that there was no reasonable probability that appellant would have gotten a different sentence even had the guidelines been different. [00:33:10] Speaker 00: Thank you. [00:33:12] Speaker 01: Ms. [00:33:13] Speaker 01: Wright, we'll give you two minutes. [00:33:16] Speaker 05: Thank you. [00:33:17] Speaker 05: I wanted to sort of make two points. [00:33:19] Speaker 05: One on the obviousness. [00:33:21] Speaker 05: I just wanted to say that I think it is as obvious as Winstead because an attempted threat and use of force is not a threat and use of force any more than an attempted burglary was a burglary in James or attempted distribution was a distribution of Winstead. [00:33:36] Speaker 05: It's exactly the same. [00:33:38] Speaker 05: So I do think it's equally obvious. [00:33:40] Speaker 05: I don't know that I wanna get too much on the head of the pin, but I do disagree that this threat is in any way metaphysical. [00:33:51] Speaker 05: It's not solely the creation of plea bargaining. [00:33:56] Speaker 05: And frankly, even if it is, that's often because the victim is claiming [00:34:03] Speaker 05: something that the defendant denies about the use of the weapon and whether it was actually used. [00:34:08] Speaker 05: And a defendant, there's a dispute there. [00:34:11] Speaker 05: And so the government agrees to, you know, that they're not confident that they can prove ADW. [00:34:19] Speaker 05: So they go on the defendant's version of the facts. [00:34:22] Speaker 05: But it's not solely a creation of plea bargaining. [00:34:26] Speaker 05: These crimes do happen. [00:34:27] Speaker 05: I mean, I just yesterday was seeing in the paper [00:34:30] Speaker 05: not exactly the same, but you can see how this could happen. [00:34:33] Speaker 05: That somebody came to Washington and they texted a friend, a threat to a member of Congress. [00:34:39] Speaker 05: And they said they were going to use a weapon to injure this person. [00:34:43] Speaker 05: And this person texted the friend, the friend texted the person's mother, the person's mother called the police. [00:34:50] Speaker 05: The police went to the hotel room and got this person and prosecuted him. [00:34:55] Speaker 05: Now, because he had not actually driven over to do this, [00:35:01] Speaker 05: it was prosecuted as a threat. [00:35:02] Speaker 05: But if he had left the hotel room and headed over and they had stopped him after a substantial step had taken place, he would be prosecuted for attempted ADW, whether he said, I'm going to injure this person or I'm going to scare the heck out of this person with my second amendment device. [00:35:21] Speaker 02: So I just think- Council, let me pick up on what Judge Katz was asking. [00:35:29] Speaker 02: Although I agree with you that a lawyer who doesn't understand the categorical approach would itself be a bad evidence of insufficient counsel. [00:35:43] Speaker 02: But even if you did, would it be remotely obvious to think of an attempted threat? [00:35:52] Speaker 02: Isn't that a rather sophisticated and not obvious [00:35:59] Speaker 02: Hypothetical? [00:36:02] Speaker 05: I don't think so because the crime is an attempted ADW and everyone knows that an ADW is an attempted threatened use force. [00:36:10] Speaker 05: So when you add that extra layer in there, that defense counsel's mind is instantly going to go to that word attempt and think, wait a minute, how does this help me? [00:36:18] Speaker 05: This is not as serious as an ADW. [00:36:21] Speaker 05: Oh, ADW itself only satisfies attempt and threat. [00:36:25] Speaker 05: So this is not included. [00:36:29] Speaker 05: it's really not complicated, particularly, like I said, it's just as simple as attempting to do the thing in the statute isn't doing the thing in the statute, just as it wasn't in James and in Winstead. [00:36:46] Speaker 05: And again, on the metaphysical or the likelihood of this happening, I mean, I just think that we're talking about an area that is very different than the Hobbs Act robbery, [00:36:56] Speaker 05: For example, so even if Taylor is wrong about the likelihood of that being prosecuted, the ADW is very different because first of all, it doesn't have that extra element of actually having to get away with the loot. [00:37:08] Speaker 05: So in a lot of attempted Hobbs Act robberies, they do everything, all the forces employed, and they just, because there's some victim resists or whatever, they don't get the loot. [00:37:19] Speaker 05: But in domestic violence also, [00:37:22] Speaker 05: People that commit these attempted ADWs, they are so out of their mind that they broadcast. [00:37:29] Speaker 05: They're not hiding it. [00:37:30] Speaker 05: They're telling the person that's sitting next to them in the car, I'm going to head over and do this. [00:37:34] Speaker 05: They tell their roommate. [00:37:36] Speaker 05: They confess. [00:37:37] Speaker 05: They say, I wasn't going to do anything. [00:37:38] Speaker 05: I was just trying to scare her. [00:37:40] Speaker 05: these cases exist and you can't prosecute them for ADW if they don't get close enough to do it. [00:37:46] Speaker 05: But I can't imagine why in the world the government wouldn't wanna put these people away for attempted ADW. [00:37:53] Speaker 05: So unless there's further questions, I'd like to ask the court to remand for re-sentencing with effective assistance of counsel. [00:38:02] Speaker 01: Judge Rao, anything else? [00:38:04] Speaker 01: Judge Silberman? [00:38:05] Speaker 01: No, no thank you. [00:38:06] Speaker 01: Thank you Ms. [00:38:06] Speaker 01: Wright, the case is submitted.