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Case number 21-3006, United States of America versus Deon Cole, appellant.

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Mr. Axum for the appellant, Mr. McGovern for the appellant.

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Good afternoon, counsel.

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Good afternoon.

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Mr. Axum, please proceed in your ready.

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May it please the court, counsel?

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Tony Axum representing Deon Cole.

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I'd like to reserve three minutes for rebuttal.

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Remand for resentencing is required in this case because the district court clearly erred when it ruled as a matter of fact

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that the gun that Mr. Cole possessed was stolen.

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The court based this finding on the PSR that relied upon a complaint and a police report that in turn said that an NCIC check said that the gun had been reported stolen.

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The government did not prove these layers of hearsay reliable and therefore it was error for the district court to rely upon them.

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This court has said that information in a PSR does not become reliable because a court adopts the PSR.

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And police reports, which the NCIC is the only way to classify the NCIC information in this case as a police report, is similarly not inherently reliable.

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And this court has in fact referred to police reports as an untested source, suggesting that they are affirmatively not reliable.

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unless or until proven otherwise.

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Can I ask you the following question?

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So suppose an officer testifies at sentencing that the search was conducted of the NCIC, if I'm using the right acronym, and the results came up to show that the gun with the serial number had been reported stolen.

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Would that constitute the kind of evidence you'd be looking for as reliable?

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Well, you would still have a layer of hearsay because someone obviously reported.

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We don't have a declarant with the actual substance of the final statement.

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So that's definitely true.

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And there's always going to be that issue.

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But I took the most

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forced most vigorously asserted point in your briefing to be that this case is different from other cases because you never had the actual results of the report entered.

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What you had was a report of the report in the PSR.

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And so I guess I'm trying to get past that by asking, suppose then you had an officer who came and testified at sentencing and said, oh yeah, I ran that check.

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And here's what I came up with.

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And that seems to me to be to get very close to actually having the report itself.

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Oh, that's certainly closer to having the report.

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I think the question for the court would still be, what are the initiatives of reliability?

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And that's why I went straight to the substance of what is said.

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Isn't it fairly common that in district court, these PSRs would have similar statements in them as to what the NCIC, what they show as to the

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relevant criminal history.

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Isn't that pretty common?

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Oh, it's very common, especially as it relates to criminal history.

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Yeah, and it is not the case that the judge has to determine.

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Is it the case the judge has to say every time?

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Well, these are inherently

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reliable, or these are usually reliable, or these are reliable to receive information from those sources.

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No, I'm not saying that the judge has to say that every time, but certainly when the defendant places something in dispute, places even a conviction, and I think NCIC reports... How exactly did the defendant place in dispute this?

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He said the reliability of the report here that it was stolen.

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He said we object to the use of the of the NCIC information.

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We don't know where it came from.

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We don't know whether it's just a docket.

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We don't often guns are reported stolen and that is an incorrect report.

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So you're saying then when you raise that just by saying we object to it, that's enough to require the judge to

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make a finding before he could rely on it as part of the history?

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No, I'm not saying like a general objection is enough.

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I'm saying in this case, there was a specific objection about a conclusion.

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And the conclusion is that the gun is stolen.

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There are no facts in this record to support that conclusion.

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So in this case, in this kind of context where we're dealing with a NCIC

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I understand the layers, but the thing that has assertively been reported to NCIC is a stolen gun.

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I take you to be suggesting two things.

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One, that the reliability of that underlying report is something, at least one questioned, that has to be substantiated, and two,

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that it might be different for different kinds of NCIC information.

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And I hear you to be saying that if it's somebody's prior convictions, that person has personal knowledge of their own criminal record.

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They can challenge that this is a little bit different because the individual

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does not necessarily have personal knowledge of the accuracy or not of the stolen character, the punitively stolen character of the gun.

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So are you carving out this type of reliance on NCIC from reliance on NCIC, let's say, for prior offenses?

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I certainly am for the reasons that the court says.

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But a conviction is something that is easily verified.

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And there are many markers in convictions that

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allowed both the defense and the prosecutor to verify that information.

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This court has also said that certified convictions are not hearsay themselves.

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But even in Carter, where the defendant raised an objection to a conviction that had been reported from some database, it was very easy at sentencing for the government to come in with the actual certified record.

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And it was then easy for this court to say,

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It was proven reliable in this case.

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I just don't know the answer to this.

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Is NCIC something that you could access given the gun number or is that not something that... No, NCIC is generally accessible to law enforcement only.

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I will say, as a member of the Office of the Federal Public Defender, it has been made available to our investigators on occasion.

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But it is not something that we have unregulated access to, as law enforcement does.

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But that raises another point in this case, is that there is no record

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evidence about how information is entered into NCIC, how it's verified, why it should be reliable at all.

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I'm certainly making a distinction between convictions, again, that just bear, historically have a greater, we're more willing to rely on a conviction because it is

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It is firm.

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It's definite.

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It's certain.

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We know where it's coming from.

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And all of those things are in disha of reliability.

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So we have... That brings me back to the other question, though.

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If that's your position, is it the case that the judge has to do that, make that finding and inquiry every time that there's an NCIC reference in the file?

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No, no, not every time.

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But where the defendant specifically calls a reference into question, as was done here, then the court needs to

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needs to be satisfied that indicia of reliability have corroborated what is in that NCIC report.

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Here, again, the NCIC report is virtually, I don't know any other way to say it.

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It's an anonymous source, essentially.

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I mean, it's something that wouldn't even rise to the level of reasonable suspicion.

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The court had to find this evidence reliable by preponderance.

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So there was no evidence on the other side.

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I'm sorry?

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There was no evidence on the other side.

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You say by preponderance, preponderance involves comparison of evidence.

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There was no defense evidence on this.

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Where one party bears the burden, and I don't think it's disputed, the government bore the burden to prove the reliability of the evidence, the defense did not have to stand up and say anything.

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You're back to saying they have to prove the reliability.

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They have to determine that to be a fact by some level of certainty, but not beyond a reasonable doubt on the sentencing phase.

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Only by preponderance.

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There's an old phrase, undisputed evidence.

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Nothing here disputes the evidence, does it?

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You're saying it's not strong enough.

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Well, there's a conclusion here, and stolen gun is simply a conclusion.

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Facts that might prove that conclusion would be,

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On this date, at this time, at this location, I, a known person, was robbed of my gun, or the gun was stolen from me.

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And what were the circumstances?

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It was in a safe.

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It was unlocked.

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But someone has, like, affirmed at a minimum that

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There is a story that underlies this conclusion.

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That story.

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So it's your position, just to be totally clear, that having the NCIC report itself, which I recognize was not even in the record, but having it in the record would not change your argument.

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I don't think it would change my argument, but I have to confess.

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I, as I stand here right now, am not sure how NCI data is amassed.

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verified.

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So something would have to be provided to support the sense that that is that with respect to a report of a stolen gun such a report as it appears in an NCIC report is reliable.

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and then it would have to be this gun that appears, and that you're saying, so you're saying it's possible that that would be sufficient, but we don't have that.

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That's correct.

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And that's why the test of whether there are sufficient additional reliability is changes from case to case, facts to facts, and circuits.

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So I took you to, go ahead.

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Speaking of changing from facts to facts and case to case, how would you distinguish this case from Brevard where we said the district judges, there was error in the guidelines, but the district judge's alternative reliance on 3553 sufficed to support affirmance?

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I think in Brevard there was no dispute as to the underlying facts.

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And here there is a dispute as to underlying facts.

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We were saying, like, there is a fact that was obviously important to the district judge.

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It can't be characterized as a mitigating factor.

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It was an aggravating factor.

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A stolen gun is an aggravating factor.

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And the judge said that it was an important fact to him.

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He did not disavow that fact.

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He relied upon that fact both for the guidelines and the alternative sentence.

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And... How did he rely on it for the alternative sentence?

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He said that... He said that the sentence was what was necessary to protect the public from your crimes.

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He referred to his criminal history.

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He referred to the

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a lack of passage of time between his brushes with the law.

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Did he also say, I'm relying on the stolen gun?

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He had already said that he was relying on the stolen gun and he understood why the guidelines would even take a stolen gun into consideration.

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He said that it was his view that stolen guns are used.

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But I thought he was following that up with saying that he was

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entering, he would have entered the same sentence without that, wouldn't he?

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No, he said that he would enter the same sentence regardless of what the guidelines said.

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And I think that that's a difference.

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And he did not disavow.

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He did not ever claim that he was not relying on the stolen gun.

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Wasn't that the point of saying you wasn't relying on the guidelines?

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He was talking about that element of the guidelines and he said that wasn't it?

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his point in saying that he wasn't relying on the guidelines, it was obviously to offer an alternative sentence that... But why was he doing that?

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And I understood the reason why it was, so he could be saying that this aggravating factor was not...

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Well, my only point is that he did not actually say that this aggravating factor is not.

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He also did not talk about that.

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That was not the words that he used, but the whole point of that part of the discussion was to set aside the need to rely on the disputed element, wasn't it?

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I would take issue.

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No, I don't think that that's... Well, can I ask you this?

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So he starts out by saying the

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language that you rely on, which is I think stolen weapons tend to be much more likely to be involved in felonious activity.

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I think that's the part of the transcript that is being used by you.

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Do you at least acknowledge that having said that, he could have at least said something that would

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disabuse us of the notion that the sentencing enhancement mattered, such that we would say on appeal, we're going to affirm because the reliance on the sentencing enhancement turned out not to matter.

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He could have at least done something.

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If it truly did not matter, I think that he could have and should have.

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So at least there's language that's possible that would have disabused of anybody of the notion that the sentencing enhancement actually affected the bottom line sentence.

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And if that's true, then what more could he say?

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Because he said, ultimately, however, the fact that the gun was stolen, while I do think it's appropriately counted, first of all, that's not the guidelines.

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That's the fact.

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The fact that the gun was stolen

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while I do think it's appropriately counted under the Sentencing Guidelines, I want to make clear that this is not going to impact the sentence I intend to impose here, given, and then he talks about several things that cause him not ultimately to rely on the fact that the gun was stolen or the guideline to affect the bottom line sentence he achieved.

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So if it's possible for him to have done something and he said this, what I just quoted, what's the gap?

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What should he have said more than that?

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I'm sorry.

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Could you direct me to?

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Oh, sure.

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I'm sorry.

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It's 108.

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108 of the appendix at the bottom.

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Starting at line 20.

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I think at line 8 to 10 is the language that you understand to rely on.

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That's correct.

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Starting at line 19 is where he explains

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Ultimately, however, the fact that the gun was stolen, while I do think it's appropriately counted under the sentencing guidelines, I want to make clear that this is not going to impact the sentence that I intend to impose here, given the evidence, and then he says a bunch of things that seemingly are favorable, lack of evidence that you knew that the gun was stolen, and primarily, given the arguments that your attorney has made speaking to your client, and the fact that the government's not seeking to have additional punishment.

[00:16:40] Speaker 01:
I would actually, I think that that statement is less ambiguous than, is more ambiguous than the way that you're reading it because he doesn't actually say, I want to make clear that this is not going to, he says, I want to make clear that that, and when he says, I want to make clear that that, he has said,

[00:17:05] Speaker 01:
He's referred to the fact that the gun is stolen and the guidelines.

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Why would he have bothered unless he is disavowing the use of the gun as an item of sentencing under the alternative sentence?

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I don't understand your argument that he was doing that.

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Yes, he's doing it to create an alternative sentence, but why would he have bothered with that unless he was exposing of the gun in the meantime, the stolen nature of the gun meantime?

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I'm not following you.

[00:17:35] Speaker 01:
Well, the most obvious, like, blunt reason that I could give would be to insulate the sentence from review by this court.

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To essentially say, even if I'm wrong about the guidelines calculation, which I am required to do, I would impose the same sentence.

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He doesn't say, even if I am wrong about everything that I have.

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Why would he bother doing that unless he was taking care of the situation in which we find it erroneous to consider the guy?

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an incorrectly calculated guideline range is absolutely, is this what he said?

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Yeah, I just, I think, I mean, he's following up ably himself, but I think the question is, isn't the only guideline error

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that is on the table that the district judge is thinking about and indeed is addressing specifically is an error that turns on whether it's been shown that the gun was stolen or not.

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And so doesn't that mean it becomes one of the same thing to refer either to the fact

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that the gun was stolen.

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I'm going to put that to the side, or even if I'm wrong, about whether the enhancement applies, because those are two sides, I think, of the exact same coin, at least in these facts.

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And so if you can help us sort of see daylight about that, I think that's... I think that's correct.

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I think at a minimum, there is some ambiguity as to what the judge was relying on.

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A remand would be required for him to clarify whether he

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indeed found that the gun was stolen as a matter of fact I don't think that there is it would be a very why do we care because why does it matter if he indeed found that the gun was stolen as a matter of fact if he's already told us that it's not going to matter because he's still going to impose the same sentence of 37 months that's just I don't know how else to read the transcript other than

[00:19:33] Speaker 03:
for him to have said, and as I recall, 37 happens to be the intersection of the two ranges, 30 to 37 and 37 to 46, and he just says, I'm imposing 37, it doesn't matter, either the fact of whether the gun was stolen or the applicability of the enhancement, even if we assume that there's a distinction between those two, it doesn't matter, because I'm going to impose 37 anyway.

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because it's unusual to rely on a fact and on the one hand say that it does matter and you understand why it matters under the guidelines and you, what I would say, independently understand why that is a consideration under the guidelines and then to, at the exact same time, hold the thought in your head that that is... But that gets back to the first question I asked you, which is, is it conceptually possible that he could have said anything

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to reach the result that the government wants us to reach, which is that even if he made an error in applying the guidelines, it still wouldn't matter.

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And if it's conceptually possible, and I think our cases say that it is, then I'm not sure what more the judge could have done.

[00:20:43] Speaker 01:
Well, I think it's an easy thing for a judge to say, even if I made an error, I wouldn't.

[00:20:53] Speaker 01:
do the same thing.

[00:20:56] Speaker 01:
What I'm suggesting is that a judge, there should be some explanation as to why that error does not impact

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the ultimate sentence.

[00:21:09] Speaker 03:
Especially when... I think he gave one.

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I think he talked about the reasons why he arrived at the sentence he did.

[00:21:14] Speaker 03:
And I'm sorry to take you back somewhere else, but let me just make sure I understand the argument on the antecedent question of whether there was an error in the first place.

[00:21:22] Speaker 03:
Just one last question, please.

[00:21:24] Speaker 03:
So there's two potential deltas here.

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One is the NCIC report was never entered.

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And so there's a gap between the PSR reporting the results of the NCIC search and

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the report actually having been submitted and then there's the second layer which is even if the NCIC report was entered that wouldn't matter itself because all it tells you is that there's a report of a weapon being stolen that's not enough unless you have more information about the reliability of that underlying allegation.

[00:21:55] Speaker 03:
Now suppose I totally understand the force of your submission as to the second one and I don't want to deny that but for present purposes let's just suppose I'm only focused on the first one.

[00:22:04] Speaker 03:
If that's true

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then is there a difference between having the NCIC report itself having been admitted and the criminal complaint having been admitted, which is, and the criminal complaint has an officer swearing that that was the result of the search of the NCIC database.

[00:22:26] Speaker 01:
There may be a difference of degree.

[00:22:28] Speaker 01:
Okay, a degree but not a, but you're not, I don't think it's significant because a complaint is essentially

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A police report.

[00:22:36] Speaker 03:
But it's sworn.

[00:22:38] Speaker 01:
It is sworn.

[00:22:39] Speaker 03:
It is sworn.

[00:22:40] Speaker 03:
And just to addify, I don't know the answer to this.

[00:22:42] Speaker 03:
Are reports also or not?

[00:22:44] Speaker 01:
I'm sorry.

[00:22:45] Speaker 01:
Police reports have a signature line.

[00:22:48] Speaker 01:
I don't think they're sworn the same way as a complaint.

[00:22:50] Speaker 01:
Right.

[00:22:50] Speaker 03:
And that's the difference.

[00:22:52] Speaker 01:
But the reason I say it's a degree, and I actually think it's a very small degree, because that degree would have to have

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would have to assume that police reports are

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that there are many falsehoods in police reports.

[00:23:13] Speaker 01:
Police reports are not inherently reliable in the same way that a criminal complaint that is simply a recitation of a police report is not inherently reliable.

[00:23:23] Speaker 01:
It's not the signature.

[00:23:25] Speaker 01:
It's not the swearing that convinces a police officer to tell the truth in a police report.

[00:23:29] Speaker 01:
It's not the swearing that convinces him to tell the truth in a complaint.

[00:23:33] Speaker 01:
So that distinction

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is not powerful between a police report and a complaint.

[00:23:40] Speaker 01:
And I'll also say that the language is the exact same.

[00:23:45] Speaker 01:
It's the exact same in the police report that is in the complaint, and that's a common occurrence.

[00:23:49] Speaker 01:
Most Gerstein's are simply the police report

[00:23:53] Speaker 01:
Cut and paste.

[00:23:54] Speaker 03:
Right.

[00:23:54] Speaker 03:
I mean, usually in courts, we think that there's something significant about swearing.

[00:23:57] Speaker 03:
That's why we require it.

[00:23:59] Speaker 01:
Certainly.

[00:24:00] Speaker 01:
And I'm definitely placing police officers in a different category from citizens.

[00:24:06] Speaker 01:
But again, reliability turns on many factors.

[00:24:11] Speaker 01:
When we're used to a pattern of behavior and we recognize what is going to happen in that pattern,

[00:24:22] Speaker 01:
When we see that pattern again, we're more willing to accept it as reliable.

[00:24:27] Speaker 01:
And that's my point.

[00:24:29] Speaker 00:
So I take it that your position is that, under the case law, that you did not have to factually dispute, in sort of the summary judgment sense, the information that was before the district court

[00:24:48] Speaker 00:
about the gun being stolen because it didn't even rise to the level of something that was sufficiently reliable to support a factual finding by a preponderance.

[00:24:59] Speaker 00:
Is that correct?

[00:25:01] Speaker 00:
So it was disputed in the sense of preserving the objection, but it wasn't disputed and needn't be disputed in the kind of material issue of fact sense.

[00:25:14] Speaker 01:
That's difficult to say because if more facts had been presented,

[00:25:19] Speaker 01:
We would have had, the defense was being asked and is being asked to prove a negative.

[00:25:26] Speaker 01:
The government says the gun is stolen and now we have to prove that it is not stolen.

[00:25:30] Speaker 01:
With no facts underlying for why the conclusion existed.

[00:25:35] Speaker 00:
And no access to those facts.

[00:25:36] Speaker 01:
Exactly, and no access to those facts.

[00:25:39] Speaker 00:
So what's your best case?

[00:25:43] Speaker 00:
for effectively the government hasn't jumped over its first hurdle and therefore just pointing to that is enough.

[00:25:51] Speaker 00:
You don't have to also push back.

[00:25:59] Speaker 01:
all of the cases that talk about the burden of proof at sentencing for the government.

[00:26:04] Speaker 01:
I'd say Price, Pinnock, Carter, I believe Burke, I'm not sure Burke is cited in my brief, but it's settled that the government bears the burden to prove any fact that the district court wishes to rely upon at sentencing.

[00:26:22] Speaker 04:
But isn't it also fixed law that the rules of evidence do not apply with the same strictures at sentencing that they do at trial?

[00:26:30] Speaker 04:
That is to say hearsay is relatively frequently accepted or routinely accepted in sentencing cases.

[00:26:38] Speaker 01:
It absolutely is, and I'm not trying to undermine that in any way.

[00:26:41] Speaker 01:
I have, I'm making one point that when hearsay is accepted at sentencing, it is accepted because there are certain indicia of reliability

[00:26:52] Speaker 01:
that have established that hearsay as reliable.

[00:26:55] Speaker 01:
And those conditions don't exist in this case.

[00:26:59] Speaker 01:
The government didn't attempt to carry its burden.

[00:27:01] Speaker 01:
And for those reasons, remand for resentencing is required.

[00:27:08] Speaker 03:
OK.

[00:27:08] Speaker 03:
Let me make sure my colleagues don't have additional questions for you this time.

[00:27:10] Speaker 03:
We'll give you a little time for rebuttal.

[00:27:11] Speaker 01:
Thank you.

[00:27:12] Speaker 03:
Thank you, Mr. Axon.

[00:27:14] Speaker 03:
Mr. McGovern.

[00:27:31] Speaker 05:
May it please the court, Michael McGovern on behalf of the appellee of the United States.

[00:27:36] Speaker 05:
The district court sentencing should be affirmed here both because the record below was sufficient to show by a preponderance of the evidence that the gun at issue was stolen and because even if this court has doubts about the state of the record below, any error was harmless.

[00:27:59] Speaker 05:
In its decision,

[00:28:00] Speaker 05:
The district court made very clear over the 10 pages that it discussed why it was imposing sentence.

[00:28:07] Speaker 05:
It referenced on only two occasions its prior factual finding that the gun had been stolen.

[00:28:13] Speaker 05:
On both of those occasions, its reference was to disclaim any reliance on that fact or the sentencing enhancement that that fact carried with it in its ultimate sentence.

[00:28:24] Speaker 05:
Instead, the court very specifically

[00:28:28] Speaker 05:
explained why it did not believe that aggravating circumstance was at issue here.

[00:28:32] Speaker 05:
It did not believe that Mr. Cole had any knowledge that the gun was stolen, and it accepted both defense counsel and the government's arguments that therefore it should not hold this against him as an aggravating factor.

[00:28:45] Speaker 00:
I follow that, that reading of the record to be sure.

[00:28:49] Speaker 00:
And I think the only thing that's just a little bit ambiguous in, I don't know about the only thing, but one thing that seems a little bit ambiguous in the colloquy is in the course of discussing the 3553 factors, the district judge does say, you know, I think stolen guns are much more likely to be used in violent crime.

[00:29:12] Speaker 00:
And it's clearly a dominant factor in his mind.

[00:29:16] Speaker 00:
And so I guess what I hear the defense saying is, are we at risk if we sustain this sentence of giving a message to district courts, insulate your guidelines, calculations, and or just your sentences generally by

[00:29:37] Speaker 00:
saying, no matter what, I would oppose the same sentence.

[00:29:39] Speaker 05:
I don't believe so, Your Honor.

[00:29:41] Speaker 05:
And here is why.

[00:29:42] Speaker 05:
I think that when you read the sentencing court statements in context, what he says, and this is on page 108 of the appendix, is I understand why the guidelines take this act into account.

[00:29:53] Speaker 05:
I think stolen weapons tend to be much more likely to be involved in felonious activity.

[00:29:58] Speaker 05:
But the court there is doing nothing more than reciting what the 1991 amendments to the guidelines stated were the purpose of the enhancement.

[00:30:06] Speaker 05:
But he goes on to mention, and this is very important, that Mr. Cole himself does not have any information

[00:30:13] Speaker 05:
about this gun, that he's holding it for a friend and that that gives him some concern.

[00:30:20] Speaker 05:
And so it's not the fact that this gun is stolen, but there is some reference.

[00:30:25] Speaker 05:
And this is prior to, I'll also note that all of this colloquy comes prior to a very specific transition in the sentencing court's statement.

[00:30:34] Speaker 05:
And that specific transition is on page 109 where he says, I do take into account.

[00:30:39] Speaker 05:
And at that point, at no point after that, does he again mention either the fact that Mr. Cole did not know the origin of this gun, other than the fact that his friend had given it to him to hold, or the fact that the gun was stolen.

[00:30:53] Speaker 05:
And so I think although the district court mentions his prior factual finding, he mentions that

[00:31:00] Speaker 05:
The guidelines do account for an enhancement, and this is the reasoning behind that, and he agrees with that reasoning.

[00:31:08] Speaker 05:
He specifically disclaims that this defendant has any knowledge that this gun was stolen.

[00:31:16] Speaker 05:
and goes on to state what he does take into account.

[00:31:19] Speaker 05:
And he goes on for many pages to describe the many reasons he felt that this was a very dangerous situation.

[00:31:25] Speaker 00:
I'm not sure why you're emphasizing that he accepts the lack of knowledge, because the lack of knowledge isn't needed for the finding, at least under the guidelines, to be counted against the defendant in it.

[00:31:39] Speaker 00:
So I mean, I take you to be making the broader point, which is that he's setting the gun

[00:31:46] Speaker 00:
stolen status aside in making an alternative sentencing.

[00:31:51] Speaker 00:
Correct.

[00:31:51] Speaker 05:
And he's explicitly explaining why to him it is not carrying an aggravating factor, why he doesn't believe that fact should be considered an aggravating factor here.

[00:32:01] Speaker 00:
So are you not really defending the reliance on the stolen gun under the guidelines?

[00:32:11] Speaker 05:
We don't believe the district court relied on the fact that the gun was stolen in his sentence.

[00:32:18] Speaker 00:
But he did in the calculation of the guidelines quite explicitly.

[00:32:21] Speaker 05:
Correct.

[00:32:21] Speaker 05:
Yeah.

[00:32:22] Speaker 00:
And I'm just asking whether it sounds like you're asking us to affirm based on the alternative ground.

[00:32:31] Speaker 05:
We do believe that you should affirm on the alternative ground, but we do believe that there is a legal basis to affirm on the factual finding that the gun was stolen.

[00:32:40] Speaker 00:
The sentence calculation.

[00:32:41] Speaker 00:
So on that point, what is your position about two related questions?

[00:32:47] Speaker 00:
One, what the defendant would have to show to put in issue the reliability of the gun stolen character?

[00:32:57] Speaker 00:
And the prior point, what is the government

[00:33:02] Speaker 00:
have to show to reliably, even if with hearsay, establish the fact.

[00:33:11] Speaker 05:
The government must show by a reponderance of the evidence that the gun was stolen.

[00:33:15] Speaker 05:
And it did so here by placing into the record a statement that there was an NCIC database.

[00:33:23] Speaker 05:
When the NCIC database was searched for this weapon, which carried a very specific serial number, it was reported as stolen in Prince George's County in 2019.

[00:33:35] Speaker 00:
So they put in a statement, and by that you're referring to the statement

[00:33:41] Speaker 00:
that the PSR referenced that was the police officer's statement.

[00:33:47] Speaker 05:
Correct.

[00:33:48] Speaker 00:
And at page 29 of your brief, you argue, if a defendant does not concede the factual matter, the proponent of the enhancement must present the district court with reliable information that supports its assertion by a preponderance of the evidence.

[00:34:01] Speaker 00:
And this is a little bit of an unusual case.

[00:34:04] Speaker 00:
Who's the proponent of the enhancement here?

[00:34:08] Speaker 05:
The proponent of the enhancement,

[00:34:11] Speaker 05:
The probation officer who wrote the PSR is the individual who was putting in information to support their calculation in the PSR.

[00:34:22] Speaker 00:
And in your view, the reliable information that the proponent put forward was?

[00:34:30] Speaker 05:
The statement that was contained within the criminal complaint, which was also part of the record.

[00:34:36] Speaker 05:
which they verified did appear as well in the police report for this incident.

[00:34:42] Speaker 00:
And how do you answer Mr. Axum's point that this is really unlike a lot of the other information in NCIC that courts have accepted as sufficiently reliable, at least if not

[00:35:00] Speaker 00:
put in dispute by a defendant because it's like an anonymous tip.

[00:35:06] Speaker 00:
What more could the defendant do?

[00:35:08] Speaker 00:
Assume that this is completely a lark that someone called in this number.

[00:35:15] Speaker 05:
So the defendant was the individual in possession of the gun.

[00:35:18] Speaker 05:
So he's in the position to understand how he came into possession of that gun and to track back the chain of custody of that gun.

[00:35:27] Speaker 05:
He is in a position to, if there is reliable evidence, that there were legitimate transactions which resulted in his obtaining this

[00:35:37] Speaker 05:
firearm, present evidence of that.

[00:35:39] Speaker 05:
He's also in a position to take a look at the number contained within the search was done on, the serial number, and compare that to the serial number if you've received it in discovery.

[00:35:50] Speaker 05:
Here he actually confirmed the serial number in his allocution of facts when he was found guilty.

[00:36:00] Speaker 05:
So there are ways in which he can challenge the reliability of this report.

[00:36:05] Speaker 05:
But the overarching, multiple circuits have recognized that the NCIC information contained within that database is reliable even in circumstances where we're talking about reports of stolen guns.

[00:36:20] Speaker 05:
And that's the Third Circuit in Gray, the Fourth Circuit in Walker, the Fourth Circuit in Moffat, the Eleventh Circuit in Saunders.

[00:36:27] Speaker 05:
And they all recognize that the general judicial understanding of the reliability of this database shows

[00:36:34] Speaker 05:
And I don't think there's any dispute here, or I'm unsure if there's been made a dispute, that at the very least, the NCIC database is a reliable statement that someone reported it stolen.

[00:36:46] Speaker 05:
And what we have here is that gun appearing in someone else's hands, someone who isn't allowed to have it.

[00:36:53] Speaker 05:
So in fact, it is being corroborated, and then there is no other evidence in the record

[00:36:59] Speaker 05:
that it was not stolen or that there was a legitimate source for this.

[00:37:03] Speaker 05:
And so at that point, the question is, has the government shown through that information that it is more likely than not that this was stolen?

[00:37:13] Speaker 00:
And so it's your position that part of the assumption behind the reliability of the NCIC report that it's stolen is that if it were not,

[00:37:25] Speaker 00:
That Mr. Cole could ask the friend for whom he was holding the gun, where did you get this gun?

[00:37:31] Speaker 00:
Certainly.

[00:37:33] Speaker 00:
And that person would say.

[00:37:35] Speaker 00:
I bought it from someone else, and then he could go to that person and figure out whether it was stolen.

[00:37:41] Speaker 05:
Certainly, he's in a position to do that.

[00:37:43] Speaker 05:
But also, the reliability of the report is that this is a specific report of a specific gun that's being given to the police.

[00:37:53] Speaker 05:
That's subjecting the person that's reporting this gun to potential criminal charges for false statements to police officers.

[00:38:00] Speaker 05:
That the report of a gun,

[00:38:02] Speaker 05:
What about that information?

[00:38:04] Speaker 00:
That's not available.

[00:38:05] Speaker 00:
Like if I report a gun stolen, if I was the reporter in this case that reported this gun stolen, there's not a way for Mr. Cole's counsel to find out who I am and ask the basis of my report.

[00:38:20] Speaker 00:
Is there a way for the, is there?

[00:38:23] Speaker 05:
That's unclear to me, it's not in the record.

[00:38:25] Speaker 05:
I don't know that Prince George's County wouldn't have a record of the report that was made and it does have the serial number that that report was made on and the date or the approximate date, the month and the year of the report.

[00:38:37] Speaker 03:
Does the NCIC report reveal that kind of information?

[00:38:39] Speaker 03:
That was in the criminal complaint.

[00:38:41] Speaker 03:
It specifically says it was reported.

[00:38:43] Speaker 03:
No, no.

[00:38:44] Speaker 03:
The person who reported it stole it.

[00:38:45] Speaker 00:
Who reports?

[00:38:45] Speaker 03:
Does the NCIC report tell you anything other than someone reported that the weapon was stolen?

[00:38:50] Speaker 03:
That is not in the record.

[00:38:52] Speaker 05:
So to the extent that it does, it's not indicated here.

[00:38:54] Speaker 05:
It certainly doesn't appear.

[00:38:56] Speaker 05:
But do you happen to know?

[00:38:57] Speaker 05:
I mean, you must have looked at NCIC reports, or maybe not.

[00:39:00] Speaker 05:
I don't happen to know.

[00:39:02] Speaker 05:
Based on a review of NCIC's website, it appears that the information contained includes the serial number.

[00:39:08] Speaker 00:
So I'm not really asking about the serial number, I'm saying if I were the person that called in the gun, is there a difference between the government's ability to find out my identity and Mr. Axum's ability to find out my identity, to bring me in as a witness to potentially say, the reason I reported this as stolen is because the gun belonged to me, it's on the front seat of my car, I went into the grocery store and I came back and the window was smashed and the gun was gone.

[00:39:34] Speaker 00:
Like, if that's the evidence that would be certainly more reliable, are you in a better position in the government to identify and bring that witness than Mr. Axon?

[00:39:47] Speaker 05:
I don't know that I can answer that question on this record or... It seems important, doesn't it?

[00:39:52] Speaker 05:
Well, again, hearsay is allowed.

[00:39:55] Speaker 00:
Reliable hearsay.

[00:39:57] Speaker 05:
Reliable hearsay.

[00:39:57] Speaker 05:
But what we do have is a report of a specific gun with a specific serial number that was reported as stolen and that gun with that serial number showing up in an individual's hands who's not allowed to have that, who's holding it for another individual who asked him to have it.

[00:40:10] Speaker 03:
But it's also factually possible.

[00:40:12] Speaker 03:
that a specific gun with a specific serial number is reported stolen, and it wasn't.

[00:40:16] Speaker 03:
That's possible.

[00:40:17] Speaker 03:
It's possible, but the question is... So then the question becomes who has access to evidence that tends to prove or disprove the underlying fact.

[00:40:26] Speaker 05:
But I think the question becomes whether or not, especially if you look at the particular issue of reliability that was raised below, was that some of these are falsely reported stolen.

[00:40:37] Speaker 05:
There's no information about how often that occurs.

[00:40:40] Speaker 05:
And there's been no support to the challenge to reliability to say that this happens more often than not, even if it could be shown that at times people report these as stolen.

[00:40:52] Speaker 00:
How should we treat it, though, differently from an anonymous tip?

[00:40:57] Speaker 00:
We don't have necessarily in a case where someone is relying on anonymous tip, the person who says, hey, that's unreliable doesn't have to bring in data about how often anonymous tips are reliable or not.

[00:41:10] Speaker 05:
But here you have an anonymous tip that is corroborated by Mr. Cole's then later possession of that gun.

[00:41:18] Speaker 00:
I'm not sure about that.

[00:41:19] Speaker 00:
If the anonymous tip is that, hey, that gun was stolen.

[00:41:27] Speaker 00:
We have no idea who the person was who says that.

[00:41:29] Speaker 00:
Then, of course, the consistency later in the chain between the gun that was erroneously reported as stolen and the gun that Mr. Cole had, it doesn't go to the reliability of the tip.

[00:41:48] Speaker 00:
It just shows you that the gun that was erroneously reported as stolen is the same gun that ended up in Mr. Cole's hands.

[00:41:56] Speaker 05:
But there is an individual who's making that report to a police department and specifying the at least serial number and providing information.

[00:42:08] Speaker 04:
It would not be the norm that NCSC would reveal any more information than this one did.

[00:42:13] Speaker 04:
But you do know the county and the data as you see it.

[00:42:17] Speaker 04:
Could your PSR investigators have checked with the Prince George's County, whatever county it was, to see if they had a record of who made that report?

[00:42:29] Speaker 05:
The PSR reporter would have that access to be able to call down to see.

[00:42:34] Speaker 05:
It's unclear to me the defense counsel couldn't similarly call Prince George's County and ask if there had been a reported stolen gun on a certain day.

[00:42:44] Speaker 00:
But you don't know that.

[00:42:46] Speaker 05:
Correct.

[00:42:48] Speaker 05:
But even if this court is concerned with that basis for affirming, again,

[00:42:53] Speaker 05:
the district court here didn't rely on that specific information in its ultimate sentence.

[00:42:59] Speaker 05:
And therefore we would ask you to affirm.

[00:43:02] Speaker 03:
Thank you.

[00:43:02] Speaker 03:
Let me make sure my colleagues don't have additional questions.

[00:43:05] Speaker 03:
Thank you, Mr McGovern.

[00:43:08] Speaker 03:
Mr Axon will give you the three minutes that you asked for for rebuttal.

[00:43:16] Speaker 01:
Thank you.

[00:43:20] Speaker 01:
With regard to the serial number,

[00:43:23] Speaker 01:
I don't want to belabor whether a serial number can be tied to a gun, but I do want to say that as the record exists, I have no, this court has no understanding of how serial numbers are

[00:43:40] Speaker 01:
recorded on guns, how they're entered into NCIC, how any report is created in NCIC related to a serial number at all, whether a box is checked, whether serial numbers are sequential so that a mistake can be made.

[00:43:53] Speaker 01:
So I think, again, because it was the government's burden to show the reliability of the system that they were using to draw the conclusion that the gun was stolen,

[00:44:03] Speaker 01:
to the extent that there are questions about how that occurs with just a serial number and nothing else, the government has failed to carry that burden.

[00:44:17] Speaker 01:
The serial number itself actually only proves that it's the same gun.

[00:44:23] Speaker 01:
even by the government's best estimate.

[00:44:26] Speaker 01:
It does not prove anything else.

[00:44:27] Speaker 01:
It doesn't prove that there's a theft.

[00:44:29] Speaker 01:
And that's what is at issue here is that there's a theft, is that the facts underlying.

[00:44:36] Speaker 01:
So again, the government has chosen not to carry that burden below, has not pointed to any facts in the record that establish it now.

[00:44:49] Speaker 01:
With regard to,

[00:44:55] Speaker 01:
the district court's ultimate sentence.

[00:45:03] Speaker 01:
I would again just reassert that the district court did not affirmatively disavow that it had found that it was relying on the fact that the gun was stolen.

[00:45:14] Speaker 01:
It also didn't disavow other things about, for example, the defendant's criminal history or facts underlying the criminal history.

[00:45:24] Speaker 01:
It certainly did give reasons for the sentence, but not reasons that made this case unique.

[00:45:31] Speaker 01:
If the court had properly calculated the guidelines and had varied above, it would have to give reasons that are sufficiently compelling.

[00:45:41] Speaker 01:
If it had departed, it would have to explain why major departure was warranted

[00:45:48] Speaker 01:
what major facts warranted a major departure.

[00:45:52] Speaker 01:
I understand that there is overlap here, but my point is that the district court did not explicitly disavow after having talked about this gun, accepted that the guidelines were correctly calculated using this gun, in many ways ratified the guidelines rationale for

[00:46:19] Speaker 01:
including stolen gun enhancement, to then with a boilerplate statement say, even if I'm wrong about everything else, what essentially happens in those circumstances is, let me put it this way, the district court should start the sentencing with,

[00:46:39] Speaker 01:
The guidelines do not matter to me.

[00:46:41] Speaker 01:
I will calculate them.

[00:46:42] Speaker 01:
And they don't matter because they're irrelevant.

[00:46:45] Speaker 01:
Because by saying this, I know that I can't be reviewed.

[00:46:51] Speaker 01:
At the same time, you're...

[00:46:54] Speaker 01:
I don't think that's what Molina Martinez was saying when it allowed district courts to disregard the guidelines.

[00:47:01] Speaker 01:
And I think if a district court is actually going to disregard facts that it has found by preponderance, I refer the court to page 84 of the appendix where it says, I find by preponderance that the gun was stolen.

[00:47:17] Speaker 01:
If the district court is actually going to not rely on that, it needs to be very clear and any ambiguity

[00:47:25] Speaker 01:
uh, in that disavow would still require remand for clarification.

[00:47:31] Speaker 03:
Thank you, counsel.

[00:47:33] Speaker 03:
Thank you to both counsel.

[00:47:34] Speaker 03:
We'll take this case under submission.