[00:00:00] Speaker 03: Case number 21-3057, United States of America versus Clark Galloway, Jr., a felon. [00:00:07] Speaker 03: Ms. [00:00:07] Speaker 03: Dormina for the a felon, Ms. [00:00:09] Speaker 03: Kelly for the elderly. [00:00:16] Speaker 05: Good morning, everybody. [00:00:17] Speaker 05: Good morning. [00:00:18] Speaker 05: I mean, you can begin. [00:00:20] Speaker 05: And I must tell you, you know, I'm so sorry. [00:00:24] Speaker 05: Absolutely. [00:00:25] Speaker 02: Good. [00:00:26] Speaker 02: The first try. [00:00:29] Speaker 02: I apologize. [00:00:30] Speaker 02: No problem. [00:00:31] Speaker 02: May it please the court. [00:00:32] Speaker 02: Good morning. [00:00:33] Speaker 02: Rosanna Terra Mina from the Federal Public Defender's Office on behalf of Mr. Clark Callaway. [00:00:38] Speaker 02: I'd like to reserve two minutes for rebuttal. [00:00:42] Speaker 02: Mr. Callaway has raised three separate and independent arguments challenging the district court's use of section 5K 2.14 to upwardly depart from the otherwise applicable sentencing guidelines range in this case. [00:00:56] Speaker 02: While each argument provides a standalone basis for remand, the court need not move beyond Mr. Callaway's very first argument with respect to factual impossibility as it is the most simple and narrow basis for remand. [00:01:12] Speaker 02: The plain language of Section 5K 2.14 authorizes upward departure where national security, public health, or safety was significantly endangered by the defendant's offense. [00:01:26] Speaker 02: Here, the district court misinterpreted the guideline to include circumstances such as those in this case where such endangerment was factually impossible because the weapon issue was not in fact dangerous, but was rather an inoperable firearm put briefly into Mr. Callaway's possession before his immediate arrest as part of a carefully controlled government sting operation. [00:01:50] Speaker 01: What if we take the disabled AK-47 out of the picture when we're trying to decide whether to do the upward departure? [00:02:00] Speaker 01: We would still have his possession of the machete and we would still have all of the threats that he made on Facebook. [00:02:11] Speaker 01: What do we do with that? [00:02:14] Speaker 02: Sure, Your Honor. [00:02:16] Speaker 02: First of all, it's important to note that this is a guidelines departure that's key to the offense and offense conduct offense is is defined by the guidelines and therefore his possession of the machete and the the threats outside are [00:02:36] Speaker 02: more appropriately considered under 3553A than they are under the guidelines. [00:02:42] Speaker 02: They are not relevant conduct. [00:02:45] Speaker 01: What do you make of the guidelines reference to nature and circumstances of the offense? [00:02:54] Speaker 01: Circumstances of the offense. [00:02:55] Speaker 01: In other words, I mean, if this were, you know, Mother Teresa buying, you know, a disabled gun, I'm not sure that we would have [00:03:06] Speaker 01: any reason for an upward departure unless she had made the threats that your client made and had kind of demonstrated the kind of plan to use the weapons that your client [00:03:19] Speaker 02: Yes, Your Honor, but though, well, Mother Teresa wouldn't be guilty of 924B in that circumstance. [00:03:26] Speaker 02: So looking at 924, looking at 924B, and I really do want to key what 924B says and what the offense is. [00:03:38] Speaker 02: to determine what the circumstances of the offense would be. [00:03:42] Speaker 02: It specifically says whoever would intend to commit therewith an offense punishable by a felony would be guilty of this offense. [00:03:56] Speaker 02: So we're specifically talking about the firearm. [00:03:59] Speaker 02: This is a firearms offense. [00:04:03] Speaker 02: All of the other [00:04:06] Speaker 02: Both the machete, and I have a number of reasons why the machete shouldn't be considered and can't be considered alone. [00:04:15] Speaker 02: One of which is that the district court didn't consider it alone. [00:04:19] Speaker 02: It considered it in conjunction. [00:04:20] Speaker 02: So if the court were inclined to say, which I don't believe it can in light of the fact that this is a departure based on offense conduct, [00:04:33] Speaker 02: That that we want to look past the the gun since the gun is one of the things that this that the court specifically relied on I would think the there would have to be a remand to the district court to decide whether or not he would apply the departure in it without consideration of the gun. [00:04:53] Speaker 02: In addition, so that's one thing, the defense conduct again is very specifically defined and this is not offense conduct, the machete or the threats. [00:05:07] Speaker 03: Sorry. [00:05:10] Speaker 02: Please, Your Honor. [00:05:12] Speaker 02: Go ahead. [00:05:13] Speaker 02: I also want to say that those things do not alone bear the weight of the language here. [00:05:21] Speaker 02: They still did not significantly endanger the public. [00:05:26] Speaker 02: If the machete were alone, could shoulder the burden of this departure, then the government was derelict in allowing Mr. Coway to remain [00:05:41] Speaker 02: at large in possession of a machete since 2016, which is when they first were aware of his possession. [00:05:49] Speaker 02: That's when he first started posting about his machete. [00:05:52] Speaker 01: I apologize for the interruption, but I do want to ask about what you just said, because to me, the machete is quite important. [00:06:00] Speaker 01: And I'll kind of lay out this theory, and then you can tell me why I'm way off. [00:06:06] Speaker 01: Even if we agree with your argument that we don't look to kind of future threats, we just sort of look to the moment that the offense is taking place. [00:06:18] Speaker 01: One of the offenses was arranging to transport the gun across state lines. [00:06:23] Speaker 01: And so that offense took a little bit of time. [00:06:26] Speaker 01: And during that time, the facts on the ground are that your client seemed to have the motive and the means and the opportunity to commit a mass casualty event for hate crime reasons. [00:06:39] Speaker 01: He had pledged his fidelity to ISIS. [00:06:42] Speaker 01: He had called himself a mujahideen. [00:06:46] Speaker 01: He had repeatedly expressed a desire and intention to kill people based on their religion and based on their race. [00:06:55] Speaker 01: And then he was armed this whole time. [00:06:57] Speaker 01: with a machete. [00:06:58] Speaker 01: And a machete can do quite a bit of damage, perhaps not as much as an AK-47, but over the course of about three months, machetes were responsible for about half a million deaths in Rwanda. [00:07:09] Speaker 01: They've been responsible for mass casualty events in Canada and the United States and South Korea. [00:07:15] Speaker 01: All these instances, five to 10 people were killed or injured at one time just with a machete, without a gun. [00:07:23] Speaker 01: So if he had the motive, means, and opportunity to commit a mass casualty event while he was arranging to transport the gun across state lines, why is that not textbook upward departure in terms of being a significant danger to public safety? [00:07:42] Speaker 02: Your Honor, I would say that it would be a valid basis for an upward variance under 3553A. [00:07:48] Speaker 02: I do not, I think that, and the Third Circuit in the United States versus UCA discusses this, that the guidelines are keyed to the offense. [00:08:03] Speaker 02: And the Sentencing Commission shows specifically when they formulated the guidelines to either [00:08:11] Speaker 02: key them to the offense or key them to broader conduct. [00:08:18] Speaker 02: And there's a long discussion about this in UCA. [00:08:20] Speaker 02: And so the guidelines, this is a guideline departure. [00:08:25] Speaker 02: This is that that all of everything that you were talking about. [00:08:29] Speaker 01: You keep saying it's tied to the offense. [00:08:30] Speaker 01: And I respect that. [00:08:31] Speaker 01: And I understand that. [00:08:32] Speaker 01: But the guideline refers to the nature and circumstances of the offense. [00:08:35] Speaker 01: And the circumstances here are that he had committed himself to a violent jihad. [00:08:42] Speaker 01: Do you agree that a violent jihad is a significant danger to public safety? [00:08:51] Speaker 02: Your Honor, [00:08:52] Speaker 02: I would say that committing oneself to a violent jihad without acting upon it does not, in the words of the guideline, did not significantly endanger. [00:09:12] Speaker 02: The words are specific. [00:09:13] Speaker 02: They did not say could endanger the public safety. [00:09:16] Speaker 02: And I do now want to, like, I would like to move to how this guideline has been used in case law. [00:09:23] Speaker 02: Wait a second. [00:09:25] Speaker 05: So I would have thought you would have added that the district court here specifically rejected the argument that he was intending to engage in mass murder. [00:09:32] Speaker 02: Yes, I apologize. [00:09:35] Speaker 02: 100%. [00:09:36] Speaker 02: That is, the court made very clear when the government repeatedly said that that was what the court found. [00:09:45] Speaker 02: The court specifically interrupted the government and said, that is not what I found. [00:09:51] Speaker 02: He found only the intent to commit what the government charged. [00:09:55] Speaker 02: And that's another important point is that the government did not charge intent to [00:10:03] Speaker 02: to commit a mass casualty event, intent to commit murder, intent to a conspiracy and anything. [00:10:12] Speaker 02: What they charged was an intent to commit an ADW, assault with a deadly weapon, which is in the smack dab in the middle of the heartland of what a firearm could be used for. [00:10:29] Speaker 05: That's a separate question, or maybe it's a predicate question. [00:10:34] Speaker 05: Sure. [00:10:34] Speaker 05: I'm just trying to understand, so your argument here, which turns on the factual impossibility of, because this gun had been affected in a way to make it inoperable. [00:10:49] Speaker 05: When you say that that makes the 5K214 departure [00:10:58] Speaker 05: Erroneous, are you arguing that as a matter of law, if the facts, whatever they are, but there's just some factual consideration that means whatever the terrible threat, however horrible it was, couldn't in fact have happened, this guideline is unavailable? [00:11:19] Speaker 05: Or are you arguing, I'm gonna give you the three options. [00:11:21] Speaker 05: I can understand arguments, it fits into any box. [00:11:25] Speaker 05: And so I need your expert help. [00:11:27] Speaker 05: So one would be sort of a law argument like that. [00:11:29] Speaker 05: One would be application. [00:11:31] Speaker 05: So we understand what the guideline is, but how it was applied here on this record, this fact, including this. [00:11:37] Speaker 05: So was it an application error, law error, application error, or are you disputing the factual finding that there was ever in fact a threat to the public? [00:11:48] Speaker 02: I don't know that he, I would say, I don't know that he made a, I don't know that it's a factual finding. [00:11:55] Speaker 02: I think that it is a legal conclusion with respect to the factual fine. [00:12:00] Speaker 05: I mean, the guideline calls for a factual finding that there was a threat to a significant threat. [00:12:09] Speaker 02: To safety is that that's not a factual finding I would well, first of all, I want to I want to answer your question and then and make make sure that we're that we're talking about. [00:12:20] Speaker 02: Whether there was whether the actual words of the of the guideline, which are was significantly endangered. [00:12:28] Speaker 02: And then, but I would say, your honor, that the answer is the first, the first. [00:12:34] Speaker 02: I believe that this is a plain language interpretive issue that the district court interpreted the guideline to allow for this type of conduct where it's factually impossible. [00:12:50] Speaker 05: So if we have a law error, so this was a sting operation, but imagine it wasn't. [00:12:57] Speaker 05: a sting operation. [00:12:58] Speaker 05: It's just he's buying this AK-47. [00:13:01] Speaker 05: And it turns out there's unbeknownst to both the seller and him a manufacturing defect that renders it inoperable. [00:13:11] Speaker 05: But he buys it thinking it's fully functional. [00:13:15] Speaker 05: And the person sells it thinking it's fully functional. [00:13:18] Speaker 05: And as it turns out, the government's been watching the seller. [00:13:21] Speaker 05: And they happen to be waiting outside. [00:13:22] Speaker 05: And they grab him before he can take any further steps. [00:13:26] Speaker 05: So in that situation, you would have the same position. [00:13:29] Speaker 05: I would, Your Honor, and that's where I do want to go to the case law here because what you're seeing is- What if instead of the firearm being inoperable, the defendant had sort of a hand disability or something that was going to make, he didn't know. [00:13:51] Speaker 05: He thought he could operate an AK-47, but for some reason he lacks the physical ability [00:13:57] Speaker 05: to do so, to pull the trigger because of nerve damage in his hands or something, but doesn't know that. [00:14:03] Speaker 05: So the firearm is fully operable. [00:14:06] Speaker 05: But as it turns out, he's not factually capable of operating the firearm. [00:14:12] Speaker 02: Your honor, I think that that still would not qualify here, but it would not leave the district. [00:14:18] Speaker 05: Even if he's walking out on the street now with his AK-47, lifts it up and then tries to pull the trigger and can't. [00:14:25] Speaker 02: Well, yes, I don't think that that qualifies here under this guideline, but to be very clear, Your Honor, that is something that I'm not saying that the court couldn't consider his culpability and his intent in [00:14:38] Speaker 02: in the 3553A factors, that analysis includes the history and characteristics of the defendant. [00:14:47] Speaker 05: Another question for me because if I recall correctly, the district court here said, and even without these guideline factors, applying 3553 factors, I would give you this same sentence. [00:15:00] Speaker 02: He did not say that, Your Honor. [00:15:01] Speaker 02: In fact, it's something that we always look for in our office to make sure that they, whether or not the court said that. [00:15:09] Speaker 02: And he didn't. [00:15:10] Speaker 02: He actually said that I think a guideline sentence is appropriate in this case, which to me shows that if he was rejecting a higher or lower sentence based on 3553 factors. [00:15:22] Speaker 05: 53A factors. [00:15:23] Speaker 02: Right, which means that he keyed his sentence to his guideline calculation, which he included the departure. [00:15:35] Speaker 05: But he also says, given 3553 factors, I don't think anything higher or lower is warranted. [00:15:41] Speaker 02: He didn't think that the variance arguments were [00:15:48] Speaker 02: warranted an upward or. [00:15:50] Speaker 05: I know, but I think in saying that, maybe I'm doing too much mind reading here and that's my error. [00:15:55] Speaker 05: It seems to me a statement at bottom that the 3553A factors leave me where I am. [00:16:04] Speaker 05: They don't warrant something higher, they don't warrant something lower, which in some Goldilocks way makes it sound like this is in fact the 3553A sets [00:16:13] Speaker 02: I think, and this court in particular and district courts in general know that in these circumstances, and in fact, this court earlier in the proceedings specifically said to the government, why are you doing this this way? [00:16:33] Speaker 02: You're opening yourself up to appeal by asking for these departures. [00:16:40] Speaker 02: And so the court understood and courts understand that [00:16:46] Speaker 02: they very specifically say whether or not this guideline, this particular guideline applied. [00:16:53] Speaker 02: And when he was doing the 3553A factors, that was after he had already made, written his decision on the departures. [00:17:02] Speaker 02: And he was looking within that guideline range based on the variance arguments that the council was making that day to decide whether to go up or down. [00:17:12] Speaker 02: And had he had a different, [00:17:16] Speaker 02: different baseline by not applying this two-point departure, we don't know what his analysis would be. [00:17:23] Speaker 02: And that is going to be a question on remand, if there's a remand in this case. [00:17:28] Speaker 02: He can use 3553, but he did not make clear that with respect to... He could use 3553 to reimpose this exact same sentence. [00:17:39] Speaker 02: Yes, but he but he did not make clear on the record that whether with or without this particular departure, he would give this the same sentence. [00:17:50] Speaker 02: And that's what courts in [00:17:54] Speaker 02: need to be clear in saying, because I do agree with you, that if he had said that, that this would not be a basis for appeal for us. [00:18:03] Speaker 02: If he had said- I appreciate that. [00:18:06] Speaker 05: And just one more thing to understand your rule of law argument. [00:18:10] Speaker 05: Does it ever change based on the nature of what's being acquired? [00:18:14] Speaker 05: Say instead of an AK-47, he was obtaining a nuclear bomb. [00:18:24] Speaker 05: Understandably, they hand over as disabled. [00:18:28] Speaker 05: Thankfully, we would want to report that. [00:18:32] Speaker 05: We still, a court could not find that his attempted acquisition, and we'll have the same record of online statements, just trying to get something like this in combination with those statements creates a threat to public safety. [00:18:48] Speaker 02: With this particular departure, Your Honor, I would say that it does not qualify under this departure. [00:18:54] Speaker 02: But please understand that I'm not saying that a court could not consider that information when sentencing and with respect to the whole picture in 3553A. [00:19:08] Speaker 02: But this departure is trying to [00:19:17] Speaker 02: have to punish someone differently for the person who's sitting in their house wanting to do something bad, and then the person who leaves their house and does something bad. [00:19:29] Speaker 02: There has to be a difference there. [00:19:30] Speaker 02: And that's what this district court is doing. [00:19:33] Speaker 05: And he left his house to buy this weapon. [00:19:36] Speaker 05: But I guess if what you're saying is this sentence could be a perfectly reasonable sentence if the district court had just packed it into 3553. [00:19:48] Speaker 05: What is the point of this claim then? [00:19:52] Speaker 05: Because it's a departure, but that's because it was written before the guidelines became entirely advisory. [00:20:00] Speaker 05: You don't really have departures at this point. [00:20:03] Speaker 05: It's all advisory. [00:20:05] Speaker 05: And so why isn't what he did there effectively a 3553A analysis? [00:20:12] Speaker 05: We don't require them to label that. [00:20:13] Speaker 05: But because you don't have to justify departures like you would have [00:20:18] Speaker 05: pre-booker, he was going through these facts and he was applying, as he sort of said at the end of the day, when I look at these 3553A factors, I'm sitting right, I'm left right where I started on this same sentence. [00:20:33] Speaker 05: Your honor, I think that it would be reasonable to impose this same sentence under 35. [00:20:40] Speaker 02: Yes, I don't believe that we would have a substantively unreasonable argument there. [00:20:44] Speaker 02: But I think it's important to compare this situation, even though this is an upward departure, to a situation where the court incorrectly calculates the guidelines. [00:20:54] Speaker 02: And the Supreme Court has said that even in those circumstances, that that is considered plain error and that [00:20:59] Speaker 02: a defendant is entitled to re-sentencing, even if the sentence would otherwise be considered reasonable when there is a guidelines calculation error. [00:21:10] Speaker 02: And the court in this case treated this departure as essentially a guidelines, as an enhancement, as a guidelines [00:21:21] Speaker 02: as just part of its guidelines calculation. [00:21:24] Speaker 02: And in fact, when it gave its departure guideline range, it told the defendant that the courts will automatically, any sentence within this range will be considered reasonable by the court of appeals because it's within the guideline range. [00:21:46] Speaker 02: But that's an incorrect statement of law, because the guideline range is a pre-departure guideline range. [00:21:55] Speaker 02: So only the pre-departure guideline range is considered reasonable by the court, which is only to say that the court clearly treated this departure as if it were a part of its guidelines calculation. [00:22:07] Speaker 02: And had it not calculated the guidelines in this manner, we do not know [00:22:15] Speaker 02: where the court or how much the court would have varied where the court would have whether it would have varied where the court would have come out here because this essentially put an idea in the courts fine that this was an appropriate reason to depart upward. [00:22:32] Speaker 02: And again, but by in this instance, two points, two levels. [00:22:39] Speaker 02: When courts vary, they generally don't vary in that manner. [00:22:44] Speaker 02: They'll go up a few months from the high end of the guideline range. [00:22:49] Speaker 02: We just don't know how the court would have handled this situation. [00:22:53] Speaker 02: Can I just read it? [00:22:55] Speaker 05: Just one more sentence. [00:22:56] Speaker 05: How if at all does [00:23:00] Speaker 05: intent factor into the 5K214 analysis of whether someone posed or whether there was a significant threat to safety. [00:23:13] Speaker 02: Your honor, as I said, [00:23:16] Speaker 02: It doesn't factor into the factual impossibility argument because that's key to whether or not it was possible, no matter someone's intent. [00:23:27] Speaker 02: But I do believe that the case law, the great weight of the case law shows that this departure is given when people go out and do the harm that [00:23:42] Speaker 02: that 5K 2.14 is aimed at? [00:23:47] Speaker 03: I'm trying to understand that. [00:23:49] Speaker 05: So if we don't look, factual impossibility is sort of a bright line that can't be crossed. [00:23:55] Speaker 05: And intent can't change that. [00:23:58] Speaker 05: Then you're asking this court to say that no matter how strong the record of intent and no matter how much pre-planning, pre-staged, ready to go, [00:24:11] Speaker 05: conduct there is for the most horrific actions that there could be, if it turns out that there is just this, whether even if it's flukish explanation reason for why it can't actually happen, this guideline can't apply. [00:24:29] Speaker 05: And that may well be a crack. [00:24:31] Speaker 05: I'm just trying to make sure I'm thinking through consequences on both ends here. [00:24:34] Speaker 02: You are, but your honor, I don't think that the court needs to be afraid of, like this does not really tie [00:24:42] Speaker 02: tie the hands of a court in taking that into consideration under 3553. [00:24:47] Speaker 02: I think that it will change the analysis in this case because of the way the court calculated the guidelines to analyze the issue. [00:24:56] Speaker 02: But please understand that there's no argument. [00:25:01] Speaker 01: Sure, sure. [00:25:02] Speaker 01: Please take Judge Millett's hypothetical that she just asked. [00:25:06] Speaker 06: Yes. [00:25:07] Speaker 01: except change the very end of it. [00:25:08] Speaker 01: In judgment, that's hypothetical. [00:25:10] Speaker 01: There was some reason that we can feel certain that the terrible plan, it was impossible that it would happen. [00:25:22] Speaker 01: It's like a fluke. [00:25:23] Speaker 01: But imagine instead that it's just as simple as the police caught him before he did it. [00:25:32] Speaker 01: So same, all the planning, all the terrible stuff. [00:25:35] Speaker 01: And then the only reason it doesn't happen is that the police catch him before he does it. [00:25:41] Speaker 01: In that instance, could there be an upward departure under this guideline? [00:25:52] Speaker 02: In that instance, I mean, first of all, [00:25:56] Speaker 02: That is not, that's not this case. [00:25:58] Speaker 02: So I would encourage the court to do. [00:26:02] Speaker 02: I know, I know. [00:26:05] Speaker 02: You're asking for a rule of law. [00:26:08] Speaker 02: And I do think, and that's why I think the government's brief is so long, because like all the other, everything else is very interesting to talk about. [00:26:17] Speaker 02: It is difficult to line draw. [00:26:20] Speaker 01: You've been so responsive to all of our questions so far, and I'm grateful for that. [00:26:23] Speaker 01: But here, I really do want an answer to this question as well. [00:26:29] Speaker 02: So if the police stopped him before he endangered public safety, then I would say that it doesn't apply. [00:26:41] Speaker 02: But please, Your Honor, understand that. [00:26:43] Speaker 01: I don't know, but you're kind of baking in [00:26:46] Speaker 01: the answer to the hypothetical you're saying, if he stopped him before he endangers public safety, I'm saying he makes a terrible plan. [00:26:54] Speaker 01: He has every intent to do it. [00:26:56] Speaker 01: He has the means to do it. [00:26:59] Speaker 01: And the police catch him just before he's going to, let's say, commit a mass casualty event. [00:27:06] Speaker 01: In that situation, could there be an upward departure under this guideline? [00:27:18] Speaker 02: I can't think of a similar case where the guideline has been applied. [00:27:29] Speaker 02: So I would say no. [00:27:30] Speaker 02: I would say no, Your Honor. [00:27:32] Speaker 02: And I would say, but I would say that that does not. [00:27:34] Speaker 02: You can do it under 3553A. [00:27:37] Speaker 02: Yes. [00:27:37] Speaker 01: I think it's really important to know that I'm not saying that this is not allowed. [00:27:42] Speaker 01: One more question. [00:27:47] Speaker 01: We had a case this court did about a year ago. [00:27:50] Speaker 01: It was an enhancement for a child sex predator. [00:27:56] Speaker 01: The enhancement applied if the victim was 14 years or younger. [00:28:01] Speaker 01: And the defendant's argument was, well, that should not apply because here was a sting operation. [00:28:08] Speaker 01: There was no actual child involved. [00:28:12] Speaker 01: It was an FBI agent on the other end of the conversation with the defendant. [00:28:16] Speaker 01: And this court said, well, the enhancement still does apply because even though there was not literally a child 14 or under involved in this crime, the defendant, you know, basically acted as if there was and [00:28:37] Speaker 01: that seems quite analogous to this case where, here's my question. [00:28:41] Speaker 01: If there didn't have to be a real child in order to get the enhancement for a child, why does there have to be an enabled gun in order to get the enhancement for a gun? [00:28:56] Speaker 02: Because I think that the guideline with respect to the age of the child, [00:29:06] Speaker 02: I have not studied that particular guideline and the Sentencing Commission's reasons for that enhancement, but it could very well be tied more to the culpability of the defendant than it is to the harm to a child. [00:29:21] Speaker 02: And if it's not tied to the harm to a child and there is no existing child, [00:29:25] Speaker 02: then that makes sense. [00:29:27] Speaker 02: The distinction here is that the way that this guideline, and again, it's a policy statement, it's a departure guideline, is written, it says that the public safety was significantly endangered. [00:29:44] Speaker 02: So it's very clear that the Sentencing Commission was less involved in [00:29:52] Speaker 02: interested in culpability than it is in the actual effect of the defendant's conduct. [00:30:01] Speaker 02: So that's how I would distinguish those two cases. [00:30:08] Speaker 05: Thank you for your patience. [00:30:10] Speaker 05: Colleagues don't have any more questions. [00:30:13] Speaker 05: We kept you up a little bit longer than planned. [00:30:16] Speaker 05: Thank you very much, Ms. [00:30:16] Speaker 05: Termina. [00:30:17] Speaker 05: Thank you. [00:30:18] Speaker 05: And we'll give you some time for rebuttal. [00:30:28] Speaker 04: Good morning, Your Honors. [00:30:29] Speaker 04: May it please the court? [00:30:30] Speaker 04: Katherine Kelly on behalf of the United States. [00:30:33] Speaker 04: Your Honors, in this case, the district court appropriately applied guideline 5K 2.14 as a departure in this case. [00:30:43] Speaker 04: It was not undercut by the fact that the FBI had very reasonably disabled the AK-47 and immediately arrested him after turning it over. [00:30:53] Speaker 04: Defense argument really forecloses the idea that you can fly this guideline departure at all anytime the FBI does its job, whether it turns over through a cooperator, a disabled firearm, or whether or not it turns over a fake nuclear weapon, as Your Honor had mentioned in your hypothetical. [00:31:10] Speaker 05: I know, but you're in a government position here. [00:31:14] Speaker 05: also sort of wants to blink reality, right? [00:31:18] Speaker 05: And what are the limits on that? [00:31:22] Speaker 05: What is it that makes him, since it wasn't the gun in reality that made him in danger or that endangered safety, what was it? [00:31:34] Speaker 04: Was it his intent? [00:31:36] Speaker 04: It's his intent, it's his repeated statements, not only in particular during the time that he's actually [00:31:45] Speaker 04: taking part in this offense, the offense of interstate transport or causing the interstate transport of the AK-47 and ammunition. [00:31:54] Speaker 04: He's repeatedly telling people on Facebook and cooperators what he plans to do with this gun. [00:32:01] Speaker 04: And not only just the gun, he has the machete as well. [00:32:04] Speaker 04: Just a couple of weeks before this gun is turned over, he is on Facebook saying that [00:32:10] Speaker 04: got AK-47 en route machete on deck that he is ready to kill anyone who isn't a Muslim in these final days. [00:32:19] Speaker 04: That was one of his main statements during that period of time. [00:32:22] Speaker 04: Even after he was arrested when he was in CTF. [00:32:26] Speaker 05: The government didn't think that was arrestable conduct. [00:32:28] Speaker 05: That conduct itself, even with this machete sitting there in his apartment was something that posed even enough of a threat to warrant arrest in his own right. [00:32:37] Speaker 04: It's not clear to me, Your Honor, and I have not looked. [00:32:39] Speaker 05: Could he have been arrested at that point without the AK-47? [00:32:43] Speaker 04: I don't know that possession of a machete is a federal offense. [00:32:48] Speaker 04: I haven't looked into that, but I don't know of any law off the top of my head that indicates that just mere possession of a machete is a federal offense. [00:32:56] Speaker 05: Oh, so the state or? [00:32:57] Speaker 04: That's a possibility. [00:32:59] Speaker 04: The FBI could have tipped off. [00:33:01] Speaker 05: That would be your ranting? [00:33:04] Speaker 05: Let's say ranting on Facebook while lawfully armed. [00:33:08] Speaker 05: We'll assume that for the machete. [00:33:11] Speaker 05: People can get jailed for that. [00:33:14] Speaker 05: I think the jails will be very full. [00:33:17] Speaker 04: I don't think that just ranting about it with possessing a machete in your apartment would get you. [00:33:23] Speaker 04: So what was more than ranting here? [00:33:26] Speaker 04: More than ranting here is that he was trying to get this cooperator CS3 to sell him an AK-47 and ammunition. [00:33:33] Speaker 04: So it really is the AK-47. [00:33:36] Speaker 05: That is the main part of it. [00:33:38] Speaker 05: That was going to be able to allow him to cause assault, to undertake assault with a deadly weapon, even though he already had a deadly weapon that he could assault with. [00:33:49] Speaker 05: That was what was charged in count one, interstate trends. [00:33:51] Speaker 05: That's what the district court found here too, for the basis for the enhancement, was intent to commit assault with a deadly weapon, not mass murder. [00:33:58] Speaker 05: He didn't find that. [00:33:59] Speaker 05: That's correct, Your Honor. [00:34:01] Speaker 05: So it was transporting, even though he already had expressed these views and had a deadly weapon at hand, it was arranging for the AK-47 that suddenly made him a threat to safety because then he would commit an assault with a deadly weapon. [00:34:19] Speaker 05: That was just the charge defense and count one was the, was the intersection. [00:34:22] Speaker 05: I'm asking that's the finding that the district court relied upon here to apply this enhancement was that he was going to commit assault with a deadly weapon based on. [00:34:31] Speaker 05: In fact, he's got the machete, but he had the machete and he had the, the online language before anything was involved with the AK 47. [00:34:42] Speaker 05: And I thought you just said you didn't think there'd be any federal offense there. [00:34:45] Speaker 05: It wouldn't be a federal assault with a deadly weapon. [00:34:49] Speaker 05: I'm just assuming here the machete at some point crossed state lines. [00:34:54] Speaker 05: It was purchased from a store or something. [00:34:55] Speaker 05: It was purchased somewhere. [00:34:56] Speaker 05: He didn't hand make it. [00:34:58] Speaker 05: So you have a deadly weapon and his threats of assault. [00:35:03] Speaker 05: And if that's really what the government thought the risk that was, then we don't need the AK-47 at all. [00:35:09] Speaker 04: I'm not sure that the government had any information as to when he obtained the machete. [00:35:13] Speaker 04: He had had the machete for a number of years, according to his Facebook posts. [00:35:16] Speaker 05: So it's not- So they knew for a number of years that he had a machete and was making these assaults. [00:35:22] Speaker 05: And so then there's this sort of, it sounds more loaded than I mean it manufactured, but the structured transport and purchase that's entirely a government controlled [00:35:33] Speaker 05: operation. [00:35:35] Speaker 05: There's never any, if we think the risk before, based on his machete and his threats and his language, it's horrible language, vile language, made him a threat to commit assault with a deadly weapon. [00:35:52] Speaker 05: And let's say it's a 80% chance, and we'll call that enough to be significant endangerment. [00:36:01] Speaker 05: That 80% didn't change. [00:36:04] Speaker 05: ever changed because it was the government transporting, government controlling, government disabled. [00:36:09] Speaker 05: The percentage never changed. [00:36:13] Speaker 05: Nothing changed with respect to the AK-47 situation vis-a-vis the threat to the public. [00:36:21] Speaker 05: or to the officers or to anybody. [00:36:23] Speaker 05: No one's safety was changed by that. [00:36:26] Speaker 05: Tell me how it was. [00:36:27] Speaker 04: Well, other than the fact that it's much easier to kill far more people very quickly without getting yourself in a hand-to-hand combat. [00:36:33] Speaker 04: Not with a disabled? [00:36:35] Speaker 04: Not with the disabled. [00:36:39] Speaker 04: The fact that it was disabled is just one factor to be looked at in this. [00:36:43] Speaker 05: No, I'm asking you. [00:36:45] Speaker 05: It may be the factor that's an issue in this. [00:36:50] Speaker 05: It is the factor that the defense is raising here. [00:36:55] Speaker 05: And it seems a really important one, because on the one hand, the government wants to say, this was it. [00:37:03] Speaker 05: This AK-47 is what made him in combination with pre-existing factors. [00:37:09] Speaker 05: But those alone weren't enough. [00:37:11] Speaker 05: This was the moment that it all changed when we know in fact that with respect to the threat to public safety, nothing changed. [00:37:23] Speaker 05: There was no actual factual change in the threat to public safety. [00:37:28] Speaker 04: He did not have an currently operable AK 47 at that moment. [00:37:33] Speaker 04: Yes, we certainly concede that. [00:37:35] Speaker 05: Was there a currently operable one that he calls to move in interstate commerce? [00:37:41] Speaker 05: not that was currently operating. [00:37:43] Speaker 05: So not that moment and not any moment before. [00:37:46] Speaker 05: So what, how did, just help me understand how the threat to safety, public safety, officer safety changed at all from what it was before. [00:37:58] Speaker 05: There was this baseline before with machete and the threats. [00:38:01] Speaker 05: How did it in fact, [00:38:04] Speaker 05: change. [00:38:05] Speaker 04: That gun could have been made operable had he been allowed to hold on to it. [00:38:10] Speaker 03: That was never going to happen. [00:38:11] Speaker 03: That was never going to happen. [00:38:15] Speaker 03: It's still nonetheless a machine gun shot. [00:38:17] Speaker 05: Zero chance of that happening. [00:38:20] Speaker 05: Was there any percentile chance that he was gonna be able to get away, get out of the room, take it somewhere? [00:38:27] Speaker 04: There's always some possibility that he could have escaped the apartment and made it operable. [00:38:33] Speaker 04: He had four years of serious marine training. [00:38:37] Speaker 04: Okay, where is that finding by the district court? [00:38:40] Speaker 04: It was a fact that was discussed in numerous points. [00:38:43] Speaker 04: I don't think the court put in... No, the court didn't make a finding about... That wasn't any part of the district court's factual basis for imposing this enhancement. [00:38:55] Speaker 05: Correct? [00:38:58] Speaker 05: His military training or no, he might somehow escape. [00:39:03] Speaker 05: No, get away to wherever it is. [00:39:05] Speaker 05: He needs to go and get the equipment to make this operable. [00:39:07] Speaker 05: That was a part of the page. [00:39:09] Speaker 05: So what is it that the district court pointed to that took this threat to safety from that preexisting level? [00:39:20] Speaker 05: That wasn't enough. [00:39:23] Speaker 04: What was it? [00:39:25] Speaker 04: I don't believe that it's the pre-existing level was not enough. [00:39:28] Speaker 04: The court did rely extensively on Mr.- He never said that was enough by itself. [00:39:33] Speaker 04: He was saying- He never said that was enough by itself. [00:39:36] Speaker 05: He did not say it was enough by itself. [00:39:38] Speaker 05: He was combining the nature- Okay, so we couldn't make that decision either. [00:39:41] Speaker 05: He maybe could argue it on remit, but I mean, this is the difficulty of this case. [00:39:45] Speaker 05: It's not just a factor, is that we're supposed to find that the offense conduct, which was the acquisition [00:39:53] Speaker 05: of this AK-47 with the intent to commit an assault with a deadly weapon, not a mass killing. [00:40:02] Speaker 05: We're supposed to find that that is what, though qualitatively changed the threat that he posed to safety as to warrant a significant threat to safety, as to warrant this departure. [00:40:20] Speaker 05: And it's just hard for me to get my mind about it. [00:40:23] Speaker 05: if there was nothing. [00:40:26] Speaker 05: And it's not, we can't even sort of do the nuclear weapon. [00:40:28] Speaker 05: It's the nature of what he was acquiring because in some parts of this country, AK-47s are lawful weapons for people to possess. [00:40:38] Speaker 04: I'm hoping this facility is to possess a nuclear weapon, right? [00:40:43] Speaker 04: An AK-47 is still a highly lethal weapon. [00:40:45] Speaker 04: It's not a matter of something where you're just getting a start. [00:40:51] Speaker 03: There are only guns by definition. [00:40:55] Speaker 03: But that's not the point here. [00:40:58] Speaker 03: Because he did not. [00:40:59] Speaker 03: He happened to acquire one that was not lethal. [00:41:03] Speaker 04: Well, then that's creating a bright line rule that any time the FBI does its job, then you can never say that somebody has been in a situation where you're significantly endangering [00:41:16] Speaker 05: We don't want the police to create sting operations that in that own conduct significantly threaten safety. [00:41:32] Speaker 05: We wouldn't want that. [00:41:33] Speaker 05: It seems backwards to say that we want to say what the government did here significantly or created a significant threat to safety. [00:41:45] Speaker 05: But no one would ever want to say that outdoors in the real world. [00:41:50] Speaker 05: The police are quite careful and conscientious not to both for the public safety and presumably and hopefully for their own. [00:41:58] Speaker 05: It seems like we're like where I started blinking reality here. [00:42:03] Speaker 04: I don't think I do with that. [00:42:05] Speaker 04: I don't think we are blinking reality for the couple of cases that we pointed out in our brief. [00:42:09] Speaker 04: The Roth case and the Todd case are situations where the district court applied this guidelines departure in situations that could have endangered national security in the Roth case in particular. [00:42:21] Speaker 05: What it takes to endanger national security can be very different. [00:42:24] Speaker 05: It takes to just [00:42:26] Speaker 05: the morale issues with the military, you know, theft of military equipment can be a problem. [00:42:32] Speaker 05: That's not what we're talking about here. [00:42:34] Speaker 05: The argument here is that it was this AK-47's purchase that changed everything because of that he was acquiring this weapon. [00:42:47] Speaker 04: And it's not no other arguments. [00:42:49] Speaker 04: It's not just the purchase is what he was saying he was going to do with the gun all along. [00:42:54] Speaker 04: And even when he was in CTF, he was telling W7 what he had planned to do. [00:42:59] Speaker 04: He was disappointed that he was shut down so quickly because his goal had been, as he was saying, to buy. [00:43:07] Speaker 04: I understand what he said. [00:43:09] Speaker 05: I get that. [00:43:11] Speaker 05: It's particularly that we have that and we have the machete beforehand. [00:43:15] Speaker 05: What I'm struggling with is, in fact, in reality, his ability to undertake that harm did not change for a second. [00:43:28] Speaker 04: Only because the FBI did its job. [00:43:31] Speaker 05: Exactly. [00:43:32] Speaker 05: Stop that. [00:43:34] Speaker 05: Thank the very question here. [00:43:36] Speaker 05: Because the FBI did its job, absolutely, the FBI did its job to keep the public safe. [00:43:45] Speaker 05: to engage in its difficult investigatory measures in a way that still protects public safety. [00:43:52] Speaker 05: So when you say only because the FBI did its job, let's substitute in only because public safety was preserved and unaffected. [00:44:02] Speaker 05: That's what you mean by that. [00:44:06] Speaker 04: It's a situation too where we also have a defendant who was not trying to buy it. [00:44:11] Speaker 04: He fully believed that he was not trying to buy a disabled firearm. [00:44:15] Speaker 04: He fully believed that he was buying a gun that was capable of firing. [00:44:22] Speaker 04: His intent is very important here. [00:44:26] Speaker 05: Is his intent alone what changes this to a public safety risk? [00:44:34] Speaker 04: I think his intent is very, very important. [00:44:37] Speaker 04: No, no. [00:44:37] Speaker 04: I'm going to ask again. [00:44:38] Speaker 04: Is the intent. [00:44:39] Speaker 05: But we write an opinion that says his intent alone. [00:44:42] Speaker 05: His intent alone, which he had all along with Machete hanging in his apartment. [00:44:51] Speaker 05: His intent alone changed it. [00:44:55] Speaker 04: I think you could, because based on his statements. [00:44:57] Speaker 04: The district court didn't do that. [00:44:59] Speaker 04: No, but the district court did rely very heavily on his statements. [00:45:03] Speaker 04: Yes. [00:45:03] Speaker 04: And what his plans were. [00:45:04] Speaker 05: But they didn't state it. [00:45:06] Speaker 05: So if he were, he had the intent as also someone who was really, really, this is hypothetical to be clear, really, really stupid and confused. [00:45:18] Speaker 05: So not someone with military background. [00:45:22] Speaker 05: I thought if I just had a sharp pair of scissors, I could kill many, many people. [00:45:29] Speaker 05: I could kill the police officers or the non-Muslims. [00:45:34] Speaker 05: And that is my intent. [00:45:37] Speaker 05: And I'm going to acquire a sharp pair of scissors. [00:45:42] Speaker 05: And the FBI hands some kindergarten dull scissors. [00:45:47] Speaker 05: Has the threat to public safety changed because of his intent? [00:45:51] Speaker 05: He thinks he's got it now, but actually it's those dull scissors that can't hurt anybody. [00:45:56] Speaker 04: I don't think so in that situation because, of course, the sharp pair of scissors is so, so different. [00:46:00] Speaker 04: What's the difference between both scissors and a dull slash disabled gun? [00:46:04] Speaker 04: The disabled gun can be made operable and it could easily kill many, many people, particularly when it's been turned over. [00:46:10] Speaker 04: You can sharpen metal. [00:46:11] Speaker 05: You can sharpen metal. [00:46:12] Speaker 05: You can sharpen those scissors. [00:46:13] Speaker 04: Again, that's something that takes an awful lot of hand-to-hand combat with somebody as opposed to just walking into a police station like he intended. [00:46:19] Speaker 04: I'm sorry, he has two officers. [00:46:21] Speaker 05: Okay, so I know you want to keep making that argument, which the district court rejected. [00:46:26] Speaker 05: I would like to rely on what the district court found here, these arguments. [00:46:30] Speaker 05: And he didn't even agree to that in his plea. [00:46:33] Speaker 05: He didn't have any recollection of this thing about police stations. [00:46:37] Speaker 04: The government, that was clear. [00:46:38] Speaker 05: And walking anywhere. [00:46:41] Speaker 05: with that AK-47. [00:46:42] Speaker 04: I just want to make clear that he did not recall at the time of his plea, his belief at that time was that he didn't make that statement. [00:46:51] Speaker 04: The defense counsel later agreed that he did make that statement. [00:46:55] Speaker 04: It was included in the statements that he had made to cooperators and Facebook and on Facebook. [00:47:00] Speaker 04: I can't remember if it was a statement to CS3 or whatever. [00:47:08] Speaker 04: The district court had asked after the plea what statements should be considered, in particular since he had made the statement at the plea that he didn't recall saying anything about going into a police station. [00:47:24] Speaker 04: But defense counsel later agreed at page A230 of the record that agreed to the accuracy of the defendant's Facebook posts and his statements attributed to him when he was being secretly reported by the confidential. [00:47:39] Speaker 04: And even then, the district court just said, I'm not relying on that. [00:47:44] Speaker 05: All the district court said was he intended to commit assault with a deadly weapon. [00:47:49] Speaker 04: And that's what was charged. [00:47:50] Speaker 04: The district court said that it was the government's [00:47:55] Speaker 05: you had to have an offense for purposes, you know, defense for 924. [00:48:00] Speaker 05: Yes. [00:48:00] Speaker 05: But the district court also pointed to and only to his intent to use the AK-47 to commit assault with a deadly weapon as the basis for the enhancement. [00:48:13] Speaker 04: That's correct. [00:48:13] Speaker 04: But you can certainly assault more than one person with a deadly weapon. [00:48:16] Speaker 04: The only thing that district court was really saying, and you did saying is for our purposes, we rely on what the district [00:48:25] Speaker 04: right right but the district court certainly did not say that there was that it was finding that multiple people would not be killed in this situation it was just saying the government gloss on the facts was and it's not a gloss out of nowhere it's it's based on what his statements are that he wants to kill white people [00:48:46] Speaker 04: He wants to kill police officers. [00:48:48] Speaker 04: He wants to kill anybody who is a Muslim. [00:48:50] Speaker 04: So we're not talking about- No one's disputing those statements, which are all made with- All of that supports that it's not just an ADW where you go and you find one person and you point the gun at them. [00:49:02] Speaker 04: He is saying, I want to kill and I want to kill people, large, you know, a whole variety. [00:49:10] Speaker 05: I don't read the district court opinion maybe the same way that you do. [00:49:14] Speaker 05: I mean, I understand those arguments were there and those statements were there and they're terrible statements. [00:49:19] Speaker 05: And they were made at the time he had a machete, which Judge Walker has pointed out itself could have been used all along to injure or kill multiple people. [00:49:33] Speaker 05: So I'm trying to again focus as the guideline requires us on that the offense at issue here, the 924C acquisition [00:49:40] Speaker 05: and how that changed anything. [00:49:41] Speaker 05: But I've monopolized your time too much. [00:49:45] Speaker 05: Can I ask you one thing, though? [00:49:45] Speaker 05: He has been released, right? [00:49:46] Speaker 05: He's no longer in prison? [00:49:47] Speaker 05: He's on supervised release as of April 21st. [00:49:51] Speaker 05: OK. [00:49:51] Speaker 05: But there's no mootness argument because this could affect supervised release? [00:49:55] Speaker 04: Exactly, Ron. [00:49:59] Speaker 01: You [00:50:02] Speaker 01: Let me read this sentence, and I guess my question is, should we treat this as a factual finding? [00:50:07] Speaker 01: Should we treat this as a legal conclusion? [00:50:09] Speaker 01: What do we do with this sentence? [00:50:11] Speaker 04: I believe it is a factual finding. [00:50:13] Speaker 01: No, no, I haven't told you the sentence yet. [00:50:15] Speaker 01: I just haven't told you the sentence yet. [00:50:17] Speaker 01: I'm sorry. [00:50:19] Speaker 01: This is on JA 296. [00:50:30] Speaker 04: And I'm sorry, which which statement on Jade? [00:50:32] Speaker 01: So it's in the middle of the page. [00:50:33] Speaker 01: It says the dangerous nature of the defendant at the time of the offense, being armed with multiple weapons that he intended to use and carrying out an attack created a serious risk that multiple individuals could have been killed or injured. [00:50:52] Speaker 01: Should we think of that as not a factual finding? [00:50:56] Speaker 04: I believe it's a factual finding, and if it was any more than a factual finding, what the court is doing is applying the facts to the guideline. [00:51:04] Speaker 01: You said in response to Judge Muller's questions that the court did not find a risk of a mass casualty event. [00:51:12] Speaker 01: It looks like here the court's saying the defendant created a serious risk that multiple individuals could have been killed or injured. [00:51:19] Speaker 04: That's correct. [00:51:20] Speaker 04: The court did say this. [00:51:21] Speaker 04: And my recollection of the court's statement about mass casualty was at the later sentencing hearing. [00:51:32] Speaker 04: And the government was saying that he was essentially going to have created a mass casualty situation. [00:51:38] Speaker 04: And the court was simply finding or stating that it had not made that specific finding in this July 27th decision. [00:51:47] Speaker 04: But mass casualty was not specific, but the court is saying that he's talking in this decision that he is saying that it created a serious risk. [00:51:58] Speaker 01: The line is phrased in a way that I find a little a little bit less than less precise than I wish. [00:52:05] Speaker 01: And in part, it's that it's it's in the passive voice, at least part of it. [00:52:08] Speaker 01: So let me pull it up. [00:52:10] Speaker 01: You give me one second. [00:52:13] Speaker 01: If national security public health or safety was significantly endangered. [00:52:19] Speaker 01: Is it supposed to be. [00:52:20] Speaker 01: If safety was significantly endangered. [00:52:24] Speaker 01: By the nature and circumstances of the offense is that because significantly endangered by what or. [00:52:33] Speaker 01: What are we supposed to look to the defendant himself? [00:52:37] Speaker 01: Like how dangerous was he as a person? [00:52:40] Speaker 01: The offense itself. [00:52:42] Speaker 01: It says nature and circumstances of the offense. [00:52:44] Speaker 04: So right, I believe it's the offense. [00:52:46] Speaker 04: Other courts have looked at not just the offense, but the offense. [00:52:50] Speaker 01: Not not even the nature and circumstances doing there. [00:52:56] Speaker 04: It can be both. [00:52:57] Speaker 04: I mean, the nature and circumstances of the offense. [00:53:02] Speaker 04: Would include. [00:53:03] Speaker 04: who this defendant is, how he's acting, what his statements have been, and so forth. [00:53:08] Speaker 04: Other cases in other circuits have looked at not just the offense itself. [00:53:14] Speaker 04: There are some cases from the 1990s where courts looked at what the defendant's prior criminal history was in determining what his endangerment to the public would be if he's let out. [00:53:28] Speaker 04: I believe the Joan case. [00:53:32] Speaker 01: Go ahead, sorry. [00:53:33] Speaker 04: Sorry. [00:53:35] Speaker 04: The Joan case, I believe the Brown case from the 11th Circuit both looked at the nature of the defendant's whole history. [00:53:45] Speaker 01: and then very hopefully very quickly the uh the finding um that this guideline applies what does that get is that an application of law to fact is that a due difference i believe so yes your honor okay it is difference and there isn't any point in which the district court in its decision is is [00:54:07] Speaker 04: going through any sort of legal analysis of what the specific words of the guideline means. [00:54:11] Speaker 04: We don't think this is a de novo legal review. [00:54:14] Speaker 04: And given the full facts of the case and everything the defendant has said about his intent and what he planned to do with that AK-47, believing that he was buying one that was going to work along with live ammunition, we believe that the court properly applied this enhancement in this case. [00:54:32] Speaker 05: Can I ask you what, there's more of the guideline I don't understand as well. [00:54:37] Speaker 04: What does time of the offense mean? [00:54:42] Speaker 04: We believe in this situation the time of the offense is the whole time that he is causing the transport of the gun across state lines. [00:54:49] Speaker 04: So here you have him on 31st of March sitting down watching an ISIS documentary with CS3 and saying that he wants an AK-47 and he's paying for it in two installments through April and then he gets it on the [00:55:03] Speaker 04: fourth of May, so we believe that the entire combination. [00:55:06] Speaker 05: Any point in that time frame, and that makes sense to me. [00:55:12] Speaker 05: Was there any point in that time frame when he was in fact in simultaneous possession of the machete and the AK-47? [00:55:25] Speaker 04: only on the fourth when it was the CS three and it wasn't in possession of it. [00:55:29] Speaker 05: It was what a few floors away in the building. [00:55:32] Speaker 05: They were in the same building in the same building that counts as in possession. [00:55:36] Speaker 05: I mean, the district court said he was in possession of multiple weapons that counts as in possession. [00:55:41] Speaker 05: When I'm just, I'm asking if there's some case you can help me to understand that. [00:55:46] Speaker 05: I mean, not at the top of my head, but it's in his apartment. [00:55:50] Speaker 05: You've seen his apartment was a block away. [00:55:53] Speaker 05: Would he still be in possession of multiple weapons at the time he acquired the AK-47? [00:55:59] Speaker 04: That would be a more difficult case, but since they're right in the same apartment building, we don't. [00:56:05] Speaker 04: Same apartment building, but if it's. [00:56:08] Speaker 05: 10 floors between it, you have to go to the elevator. [00:56:11] Speaker 05: I just don't understand this concept of possession. [00:56:14] Speaker 05: If it's in the same building, no matter how big the building, in the Pentagon, which is an incredibly big place, right? [00:56:23] Speaker 05: That wouldn't be possession of something if you're on one corner and somebody else is in the other corner. [00:56:29] Speaker 05: I mean, I don't know. [00:56:30] Speaker 04: It's a broader concept than while armed. [00:56:33] Speaker 04: So it's not like it has to be immediately at your side. [00:56:35] Speaker 05: I mean, I've seen plenty of cases where it's in the next room. [00:56:39] Speaker 05: Right, right. [00:56:39] Speaker 05: It's in the car and you're standing next to the car. [00:56:41] Speaker 05: I'm just not aware of one where it is in an entirely different premises that is... It's in a different unit of the apartment. [00:56:50] Speaker 05: Excuse me? [00:56:50] Speaker 05: It's in a different unit of the apartment. [00:56:52] Speaker 05: And different floors, three floors. [00:56:53] Speaker 05: I think it was three floors away. [00:56:55] Speaker 05: It wasn't like it was across the hall, right? [00:56:57] Speaker 05: I can see your argument about across the hall, but it wasn't even the same floors, three floors away. [00:57:03] Speaker 04: I don't know. [00:57:05] Speaker 04: Right. [00:57:06] Speaker 04: Council's indicated that it was across the hall to me. [00:57:09] Speaker 04: I'm sorry. [00:57:09] Speaker 04: Council's indicated that it was across the hall. [00:57:12] Speaker 04: Is that right? [00:57:14] Speaker 04: I don't know off the top of my head, Your Honor. [00:57:16] Speaker 04: I don't want to admit to that, but he certainly had it at the same time and he did possess it. [00:57:23] Speaker 04: So for all those reasons, we request that you affirm the question of the district court. [00:57:27] Speaker 04: Good, thank you. [00:57:28] Speaker 04: Thank you. [00:57:28] Speaker 05: We kept you up too long, too. [00:57:29] Speaker 05: Thank you. [00:57:30] Speaker 05: Ms. [00:57:33] Speaker 05: Termina, we'll give you a few minutes for rebuttal. [00:57:41] Speaker 01: Oh, you're muted. [00:57:42] Speaker 02: Oh, you're muted. [00:57:45] Speaker 02: I apologize. [00:57:47] Speaker 02: I just have three. [00:57:48] Speaker 02: quick points following up on what was just discussed. [00:57:51] Speaker 02: What the, what the court said was not that he possessed multiple weapons at the time. [00:57:57] Speaker 02: He said he was armed with multiple weapons, and I think that the government, government council just [00:58:03] Speaker 02: conceded that being armed is different even than constructed possession or possession. [00:58:10] Speaker 02: The court's words were that he was armed with multiple weapons. [00:58:15] Speaker 02: And even if I had a gun in my house and walked out of the house and was shot by the police, they would have shot an unarmed [00:58:24] Speaker 02: individual. [00:58:25] Speaker 02: And so he was not armed with a machete at the time that he was armed with the AK-47 for one. [00:58:33] Speaker 02: Was his apartment across the hall? [00:58:35] Speaker 02: That is not in the record, Your Honor. [00:58:37] Speaker 02: I don't believe that the apartment was across the hall. [00:58:39] Speaker 02: I do believe. [00:58:41] Speaker 02: I also have a recollection, and I apologize. [00:58:44] Speaker 02: I can't point to it in the record at this point, that it was on a different floor. [00:58:48] Speaker 02: But in any event, I'm fairly positive that there is nothing in the record that the apartment was across the hall. [00:58:54] Speaker 02: With respect to this distinction, very simply, I don't believe that this is an application of law to fact. [00:59:05] Speaker 02: It is a plain language interpretation of what the words was significantly endangered mean. [00:59:13] Speaker 02: And so I believe that his [00:59:17] Speaker 02: that him applying this factually impossible, the factual impossible circumstance is evidence of a misinterpretation of the guidelines. [00:59:28] Speaker 02: So that's how I would frame that issue. [00:59:32] Speaker 05: Just to be clear, sorry, I promise I'll let you make your finally point. [00:59:36] Speaker 05: Yes. [00:59:37] Speaker 05: And your position is that this, for this rule of law that was significantly endangered is an [00:59:46] Speaker 05: objective factual inquiry that does not turn in any way on the defendant's subjective intent or does subjective intent factor in? [00:59:53] Speaker 02: That's where I was going next, Your Honor. [00:59:55] Speaker 05: I apologize. [00:59:56] Speaker 02: I think the court has seen and understandably has struggled with what do we do with intent? [01:00:02] Speaker 02: Well, what we do with intent is enhance his [01:00:06] Speaker 02: guideline by a guideline calculation by four points for specifically his intent and that would that happen in this case. [01:00:16] Speaker 02: So what 5k 2.14 is aimed at is not intent. [01:00:20] Speaker 02: It is action that significantly endangered the public safety. [01:00:25] Speaker 02: These are two different things and so it really this [01:00:29] Speaker 02: Departure is to differentiate between the people who have the intent to do something bad and don't do it, and the people who intend to do something bad and do. [01:00:39] Speaker 02: And that's what this departure is for. [01:00:41] Speaker 02: And so that is where intent does come into play. [01:00:45] Speaker 02: It comes into play for the four-point enhancement within the guideline. [01:00:48] Speaker 02: and it can also be enhanced with respect to 3553. [01:00:53] Speaker 02: But the intent is not being unaccounted for. [01:00:58] Speaker 02: If there's nothing further, Your Honor. [01:01:01] Speaker 00: Yes, I have a question. [01:01:03] Speaker 00: You made much of the gun having been disabled. [01:01:08] Speaker 06: Yes. [01:01:10] Speaker 00: Would you be making the same argument about its relevance as a weapon, about its [01:01:18] Speaker 00: not being a threat to any, if the gun were simply unloaded. [01:01:24] Speaker 02: If it were unloaded in the context of this, in the context of the same operation, I would be. [01:01:32] Speaker 00: So why do you think anyone would bother disabling the gun? [01:01:38] Speaker 02: to be extra careful, Your Honor. [01:01:40] Speaker 02: I mean, we're talking about significantly in danger, right? [01:01:44] Speaker 02: So there's a continuum here. [01:01:49] Speaker 00: And so I think the disabling- I think the significant endangerment could be, I think could be met by endangering the officers involved in the arrest. [01:02:02] Speaker 02: But they're not endangered with a disabled weapon or one that is unloaded with no access to ammunition, assuming that there's no immediate access to ammunition. [01:02:19] Speaker 00: Thank you. [01:02:21] Speaker 05: Thank you very much to both counsel. [01:02:23] Speaker 05: The case is submitted. [01:02:24] Speaker 00: Thank you.