[00:00:01] Speaker 01:
Good morning.

[00:00:23] Speaker 05:
May it please the court.

[00:00:26] Speaker 05:
My name is Greg Smith.

[00:00:27] Speaker 05:
I'm appointed counsel for Gerald Smith.

[00:00:29] Speaker 05:
And we're here because the district court erred in denying in part Mr. Smith's 2255 petition and all of his Fair Sentencing Act motion.

[00:00:39] Speaker 05:
On his 2255 petition, Mr. Smith was given leave by this court to file Johnson challenges to his 924C sentences, or convictions, excuse me, because 924C's residual clause had been strict in raising questions if the predicate offenses still were crimes of violence.

[00:00:59] Speaker 05:
The 2255 was granted, striking his 924C that was based on kidnapping, but the 924 based on CCM was upheld.

[00:01:12] Speaker 05:
We appealed, and now the government for the first time says this court need not even address these issues on the merits.

[00:01:20] Speaker 05:
You know, I often tell my kids, when you're facing huge, even seemingly overwhelming tasks

[00:01:28] Speaker 05:
Sometimes you just gotta chip away one piece at a time.

[00:01:32] Speaker 05:
And that's Mr. Smith's task here.

[00:01:34] Speaker 05:
He must do that or else he will die in prison for acts he committed at age 17 to 21 over 30 years ago.

[00:01:42] Speaker 05:
The system already has plenty of procedural bars in place already.

[00:01:47] Speaker 05:
He's overcome all of them just to get here.

[00:01:49] Speaker 05:
He had to convince this court before he could file a successive habeas.

[00:01:55] Speaker 05:
The government didn't raise

[00:01:56] Speaker 05:
the concurrent sentencing doctrine then.

[00:02:00] Speaker 05:
It was then filed in district court and sat there for years.

[00:02:03] Speaker 05:
Again, the government didn't raise it then.

[00:02:05] Speaker 05:
The CCE murder issue was then extensively briefed in the district court.

[00:02:10] Speaker 05:
The government didn't raise it then either.

[00:02:12] Speaker 05:
In fact, the government told the district court that it could grant 924 relief on the kidnapping count, where the kidnapping predicate was in play.

[00:02:23] Speaker 05:
That is inconsistent with its argument here.

[00:02:27] Speaker 05:
We then timely filed an appeal to this court on the rest, the CCM murder predicate, and the government filed no motion to dismiss.

[00:02:36] Speaker 05:
I then extensively briefed it here, and only when the risk became apparent that they might lose on the merits did the government belatedly raise this issue of concurencing sentencing doctrine.

[00:02:49] Speaker 05:
The current sentencing doctrine doesn't fit here anyway.

[00:02:52] Speaker 05:
This isn't a challenge to a sentence.

[00:02:56] Speaker 05:
but to a conviction.

[00:02:58] Speaker 05:
This also isn't a concurrent sentence.

[00:03:01] Speaker 05:
The government brief references concurrent life sentences, but they are not concurrent life sentences.

[00:03:07] Speaker 05:
The 924Cs are consecutive to those life sentences.

[00:03:11] Speaker 05:
So it's not a sentencing issue.

[00:03:13] Speaker 05:
These are not concurrent sentences, but the government is arguing that- That amounts to the same thing, doesn't it?

[00:03:18] Speaker 04:
I'm sorry?

[00:03:19] Speaker 04:
That amounts to the same thing.

[00:03:23] Speaker 04:
A consecutive life sentence and a concurrent life sentence are equal, aren't they?

[00:03:29] Speaker 04:
How can you have two lives?

[00:03:32] Speaker 05:
You have the 924C, which is consecutive, specifically by statute, consecutive to any other sentence.

[00:03:39] Speaker 05:
So it is expressly made consecutive to the life sentences.

[00:03:43] Speaker 04:
Yeah.

[00:03:44] Speaker 04:
That doesn't answer my question, but go on.

[00:03:48] Speaker 05:
I'm not arguing that the life sentences are consecutive to each other, Judge Randolph.

[00:03:52] Speaker 05:
I'm arguing that the 924C, the one that's an issue here, is consecutive.

[00:03:57] Speaker 04:
That's the one that we're trying to- You're also arguing, I take it, that the government waived the concurrent sentence doctrine?

[00:04:03] Speaker 04:
Yes.

[00:04:04] Speaker 04:
Are you familiar with our case, United States versus Price, 938, FedSec, and 1343?

[00:04:15] Speaker 05:
I don't know it off the top of my head, Your Honor.

[00:04:18] Speaker 04:
It's a case in which the government, not only in the district court, but also in the Court of Appeals, failed to raise the harmless air doctrine and concurrent sentences and offshoot of that.

[00:04:32] Speaker 04:
And we held that we have the authority and did to decide that issue sui sponte.

[00:04:40] Speaker 04:
It seems to me your argument contradicts the United States versus Price.

[00:04:46] Speaker 05:
uh... well your honor uh... uh... that's not a case that was raised by the government and in opposite race a case of the way that uh... no you're on the spring court decision saying no though i i would i would not worry that uh... all right well the point of the concurrent sentence doctrine is to save court's time pressing issues but of course

[00:05:09] Speaker 02:
No time was saved.

[00:05:10] Speaker 02:
The district court wasn't raised before the district court, right?

[00:05:13] Speaker 02:
This could have been fully briefed here.

[00:05:16] Speaker 02:
So there's even if it were preserved, is there any function to the concurrent sentence doctrine in this court, which is court is not yet adopted.

[00:05:26] Speaker 05:
Um, yes, your honor.

[00:05:27] Speaker 05:
I would argue that .

[00:05:28] Speaker 02:
.

[00:05:28] Speaker 02:
.

[00:05:28] Speaker 02:
Saving any time, right?

[00:05:30] Speaker 05:
It's not saving time.

[00:05:31] Speaker 05:
We went all the way through the district court and now .

[00:05:33] Speaker 02:
.

[00:05:33] Speaker 02:
.

[00:05:33] Speaker 02:
Not saving resources.

[00:05:34] Speaker 05:
It's increased resources.

[00:05:35] Speaker 02:
In fact, now we're spending more time.

[00:05:36] Speaker 02:
Exactly.

[00:05:37] Speaker 02:
Briefing and arguing about an issue that's not raised below.

[00:05:38] Speaker 05:
We're not only dealing with the 924C, we're also dealing with the concurrent sentencing doctrine and how far it extends.

[00:05:45] Speaker 02:
Did you want to talk about the CCE murder conviction or the First Step Act issues?

[00:05:49] Speaker 05:
I will.

[00:05:50] Speaker 05:
Let me first, though, say just that please look at .

[00:05:54] Speaker 05:
.

[00:05:54] Speaker 05:
.

[00:05:54] Speaker 05:
I'm sure you have at Judge Wood's dissent

[00:05:57] Speaker 05:
where she cogently explained that due process shows that a conviction of a non-crime is always prejudicial error as a matter of law and it's always, by definition, harmful.

[00:06:10] Speaker 05:
Turning to the 924C charge itself, these 924C charges must necessarily rise or fall based on whether CCM is categorically a crime of violence.

[00:06:24] Speaker 05:
It fails to meet that because

[00:06:26] Speaker 05:
the elements in force clause has not been satisfied.

[00:06:29] Speaker 05:
At last, the necessary mens re because it requires intentionally kills, comma, or counsels or causes a killing.

[00:06:43] Speaker 01:
Can I ask you a question about that?

[00:06:45] Speaker 05:
Sure.

[00:06:46] Speaker 01:
It seems to me that the CCE murder elements are that there has to be intentionally kills or counsels

[00:06:54] Speaker 01:
commands induces, procures, or causes the intentional killing and such killing results.

[00:06:59] Speaker 01:
It seems like an element of this, any way you slice it, is an intentional killing.

[00:07:05] Speaker 01:
An intentional meets the mens rea requirement.

[00:07:09] Speaker 01:
And it seems that you're arguing that this mens rea must be attributed to the defendant.

[00:07:16] Speaker 01:
But in the actus rea's context, the actus rea doesn't have to be attributable to the defendant.

[00:07:22] Speaker 01:
Why does it have to be attributable to the defendant on mens rea?

[00:07:27] Speaker 05:
I would agree that intentionally meets the definition, but intentionally modifies kills, intentionally kills.

[00:07:36] Speaker 01:
No, but in the second thing, there still has to be an intentional killing that results.

[00:07:40] Speaker 05:
It merely has to cause.

[00:07:44] Speaker 01:
I think you're focusing on what the defendant has done.

[00:07:48] Speaker 01:
I'm saying that this offense requires an intentional killing.

[00:07:53] Speaker 01:
under either clause.

[00:07:55] Speaker 01:
This intentional killing might be committed by somebody else with the requisite mens rea, but I'm saying why do we have to attribute the requisite mens rea to the defendant as opposed to whoever commits the intentional killing that's listed in the offense?

[00:08:13] Speaker 01:
Because in the actus rea's context, it doesn't have to be the defendant.

[00:08:17] Speaker 01:
It could be anybody.

[00:08:19] Speaker 05:
Yes, but the 924C is specific to the defendant, and 924C recklessness is not enough.

[00:08:30] Speaker 05:
I'm asking a different question.

[00:08:32] Speaker 05:
No, I understand what you're saying, I think, which is what I'm trying to say is that recklessly causing unintentional killing by someone else doesn't qualify because the

[00:08:48] Speaker 05:
the intent, the mens rea that applies to my client, the recklessness issue.

[00:08:55] Speaker 05:
And when you're looking at whether he can get hit with a huge mandatory consecutive term on top of that, 924C says you have to look at the men's rea elements.

[00:09:10] Speaker 01:
And my client can be- Can I ask you why that's different from the actus reus element?

[00:09:15] Speaker 01:
Because there's case law that says,

[00:09:18] Speaker 01:
The actus reus can be attributed to a different person, the actual killing.

[00:09:22] Speaker 01:
It doesn't have to be the defendant.

[00:09:24] Speaker 01:
So why does the mens rea have to be attributed to the defendant if the actus reus doesn't?

[00:09:29] Speaker 05:
Well, it's derivative mens rea that you're trying to attribute to my client.

[00:09:37] Speaker 05:
And I don't think, in an aiding and abetting context, the aiding and abetting

[00:09:48] Speaker 05:
has to meet a certain threshold.

[00:09:51] Speaker 05:
They don't use the aiding and abetting language here.

[00:09:55] Speaker 05:
And so the recklessness is the only mens rea.

[00:10:02] Speaker 05:
I mean, mens rea is whether someone has committed wrong.

[00:10:05] Speaker 05:
Someone has intentionally committed a crime.

[00:10:07] Speaker 05:
It's the essence of a crime.

[00:10:09] Speaker 01:
Well, the actus reus is also an important part of the crime.

[00:10:13] Speaker 01:
So can you just explain why I should treat mens rea differently from actus reus in terms of?

[00:10:19] Speaker 01:
its seriousness or why she could be attributed to other people but the other cannot?

[00:10:24] Speaker 05:
Well, I think because in the context of conspiracies, you, for example, acts done by others can be attributed to you, but you have to look at the person's individualized intent.

[00:10:38] Speaker 05:
Did they intentionally join the conspiracy?

[00:10:41] Speaker 05:
And we don't have that intentionality here.

[00:10:44] Speaker 05:
What we have is

[00:10:46] Speaker 05:
I mean, merely recklessly causing unintentional killing, or a killing, where the killing results.

[00:10:58] Speaker 05:
The only mens rei, which is the essence when we're looking at individualized wrongdoing, the only mens rei that is being applied to my client

[00:11:14] Speaker 05:
In an act, the acts can be attributed, but intent is never cross attributed.

[00:11:20] Speaker 05:
In a conspiracy case, just because somebody else had the intention to join the conspiracy, that doesn't make them guilty because they have to intentionally join the conspiracy.

[00:11:32] Speaker 05:
You always look at mens rea differently in the sense that the defendant has to have individualized wrongdoing and individualized mental

[00:11:44] Speaker 05:
purposeful or reckless, depending on what the standard is, a reason to make them harmful, not for the acts of others.

[00:11:58] Speaker 05:
They can be held liable for the acts of others under certain circumstances, but the essence of what makes it a wrong, what makes it a crime, is what's the mental state.

[00:12:09] Speaker 05:
That's why we have

[00:12:14] Speaker 05:
insanity laws, the mental state is different than the acts because we have to look specifically at the individualized mental state of someone regardless of whether the acts might be attributed to.

[00:12:29] Speaker 05:
I understand I'm past time, but let me just briefly say in concluding as well because I don't want to leave this, on the Fair Sentencing Act, we would argue it's

[00:12:44] Speaker 05:
an abuse of discretion to leave in place a sentence that is above the statutory maximum.

[00:12:51] Speaker 05:
At a minimum, the district court needed to explain why, under the White case, why she was leaving in place a sentence that was

[00:13:05] Speaker 05:
not only severe, but higher than what society accepts it today as a possible sentence.

[00:13:13] Speaker 02:
The law is clear that the district court may adjust the sentence.

[00:13:18] Speaker 02:
It doesn't say must.

[00:13:20] Speaker 02:
I understand.

[00:13:20] Speaker 02:
So I'm trying to get, and given, and you've been told a very broad discretion of the district court,

[00:13:27] Speaker 02:
light touch appellate review of these decisions, that's what the Supreme Court said.

[00:13:31] Speaker 02:
And so how do we get from that to they have to, have to adjust some sentences, at least under the circumstance where it's no longer a lawful sentence.

[00:13:46] Speaker 05:
Yes, Your Honor.

[00:13:48] Speaker 05:
I think the White case does say that despite the broad discretion, it's not unbridled discretion.

[00:13:58] Speaker 02:
Well, unbridled just means you can't abuse discretion, but you need to make an argument that as a matter of law, it's always an abuse of discretion.

[00:14:06] Speaker 02:
Is that your view to not adjust a sentence where the law now prescribes a different, a lower sentence?

[00:14:15] Speaker 05:
look, if she'd given 40 years, I may disagree with that sentence.

[00:14:19] Speaker 05:
But yes, I think when it's beyond what society, the whole purpose of the Fair Sentencing Act was to normalize, to make consistent pre and post Fair Sentencing Act sentences.

[00:14:35] Speaker 05:
And for her to leave in place a sentence that society no longer accepts today as tolerable, I think at least in that limited circumstance,

[00:14:45] Speaker 05:
At a minimum, she had to do more than she did.

[00:14:48] Speaker 05:
What she said in part was it would be an advisory decision, which is simply wrong.

[00:14:53] Speaker 05:
It would not be an advisory decision to change the sentence on that count.

[00:15:00] Speaker 05:
And most importantly, this must be decided now.

[00:15:04] Speaker 05:
If this is not decided when we raise this under the Fair Sentencing Act, if it is not addressed,

[00:15:11] Speaker 05:
he will lose the ability to raise this forever.

[00:15:14] Speaker 05:
So even if in the future, all his other sentences in the life sentence.

[00:15:19] Speaker 02:
Is that true?

[00:15:19] Speaker 02:
Because she did rely heavily on what she called this being an advisory decision.

[00:15:26] Speaker 02:
And so that it's almost like it wasn't before her to decide because federal courts don't do advisory opinions.

[00:15:33] Speaker 02:
And so if it's not going to change anything, the court's not going to do anything.

[00:15:38] Speaker 02:
The bar on raising

[00:15:41] Speaker 02:
A request for adjustment at a later time only applies if the original claim was fully heard on the merits.

[00:15:50] Speaker 02:
And if she at least partially did not decide it on the merits because of a sort of procedural barrier in her view, the advisory opinion nature of it, then perhaps you didn't have it fully addressed on the merits and would be able to raise it again later.

[00:16:06] Speaker 05:
Well, the government is arguing here she did look at the merits, and I'm sure later on they won't argue it.

[00:16:13] Speaker 02:
You and the government are going to disagree lots of times.

[00:16:15] Speaker 02:
So my question is, do you understand what the district court did here to be full consideration on the merits or not, given her concerns about issuing an advisory opinion?

[00:16:26] Speaker 05:
I think my client will face procedural bar challenges down the road.

[00:16:32] Speaker 02:
People raise challenges that are wrong all the time.

[00:16:36] Speaker 02:
I'm asking you your opinion.

[00:16:38] Speaker 02:
of whether what happened here in your opinion satisfies that statutory requirement of full consideration on the merits that would borrow later claim or are you arguing that it's a concern but in fact you would have a good argument later that in fact there was no full consideration on the merits because of her concerns about even her decision to back off from issuing an advisory opinion.

[00:17:05] Speaker 05:
The short answer is I don't know, and even if I did know, my client would be faced with a procedural bar that he doesn't deserve.

[00:17:12] Speaker 05:
He raised this timely, the statute says it's supposed to be heard on the merits, and he shouldn't face a procedural bar later when he did not, he doesn't deserve it.

[00:17:25] Speaker 05:
He raised it timely, and if it doesn't get decided, he's going to be

[00:17:30] Speaker 05:
faced with an additional procedural bar down the road that he doesn't deserve as he tries to chip away at his sentence.

[00:17:37] Speaker 01:
So I'd like to go back for a moment to the issue of of mens rea and the second part of the definition of a cce murder.

[00:17:50] Speaker 01:
I understand your argument to rely on cause and that cause can be.

[00:17:54] Speaker 01:
That's one way of proving

[00:17:57] Speaker 01:
CC murder causing the killing, and that can be reckless or negligent, something short of intentional.

[00:18:04] Speaker 01:
And I'm wondering if viewing cause in the context in which it's raised in this definition, that cause could be viewed as somewhat ambiguous, because it's in a list of other words that are intentional, like counsel, command, induce, procure, and

[00:18:26] Speaker 01:
We have case law that says that, you know, this is the Morgan case, that says if there's a general scienter provision, the presumption applies with equal or greater force to the scope of that provision than others.

[00:18:38] Speaker 01:
And if cause is viewed as somewhat ambiguous in this context, under the nocedar associis canon, we would want to view it like the other words in the list, which are all intentional.

[00:18:53] Speaker 01:
And I'm just wondering what your view is of how we should view cause if we think it's ambiguous in this context.

[00:19:00] Speaker 05:
Two things.

[00:19:00] Speaker 05:
One is we did discuss the Morgan case in the reply.

[00:19:05] Speaker 05:
But more specifically, if it is ambiguous than under the rule of lenity, then my client needs to be given the benefit of the doubt.

[00:19:13] Speaker 05:
If it's ambiguous, then it should be resolved in his favor.

[00:19:21] Speaker 05:
If there is statutory ambiguity, he's not supposed to languish in prison based on ambiguity in a statute.

[00:19:29] Speaker 05:
That's what the rule of lenity is all about.

[00:19:32] Speaker 05:
And we did raise that and the government didn't address the rule of lenity.

[00:19:39] Speaker 02:
Thank you very much.

[00:19:51] Speaker 00:
Good morning, your honors, and may it please the court, Michael McGovern, on behalf of Appellee of the United States.

[00:19:58] Speaker 00:
This court should affirm the district court's partial denial of Mr. Smith's 2255 motion because it correctly found that CCE murder is a proper predicate for a 924C claim or conviction.

[00:20:17] Speaker 00:
Additionally, the district court did not abuse its discretion in addressing Mr. Smith's First Step Act motion when it found that he was convicted of covered crimes that would permit him in its discretion to give a sentence reduction, but then exercised its discretion not to provide the requested reduction.

[00:20:40] Speaker 00:
Turning first to CCE murder as a proper predicate, CCE murder is a proper predicate for a 924C claim for two reasons.

[00:20:48] Speaker 00:
It is both a crime violence and it is a drug trafficking crime.

[00:20:52] Speaker 00:
And as such, Mr. Smith was not entitled to vacation under 2255 of those convictions.

[00:21:02] Speaker 01:
On the crime of violence though, how do you grapple with the word cause?

[00:21:05] Speaker 01:
if we don't think that intentionally modifies cause, cause can include reckless or negligent.

[00:21:13] Speaker 00:
Yes, your honor.

[00:21:13] Speaker 00:
So specifically with respect to cause, our first point is that the word intentionally, which comes before kill is not limited to the verb kill.

[00:21:23] Speaker 00:
There's no reason to limit that adverb only to the verb kill, but would then extend to all of the verbs in the list, which I refer to as the aiding and abetting clause, which comes after the kills.

[00:21:35] Speaker 00:
And so in that way, intentionally would modify cause.

[00:21:39] Speaker 00:
Even if this court were to question whether it intentionally should be read to cause, we would turn to, as your honor cited, this court's decision in Morgan, which says that where there is a missing science or requirement, this court will read one in, and if there is a science or

[00:21:57] Speaker 00:
requirement that is explicitly stated in the statute, that should be applied to all of the elements that require a scientific requirement.

[00:22:04] Speaker 00:
And here that scientific requirement would be intentionally.

[00:22:07] Speaker 04:
Your submission is that intentionally is necessarily use of force?

[00:22:18] Speaker 00:
An intentional to intentionally cause an intentional killing would necessarily be a use of force against an individual.

[00:22:25] Speaker 00:
Yes, your honor.

[00:22:26] Speaker 04:
Okay.

[00:22:26] Speaker 04:
What about poison?

[00:22:29] Speaker 00:
Uh, yes, your honor.

[00:22:30] Speaker 04:
We believe that, um, in the context of that doesn't involve use of force necessarily at all.

[00:22:36] Speaker 00:
Well, Your Honor, the Supreme Court in Castleman grappled with that and indicated that use of force doesn't necessarily mean use of direct force, that the force doesn't have to be directly applied, and that poison, under the common law understanding of what use of force means,

[00:22:52] Speaker 00:
even using poison to cause injury would be a use of force.

[00:22:57] Speaker 00:
And so under that understanding of force, that force can be indirect.

[00:23:03] Speaker 00:
In the same way, Castleman points to, when one pulls a trigger, pulling the trigger is not using force against someone, but shooting someone is a use.

[00:23:11] Speaker 00:
The force that is causing the injury may be the bullet.

[00:23:14] Speaker 00:
But the individual pulling a trigger is using that force against someone.

[00:23:19] Speaker 00:
Similarly, when someone sprinkles poison onto food, they are using the force against the individual.

[00:23:27] Speaker 04:
It's a bit far-fetched, isn't it?

[00:23:29] Speaker 00:
Well, I believe the Supreme Court specifically addressed it in Castleman.

[00:23:33] Speaker 00:
And so under that line of cases and the cases that have come out

[00:23:40] Speaker 00:
interpreting that in other circuits, it would not be far-fetched as a legal matter to say that the use of poison was a use of force against an individual where it caused death, as is required under the CCE statute.

[00:23:55] Speaker 02:
What if I'm the right-hand person to the mob boss?

[00:24:01] Speaker 02:
The mob boss is extremely old and bedridden and in frail health, has to have medicine each day, or will die.

[00:24:12] Speaker 02:
heart issues or whatever, will die without that medicine.

[00:24:15] Speaker 02:
And one of the things I do is give the mob boss that medicine each day.

[00:24:19] Speaker 02:
And one day, intending that he die, I do not give him his medicine.

[00:24:31] Speaker 02:
And nature takes its course, and he dies exactly as I intended.

[00:24:39] Speaker 02:
I've intended the killing.

[00:24:42] Speaker 02:
intentional killing has resulted.

[00:24:45] Speaker 02:
What force have I applied to his body?

[00:24:51] Speaker 02:
I let nature take its course.

[00:24:58] Speaker 00:
That's answered by the Sixth Circuit.

[00:25:00] Speaker 00:
This is a question of whether an omission can count as the use of force.

[00:25:05] Speaker 00:
And in Harrison, the Sixth Circuit said yes, where there

[00:25:09] Speaker 00:
where an omission causes injury, and you intentionally omit the action in order to cause that injury, you are in a legal sense.

[00:25:18] Speaker 02:
The examples that are usually given are where you have someone in a trapped situation.

[00:25:22] Speaker 02:
You've got someone locked in a room, or it's a dependent child that you don't feed.

[00:25:27] Speaker 02:
I'm talking about another adult here who's not trapped, who's not locked in, who has other people coming and going.

[00:25:34] Speaker 02:
But everyone knows I'm the one that gives them the medicine, and no one assumes otherwise.

[00:25:38] Speaker 02:
You have to show that categorically this statute requires the use of force to be applied directly or indirectly.

[00:25:48] Speaker 02:
What force have I applied to the body when I just let this natural bodily condition take its course?

[00:25:56] Speaker 00:
Well, again, I'll point to the Supreme Court precedent in Johnson, which was the subject of Scalia's concurrence in Castleman, specifically finds that, and this is a quote from page 173 of that concurrence, which is quoting from Johnson.

[00:26:11] Speaker 00:
Johnson is significant here because it concluded that, quote, the phrase physical force means violent force, that is force capable of causing physical pain or injury to another person.

[00:26:22] Speaker 00:
And later on, he goes on to say,

[00:26:24] Speaker 00:
Since, and this is a quote, since it is impossible to cause bodily injury without using force capable of producing that result, any use, any causing of injury... I think I'm giving you an example where no force whatsoever is applied.

[00:26:39] Speaker 02:
But in the common... As you can point to me, what is the force that I have applied in my hypothetical?

[00:26:43] Speaker 02:
What force?

[00:26:44] Speaker 00:
The omission is considered by the law as a legal fiction to be required.

[00:26:49] Speaker 02:
Someone can sit in a room and just do nothing, but touch their body, not trap the person in the room.

[00:26:55] Speaker 00:
There are forces at play, Your Honor, and they're natural forces, as you indicated.

[00:27:00] Speaker 02:
Of course.

[00:27:00] Speaker 02:
Is the government's position that if someone dies of natural causes, I sit here and intend that they die of natural causes?

[00:27:07] Speaker 02:
If an individual has the ability to prevent those natural causes from... Unless you act as a good... So if I see somebody drowning, I walk by someone who is drowning, and I sit back, and I go, oh, that's that person I don't like.

[00:27:24] Speaker 02:
I intend that they die from drowning, and I just don't do anything.

[00:27:28] Speaker 02:
I don't jump in the water to save them.

[00:27:29] Speaker 02:
I have committed an intentional killing?

[00:27:31] Speaker 02:
You're turning tort law quite upside down.

[00:27:33] Speaker 00:
Well, if there is a legal obligation to act, yes.

[00:27:36] Speaker 02:
OK, but my hypothetical had no legal obligation to act.

[00:27:38] Speaker 02:
I'm pretty sure the law at no point requires someone to give medicine to the mob boss.

[00:27:46] Speaker 00:
Where an individual is omitting to act, and they intend.

[00:27:51] Speaker 02:
And has no legal obligation to act.

[00:27:55] Speaker 02:
What then?

[00:27:59] Speaker 00:
Under the precedence of the sister circuits, they have looked at whether or not an omission, an omission which is of a type that causes substantial physical harm.

[00:28:10] Speaker 02:
They look at omissions by someone who has no legal obligation to act.

[00:28:14] Speaker 00:
Your Honor, I don't know that I can speak directly.

[00:28:18] Speaker 02:
So the government's position, though, is that an omission, even with no legal obligation to act,

[00:28:24] Speaker 02:
constitutes the application of force for purposes of the act is raised here.

[00:28:40] Speaker 00:
In that, as a categorical approach to CCE murder, where one is intending their omission, yes, Your Honor, but even if- That's really, wow, okay.

[00:28:53] Speaker 02:
So we all have, if we see someone we really dislike and that we really would love to see die, and I know they're going to die right in the building and I do nothing to get them out.

[00:29:03] Speaker 00:
But there was the addition of this individual's preventing medication from getting to this other individual.

[00:29:09] Speaker 00:
The manner in which.

[00:29:11] Speaker 02:
Excuse me.

[00:29:12] Speaker 02:
Anyone else?

[00:29:12] Speaker 02:
I haven't said he hasn't locked the medicine up or thrown it away.

[00:29:15] Speaker 02:
Anyone else can give him medicine.

[00:29:16] Speaker 02:
Guy just has to ask.

[00:29:19] Speaker 02:
But nobody does.

[00:29:20] Speaker 02:
He doesn't ask because his assumption is this guy's going to give it to me.

[00:29:26] Speaker 00:
Again, where they are.

[00:29:29] Speaker 00:
their omission is becoming an affirmative act in that circumstance, an affirmative act that is causing harm that they intend to cause.

[00:29:37] Speaker 00:
And in that circumstance, they are, we believe, under the doctrines using physical force.

[00:29:43] Speaker 00:
But CCE murder is additionally a crime of violence

[00:29:51] Speaker 00:
also qualifies as a drug trafficking crime and therefore is a valid predicate.

[00:29:55] Speaker 02:
That was not argued below.

[00:29:56] Speaker 02:
The jury wasn't given any instructions on that.

[00:29:59] Speaker 02:
We can't possibly hold this up as a drug trafficking crime.

[00:30:02] Speaker 00:
We believe you can, that the question of whether or not it's a drug trafficking crime.

[00:30:05] Speaker 00:
Have you forfeited?

[00:30:06] Speaker 00:
I'm sorry, Your Honor.

[00:30:07] Speaker 00:
We did not press this argument in the 2255 litigation.

[00:30:11] Speaker 00:
That is correct.

[00:30:12] Speaker 00:
But it's a question of law.

[00:30:13] Speaker 02:
Do you argue it to the jury on the trial?

[00:30:15] Speaker 02:
Were they given instructions on to find whether this was in the course of a drug trafficking crime?

[00:30:19] Speaker 00:
They weren't asked to decide that it was a crime of violence.

[00:30:23] Speaker 00:
They were instructed that it was a crime of violence.

[00:30:25] Speaker 00:
So in the full context of what the jury instructions were given.

[00:30:28] Speaker 02:
Were they asked to find that this occurred during a drug trafficking crime?

[00:30:30] Speaker 00:
I'm sorry, Your Honor.

[00:30:31] Speaker 02:
Were they asked to find that this occurred during a drug trafficking crime?

[00:30:34] Speaker 00:
No, Your Honor.

[00:30:34] Speaker 00:
At the time, all of the parties agreed that that CCE murder was a crime of violence.

[00:30:39] Speaker 00:
And so that instruction.

[00:30:41] Speaker 00:
But in the jury verdict form, it was very clear that the government's position was that CCE murder was a drug trafficking crime.

[00:30:48] Speaker 01:
I thought it was or, it was crime of violence or a drug trafficking crime.

[00:30:52] Speaker 00:
That's how it was listed in the drug trafficking, in the jury verdict form, that is correct.

[00:30:56] Speaker 01:
So how is that clear?

[00:30:59] Speaker 00:
I'm sorry?

[00:31:00] Speaker 01:
So how is that clear that that was the finding, they could have found the crime of violence?

[00:31:04] Speaker 00:
Oh, I apologize.

[00:31:05] Speaker 00:
I don't believe that the jury was ever asked to make a specific finding that it was a drug trafficking crime, nor were they asked to make a specific finding that it was in fact a crime of violence,

[00:31:16] Speaker 00:
They were instructed that it was a crime of violence.

[00:31:18] Speaker 00:
In its totality, the jury instructions instructed the jury that they were to find whether or not this individual committed CCE murder and were then instructed that CCE murder was a valid predicate for the 924C.

[00:31:32] Speaker 00:
So the factual questions that the jury was deciding was whether or not the individual CCE murders were committed.

[00:31:40] Speaker 00:
And so in that way, there's no Apprendi issue with respect to the drug trafficking conviction.

[00:31:46] Speaker 00:
And because it is a question of law drug trafficking, whether a crime is a drug trafficking crime, this court is not prevented from affirming on that basis because its review of that would be de novo.

[00:31:59] Speaker 00:
And so although we didn't press it in the 2255 litigation, it doesn't prevent this court from affirming on that basis.

[00:32:08] Speaker 00:
But turning back to,

[00:32:12] Speaker 00:
The CCE murder, unless your honors have further questions, I would move on to the First Step Act if there are any questions on that issue.

[00:32:31] Speaker 02:
Just take a couple minutes.

[00:32:33] Speaker 02:
You're over your time here, but go ahead and take a couple minutes on First Step Act.

[00:32:35] Speaker 00:
I would be happy to answer questions.

[00:32:38] Speaker 00:
position as we indicated is that the trial court did correctly determine that only two of the convictions were even covered offenses that would permit resentencing under the First Step Act, and that after correctly making that legal determination, it then exercised its discretion as it was required to, but determined not to, and that that discretion should be deferred to here in this court.

[00:33:01] Speaker 02:
Why do you think distinguish the Collington case from the Fourth Circuit, which said that whatever that discretion is, you can't leave in place a sentence that is in excess of what the law now allows.

[00:33:11] Speaker 00:
So I would first note that Collington was decided before Concepcion before the Supreme Court sort of full throatedly said there is no obligation.

[00:33:19] Speaker 00:
The statute does not require one.

[00:33:21] Speaker 00:
to reduce any sentence even where there's a covered sentence.

[00:33:25] Speaker 00:
But I'd also note that the Fourth Circuit itself has recognized that Collington seems to be in tension with Concepcion.

[00:33:33] Speaker 00:
And so I would know.

[00:33:33] Speaker 02:
Not in the published opinion though, that's the problem.

[00:33:36] Speaker 00:
There was a published opinion and it's not cited in our brief where they stepped away and noted that Concepcion was decided after Collington and I apologize that that is not cited in our brief but the Fourth Circuit has recognized.

[00:33:48] Speaker 02:
So since Concepcion in a published opinion they've now

[00:33:51] Speaker 00:
Correct, Your Honor.

[00:33:55] Speaker 00:
And I apologize for not having that citation for you at this moment.

[00:33:59] Speaker 00:
But we would argue that the Fourth Circuit's analysis falls apart after Concepcion.

[00:34:06] Speaker 02:
Maybe you could send that citation in in a letter.

[00:34:08] Speaker 00:
Yes, Your Honor.

[00:34:09] Speaker 00:
Thank you.

[00:34:09] Speaker 00:
If there are no further questions, we would ask that the judgments be affirmed.

[00:34:14] Speaker 02:
Thank you very much.

[00:34:16] Speaker 02:
Mr. Smith will give you two minutes on rebuttal.

[00:34:20] Speaker 05:
Just very briefly.

[00:34:23] Speaker 05:
Getting criminal adjudications right is maybe the highest and most solemn obligation of any court.

[00:34:30] Speaker 05:
That's why the government said it's no problem to remand to fix the judgment and commitment order here because it got two D.C.

[00:34:37] Speaker 05:
convictions wrong.

[00:34:39] Speaker 05:
They said you can go ahead and remand it to fix that even though it won't affect the aggregate sentence, even though it won't affect the aggregate sentence because it's the right thing to do.

[00:34:50] Speaker 05:
even when it has no effect on the aggregate overall sentence.

[00:34:54] Speaker 05:
Now you should also do the right thing on the rest and not leave these illegal convictions in place.

[00:35:01] Speaker 05:
The government agreed there that it was obvious we should send it back and fix it because it's important to get it right.

[00:35:08] Speaker 05:
But what it's telling you here is

[00:35:10] Speaker 05:
It's not really required if it will require you to do the hard work of deciding a legal issue of first impression.

[00:35:18] Speaker 05:
You should always try to, and you need to, your duty is to try to, the court's high solemn duty is to get convictions right and to strike convictions when they are not crimes.

[00:35:33] Speaker 05:
Our argument here is

[00:35:35] Speaker 05:
these 924 C convictions are not crimes and therefore this court must take that, take it up.

[00:35:43] Speaker 05:
Even if you agree with the, the, the collateral sentence crimes, they are not crimes because it's not a valid predicate.

[00:35:53] Speaker 02:
Um, so it is, it is a non-crime, but your first step argument is that it's a illegal sentence, but not that there weren't crimes.

[00:36:02] Speaker 05:
The argument on the 924 C's, the 2255, is they are not crimes because they're not a valid predicate.

[00:36:10] Speaker 05:
And even if you were to find the concurrent sentencing doctrine appealing, this simply is not the case to do it.

[00:36:19] Speaker 05:
Half of this motion was already decided.

[00:36:21] Speaker 05:
This is not the case for you to adopt the concurrent sentencing doctrine.

[00:36:25] Speaker 05:
when half of the issue has already been taken up and we're simply looking at the other half to try to get the rest adjudicated here just as it was adjudicated below.

[00:36:36] Speaker 05:
The important thing is to get to the right place and to not uphold illegal convictions, and these 924Cs are illegal convictions.

[00:36:46] Speaker 05:
Whether, you know, this is, you know, cases are tough a lot of times in the criminal setting.

[00:36:53] Speaker 05:
You have to, you know, you're not,

[00:36:55] Speaker 05:
Supposed to consider it.

[00:36:56] Speaker 05:
But in the back of your mind, you always know somebody may get immediately released to the street.

[00:37:00] Speaker 05:
This is not a case where anybody's going to get immediately released to the street.

[00:37:03] Speaker 05:
But we ask you to do the right thing.

[00:37:06] Speaker 05:
Take these issues up and decide them.

[00:37:08] Speaker 05:
and to strike the convictions that are no longer valid after Johnson.

[00:37:18] Speaker 02:
Thank you.

[00:37:19] Speaker 02:
Mr. Smith, you were appointed by the court to represent Gerald Smith in this case, and we are very grateful for your assistance.

[00:37:26] Speaker 05:
Thank you very much.

[00:37:29] Speaker 02:
The case is submitted.