[00:00:00] Speaker 04: Case number 22-3072, United States of America versus Khan Muhammad Appellant. [00:00:07] Speaker 04: Mr. Swanson for the appellant, Mr. Hurst for the appellee. [00:00:13] Speaker 04: Good morning counsel. [00:00:14] Speaker 03: Good morning. [00:00:14] Speaker 04: Mr. Swanson, please proceed when you're ready. [00:00:16] Speaker 03: Yes, your honor. [00:00:18] Speaker 03: May it please the court, Rudy Swanson, on behalf of Appellant Khan Muhammad. [00:00:23] Speaker 03: The government proposes to keep Khan Mohammad in jail for the rest of his life based on a terrorism enhancement that is not supported by the law or the facts. [00:00:32] Speaker 03: The government relies largely on procedural arguments to keep that enhancement in place, but those procedural arguments are, in the end, illusory. [00:00:41] Speaker 03: And for that reason, we asked this court to reverse the terrorism enhancement in this case for three reasons. [00:00:46] Speaker 03: First, applying the terrorism enhancement here violates the plain text of a congressional directive. [00:00:53] Speaker 03: Second, under any standard of proof, the district court's fact findings here cannot survive clear error scrutiny. [00:01:00] Speaker 03: They make no logical or temporal sense, and they are directly refuted by the record. [00:01:05] Speaker 03: And third, the district court's flawed fact finding is especially important because it applied the wrong standard of proof to this case. [00:01:13] Speaker 03: I'd like to start with that first issue, the congressional directive. [00:01:16] Speaker 03: In 1996, Congress directed the Sentencing Commission to amend the terrorism enhancement so that it only applies to a federal crime of terrorism. [00:01:27] Speaker 03: And it defined federal crime of terrorism as a specific list of enumerated offenses with an additional motivational element. [00:01:33] Speaker 03: Applying the terrorism in this case means applying it to an offense that is not a federal crime of terrorism. [00:01:40] Speaker 03: There's no dispute about that. [00:01:42] Speaker 03: And so for that reason, applying the terrorism enhancement here violates plain text of Congress's directive, the Sentencing Commission. [00:01:49] Speaker 01: So I don't know if it follows like the night follows the day in the way that you described it. [00:01:53] Speaker 01: And the reason I say that is this, that if you read the provision, section 730, to mean that [00:02:04] Speaker 01: An adjustment relating to international terrorism only applies to federal crimes of terrorism. [00:02:09] Speaker 01: That's the adjustment that needs to be made. [00:02:10] Speaker 01: And the only way that the commission can conform the guidelines so that it only applies to federal crimes of terrorism is that the underlying offense has to be a federal crime of terrorism. [00:02:21] Speaker 01: Then sure, your argument prevails. [00:02:24] Speaker 01: But if you read the provision to say, you've got a guideline that relates to international terrorism. [00:02:31] Speaker 01: What we want you to do is change that guideline so it relates to federal crimes of terrorism. [00:02:36] Speaker 01: And then you just do what the commission usually does is you figure out how to do that. [00:02:40] Speaker 01: But we're just telling you that it's it's miss focused right now because it's focused on international crimes of terrorism. [00:02:45] Speaker 01: And what we want you to do is think about federal crimes of terrorism. [00:02:49] Speaker 01: And if that's the way you read that provision, then it was, I think even you would, well, you could correct me, but I would assume that you would even say that they faithfully adhered to that because they did shift it away from international terrorism to federal crimes of terrorism. [00:03:05] Speaker 01: They just didn't go all the way to saying, only an eviction of a federal crime of terrorism is enough. [00:03:11] Speaker 03: That's right, Your Honor. [00:03:12] Speaker 03: That is what the commission did. [00:03:13] Speaker 03: But that misreads the text, I think, in two different ways. [00:03:16] Speaker 03: First, it doesn't really account for the ordinary meaning of the word applies in the context of a legal application. [00:03:23] Speaker 03: Applies means it is used in that context. [00:03:27] Speaker 03: You apply it to something. [00:03:29] Speaker 03: It comes from the sort of physical act of applying to a specific thing. [00:03:33] Speaker 03: And when you say that it applies to a federal crime of terrorism, [00:03:37] Speaker 03: then applying the offense, applying the enhancement to another offense, just doesn't comply with the text. [00:03:44] Speaker 01: And second, you know, you kind of maybe before you go to the second one and just make sure you remember it because I want to hear it. [00:03:48] Speaker 01: But on the first one, if the what the Congress is saying is. [00:03:54] Speaker 04: Right now, as I read the provision, it applies to international terrorism. [00:04:02] Speaker 01: That doesn't seem like a non-sequitur to me. [00:04:04] Speaker 01: That just seems like Congress could just say, when I read the guideline, it's applying to international terrorism. [00:04:10] Speaker 01: I want you to change it so it doesn't apply to international terrorism. [00:04:12] Speaker 01: I want you to change it so it applies to federal crimes of terrorism. [00:04:15] Speaker 01: Well, now you've cut the word only out, right? [00:04:17] Speaker 01: So it's not just that it needs to apply to federal crimes. [00:04:19] Speaker 01: I'll get to only in a second, but just putting only aside for now on the question of applies, which is where you were focused, understandably. [00:04:26] Speaker 01: It seems to me that it does work to say it's a guideline now that applies to international terrorism. [00:04:34] Speaker 01: Shift it so that it applies to federal crimes of terrorism. [00:04:37] Speaker 01: I see what you're saying. [00:04:38] Speaker 03: So I think what's happening there is you're saying when Congress says the chapter three enhancement, right? [00:04:43] Speaker 03: So we're taking the chapter three enhancement essentially as a given, and then we're adjusting it in some way in the rest of the sentence. [00:04:50] Speaker 03: And I think there's another couple of reasons why that reading doesn't work either. [00:04:56] Speaker 03: And the first is when it says the chapter three enhancement, [00:04:59] Speaker 03: It's referring broadly to the entire enhancement. [00:05:02] Speaker 03: It's not subdividing. [00:05:04] Speaker 03: It's not picking and choosing pieces. [00:05:05] Speaker 03: It says the entire enhancement applies only to a federal crime of terrorism. [00:05:10] Speaker 03: And the other reason is that relating to clause that comes after it. [00:05:14] Speaker 03: So when Congress describes the chapter three enhancement relating to international terrorism, the one thing I think the government and I both agree on here is that what Congress was doing was saying, take international terrorism out. [00:05:27] Speaker 03: So it doesn't really make sense to treat the entire phrase, the chapter three enhancement relating to international terrorism as a given, and then only apply whatever is there to federal crimes of terrorism. [00:05:40] Speaker 03: So what Congress is saying is only applies to federal crime terrorism. [00:05:46] Speaker 03: And Your Honor, I will also point you to the legislative history here, which is, I think, unambiguously clear that when Congress said only applies to federal crimes of terrorism, it meant upon conviction of those offenses. [00:06:00] Speaker 03: That's exactly what the final conference report said. [00:06:03] Speaker 03: And so even if you perceive some sort of ambiguity there about whether that D, chapter 3, enhancement language captures all of it or just a piece of it, Your Honor, the legislative history completely dispels that ambiguity. [00:06:16] Speaker 01: What's wrong with what the forester said about the legislative history? [00:06:20] Speaker 03: Your honor, frankly, I have looked at it many ways, and I don't understand how it could be expressing a condition that is just sufficient, but not necessary. [00:06:30] Speaker 03: Because the legislative history says only upon conviction of an offense. [00:06:34] Speaker 03: And in the way that legal logic works, only means necessary, not sufficient. [00:06:41] Speaker 03: And so, you know, the Fourth Circuit says that in one sentence, it says maybe there's an ambiguity there, but your honor, I just, I have no, I can't understand how it's reading it that way. [00:06:51] Speaker 03: The Fourth Circuit didn't explain it and the government didn't explain it in their brief either. [00:06:55] Speaker 01: And then what's wrong with the Fourth Circuit says, what does that set of history about the text where the point is that why only still works for the commission is that [00:07:07] Speaker 01: Otherwise, there would be the danger that the amendment would conform, would adjust the guidelines so that it applies not only to international terrorism, but also to federal crimes of terrorism. [00:07:20] Speaker 03: But one thing that's interesting about the Fourth Circuit's opinion is that it doesn't go that far. [00:07:24] Speaker 03: Even the Fourth Circuit can't bring itself to say the plain text here means what the government says. [00:07:30] Speaker 03: It says, admittedly, the text is ambiguous, and then it applies Chevron. [00:07:35] Speaker 03: Now, the government hasn't asked this court to apply Chevron, and we don't think you should for that reason. [00:07:39] Speaker 03: But even in the context of an ambiguity chevron type analysis, this court has said over and over that legislative history is part of that step one interpretive toolkit that you applied before deference at step two. [00:07:53] Speaker 03: And so the Fourth Circuit just doesn't account for the fact that even if you think the statute is in some way ambiguous as it says it is, you should be looking to the legislative history. [00:08:01] Speaker 01: But I wasn't. [00:08:02] Speaker 01: And there's a last question I'll have in a series. [00:08:04] Speaker 01: I'm sure my colleagues can chime in if they want to. [00:08:07] Speaker 01: I didn't read the Fourth Circuit to be applying Chevron. [00:08:10] Speaker 01: Is Chevron cited in the Fourth Circuit? [00:08:12] Speaker 03: It doesn't cite Chevron, but it says it's ambiguous and for that reason we're going to defer to the Commission's reasonable interpretation. [00:08:19] Speaker 01: But I thought what the Fourth Circuit was saying was not that this is a provision that's ambiguous and we're allowing the Commission's interpretation of the provision to govern. [00:08:28] Speaker 01: I thought what the Fourth Circuit was saying was [00:08:31] Speaker 01: This is a charter to the commission, like lots of charters to the commission, to go forth and develop a guideline. [00:08:37] Speaker 01: And the only guidance we're giving you is the guideline now talks about international terrorism. [00:08:42] Speaker 01: We want you to reconform the guidelines so that it talks about federal crimes of terrorism. [00:08:46] Speaker 01: And then you do it in the way that you usually act as a commission. [00:08:49] Speaker 01: In fact, so much so that we want you to use the procedures that you normally use when you do this kind of thing, as it's spelled out in the provision. [00:08:56] Speaker 01: And when you get that kind of charter, [00:08:58] Speaker 01: it's natural to ask, did the commission act within the confines of that charter, which is to say, we look to see whether they reasonably exercised that charter. [00:09:09] Speaker 01: Not that we're doing a Chevron analysis, but we're basically saying that's just a charter to shift the provision so that it doesn't focus on international terrorism. [00:09:16] Speaker 01: It focuses on federal crimes of terrorism. [00:09:19] Speaker 01: And you just have to do that in a reasonable way. [00:09:21] Speaker 03: Well, even if you think that there's some difference between Chevron deference and how you've just described it, I think it doesn't make a difference here because the Fourth Circuit's starting point in its analysis is, admittedly, the statutory text is ambiguous. [00:09:35] Speaker 03: And if you read carefully, it only ever says the commission reasonably interpreted it this way. [00:09:41] Speaker 03: So mechanically, that's the same as a Chevron analysis, even if it doesn't call it a Chevron analysis. [00:09:48] Speaker 01: But I think it does affect whether you bring into play legislative history. [00:09:53] Speaker 01: Because what you were saying was that a step on a chevron, you bring into play legislative history. [00:09:57] Speaker 01: And I guess if you view it as a charter to the commission just to implement our mandate, then it's just whether they reasonably did that. [00:10:04] Speaker 01: You don't think about legislative history at that point because the commission has just a charter to implement the mandate. [00:10:09] Speaker 03: Your honor, I'm not aware of any precedent that says that the commission has a sort of super power over the interpretation of congressional directives beyond the interpretation power given to all other agencies. [00:10:25] Speaker 03: And I think that would be sort of an unusual result. [00:10:28] Speaker 03: And it would be particularly unusual because it would be suggesting that in this situation, the commission could overlook what appears to be extremely clear legislative history. [00:10:38] Speaker 03: in favor of an interpretation that is not the one that Congress adopted. [00:10:42] Speaker 03: So I think that giving the commission that kind of power to sort of skip over your legislative history, and we understand it, ambiguous legislative history would not get you to the same result, right? [00:10:53] Speaker 03: The thing that really matters here is that Congress speaks in unusually clear terms about the fact that what it meant by only applies is upon conviction of. [00:11:05] Speaker 03: that is a federal crime of terrorism. [00:11:10] Speaker 00: I want to just ask you, it's a pet peeve of mine, the misuse of only, only should actually be at the end of, applies to federal crimes of terrorism only. [00:11:26] Speaker 00: Would that change your position at all? [00:11:29] Speaker 03: Applies to federal crimes of terrorism only. [00:11:32] Speaker 03: Only applies to federal crimes of terrorism. [00:11:37] Speaker 03: I don't think so, Your Honor, because the key verb applies. [00:11:41] Speaker 03: I think what Congress is doing is it's modifying the word applies. [00:11:45] Speaker 03: And our argument is when it says applies, it means uses in that particular context. [00:11:51] Speaker 03: And so I don't think that in this particular situation, that particular grammatical piece makes a difference to the meaning of the term. [00:12:01] Speaker 01: Can I follow up? [00:12:02] Speaker 01: I hadn't thought about that. [00:12:03] Speaker 01: It's interesting. [00:12:04] Speaker 01: What if the provision said, [00:12:06] Speaker 01: So that the chapter three adjustment that applies to international terrorism. [00:12:14] Speaker 04: Applies to federal crimes of terrorism only. [00:12:19] Speaker 01: Three. [00:12:20] Speaker 01: Can you repeat that one more time? [00:12:21] Speaker 01: Sorry. [00:12:22] Speaker 01: What if Congress says we want you to amend the sentencing guideline so that the chapter three adjustment that applies to international terrorism applies to federal crimes of terrorism only. [00:12:41] Speaker 04: I'm not seeing a distinction there, Your Honor. [00:12:43] Speaker 03: I think that because the word applies limits the universe of cases in which the enhancement is applicable, the word only is just telling you limited to only that subset. [00:12:56] Speaker 03: And that, I think, would be true, regardless of whether you put the word only before the word applies or after the word's found. [00:13:01] Speaker 01: I guess what it does is, if you viewed the chapter three adjustment right now as applying to international terrorism, [00:13:12] Speaker 01: then it tells you that applies doesn't itself require a conviction, right? [00:13:16] Speaker 01: Because the provision right now talks about promoting or intending, or how it works. [00:13:23] Speaker 03: Yes, the 1994 version that Congress directed said involves or intended to promote. [00:13:28] Speaker 01: Involves or intended to promote. [00:13:29] Speaker 01: So we already know that as long as the conduct involves or intends to promote international terrorism, it's enough, even if the conduct itself isn't international terrorism. [00:13:39] Speaker 03: And the other thing that that interpretation would raise that we haven't talked about yet is the recognition, I think, general recognition, including by the Senate's commission and its commentary, that federal crime of terrorism is a category that is broader than the crime of international terrorism. [00:13:58] Speaker 03: And so it sort of is a little bit nonsensical to say, take this offense that in its given form and apply it only to a category of offenses that is broader than- What about the government's point about state law? [00:14:15] Speaker 03: About state law? [00:14:16] Speaker 03: Yeah. [00:14:16] Speaker 03: The government hasn't provided an example of a crime that is a state law crime that would qualify as international terrorism that is not also a federal crime. [00:14:27] Speaker 01: It would just have to promote international terrorism, right? [00:14:30] Speaker 03: Or? [00:14:30] Speaker 03: Promote international terrorism. [00:14:33] Speaker 03: Yes, you're right. [00:14:36] Speaker 03: If you accept the government's theory of what's happening involves or intended to promote language, that is true, yes. [00:14:43] Speaker 01: And does international terrorism, as I understand it, does encompass state, isn't state law in the statute somewhere? [00:14:51] Speaker 01: International terrorism wasn't previously defined. [00:14:54] Speaker 01: Where's state law? [00:14:54] Speaker 01: State law is in the statute somewhere, right? [00:14:56] Speaker 01: Isn't the government citing a provision that encompasses state law? [00:14:59] Speaker 01: That encompasses state law? [00:15:01] Speaker 03: Or am I, we can ask the government. [00:15:03] Speaker 03: I'm not sure exactly what you're referring to. [00:15:05] Speaker 03: Okay, I could be wrong about that. [00:15:08] Speaker 03: But either way, it's not a very intuitive way of thinking about what the word only would be doing in that situation. [00:15:16] Speaker 03: That's the main point that we want to make. [00:15:19] Speaker 03: And again, it's not consistent with what Congress told us it was doing in clear terms in the legislative history. [00:15:25] Speaker 01: Let me make sure my colleagues don't have additional questions for you. [00:15:29] Speaker 01: We'll give you time for rebuttal. [00:15:31] Speaker 01: Certainly. [00:15:32] Speaker 01: No questions on the other issues that we didn't get to. [00:15:35] Speaker 01: I don't believe so. [00:15:36] Speaker 01: And we'll give you time for rebuttal if we get into it. [00:15:39] Speaker 01: Absolutely. [00:15:40] Speaker 01: OK. [00:15:41] Speaker 04: Thank you very much. [00:15:41] Speaker 04: Thank you, Mr. Swanson. [00:15:48] Speaker 04: I just want to make sure that we have Judge Rogers on and she's able to hear. [00:15:53] Speaker 01: We know that, okay. [00:15:54] Speaker 00: I've been on from the beginning and before that, and I can hear you and I can hear counsel. [00:16:01] Speaker 01: Perfect. [00:16:01] Speaker 01: Thank you. [00:16:02] Speaker 01: Thank you, Judge Rogers. [00:16:04] Speaker 04: Mr. Hearst. [00:16:14] Speaker 02: May it please the court, Ben Hearst for the United States. [00:16:18] Speaker 02: The district court properly applied the section 3A 1.4 terrorism adjustment [00:16:24] Speaker 02: First, the district court did not plainly err in failing to find conflict between Section 3A 1.1 as a sentencing commission promulgated in the 1996 anti-terrorism and effective. [00:16:40] Speaker 02: The best place to start with this question is actually in the 1994. [00:16:46] Speaker 02: as part of the context of this obligation. [00:16:48] Speaker 02: In 1994, Congress instructed the Sentencing Commission to amend the sentencing guidelines to provide an appropriate enhancement for any felony committed within or outside the United States that involves or is intended to promote international terrorism. [00:17:06] Speaker 02: This instruction, which led to the involves or intended to promote language in the guideline now, has three components. [00:17:14] Speaker 02: There's the triggering event. [00:17:16] Speaker 02: The triggering event is the offense. [00:17:20] Speaker 02: And as it reads now is an offense that includes relevant conflict under the guidelines of the sheet. [00:17:26] Speaker 02: There is a predicate that is international. [00:17:29] Speaker 02: And then there is a relationship between the two, involves or is intended to promote. [00:17:35] Speaker 02: There's three portions to it. [00:17:37] Speaker 02: Looking at section 730, [00:17:40] Speaker 02: In 1996, Congress instructed the Sentencing Commission to amend the sentencing guidelines so that the Chapter 3 adjustment relating to international terrorism only applies to federal crimes. [00:17:51] Speaker 02: The best way to read this is to say, is to look at what is actually being modified by only, it's international terrorism. [00:18:02] Speaker 02: International terrorism is the category of predicate offenses that follows, involves, or is intended to promote. [00:18:09] Speaker 02: And the only, the work that the only is doing there is to stop the sentencing commission from merely adding federal crimes of terrorism to the pre-existing guideline. [00:18:20] Speaker 02: So if imagine that the statute section 730 had omitted the term only, it had just said, amend the sentencing guidelines so that the chapter three adjustment relating to international terrorism applies to federal crimes of terrorism. [00:18:35] Speaker 02: In that case, the Sentencing Commission might reasonably have simply added federal terms of terrorism to the guideline as it was written. [00:18:44] Speaker 02: The work it only does there is a changing function. [00:18:47] Speaker 02: It's excluding international terrorism from the predicate to which the guideline can apply. [00:18:53] Speaker 01: So is there something to the fact [00:18:56] Speaker 01: that the statute uses the word applies when it's talking about federal crimes of terrorism, but it relates to when it's talking about international crimes of terrorism. [00:19:06] Speaker 01: I think the way that you're reading it is that what Congress says is you've got a guideline right now that relates to international crimes of terrorism and adjust it so that it relates only to federal crimes of terrorism. [00:19:19] Speaker 02: That's a fair reading, Your Honor. [00:19:22] Speaker 02: I don't think it's in conflict with the position that we're asserting here. [00:19:28] Speaker 02: I think that what they're relating to there is doing is just identifying for the Sentencing Commission what adjustment we're talking. [00:19:34] Speaker 02: We're talking about the adjustment that relates to international terrorism. [00:19:37] Speaker 02: That was the title of that. [00:19:39] Speaker 01: Well, that would be done also, it said, the chapter three adjustment that applies to international terrorism. [00:19:45] Speaker 01: It would also tell you which one [00:19:47] Speaker 01: That's true, although I think that's right. [00:19:51] Speaker 02: I think that's probably right. [00:19:53] Speaker 02: I don't think I don't make a great deal of that distinction because neither of those things is amend the sentencing got the adjustment that relates to international terrorism so that it only [00:20:09] Speaker 02: becomes invoked when a defendant is convicted. [00:20:12] Speaker 02: Right. [00:20:12] Speaker 01: I mean, there's definitely clearer language that Congress could have used to accomplish what the challenger says. [00:20:17] Speaker 01: I mean, there's clear language that Congress could have used to accomplish what you say, too. [00:20:20] Speaker 01: And I guess the question is, you think basically, and I'm not saying this is right or wrong, but you think basically that relating to and applies are effectively the same thing in this statute. [00:20:31] Speaker 01: What Congress is saying is, you take this chapter 3 adjustment, [00:20:34] Speaker 01: that involves international terrorism and change it so that it only involves federal crimes of terrorism. [00:20:41] Speaker 02: Well, in that case, Your Honor, that would be actually a very different thing because involves is a term that appears in the 1994 Act and also appears in the guidelines. [00:20:49] Speaker 02: So if it only... That's true. [00:20:50] Speaker 01: Okay, so... Involves. [00:20:51] Speaker 01: Yeah, that would be a difference. [00:20:52] Speaker 01: Just do relates to. [00:20:53] Speaker 01: Then keep it relates to. [00:20:54] Speaker 01: What you're saying is when it's saying the chapter three adjustment relates to international terrorism, changes so that it only relates to federal crimes of terrorism. [00:21:01] Speaker 01: That's effectively what you think Congress said here. [00:21:07] Speaker 02: I'm thinking about that, Your Honor. [00:21:09] Speaker 02: I'm trying to see if I think if I see any distinction between the relates to. [00:21:13] Speaker 02: I really think the relating to is applying is using that word. [00:21:17] Speaker 02: The relating to is just an identifying function there. [00:21:21] Speaker 02: And applies is doing some kind of changing function. [00:21:25] Speaker 02: It's really amending the predicate offenses to which the guideline relates by involves or intended to promote the triggering. [00:21:40] Speaker 02: And to be clear, that's the approach that was adopted by Hassan when Hassan considered this very same argument, was that what only is doing there is making sure that the sentencing commission doesn't just say that the guideline applies when the defendant commits where the offense involves or is intended to promote federal counterterrorism or international [00:22:06] Speaker 02: So that work is being done there. [00:22:10] Speaker 02: We think, in this case, that the approach that's been adopted by all of the courts that have considered this question, all the courts of appeals that have considered this question, they've all said. [00:22:21] Speaker 02: Which is how many? [00:22:22] Speaker 02: Well, Your Honor, we have one court, the Fourth Circuit, that has really done a lengthy explanation of and refutation of the defendant's arguments. [00:22:31] Speaker 02: We have two additional courts that have kind of implicitly reached that conclusion, either over a dissent that adopts the defendant's arguments here, or by rejecting a district court that accepted these similar arguments. [00:22:44] Speaker 02: Although admittedly in that case, the court didn't go on at length about its reasoning. [00:22:49] Speaker 02: But then we have a number of courts that have applied the intended to promote prong, have found that the guideline is applicable in a situation where the defendant wasn't convicted. [00:23:00] Speaker 02: of an offense that qualified as a federal crime terrorism. [00:23:02] Speaker 02: So the implication there, even though they weren't addressing the specific question that the defendant is raising here, certainly that goes to the question of plain error. [00:23:10] Speaker 02: And whether the district court's failure to notice this to Esponte was a plainly erroneous error that the court should correct. [00:23:24] Speaker 01: Under your reading, so I see what you're saying about relating to only doing the work of telling you [00:23:29] Speaker 01: what it's talking about. [00:23:30] Speaker 01: So let's suppose the statute says, amend the sentencing guidelines so that the Chapter 3 international terrorism adjustment only applies to federal crimes of terrorism. [00:23:42] Speaker 01: You think that's basically what it's saying? [00:23:43] Speaker 01: Because if it says international terrorism adjustment, that's basically the same thing it's saying. [00:23:48] Speaker 01: That adjustment that relates to international terrorism, which is to say the international terrorism adjustment. [00:23:52] Speaker 01: Yes, Your Honor. [00:23:54] Speaker 02: And I think [00:23:56] Speaker 02: any number of these interpretations of what relating to is doing doesn't get you to what defendant needs here, which is a clear and obvious error. [00:24:06] Speaker 01: But just on the question of whether there's an error to begin with. [00:24:08] Speaker 01: So your reading is that take this provision that now encompasses international terrorism and adjust it so that it only encompasses federal crimes of terrorism. [00:24:25] Speaker 01: You can leave everything else the same, because that's exactly what the commission. [00:24:28] Speaker 01: You have to think that's OK, because that's what the commission did. [00:24:30] Speaker 01: Right. [00:24:31] Speaker 01: Right. [00:24:32] Speaker 02: I think, I'm not, it encompasses seems to sweep a little broader than the work that relating to is actually doing there to me. [00:24:41] Speaker 02: What relating to really seems to you is just identifying with the commission. [00:24:44] Speaker 02: Which, what got on are we talking about? [00:24:47] Speaker 01: Right. [00:24:47] Speaker 01: But I'm just talking about not the before, but the after, which is what does it look like with federal crimes of terrorism? [00:24:53] Speaker 01: You have to think that what Congress said is, you've got a guideline that relates to, applies to, I'll stop, I won't use involves, but encompasses international terrorism. [00:25:06] Speaker 01: It's the international terrorism thing. [00:25:08] Speaker 04: And just make it a federal crime of terrorism thing. [00:25:14] Speaker 02: I think that is fair, Your Honor. [00:25:16] Speaker 02: I think that's right. [00:25:17] Speaker 01: I don't understand why you're resisting. [00:25:20] Speaker 02: Because that's exactly what the commission did. [00:25:22] Speaker 02: That's right, Your Honor. [00:25:23] Speaker 02: I think that's correct. [00:25:24] Speaker 02: I'm not being resistant to the premise. [00:25:27] Speaker 02: I'm trying to think to myself what difference that would be from what the guideline or from what Section 730 actually says. [00:25:36] Speaker 02: The thing that is crucial, I think, is that none of those proposals [00:25:41] Speaker 02: do anything to remove or to suggest that you had to be convicted of that. [00:25:44] Speaker 02: And which would be a pretty significant change from, I mean, even the defendants does not seem to acknowledge this that I've seen, even if you remove the intended to promote wrong, it still applies when there's no conviction because it implies to you offenses where there was an involved or where the relevant conduct, which is what offense means under the guidelines. [00:26:05] Speaker 02: And it doesn't actually ever say convicted. [00:26:08] Speaker 02: And I don't think any of the suggestions that your honor is making get the defendant all the way to where he needs to go to show even an error, much less a plain and obvious error. [00:26:22] Speaker 04: I see my time has expired. [00:26:29] Speaker 04: I'm happy to address additional questions the court asks. [00:26:32] Speaker 01: OK, we'll let you rest there, Mr. Hearst. [00:26:35] Speaker 01: Thank you. [00:26:36] Speaker 01: Thank you. [00:26:37] Speaker 04: Mr Swanson, we'll give you two minutes for rebuttal. [00:26:42] Speaker 04: Yes, Your Honor. [00:26:43] Speaker 04: Thank you very much. [00:26:45] Speaker 03: Just a couple of small things to respond to. [00:26:50] Speaker 03: My friend referred to a couple of cases from the sixth and seventh circuits. [00:26:54] Speaker 03: Those didn't really take up the question at all. [00:26:56] Speaker 03: It's sort of striking the fact that they don't engage with the congressional text at all. [00:27:01] Speaker 03: Second, I'd like to just address his suggestion that plain error applies here. [00:27:05] Speaker 03: We think there are a couple of different reasons why that's not true. [00:27:08] Speaker 03: First, the district court passed on this question. [00:27:10] Speaker 03: At JA 486 to 487, the court squarely holds that it believes the enhancement applies to an offense that is not an enumerated crime of terrorism and cites some of these similar out-of-circuit cases that reach that conclusion without engaging with or addressing the congressional directive here. [00:27:31] Speaker 03: Second, at JA 468, in our memo, [00:27:35] Speaker 03: we argue Mr. Mohammed's offense of conviction does not constitute a federal crime of terrorism. [00:27:42] Speaker 03: And then we say, even if it's intended to promote, even if the intended to promote prong applies, it is improper to apply here. [00:27:49] Speaker 03: And then we go on to explain why. [00:27:50] Speaker 01: So I think that- But I didn't read either that statement or the district court statement that you pointed to to actually engage with whether the guideline is consistent with section 730. [00:28:00] Speaker 03: That specific issue, you're correct, was not. [00:28:02] Speaker 03: We did not cite the specific provision. [00:28:04] Speaker 03: But the Supreme Court has said you're not limited to the precise arguments you made below. [00:28:08] Speaker 03: But even if you think plain error applies, we have plain error here because Glover tells us that a plain text error is plain error. [00:28:16] Speaker 03: And it says that is true even in the face of some of the headwinds the government tries to turn up here, including a circuit split where there are circuits that have come out on the other side and including [00:28:32] Speaker 01: that the opinion in Glover looks to legislative history, which is what we're asking. [00:28:37] Speaker 01: Does that mean that any time a defendant makes an argument that they should win under the guidelines, that every district court is supposed to know that what they need to do is not just analyze the guideline, but they need to go back and ask whether the guidelines consistent with some statute that no one ever brought to the court's attention, and the argument was never made, that by saying that we should win under the guidelines, [00:28:59] Speaker 01: We're telling you, look at the guideline. [00:29:01] Speaker 01: But then you also should know that you should always look at every statute to make sure it's consistent with every statute that could bear on it, too. [00:29:07] Speaker 03: Your Honor, I don't think that's the right way to think about what plain air review is. [00:29:10] Speaker 03: In Henderson, the 2013 case where the Supreme Court holds that it's plain air at the time of appeal, not at the time of trial, the Supreme Court says it's not a grading system for judges. [00:29:21] Speaker 03: The point is just to make sure that the clear law is clearly applied. [00:29:24] Speaker 03: And so that's the interest that we're advocating here. [00:29:27] Speaker 03: It's not a matter of whether the court is supposed to go back and realize or a commentary on the district court's performance at all. [00:29:33] Speaker 03: It's just a matter of making sure that when Congress has spoken clearly, that clear result is applied. [00:29:37] Speaker 01: Right, but the district court has to know that there's something in question. [00:29:41] Speaker 01: And if nobody ever tells the district court, the reason we think the guidelines improperly applied to me is that it's in conflict with some statute. [00:29:51] Speaker 01: If every argument is, [00:29:53] Speaker 01: Under the terms of the guideline itself, as opposed to saying the guideline actually as framed can flow with a statute. [00:30:00] Speaker 01: If that's never presented to the district court, then and you still. [00:30:05] Speaker 01: would say the plain error standard doesn't apply, even though that particular issue was never brought to the court's attention that the guideline is in conflict with the language of the statute, then it would mean that a district court is expected to make sure every time it applies a guideline that a guideline is not in conflict with the statute, even if the defendant never makes that argument. [00:30:26] Speaker 03: I want to respond to a couple of things, I guess. [00:30:28] Speaker 03: First, the suggestion that the district court would have to do this and go back. [00:30:35] Speaker 03: I mean, as a practical matter, of course, it would be great. [00:30:37] Speaker 03: But that's not what we're suggesting. [00:30:40] Speaker 03: It's, again, not a commentary on the district court's performance. [00:30:43] Speaker 03: The point is just to make sure that the clear text that Congress enacted is what is, in fact, applied to the case. [00:30:49] Speaker 03: That's what the Supreme Court says in Henderson. [00:30:53] Speaker 01: Sorry, go ahead. [00:30:53] Speaker 03: But I don't understand. [00:30:55] Speaker 01: The question is whether the plain error standard applies, right? [00:30:58] Speaker 01: I think I'm just missing something. [00:30:59] Speaker 03: Yeah, OK, yes. [00:31:00] Speaker 03: So yes, the argument you made, I think, is a question about whether the plain error standard applies or not. [00:31:06] Speaker 03: But once the plain error standard applies, what matters is the plain text that Congress adopted and not correct. [00:31:13] Speaker 01: That I agree with. [00:31:13] Speaker 01: I guess I'm not talking about whether the plain error standard applies. [00:31:16] Speaker 01: And on whether the plain error standard applies, in order for the plain error standard not to apply here, in other words, in order to reach the conclusion that [00:31:25] Speaker 01: either the objection was adequately preserved or it never needed to be preserved to begin with, then I think what you'd have to say is that even though the district court was never told, there's a problem with this guideline because it conflicts with the language of the statute that we would expect a district court to undertake that analysis, notwithstanding that the particular bone of contention was never flagged for the district court. [00:31:51] Speaker 03: There's one minor caveat to that that I would add, which is when the district court reaches out and addresses an issue, whether or not it's briefed. [00:31:59] Speaker 03: So even if you assume we didn't brief you. [00:32:01] Speaker 03: If you think that the district court reached out at 468, 46 to 47 and address this issue anyway, then that would not be the case. [00:32:09] Speaker 03: Because I think it would be reasonable to expect district courts to reach out, when they've chosen to reach out and address an issue, to do so thoroughly. [00:32:15] Speaker 01: That's true. [00:32:16] Speaker 01: And then the question is, did they reach this issue? [00:32:18] Speaker 01: Because the district court didn't say, the issue I'm reaching is whether the language of the guideline is consistent with section 730. [00:32:25] Speaker 01: Nobody thinks the district court said that, right? [00:32:27] Speaker 01: Because the district court never quotes 730 or talks about 730. [00:32:30] Speaker 03: That's right. [00:32:31] Speaker 03: Although the only thing I'll add is the district court does purport to construe the guidelines and the relevant statutory text here is reproduced in commentary number four to the guidelines. [00:32:41] Speaker 03: So it's not like the district court would have had to go back and comb through the public law of EDPA to find this. [00:32:47] Speaker 03: The text is right there in the guideline commentary that's printed with the guidelines. [00:32:54] Speaker 03: And the last thing, Your Honor, I would add is we're just, we're not asking, there's been a lot of sort of what is this piece of the phrase, this piece of the phrase, this piece of the phrase mean. [00:33:04] Speaker 03: And our argument is just that the text as a whole is simply read. [00:33:08] Speaker 03: It says, do not apply the offense to an offense, only apply the offense to an offense that is a federal crime of terrorism. [00:33:14] Speaker 03: And doing so here means applying it to an offense that is not a federal crime of terrorism. [00:33:19] Speaker 01: Thank you. [00:33:19] Speaker 01: Thank you, counsel. [00:33:20] Speaker 01: Thank you to both counsel. [00:33:21] Speaker 01: We'll take this case under suspicion.