[00:00:01] Speaker 05: case number 23-30-05, United States of America Trois Sergeant Appellant, Ms. [00:00:07] Speaker 05: Minzer for the Appellant, Mr. Henneford for the Appellate. [00:00:15] Speaker 05: Good morning, Your Honors, and may it please the Court, Judith Meisner, representing the Appellant Trois Sergeant. [00:00:22] Speaker 05: The issue in this case is whether the district court erred in applying the guideline for aggravated assault to a 2.2, rather than the guideline for obstructing or impeding officers to a 2.4 to Mr. Sargent's conduct of swinging an open hand towards a Capitol police officer, making contact with that officer 30 seconds later, swinging an open hand again, intending to hit that officer, but hitting somebody else. [00:00:51] Speaker 05: There were no injuries. [00:00:53] Speaker 05: He was convicted of violating 18 USC section 111, which is forcibly assaulting, resisting, opposing, impeding, intimidating, interfering with officers in performing their official duties. [00:01:09] Speaker 05: And where here the application of the aggravated assault guideline was based on the commentary definition of aggravated assault, which includes assault with [00:01:19] Speaker 05: involving the intent to commit another felony. [00:01:23] Speaker 05: Here, that felony was civil disorder. [00:01:26] Speaker 05: Mr. Sargent argued below and maintains here that the aggravated assault guideline did not apply to his minimal contact. [00:01:34] Speaker 05: Aggravated assault is not defined in the text of the guideline. [00:01:39] Speaker 05: It is defined in the commentary to the guideline as meaning a felonious assault [00:01:46] Speaker 05: that involves a dangerous weapon with intent to cause bodily injury with that weapon, serious bodily injury, strangling, suffocating, or attempting to strangle or suffocate, and an intent to commit another felony. [00:02:02] Speaker 05: We submit that no deference is due to the commentary definition because it includes assault with intent to commit another felony. [00:02:10] Speaker 03: When the guidelines were first drafted in 1987, [00:02:15] Speaker 03: this aggravated assault guideline 2A2.2 was a part of that initial package. [00:02:21] Speaker 03: Yes. [00:02:22] Speaker 03: And that package was sent to Congress. [00:02:26] Speaker 03: And my understanding is that the commentary that defined 2A2.2 was part of the package that was sent to Congress. [00:02:38] Speaker 03: And that that commentary at that time included [00:02:42] Speaker 03: the language and aggravated assault is an assault with intent to commit another crime. [00:02:50] Speaker 03: If all of that is true, Congress reviewed the guidelines and approved them [00:03:00] Speaker 03: and it would have looked at the commentary in determining whether to approve that guideline, just like anybody else would look at the commentary to try to figure out what that guideline is supposed to mean. [00:03:17] Speaker 03: Shouldn't that impact how we, how or what type of deference we give to that commentary? [00:03:25] Speaker 05: Well, the statutes don't require commentary to go through either the notice and comment and notice rulemaking or congressional review. [00:03:37] Speaker 05: We don't know what Congress did when it received. [00:03:41] Speaker 05: We don't know exactly what Congress looked at or how they viewed the commentary at the time that they reviewed the guidelines. [00:03:49] Speaker 05: So I think that the [00:03:53] Speaker 05: standard is still for reviewing whether deference is due to commentary or the cases in which the Supreme Court has defined and discussed that deference. [00:04:07] Speaker 04: This commentary, in addition to the points Judge Wilkins made, did go through notice and comment process published in the Federal Register of Comments received. [00:04:18] Speaker 04: It went through the, in fact, [00:04:20] Speaker 04: virtually all commentary has since 1997 post stinson. [00:04:25] Speaker 04: So how does that affect? [00:04:26] Speaker 04: I mean, there's a lot in your briefs about sort of a Kaiser analysis, but we are talking now about a notice and comment rule, the equivalent of a notice and comment rule. [00:04:43] Speaker 05: Well, it's still, [00:04:48] Speaker 05: We still don't know exactly what Congress was, how Congress viewed the commentary. [00:04:58] Speaker 05: I'm not aware. [00:04:59] Speaker 04: We don't know how they viewed the guidelines other than they chose not to change them and yet that does not affect our standard of review. [00:05:08] Speaker 04: We don't require before applying the Stinson standard of review that there be affirmative evidence that Congress looked at the particular. [00:05:17] Speaker 04: commentary or even guideline. [00:05:19] Speaker 04: That's just the nature of the legislative process. [00:05:27] Speaker 05: Well, I would point to the four circuits that have held that Kaiser does apply. [00:05:35] Speaker 04: How many of them have held that it applies notwithstanding that the commentary went through notice and comment process? [00:05:43] Speaker 05: I don't believe that those cases have discussed that. [00:05:45] Speaker 04: Right. [00:05:46] Speaker 04: So that's, I don't know whether the particular commentaried issue in those cases went through notice and comment. [00:05:52] Speaker 04: Of course, there are many circuits who have rejected the Kaiser approach anyhow, but here we know that this one went through notice and comment. [00:06:00] Speaker 04: So it seems, it would seem quite unusual then to try to stuff it into the Kaiser bag. [00:06:08] Speaker 05: Well, even if, [00:06:13] Speaker 05: It went through the notice and comment process. [00:06:19] Speaker 05: There's still a question of whether or not the commentary is reasonable. [00:06:27] Speaker 05: And I think that the same issues that Kaiser raises in discussing ambiguity in a sense are relevant here as well. [00:06:37] Speaker 02: Can I ask a question about what the ambiguity is here, sort of separate and apart from any difference questions? [00:06:44] Speaker 02: I'm curious what your answer is in particular to the statutory index reference for 113A2. [00:06:50] Speaker 05: 113 has a number of different variations. [00:07:03] Speaker 02: Right. [00:07:04] Speaker 02: And one is very specifically assault with intent to commit another felony. [00:07:08] Speaker 02: And then the statutory index, which is part of the guy's commentary, refers to the aggravated assault, not the simple assault. [00:07:17] Speaker 05: There are some kind of incongruities between 113 and 111. [00:07:22] Speaker 05: 113 imposes a higher maximum penalty for the assault with intent to commit a felony. [00:07:31] Speaker 05: than 111 does. [00:07:32] Speaker 05: It's 10 years as opposed to eight. [00:07:35] Speaker 05: 113 imposes a lower maximum penalty for assault by striking or beating or wounding than 111 imposes for assault with physical contact. [00:07:47] Speaker 02: It's one year as opposed to eight. [00:07:50] Speaker 02: But if all I knew about this case was that 113A2 is assault with [00:07:57] Speaker 02: intend to commit another felony and that the index deems that aggravated assault. [00:08:04] Speaker 02: Isn't that very powerful evidence for the government's positions? [00:08:09] Speaker 05: It may be some evidence, but given the distinctions between 111 and 113, and 111 is the statute we're dealing with, I don't think that the fact that for 113, the Sentencing Commission [00:08:25] Speaker 05: imposed the aggravated assault guideline would be controlling. [00:08:35] Speaker 02: And then I just had one question about 111, because I understand your argument to be 111 groups together assault with physical contact and intent to commit another felony. [00:08:46] Speaker 02: But if we actually looked to 2A2.4 for assault with intent to commit another felony, it would actually be treated the same as simple assault, right? [00:08:57] Speaker 05: No, simple assault is 2A2.3. [00:09:01] Speaker 05: Assault 2A2.4. [00:09:05] Speaker 05: is has a higher base level because you are talking about an official and it has enhancements for physical contact and dangerous weapon and bodily injury. [00:09:23] Speaker 05: 282.3 is assault. [00:09:33] Speaker 02: I apologize. [00:09:33] Speaker 02: The point, I think, is that under 282.4, there's no increase, right, for if the assault is with intent to commit another felony. [00:09:42] Speaker 05: That's built into the base offense. [00:09:47] Speaker 03: But you say it's built into the base offense, but if the assault [00:09:57] Speaker 03: to commit another with the intent to commit another felony involves striking as in here, then it's the exact same as if, well, I guess your point is that [00:10:26] Speaker 03: It's a base offense level 10 instead of 2.3, it's 7. [00:10:32] Speaker 03: Or 4. [00:10:33] Speaker 03: Or 4. [00:10:36] Speaker 03: But I guess what I'm trying to understand is, too, without looking to the commentary, when the guidelines were first promulgated in 1987, there was no 2A 2.4. [00:10:50] Speaker 03: The statutory index for 18 USC section 111 listed 2A 2.2 and 2A 2.3. [00:10:58] Speaker 03: The aggravated assault and what was then called the minor assault guide. [00:11:05] Speaker 03: Now it's 2A 2.3 is called assault. [00:11:10] Speaker 03: And so within a year, the commission drafted 2A 2.4 [00:11:17] Speaker 03: and then change the statutory index to delete the reference to minor assault and substitute the new 2A2.4 guideline. [00:11:28] Speaker 03: So in that sense, looking at the history, which we're supposed to look at under Kaiser or under kind of any type of interpretive review, we see that 2A2.4 [00:11:48] Speaker 03: was really intended from the beginning to be more of kind of like a substitute for the minor assault or the regular assault guideline. [00:12:03] Speaker 05: I'm not sure it's a substitute for regular assault because you still have 2A2.3, which deals with the regular assault. [00:12:11] Speaker 03: Well, with respect to section 111 in the cross reference, [00:12:17] Speaker 03: It is kind of doing the work that the new guideline 2A2.4 is doing the work that the simple assault guideline or the regular assault, minor assault guideline did before. [00:12:32] Speaker 03: Do you agree with that proposition? [00:12:35] Speaker 05: Except it has 2A2.4 has an increased base offense level and additional enhancements. [00:12:41] Speaker 05: So I think that the Sentencing Commission created a [00:12:46] Speaker 05: separate category for these assaults against law enforcement officers. [00:12:56] Speaker 04: And I see them lose if we apply Stinson. [00:13:01] Speaker 05: Can you win under Stinson? [00:13:03] Speaker 05: I think we can still win under reasonableness. [00:13:07] Speaker 04: That coming. [00:13:18] Speaker 04: That's not the Stinson test, but go ahead. [00:13:21] Speaker 05: Well, it's inconsistent with the... That's a much different test than the reasonable. [00:13:26] Speaker 04: So it's inconsistent with the guideline? [00:13:29] Speaker 05: Well, that the commentary is inconsistent with the general common understanding of what aggravated assault is. [00:13:40] Speaker 05: Looking at the dictionaries, the model penal code, the treatises, state statutes, [00:13:47] Speaker 05: They all look at aggravated assault as involving significant violence or potential for serious bodily injury and [00:13:59] Speaker 05: to the extent that the commentary. [00:14:01] Speaker 04: That's accurate. [00:14:02] Speaker 04: I think there are dictionaries, like Black's Law Dictionary has a definition that defines aggravated assault as assault with intent to commit another felony. [00:14:13] Speaker 04: And there are states, there are plenty of them, define aggravated assault as including the intent to commit another felony. [00:14:19] Speaker 04: Some of them enumerate the felonies, some don't. [00:14:22] Speaker 04: But it's just not uniform. [00:14:24] Speaker 05: No, but blacks also, after their definition says, see model penal code 211.2, which does not include intent. [00:14:35] Speaker 04: The model penal code does not pretend to be, it is actually giving guidance on where it thinks the law should go, this provision does. [00:14:42] Speaker 04: It doesn't pretend to be codifying the existing state of the law. [00:14:45] Speaker 03: No, but it was promulgated. [00:14:48] Speaker 03: The model penal code isn't like a restating [00:14:52] Speaker 05: No, but it is a, if you, the model recommendation, it's not from 1962. [00:14:59] Speaker 05: Uh, and if you going States that have a, an offense captioned aggravated assault, only three of them that include intent to commit another felony in that category, you can have many different assault with intent [00:15:20] Speaker 05: to do something else that are an aggravated form of assault, but those are specific offenses, not as such as murder, robbery, rape, and kill. [00:15:33] Speaker 04: What instances the commission couldn't go with those three states and Black's Law Dictionary? [00:15:43] Speaker 05: There's nothing directly in Stinson, but the question is what? [00:15:47] Speaker 04: Under the Stinson standard of review that we apply to the commentary, that's what we're bound by. [00:15:54] Speaker 04: How would we say that fits Stinson's very, very narrow standard of review? [00:16:04] Speaker 05: Well, I do think that it's inconsistent with the common [00:16:09] Speaker 05: understanding of aggravated assault. [00:16:18] Speaker 04: That it had to be inconsistent with a guy that are plainly erroneous. [00:16:24] Speaker 05: Plainly erroneous or inconsistent with... It may not be plainly erroneous, but I think it's inconsistent. [00:16:36] Speaker 05: Well, [00:16:37] Speaker 05: I think it is inconsistent with the guideline because the guideline doesn't define the aggravated assault. [00:16:47] Speaker 04: It could be inconsistent with the definition of the guideline itself, then you could have inconsistency, but how can you be inconsistent with silence? [00:16:54] Speaker 05: Because if you are, if in the absence of a definition, you look to the common understanding of what the term means, [00:17:04] Speaker 04: That the commission must apply the common or most popular understanding. [00:17:13] Speaker 05: I'm saying that the Supreme Court has said that when you're interpreting a term, you look to what the common understanding. [00:17:20] Speaker 05: Stinson? [00:17:23] Speaker 05: Generally, generally under lab Borden, that when you're looking at a term. [00:17:27] Speaker 05: I'm just asking because that's what binds this court. [00:17:32] Speaker 05: Well, I think that Kaiser does affect whether or not Stinson was binding. [00:17:41] Speaker 05: Kaiser did not directly overrule Stinson. [00:17:46] Speaker 05: I think it modifies Stinson. [00:17:55] Speaker 04: No sentence anywhere in there. [00:17:56] Speaker 04: All there is is it's included in a citation to a long string side of citations. [00:18:00] Speaker 04: And then the court goes on to say, we're not overruling it. [00:18:06] Speaker 04: At least from our perspective as a lower federal court of appeals, there's no language that we could point to that would say Stinson has been overruled. [00:18:18] Speaker 05: No, but there's a difference between overruling and modifying. [00:18:22] Speaker 04: Well, I don't think so. [00:18:23] Speaker 04: I mean, if you're saying it no longer, the standard is no longer the Stinson standard and it's now the Kaiser standard, that would be overruling Stinson standard. [00:18:35] Speaker 04: I'm just trying to understand how we could do that without getting in trouble. [00:18:40] Speaker 05: Well, so then under Stinson, if you look at, after you look at the text, [00:18:52] Speaker 05: If you look at the, the texts can include assault with intent to commit felonies such as smuggling, illegal reentry of aliens, contraband tobacco. [00:19:14] Speaker 05: Those are not the kind of offenses that [00:19:20] Speaker 05: that the courts have held to be aggravated felonies. [00:19:25] Speaker 05: There's no serious, there's no aggravated, there's no, if you look at the state statutes that define aggravated felony, and include specific felonies in that group. [00:19:48] Speaker 04: But I think the point is, [00:19:51] Speaker 04: But the committing a felony, sorry, assault with intent to commit another felony is going at is that it is assaults bad. [00:20:02] Speaker 04: But if you do assault as part of or on route to or intending to as a way of getting to another felony, it's a tool for committing another felony that's worse than assault by itself. [00:20:16] Speaker 04: And I don't know that really turns on what the other felony. [00:20:18] Speaker 05: It's worse. [00:20:19] Speaker 05: But if you look at 111, [00:20:21] Speaker 05: then you have intent to commit another felony jumps you up to an eight year maximum. [00:20:28] Speaker 05: But the enhanced penalty where you have dangerous weapons, serious bodily injury is a 20 year felony. [00:20:35] Speaker 05: So I think there is a distinction in 111 between the intent to commit another felony and the enhanced penalty, which I would argue is the equivalent of an aggravated felony. [00:20:56] Speaker 04: Thank you. [00:20:56] Speaker 04: I will give you a couple of minutes on rebuttal. [00:21:12] Speaker 01: Good morning and may it please the court, Eric Hansford with the United States. [00:21:16] Speaker 01: Well, there is no single consensus definition of what an aggravated assault means. [00:21:21] Speaker 01: One traditional definition is the one that's used by the commentary and that captures assault with the intent to commit another felony. [00:21:31] Speaker 01: That definition that's used by the commentary reflects federal law's treatment of the seriousness of that crime in places like Section 113. [00:21:41] Speaker 01: And I think as Judge Garcia's questions earlier, we're going to the clearest proof that that definition is proper is that cross-reference that's found in Appendix A for 113A2 conviction. [00:21:57] Speaker 01: There's kind of no way to get past that and to rule nonetheless that this definition would be impermissible. [00:22:07] Speaker 03: But when the guidelines were first written in 1987, there are three assault guidelines, assault with intent to commit murder, aggravated assault, and what they called minor assault. [00:22:22] Speaker 03: Within a year, they added a fourth assault guideline. [00:22:27] Speaker 03: that is specifically called impeding or obstructing or impeding officers. [00:22:36] Speaker 03: So that is an assault guideline. [00:22:39] Speaker 03: It's within the group of guidelines for assault. [00:22:42] Speaker 03: It's now the fourth one. [00:22:44] Speaker 03: So if you just look at the text of the guidelines, and yes, there's a cross reference to both the [00:22:54] Speaker 03: 2A 2.4 and 2A 2.2. [00:22:58] Speaker 03: But if you look at the text of the guidelines, isn't the obstructing or impeding officers guideline more apt for the mine run of 111 convictions? [00:23:20] Speaker 01: So I think no, because you are not asking how, in the abstract, looking only at 111, how are we going to treat this? [00:23:30] Speaker 01: You also have to look at all the other places that the US code captures assault with the intent to commit another felony. [00:23:36] Speaker 01: And that includes 113 115 other places as well. [00:23:41] Speaker 01: The most common being the 113 a to conviction, which applies when you're on federal land and maritime jurisdiction on tribal land. [00:23:50] Speaker 01: That's the most common assault with the intent to commit another felony. [00:23:54] Speaker 01: And for that one. [00:23:55] Speaker 01: The only place that the appendix a tells you to look is into to a 2.2 or certain sexual assault provisions that wouldn't apply here, but if you had an underlying sexual assault assault with the intent to commit that. [00:24:11] Speaker 01: But there is no cross reference to 2A2.3 or 2A2.4 for a 113A2 conviction. [00:24:20] Speaker 01: And so I think that's kind of the clearest proof that this is where you're supposed to be looking for assault with the intent to commit another felony. [00:24:28] Speaker 03: But what does 113A2 have anything to do with this where the vast majority of those [00:24:37] Speaker 03: offenses aren't going to have anything to do with obstructing or impeding federal officers. [00:24:43] Speaker 01: Because your question for interpreting the guidelines here is not what do we do with a 111 conviction. [00:24:50] Speaker 01: Your question is when you are looking at 2A 2.2 and it says aggravated assault, what does that mean? [00:24:59] Speaker 03: No, the issue is [00:25:03] Speaker 03: whether as between these two guidelines and this particular issue, this particular set of facts, which of these two, to the extent we can discern, unambiguously applies to this set of facts. [00:25:24] Speaker 03: I mean, we don't do ambiguity by just saying is aggravated assault ambiguous or not in the abstract. [00:25:35] Speaker 03: What we do under Chevron or Robinson v. Shell oil is we look at ambiguity in the context of the question we have to answer. [00:25:47] Speaker 03: And the question we have to answer is between these two guidelines, guideline one and two, [00:25:53] Speaker 03: Which one is it? [00:25:56] Speaker 01: Isn't that the question? [00:25:57] Speaker 01: I mean, I would say you look at, I agree you look at context, but I think the context you are looking at is the entire guideline book. [00:26:06] Speaker 01: You are not trying to. [00:26:08] Speaker 03: The ambiguity that we are trying to resolve is the ambiguity with respect to this offense with these characteristics, right? [00:26:20] Speaker 03: I mean, we have said that a statute can be ambiguous for other applications, but it's unambiguous with respect to the facts that we have. [00:26:34] Speaker 01: I'm not sure that your approach would lead to a different answer, but how I would think of it is you are looking at the text of the guideline, and the text of the guideline says aggravated assault, and then you're trying to figure out is the term aggravated assault [00:26:50] Speaker 01: ambiguous or in particular is the commentary definition that is provided, a permissible definition, genuine ambiguity, a reasonable resolution. [00:27:01] Speaker 03: I don't think these... Are you saying that we just determine in general whether aggravated assault is ambiguous or we determine whether it's ambiguous when you look at these facts? [00:27:13] Speaker 01: It's whether it's ambiguous as to assault with the intent to commit a felony, which is the which is the specific definition while assaulting an office. [00:27:23] Speaker 01: But that doesn't I mean, the fact that you are assaulting an officer doesn't make any difference to your guidelines application. [00:27:30] Speaker 01: It makes a difference to whether you're convicted of one eleven or not. [00:27:34] Speaker 01: It does, but it does not, the guidelines commentary is not turning on whether it's a 111. [00:27:40] Speaker 03: We're supposed to look at the guideline itself first before we look at any commentary to determine whether there's ambiguity. [00:27:48] Speaker 03: That's my point. [00:27:50] Speaker 01: You are supposed to, yes, I certainly agree to that. [00:27:53] Speaker 01: And you look at the full guideline. [00:27:56] Speaker 01: And so you are trying to figure out what does the term aggravated assault mean? [00:28:00] Speaker 01: And in particular, does it capture assault with the intent to commit another felony? [00:28:04] Speaker 01: And it's, that is a traditional definition of what aggravated assault is. [00:28:11] Speaker 01: And it is clearly provided by the cross-reference. [00:28:15] Speaker 01: I did want to touch on the model penal code quickly because that was. [00:28:20] Speaker 03: I think I'm trying to, I thought that the way that this exercise went is we have a certain set of, we have an offense of conviction, which is 18 USC 111. [00:28:34] Speaker 03: And we have the basic facts of that conviction are that a law enforcement officer was struck and with the intent to commit another felony. [00:28:47] Speaker 03: And so the question is, with those facts, that being the issue, do we pick 2A 2.2 or 2A 2.4? [00:28:58] Speaker 03: And just looking at the text of those guidelines, not the commentary of either, just the text of those, does either one of those unambiguously seem to be the right guideline? [00:29:16] Speaker 03: Is that the exercise we're doing, at least at the first step? [00:29:21] Speaker 01: I don't think so. [00:29:22] Speaker 01: I think most of the steps you laid out are how I would approach it. [00:29:28] Speaker 01: But then the question is, what does aggravated assault mean in 2A 2.2? [00:29:33] Speaker 01: and in trying to figure out what aggravated assault. [00:29:36] Speaker 03: Why do we go straight to that where the sentencing index says you look at it could be one or the other. [00:29:42] Speaker 03: Well, we have to look at the guideline itself to figure out which of those two is a two a two point two or two a two point four. [00:29:50] Speaker 01: I don't understand how you would resolve that question without figuring out what assault aggravated. [00:29:56] Speaker 01: assault means. [00:29:56] Speaker 01: If it points you to 2A2.2 and 2A2.4 and 2A2.4 specifically says, if this is an aggravated assault, use 2A2.2. [00:30:06] Speaker 02: So you're referring to 2A2.4 C1, right? [00:30:10] Speaker 02: If the conduct constituted aggravated assault. [00:30:13] Speaker 01: Yes. [00:30:13] Speaker 02: Refer to 2A2.2. [00:30:15] Speaker 02: Yes. [00:30:16] Speaker 02: OK. [00:30:16] Speaker 02: So you're saying we can't apply 2.4 without deciding what aggravated assault means. [00:30:22] Speaker 02: That's correct. [00:30:23] Speaker 02: Yes, you're on. [00:30:24] Speaker 01: Yeah. [00:30:25] Speaker 01: And so I think ultimately the challenge here is whether or not you're applying what does aggravated assault mean and the definition that's being used here by the commentaries consistent with treatises, consistent with blacks, consistent with how federal law views the seriousness of this crime. [00:30:50] Speaker 01: And so we do think that it was appropriate here with the district court correctly applied the guidelines in this case. [00:30:58] Speaker 03: How does it cut that Congress kind of had three grid, I'm sorry, the commission had three gradations of assault initially, minor assault, aggravated assault, and assault with intent to commit murder. [00:31:17] Speaker 03: And then they add a fourth [00:31:20] Speaker 03: this obstructing or impeding officers as a gradation of assault. [00:31:28] Speaker 03: And I guess the argument could be [00:31:34] Speaker 03: Well, before, you know, aggravated assault just kind of would seem to be anything kind of in between minor assault and assault to commit murder. [00:31:45] Speaker 03: But now they have kind of the second category of assault. [00:31:49] Speaker 03: It's like in between those two extremes. [00:31:54] Speaker 01: Is that correct? [00:31:55] Speaker 01: I think it's not correct to see it as an in-between category of assault. [00:32:00] Speaker 01: Instead, it's a category of assault for a particular sector. [00:32:03] Speaker 01: of circumstances, which is when the victim is a federal officer. [00:32:07] Speaker 01: But it's not like there's when you threaten a dangerous weapon but don't use it, or there's a less serious injury. [00:32:17] Speaker 01: It's not that category of crime. [00:32:20] Speaker 01: It's instead just for the specific circumstance. [00:32:24] Speaker 01: And so I don't think that the decision to add this extra category to deal with [00:32:31] Speaker 01: times when you are assaulting a federal officer tells you much about the meaning of aggravated assault. [00:32:37] Speaker 01: And again, you've got to figure this out, not just for a 111 conviction, but for a 113 conviction, a 115 conviction. [00:32:45] Speaker 01: And under those provisions, assault with the intent to commit another felony, if you look at 113 assault. [00:32:52] Speaker 04: Maybe the way it's working is with simple assault. [00:32:57] Speaker 04: But if you do a simple assault against officers, [00:33:01] Speaker 04: or otherwise use assault to obstruct them in their duties. [00:33:05] Speaker 04: They wanted that to be treated differently than simple assault on everybody else. [00:33:10] Speaker 04: But at the same time, if you assaulted an officer with the intent to commit murder, no one would think that you have to do the 2A 2.4 instead of a murder one. [00:33:21] Speaker 04: That's right. [00:33:24] Speaker 04: It's one thing if you assault the officer because you just don't like the officer. [00:33:30] Speaker 04: But if you assault the officer, because he or she's in your way as you're trying to commit another felony, then that would at least, with some, I guess, judgment by the District Court, easily fit into the aggravated felony context. [00:33:44] Speaker 04: So at some point it's, this one is, the officer one is meant to recognize that assaults can be worse because they're against an officer, but they don't become, [00:33:56] Speaker 04: less serious because they're against an opposite. [00:33:59] Speaker 01: That's right. [00:33:59] Speaker 01: And that's reinforced by that cross-reference in 2A2.4C1 that says if this is an aggravated assault, use 2A2.2. [00:34:09] Speaker 01: Yes, we certainly agree. [00:34:10] Speaker 02: Can I? [00:34:11] Speaker 02: No, go ahead. [00:34:13] Speaker 02: Just wanted to ask a question about, we had some questions about this debate between Stinson and Kaiser, and I'm just curious what in the government's view is practically at stake in that debate. [00:34:25] Speaker 02: You know, the Fifth Circuit had a long and interesting opinion about this. [00:34:30] Speaker 02: And then it concludes by saying, we actually don't think the level of deference makes any difference. [00:34:35] Speaker 02: Majority in the dissent both say that and several other cases say that. [00:34:39] Speaker 02: Is there some category of case that you think the government thinks come out differently under Stinson and Kaiser? [00:34:50] Speaker 01: So I think [00:34:51] Speaker 01: So just preliminarily, I think this is not the case where the level of deference would make a difference. [00:34:58] Speaker 01: But no, we don't view those as different because I think taking a step back, when you are looking at Stinson, what Stinson is saying is we are going to apply our slash Seminole rock deference. [00:35:14] Speaker 01: and to the guidelines commentary. [00:35:19] Speaker 01: And then Kaiser goes up and says, we are going to keep our slash seminal rock deference. [00:35:28] Speaker 01: We are going to maintain that under stare decisis principles. [00:35:31] Speaker 01: And we are going to reiterate, reemphasize, restate. [00:35:35] Speaker 01: That's the vocabulary that the Supreme Court is using. [00:35:38] Speaker 01: We are going to reiterate the already existing limitations of that deference. [00:35:44] Speaker 01: So in other words, the Supreme Court is saying on its face, this is not a change in terms of the level of deference that's being afforded. [00:35:53] Speaker 01: This is just the application of our slash seminal rock deference. [00:35:57] Speaker 01: But some of the language, if you take it in isolation, can look very loose. [00:36:02] Speaker 01: And so we want to reiterate the already existing limits that are within that deference. [00:36:08] Speaker 01: So in other words, the Supreme Court on its face is saying, this is not a change in the law. [00:36:13] Speaker 01: This is not a change in the level of deference. [00:36:16] Speaker 01: And indeed, the main point of the opinion is under stare decisis principles, we are going to keep that old our seminal rock deference. [00:36:26] Speaker 01: And I think that's made especially clear by the fact that Kaiser does cite stinson among the many cases that is applying this our seminal rock deference in the plurality. [00:36:38] Speaker 04: But there would be a huge difference because Stinson wasn't an ordinary hour situation because it was dealing with the Sentencing Commission. [00:36:50] Speaker 04: And they were clear in Stinson that you don't even need ambiguity to be bound by the commentary. [00:36:57] Speaker 04: But of course, you do need ambiguity under ordinary hour and under Kaiser. [00:37:02] Speaker 04: And so there is. [00:37:05] Speaker 04: difference between Stinson and all of the other ordinary executive agency applications of our slash Kaiser review. [00:37:15] Speaker 04: And so it seems to me there is a material difference, maybe not in this case, but there's real difference between Stinson and Kaiser, at least as to whether ambiguity, let alone genuine ambiguity is required. [00:37:31] Speaker 04: And so I'm curious why the government has taken the position [00:37:35] Speaker 04: that Stinson is now overtaken by Kaiser. [00:37:38] Speaker 04: When they're different in that regard and Supreme Court has not overruled Stinson and the Supreme Court has said courts of appeals shouldn't be getting ahead out over our skis when the Supreme Court hasn't yet overruled something. [00:37:52] Speaker 04: So I don't understand why on earth the government is arguing for a Kaiser view in the sentencing guidelines context. [00:38:00] Speaker 01: So I similarly don't want to get out over my skis, because this position is not articulated by our office. [00:38:07] Speaker 01: It's coming from the department and the Solicitor General's office. [00:38:10] Speaker 01: But from my understanding, it is what I said earlier to Judge Garcia, which is that Stinson. [00:38:16] Speaker 04: It's not accurate, because I understand what you're saying. [00:38:21] Speaker 04: Stinson requires no ambiguity. [00:38:23] Speaker 04: And everything that you said about Auer and Kaiser requires, at a minimum, ambiguity. [00:38:30] Speaker 01: So, eh. [00:38:32] Speaker 01: I think there are two things to say to that. [00:38:34] Speaker 01: One is that the commentary can do various things. [00:38:37] Speaker 01: The commentary is not just clarifying when the guidelines apply. [00:38:42] Speaker 01: The commentary can also give background information. [00:38:45] Speaker 01: The commentary can generally describe things, stints and goes through this. [00:38:50] Speaker 01: So in other words, the commentary is not limited to the situation of clarifying what the guidelines mean. [00:38:57] Speaker 01: But then I think the other point is the only- [00:39:02] Speaker 04: to understand the meaning of the guideline itself. [00:39:06] Speaker 04: If it's just a bunch of history, unless it's used as interpretive history, it's not going to be raised in this context. [00:39:15] Speaker 01: So maybe the other point goes to it, which is that Stinson, what Kaiser says is we are continuing this level of deference, this hour seminal rock deference, that Stinson says it's applying. [00:39:29] Speaker 01: So the only way you get to these concerns about [00:39:31] Speaker 04: No, Stinson said kind of like, recognize it was different. [00:39:36] Speaker 01: No, I think Stinson says the situation is kind of like the situation with the guidelines and the commentary is kind of like regulations or. [00:39:47] Speaker 01: No, no, it doesn't say kind of like, but I forget the exact phrase. [00:39:54] Speaker 01: But then what Stinson says is that it is going to adopt that level of deference when applying the commentary. [00:40:02] Speaker 04: So in other words, it's saying it's not a perfect... Stinson also says you always had to have ambiguity for our dealing with executive branch agencies. [00:40:12] Speaker 04: which under Stinson, you never had to have ambiguity. [00:40:14] Speaker 04: That's my only point is that it really seems like you're a little bit mixing apples and oranges. [00:40:22] Speaker 03: Isn't the answer to Judge Millett's question that the Supreme Court basically kind of exercised what we might want to call a little bit of kind of revisionist history in the sense that it says in its footnote [00:40:41] Speaker 03: that the pre-hour decisions applying Seminole Rock are legion, and it lists Stinson as one of them, and it previously described Seminole Rock as deferring only when there's ambiguity in the regulation. [00:41:03] Speaker 03: So the Supreme Court seems to be kind of pretending that Stinson was a faithful application of Seminole Rock when it wasn't to try to harmonize it with what it was saying in Kaiser. [00:41:20] Speaker 01: I mean, I want to say that the Supreme Court was misleading in terms of how it was deciding the case. [00:41:28] Speaker 01: I think instead it's that the Supreme Court was recognizing in Kaiser that certain statements out of context might be misleading in terms of how our seminal rock deference is supposed to apply. [00:41:43] Speaker 01: You don't have to say it the way I said it. [00:41:45] Speaker 03: I probably shouldn't have said it the way that I said it, but I don't care. [00:41:49] Speaker 03: You should care. [00:41:51] Speaker 01: You can say it was a refinement. [00:41:54] Speaker 01: Well, I think the language that they're using is it's a restatement. [00:41:58] Speaker 01: It's re-emphasizing these already existing principles. [00:42:01] Speaker 01: And if you take seriously what the Supreme Court is saying, what the decision is saying on its face, I think it does follow that that restatement is going to apply wherever our seminal rock deference is applied, which does include. [00:42:15] Speaker 04: I take them very seriously, but I also take seriously when they say, don't read us as overruling precedent until we've said we're doing it. [00:42:22] Speaker 04: And I also take quite seriously that the stints in they cited dealt with a commentary that had gone through notice and comment. [00:42:30] Speaker 04: And now, virtually all notes, since 97, almost all commentary goes through notice and comment, which completely changes the game. [00:42:39] Speaker 04: Then you're not even in our land to begin with, which is why the whole government's position is very confusing to me. [00:42:46] Speaker 01: Again, it is the department's position on that, yes. [00:42:52] Speaker 03: No further questions. [00:42:53] Speaker 03: Let me just ask you this. [00:42:57] Speaker 03: When the guideline is written like 202.4, it includes a cross reference in the guideline itself, not in the commentary to, you know, the aggravated assault guide. [00:43:20] Speaker 03: And the aggravated assault guideline is pre-existing. [00:43:25] Speaker 03: It's not, so in 88, when 2A2.4 was first written, we already had the aggravated assault guideline. [00:43:36] Speaker 03: And it already had a commentary that defined what aggravated assault is. [00:43:43] Speaker 03: I mean, shouldn't that count for something that, [00:43:48] Speaker 03: commission in drafting the guideline referred to a previously kind of like approved commentary in a commentary that had in in essence kind of been reviewed by Congress as part of approving that prior aggravated assault guideline shouldn't that [00:44:10] Speaker 03: Shouldn't that be a thumb on the scale somewhere? [00:44:13] Speaker 01: It does seem like it should be, and it seems in some ways analogous to a situation where you have an amendment to a statute, or you already have a consensus on what the prior case law means. [00:44:27] Speaker 01: It seems analogous to a situation where you are looking to what the already accepted meaning is, and you are potentially incorporating that. [00:44:37] Speaker 01: So yes, I do think that would [00:44:41] Speaker 01: that we're going to be able to. [00:44:42] Speaker 01: Meaningfully push towards applying that commentary definition as well. [00:44:49] Speaker 01: There are no further questions. [00:44:51] Speaker 04: You'd ask this court to [00:45:03] Speaker 05: of the guideline provisions 2A2.2 and 2A2.4 are to provide guidelines for the appropriate punishment for violations of Section 111. [00:45:14] Speaker 05: And so for that, I think you have to look at the structure of Section 111. [00:45:18] Speaker 05: You've got the 111A, which is a misdemeanor and simple assault. [00:45:24] Speaker 05: Then you have the felony provision in 1A, which is physical contact or intent to commit another felony. [00:45:31] Speaker 05: And then 111B, while it's not titled aggravated assault, is an aggravated version of felony assault, serious bodily injury, dangerous weapon. [00:45:40] Speaker 04: assault and intent to commit felony is subject to eight times the punishment of simple assault so congress definitely wanted some differentiation between intent with being assault with the intent to commit another felony and simple assault correct correct and they added that provision to 111 after the commentary had been written and was in place [00:46:08] Speaker 05: But then you have 111B, which has an aggravate, which provides for not more than 20 years where you have serious bodily injury or dangerous weapon, which are two of the criteria into a 2.2 commentary definition. [00:46:25] Speaker 05: And the guidelines created different structures than the statute. [00:46:30] Speaker 05: And I think you have to take into account that this is statutes. [00:46:33] Speaker 04: There's a lot of enhancements or increase in levels, I should say, or the types of things that are in B in 2A2.2, right? [00:46:44] Speaker 05: Yes. [00:46:45] Speaker 05: And you also have the, you have enhancements in 2A2.4 for bodily injury, [00:46:53] Speaker 05: and dangerous weapon. [00:46:56] Speaker 02: And on your view, simple assault officer is treated exactly the same under 282.4 as assault with intent to commit a felony on an officer, right? [00:47:11] Speaker 05: No, it would be assault with physical contact [00:47:16] Speaker 02: Right. [00:47:16] Speaker 02: If you had an assault with no physical contact, but with intent to commit another felony, that would receive no increase on the 2.4, right? [00:47:27] Speaker 05: It increases the base offense level to a 2.4, increases the base offense level over simple assault. [00:47:34] Speaker 02: Simple assault on an officer. [00:47:37] Speaker 02: They would both receive a 10, right? [00:47:39] Speaker 02: Yes. [00:47:39] Speaker 02: So I'm getting at the incongruity between your view and how 111 works. [00:47:46] Speaker 02: 111, as Judge Millett pointed out, says it's eight times worse to have an assault with an intent to commit another felony. [00:47:57] Speaker 02: And under your view, the guideline treats it exactly the same as if there's no such intent. [00:48:05] Speaker 02: Maybe that's a little circuitous, but. [00:48:08] Speaker 05: Well, I mean, I think that the guideline takes that into account by having the. [00:48:14] Speaker 05: Base level. [00:48:15] Speaker 05: OK, so it's the same whether there's any no, but from differentiating from the simple assault. [00:48:22] Speaker 03: You mean the two of the 2.3 guidelines for. [00:48:26] Speaker 03: Right, so minor assault or regular assault. [00:48:30] Speaker 04: And to a 2.4 says pushing an officer. [00:48:34] Speaker 04: just for the sake of pushing an officer will be treated the same as pushing an officer out of the way so you can shoot somebody else. [00:48:45] Speaker 05: Yes. [00:48:47] Speaker 05: But I think and just looking at at 113, I'm not. [00:48:53] Speaker 05: I think that it is. [00:48:54] Speaker 05: There's so many differences between 111 and 113 that you can't automatically say because 113 [00:49:04] Speaker 05: uh, has intent to commit a felony as, uh, in one category that that carries over to 111. [00:49:16] Speaker 05: 111 puts contact and any other felony in the same category. [00:49:23] Speaker 05: 113 puts contact and any other felony in different categories. [00:49:27] Speaker 05: Okay. [00:49:28] Speaker 04: I think there's no more questions, so I think we can change your argument. [00:49:32] Speaker 04: Thank you very much. [00:49:37] Speaker 04: Case submitted.