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Case number 23-3238.

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United States of America versus Anthony Sargent at balance.

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Mr. Shipley for the at balance.

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Mr. Duszewski for the epily.

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Mr. Shipley, good morning.

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Good morning, your honor.

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Whenever you're ready.

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May it please the court, counsel for the government.

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Given the limited time available to me, I want to focus initially on the question of the denial of acceptance of responsibility by Judge Friedrich.

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As the court can discern from the briefs filed, the sequence, the procedural sequence of events here was unusual.

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Due to events beyond anyone's control, the change of plea in this case was not taken before Judge Friedrich.

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It was taken before Judge McFadden, who had no background or understanding of the case.

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Judge Friedrich then reviewed only a cold transcript of that proceeding and drew certain conclusions about Mr. Sargent's willingness to accept responsibility from the words on the page.

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When in fact, the circumstances were that

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Mr. Sergeant had rejected a plea offer to the loan felony section 231 and instead pled guilty to all the offenses.

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And the reason for that was the government's plea offer included an obligation that he sit for an interview and he was not willing to sit for an interview.

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So he opted to simply plead guilty to every charge.

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Therefore, we didn't have a plea agreement when we went before Judge McFadden.

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and the various issues had to be sorted out on the record in real time.

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There was an outline of a factual basis taken from the rejected plea offer drafted by the government.

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And at certain points, Judge McFadden went through a colloquy and asked Mr. Sargent to answer questions, which he did without reservation and without refusal.

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The government asked for certain additional facts to be included, and those were included.

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Those were reflected in the handwritten notations on the typed document that was filed as part of the record of the case.

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Judge Friedrich was, notwithstanding the history with two judges, she was the finder of fact for sentencing purposes, right?

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She found that your client was not forthcoming on various details relevant to the sentencing.

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Yes.

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And let me, I should have started with this.

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I am under no illusion that this is an uphill climb.

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I am well versed having done this work for 35 years.

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that the sentencing judge has great discretion and that this court gives great deference to the determinations made by the sentencing judge.

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But when she found that he had not been forthcoming, he had been forthcoming before Judge McFadden, which she could not observe.

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And he had only had one opportunity to speak before her.

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And that was at the very end of the second sentencing hearing.

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And in response to what he said, she acknowledged that he seemed to have come a long way in accepting responsibility.

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But in her view, at that late stage, it was too little too late.

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Well, that was the first instance, the first opportunity presented to him.

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Her criticism was that we had contested certain factual issues at sentencing in our sentencing statement.

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She suggested that they were false denials or that they were frivolous issues.

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The problem was, by entering an open plea without an agreement, it reserved to Mr. Sargent the right to challenge relevant facts.

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And our challenges were based on an evidence, our challenges were based on a failure of proof.

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that the government did not have the evidence necessary to even preponderate on the issues at question.

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And those issues were the nature of the object that he threw.

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Judge McFadden asked him, what was the object?

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Was it a heavy, rock-like object?

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And Mr. Sargent said, I wouldn't call it heavy.

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That was it.

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That was the basis of the exchange.

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On that basis,

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She found that that was a false denial, even though nobody knows that the object was the best description.

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It was some form of construction debris that was laying about.

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It's not like.

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I hope you're going to address the not simply the acceptance of responsibility, but the sentencing under section two, a two of the sentencing guidelines.

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And I want to ask you a couple of questions about

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There's no guideline for the major offense that your client was charged within the indictment of Section 231.

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That's correct, right?

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I believe 231 is indexed to Section 2A 2.4.

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There's no guideline for 231.

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I could be wrong, Your Honor, but I believe it is indexed to Section 2A 2.4.

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There is no guideline.

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If you go to the appendix that is attached to the end of the sentencing guidelines, you will find no guideline for 231.

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So in that situation, the standard has been that you look for an analogous guideline, which gets you into the question of assault under 2A2.

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I just wanna go through this rationale.

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Is that correct?

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Yes, Your Honor, I don't have the guideline page in front of me, but if, I mean, I know that 2A2.4 is obstruction of officers.

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That's the caption of 2A2.4.

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Assaults, obstruction, interference with law enforcement, correct?

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But 2A2.4 is interfering with law enforcement.

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but it does not generally involve.

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Or 2A4, right?

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Yeah, exactly.

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And then, but it has a reference to 2A2.

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In the cross.

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If it's an aggravated assault, right?

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Correct.

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In the cross reference.

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Here's my question.

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In order for there to be an assault, there has to be a victim.

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Who is the victim in this case?

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Well, I think Judge Friedrich found that the victim is Officer 1.

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who was being assaulted.

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That apparently is the only option.

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Otherwise, you know, we threw a rock 20 minutes earlier at a door.

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But it has to be Officer One.

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Is there any sworn testimony by Officer One that he was put in fear of his physical safety by Mr. Sargent?

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No.

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In fact, he said exactly the opposite in an interview with 302 that was part of my sentencing statement, where he said the big guy in the gray sweatshirt did not was not among the people assaulting him.

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It was others in the crowd.

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When he attempted to arrest the small, diminutive woman, others in the crowd set upon him and knocked them to the ground.

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There, in fact, is a photograph in the government sentencing memo that they had to correct.

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They said,

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It showed Sergeant grabbing Officer One by the arm.

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In fact, that turned out not to be true.

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Correct.

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And Officer Two also gave a statement.

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He was there.

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Correct.

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He witnessed it.

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And what did he say?

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He said he did not view Mr. Sergeant as threatening at all in his interactions with Officer One.

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The question I'm asking you is the same question I want the government to be prepared to answer.

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Who is the victim of the assault?

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If it's not Officer 1, he doesn't say that he was threatened with bodily injury by Mr. Sargent.

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And Officer 2 vouches for him, then who is it?

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Did Judge Friedrich at any point make a finding of fact about

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The initial assault, forget about the aggravated assault.

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You can't have an aggravated assault without an initial assault.

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Did she make any finding of fact about who was assaulted?

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She did, Your Honor.

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And this is what caused me so much consternation at the sentencing.

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It was going off the rails, and I couldn't figure out how we were going, the direction we were going.

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What she said was the definition of assault used in the District of Columbia is

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forcible, unwanted touching.

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It's the common law definition.

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Now, I know Judge Nichols does not use that definition, Judge McFadden does not use that definition, but Judge Friedrich and others do use the common law definition of assault, the elements involving a forcible, unwanted touching.

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And her determination was simply grabbing Officer One, making physical contact with him, and pulling him away from the crowd, regardless of motivation,

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You know, Mr. Sargent's statement was, I was trying to break up the fight and rescue Officer One, for lack of a better description.

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She said that didn't matter.

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She didn't believe him, but she said that didn't matter.

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The forcible, unwanted touching was his assault on Officer One.

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And when this issue was dealt with... What does that mean?

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Does that mean that the sentencing guidelines, which are supposedly designed to have uniform sentencing throughout the country,

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are going to vary from state to state because it's the common law of DC that it controls here.

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Whereas in Virginia, it has to be putting somebody in fear of physical injury.

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It's problematic, Your Honor, but what I almost find more problematic is the fact that the phrase aggravated assault doesn't appear in the statute.

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And it's only defined in an application note.

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It's not even a guide.

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It's not even defined in the guideline itself.

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It's in an application note.

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We certainly know the guidelines aren't mandatory and the application notes carry even less weight because they're just advisory.

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And so the fact that these cross references, the definition of aggravated assault so dramatically change

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the sentencing parameters of cases like this.

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I mean, Mr. Sergeant was looking at eight to 14 months.

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And instead, he was sentenced to the statutory maximum of 60 months when he... Mr. Shipley, can I ask you a question about a possible legal error?

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So the district court here looked at 2A 2.4, which then cross references to 2A 2.2.

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But then the charge defense is a section 231 is 231 and then the district court also uses section 231 to count as the other felony.

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Is that permissible?

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Under our decision in Stevens, doesn't Stevens suggest that you can't use the base offense as the other felony for the purposes of 2A 2.2?

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I think that's correct, and I think this has been a matter of some discussion and disagreement among the district judges in these cases.

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because the two offenses happen simultaneously.

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Some judges have taken the view that there's a temporal relationship here that has to be found, that the other felony has to be something that comes later, not something that happens simultaneously.

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And so, I mean, if that's the case, then 2A 2.2 wouldn't apply at all.

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I mean, if you can't use the base offense as the other felony, then you wouldn't be able to get any of the, you know, enhancements from 2A 2.2.

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Correct.

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And that's why when I walked in the sense that- But you don't make that argument in your brief.

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So is that something that we could reach?

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Well, I think it's a legal error and I think it is, you know,

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I chose to challenge the use of the cross-reference on the basis that it's contrary to the statute.

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But I understand the question the court's asking.

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And I know it is a question that has been disputed below and has been addressed by this court.

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So is it plain error?

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Hopefully.

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Understanding the limitations on the court's ability to address it.

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So, you know, I think Judge Randolph mentioned something that bothered me at sentencing here too, which was sort of the buffet nature of Judge Friedrich's reach for the evidence for the enhancements conflating the two episodes that are separate in time and separated by 20 minutes.

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And the first episode was the facts of the first episode were really only established in the record for the 1361 offense for damage to the doors.

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And then she used the rock as a basis for a dangerous weapon and an aggravated assault enhancement.

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So I left the sentencing scratching my head.

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And I don't know what more I can add.

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I think the briefs are pretty clear.

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And unless there are further questions by the court, I'll reserve whatever time I have left.

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I can't quite see it for rebuttal.

[00:14:39] Speaker 02:
Okay, we'll give you rebuttal.

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Thank you.

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We'll hear from the government.

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Mr. Dyshevsky?

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Yes.

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Good morning.

[00:14:53] Speaker 01:
Good morning.

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May it please the court.

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Ruvain Dyshevsky for the United States.

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The district court properly calculated sergeant's guidelines range here and applied the aggravated assault guideline and it properly found that he was not entitled to a reduction for acceptance of responsibility.

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Turning first to the aggravated assault guideline, one thing that I do want to make clear is that Sargent has not challenged the court's finding that Sargent committed a felonious assault with the intent to commit another felony.

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That's not the challenge that he raises in this appeal.

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But he has Chappell.

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The felonious assault on the district court's theory, the felonious assault is the uncharged 111 fence, right?

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It's the it's the pushing and grabbing of officer one and then also later to clarify in response to judge Randolph's question.

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He also pushes both officer one and two again further into the crowd when they try to return to the North door to their post.

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But I'm going to circle back to Judge Ralph's question about another felony.

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I thought

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Her theory is the felonious assault is the uncharged 111 assault.

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I assume on officer one, but bracket that.

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And then the another felony is the charged 231 civil disorder.

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It's very odd in a sense.

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If you start from

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We start from the charge defense as kind of where we begin and then ask what's another felony.

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Well, 231 civil disorder is not another felony relative to 231.

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But this guideline has this weird

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cross-reference aspect to it, where you start with civil disorder, you go to 2.4, it points you to 2.2, you're kind of in assault land at that point, and everything is key to the assault, and then relative to that guideline,

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and other felony is 231, which is different from 111.

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Is that your understanding?

[00:17:23] Speaker 01:
Yes.

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I think that this court's decision involved as Torres addresses Judge Rao's concern, which is when looking at the guidelines, when deciding whether a cross-reference is applicable, a sentencing court

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is not limited to the narrow elements of the offense of conviction.

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I get that.

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That's different from the question that I asked.

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And so it could be that I'm misunderstanding, but if I'm... Let me just... I'm not pushing on the uncharged conduct point.

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I think you're probably right on that.

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I'm just pushing on what is... Just trying to understand the mechanics of what is the Thelonious assault.

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And what is the another felony?

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So the I think that Judge Katz is what you said before is right.

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Thelonious assault.

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It's it's the confrontation with officer one and then both officer one into and the civil disorder is basically.

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The same assault, but committed in connection with the larger civil disorder.

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It's partially the same conduct, but 231 and 111 assault don't have the same elements.

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I believe that this court addressed that issue in Stevens and in Sargent, or one of the two.

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And they are, one can be another relative.

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The two can be other just because they're different for block burner.

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Exactly, that's right.

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Even though it really looks like

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really looks like it's the same conduct underlying both.

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That was what this court explained.

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And again, I don't remember if it was Sargent or Stevens or both.

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I think it was Stevens.

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Mr. Dyshevsky, what do you make of this court's language in Stevens that says any felony offense other than the base offense of conviction fits the meaning of another felony offense?

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And in Stevens, there was a charge of 111 and 231.

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And the only reason they said you could treat one as the other felony is because the other felony was different from the base offense of conviction, where here the other felony is the base offense conviction.

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I think that what the court was describing there had to do with what you said, the 111 conviction in that case.

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And the sentencing court was calculating the guidelines range for the 111, which led to the whole challenge that this court decided ultimately.

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And so when talking about the base conviction there, they were talking about the 111.

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They were talking about the assault.

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I don't think that that principle negates Valdez Torres.

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And if you just give me a moment for me to explain why I think it is relevant.

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that Valdez Torres, like I said, the court in considering whether a cross-reference applies is not limited to the offense of conviction.

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It's not limited to the elements.

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It's supposed to look to the relevant conduct.

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It's supposed to look to the underlying conduct.

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And so in deciding whether or not the

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Cross reference to the aggravated assault guideline was applicable whether or not sergeant engaged in a felonious assault with the intent to commit another felony.

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The sentencing court properly looked beyond the 231, beyond the elements of that offense to consider his conduct.

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And so I don't think that there is an issue because he did indeed, as the sentencing court found, feloniously assault officers with the intent to commit the 231, the civil disorder.

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offense to which he pleaded guilty.

[00:21:15] Speaker 00:
So the other felony offense can be, in the government's view, the same as the charged offense?

[00:21:22] Speaker 01:
Yes.

[00:21:23] Speaker 00:
That's right.

[00:21:24] Speaker 00:
Isn't there a strange kind of circularity to that?

[00:21:27] Speaker 00:
I mean, so here, Sergeant has maybe eight levels of enhancement based on a kind of double counting of 231.

[00:21:38] Speaker 01:
I wouldn't say that it's double counting.

[00:21:42] Speaker 00:
How is it not double counting?

[00:21:45] Speaker 01:
Double counting exists under the guidelines when one element allows for enhancement in two different ways.

[00:21:58] Speaker 01:
And that's not what's happening here.

[00:22:00] Speaker 01:
The sentencing court properly looked at his conduct and said his conduct includes a felonious assault

[00:22:07] Speaker 01:
with the intent to commit another felony, the 231, and that triggers the cross-reference to aggravated assault guideline.

[00:22:15] Speaker 01:
There aren't two enhancements based on the same conduct at play here.

[00:22:23] Speaker 00:
I mean, the reason the court goes to 2A22 is because of the 231 offense.

[00:22:33] Speaker 00:
So how can that 231 offense also be the other felony?

[00:22:40] Speaker 01:
The court was calculating the guidelines for the 231 offense.

[00:22:47] Speaker 00:
Right.

[00:22:48] Speaker 00:
And so then you go to 2A22 and then you're counting it again as another felony.

[00:22:56] Speaker 01:
You're getting to 282.2.

[00:22:57] Speaker 01:
You're not counting it again once you get to 282.2.

[00:23:00] Speaker 01:
You're asking the question that 282.4c, the cross-reference to 282.2, asks is whether the conduct constituted aggravated assault, whether in this instance there was a felonious assault with intent to commit another felony.

[00:23:17] Speaker 01:
In my view, it's a single question.

[00:23:23] Speaker 01:
And Baldez Torres is a little bit different.

[00:23:26] Speaker 01:
But Valdez-Torres involved a situation in which someone was charged with an unarmed assault under 111A and assault with a dangerous or deadly weapon under 111B and that defendant pleaded guilty to the 111A and the court

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looked to the cross-reference in 2A2.4 and said, this is applicable because he assaulted the officer with a deadly or dangerous weapon, even though that was the exact charge that was left off.

[00:23:54] Speaker 01:
And that's not what he pleaded guilty to.

[00:23:56] Speaker 00:
Are you aware of any court of appeals cases that have applied an enhancement in exactly this way, where the charge defense is also the other felony for the purposes of 2A2.2?

[00:24:11] Speaker 01:
I'm not aware of the fit.

[00:24:12] Speaker 00:
Well, the 5th circuit suggests that perhaps this is unpermissible.

[00:24:17] Speaker 00:
I'm not familiar with that case, but you're not aware of any case actually doing what happened in this case.

[00:24:23] Speaker 00:
There are doing the base offense.

[00:24:26] Speaker 01:
No, I'm not aware there are cases like Valdez Torres that explain that in applying to a cross reference to to a 2.2 sentencing court should look to.

[00:24:38] Speaker 01:
should look beyond the narrow elements of the offense to look at the underlying and relevant conduct.

[00:24:46] Speaker 03:
Whatever happened to Boker?

[00:24:49] Speaker 03:
This case is being argued as if the sentencing guidelines are mandatory.

[00:24:56] Speaker 03:
They're only supposed to be guidelines.

[00:24:57] Speaker 03:
They're only supposed to be less than mandatory, whatever that means.

[00:25:04] Speaker 03:
I don't see any play in the joints at all here.

[00:25:06] Speaker 03:
We've got a very complicated sentencing scenario where you go through double switchbacks and rebounds in order to come up with a number.

[00:25:18] Speaker 03:
And that number is only supposed to be a guideline.

[00:25:21] Speaker 03:
It's not supposed to be a mandatory.

[00:25:24] Speaker 03:
Whatever happened to discretion?

[00:25:26] Speaker 01:
And Judge Randolph, I think that's a good point because what Judge Friedrich did say is to the extent that I've made any errors in the guidelines calculation, I still think

[00:25:37] Speaker 01:
that the sentence imposed is the appropriate sentence.

[00:25:39] Speaker 03:
That's boilerplate.

[00:25:41] Speaker 03:
We see that all the time.

[00:25:42] Speaker 01:
I think it's more than boilerplate here, actually.

[00:25:45] Speaker 01:
She explained the reasons.

[00:25:47] Speaker 01:
After going through a careful analysis of the 3553A factors, she explained the reasons why she thought that sentence would be appropriate, his leadership role, which the guidelines didn't account for, the egregious nature of the conduct, the repeated engagements with police officers,

[00:26:06] Speaker 01:
And so this it wasn't merely a boilerplate.

[00:26:11] Speaker 01:
You know, I would give the same sentence regardless, but she she provided a reasoned basis for that alternate finding.

[00:26:21] Speaker 02:
If the court, what do you do with?

[00:26:28] Speaker 02:
The testimony judge Randolph referenced from the officers themselves seems to be.

[00:26:36] Speaker 01:
um, exculpatory on this point.

[00:26:39] Speaker 01:
So first of all, you don't need testimony from the victim to prove an assault, but also when the victim says, um, this person wasn't trying to hurt me.

[00:26:54] Speaker 01:
Well, again, the judge was looking at the video evidence here, which has been provided to this court as well.

[00:27:01] Speaker 01:
Um, and, and the, the, the statement of officer one

[00:27:06] Speaker 01:
was that sergeant grabbed and pushed him.

[00:27:09] Speaker 01:
So that is not the grabbing, the pushing, the offensive conduct.

[00:27:13] Speaker 01:
There was no evidentiary hearing.

[00:27:17] Speaker 01:
No, there is no evidentiary hearing.

[00:27:18] Speaker 01:
Nobody testified under him.

[00:27:21] Speaker 01:
No.

[00:27:22] Speaker 03:
But she made assumptions and findings on the basis of what?

[00:27:30] Speaker 01:
Basis of video evidence.

[00:27:32] Speaker 01:
This is not a situation where there is no evidence

[00:27:35] Speaker 01:
presented to the record.

[00:27:37] Speaker 01:
There was video evidence, and Judge Friedrich, if you look at the sentencing transcript, throughout the sentencing transcript, she references the video.

[00:27:45] Speaker 03:
She referenced it, and this is true with regard... If we look at the video and come to a different conclusion, we don't owe any difference to her because she's looking at a cold record the same way, same as we would.

[00:27:58] Speaker 01:
I don't think that's true with regard to factual findings in the sentencing context.

[00:28:05] Speaker 01:
Why not?

[00:28:07] Speaker 01:
Factual findings are entitled to deference on appeal.

[00:28:11] Speaker 02:
But you're just resting on a video.

[00:28:14] Speaker 02:
And she's looking at the video in just the same way we would.

[00:28:19] Speaker 01:
She's looking at the video with regard to acceptance.

[00:28:23] Speaker 01:
She's heard the defendant's allocution.

[00:28:28] Speaker 01:
I don't know.

[00:28:30] Speaker 01:
I'm not aware of a case that says that there is less deference given to district courts factual findings based on the kind of evidence that the determination is based on.

[00:28:49] Speaker 03:
Well, there are suggestions in cases.

[00:28:52] Speaker 03:
I don't think their case is going the other way either.

[00:28:57] Speaker 03:
There's a lot of commentary about it that the combined judgment of three appellate judges versus the individual judgment of one district judge looking at the same thing, which would you prefer?

[00:29:14] Speaker 01:
You know, we have a system set up where trial courts make factual determinations on all sorts of evidence.

[00:29:22] Speaker 01:
And on appeal, we don't retry those cases.

[00:29:27] Speaker 01:
There are standards of review.

[00:29:29] Speaker 01:
And I think until those standards are overturned, that's what we have on appeal.

[00:29:35] Speaker 03:
Discussion is not absolute, is it?

[00:29:38] Speaker 01:
No, it's not absolute.

[00:29:43] Speaker 01:
the court have any questions about acceptance or any other issues?

[00:29:48] Speaker 01:
If not, we would ask that the court affirm the judgment of the district court.

[00:29:52] Speaker 01:
Thank you very much.

[00:29:54] Speaker 02:
Mr Shipley, give you two minutes.

[00:29:57] Speaker 04:
Thank you, honor.

[00:29:58] Speaker 04:
I just have a couple of comments.

[00:30:00] Speaker 04:
Um, I think Judge Rouse comment about the 2 31

[00:30:07] Speaker 04:
being used twice is accurate here.

[00:30:10] Speaker 04:
What Judge Friedrich has to do is calculate the guideline for a 231 offense, not the guideline for an uncharged 111 offense that Mr. Sergeant never admitted to having committed.

[00:30:30] Speaker 04:
So even though it's relevant, sure, absolutely.

[00:30:33] Speaker 04:
It's relevant that those facts are relevant.

[00:30:36] Speaker 02:
It's relevant conduct.

[00:30:37] Speaker 04:
Correct.

[00:30:41] Speaker 04:
But she is still making a calculation on a 231 offense.

[00:30:46] Speaker 04:
So you can't then double back and make the same 231 offense the other felony.

[00:30:52] Speaker 04:
Because you're making a calculation on 231 and then you're using the 231 as another felony.

[00:30:59] Speaker 04:
The way she did it here,

[00:31:01] Speaker 04:
There is no other felony in effect when you use the 111A because the 111A offense conduct is not followed by anything else.

[00:31:08] Speaker 04:
That's the end of Mr. Sargent's activity is when he breaks up the scuffle between officer one and the crowd.

[00:31:17] Speaker 04:
Officer one and officer two then retreat into the building with the assistance of the Metropolitan Police Department and Mr. Sargent leaves.

[00:31:25] Speaker 04:
So there's no 231 that follows the 111A.

[00:31:29] Speaker 04:
And that's a factual, you know, and the last comment I'll make is this question that was raised by the end, or right at the end, the question of, you know, what leeway does this court have?

[00:31:42] Speaker 04:
The standard is clearly erroneous.

[00:31:44] Speaker 04:
I think if the three judges on this court come to a different conclusion with regard to what the video evidence shows, particularly when Judge Friedrich's conclusions disregard the comments of the two officers,

[00:31:59] Speaker 04:
I agree that you don't necessarily have to have the testimony of a victim to establish an assault, but established assault here flies in the face of the comments of the victim.

[00:32:11] Speaker 04:
So I think on that basis, her conclusions are clearly erroneous and the case needs to be sent back for re-sentencing.

[00:32:20] Speaker 04:
I am really hesitant to ask the court to direct it to a different judge.

[00:32:25] Speaker 04:
But given the sequence of events here, the fact of the matter is,

[00:32:29] Speaker 04:
Mr. Sergeant is a acknowledged and unrepentant member of the Proud Boys.

[00:32:36] Speaker 04:
He is physically imposing at 5'11", 300 pounds, but he was not with any member of the Proud Boys when this conduct took place.

[00:32:45] Speaker 04:
And he has no criminal record, not even a reference to any citations or juvenile offenses, zero.

[00:32:52] Speaker 04:
He's 47 years old, he's a former professional athlete, yet Judge Friedrich

[00:33:00] Speaker 04:
varied upward and gave him the statutory maximum.

[00:33:04] Speaker 04:
And I just, I can't make sense of any of it.

[00:33:07] Speaker 04:
Thank you, honors.

[00:33:09] Speaker 02:
Thank you, counsel.

[00:33:10] Speaker 02:
The case is submitted.