[00:00:01] Speaker 01: Case number 23-3046, United States of America versus Tristan Chandler Stevens at balance. [00:00:08] Speaker 01: Ms. [00:00:08] Speaker 01: Salem for the balance, Mr. Hill for the appellate. [00:00:15] Speaker 01: Ms. [00:00:15] Speaker 03: Salem, good morning. [00:00:16] Speaker 01: Hi, good morning. [00:00:20] Speaker 01: May it please the court, my name is Megan Salant and I am here on behalf of Tristan Stevens. [00:00:25] Speaker 01: Mr. Stevens was sentenced under the incorrect guideline. [00:00:28] Speaker 01: The lower court relied on the commentary definition of the unambiguous term, excuse me, the commentary definition of the unambiguous term aggravated assault and switching from the correct guideline 2A2.4 to 2A2.2. [00:00:45] Speaker 01: The term aggravated assault as used in the text of the guideline in 2A2.2 and 2A2.4 is unambiguous. [00:00:52] Speaker 01: Under Kaiser and Stinson, this court should not give deference to the commentary's broader definition. [00:00:58] Speaker 01: Instead, this court should rely on the plain language and text of the guideline and the definition adopted by 24 states and the District of Columbia, which do not include the term with the intent to commit another felony. [00:01:14] Speaker 01: This language is missing from the text of the guideline, and it is also missing from the secondary sources cited by the government on page 38 of their answer brief. [00:01:23] Speaker 01: The plain meaning of aggravated assault does not include intent to commit another felony, and therefore, Mr. Stevens should have been sentenced under 2A2.4. [00:01:33] Speaker 01: Alternatively, 2A2.2 was improperly applied to Mr. Stevens' case because there was no separate intent between his 111 offenses and his 231 offenses. [00:01:44] Speaker 01: Another felony is defined elsewhere in the guidelines to distinguish between the offense being committed and an additional separate offense. [00:01:53] Speaker 01: The cross-reference does not say the same intent should be committed, needs to be, I'm sorry, that the same, two offenses with the same intent can be considered. [00:02:03] Speaker 03: On your first argument, if we were in a pre-Kaiser world, [00:02:10] Speaker 03: You would agree that the commentary definition would be controlling here? [00:02:14] Speaker 01: Well, I think that certainly Stinson requires deference to the commentary, whether the term is ambiguous or unambiguous. [00:02:24] Speaker 01: But I do think that the way that the commentary is applied here, I think that it is in contrast with the plain meaning of the guideline. [00:02:36] Speaker 01: I think that 2A2. [00:02:38] Speaker 03: Your position is that even [00:02:40] Speaker 03: Even in a Stinson world, you would say the commentary's inclusion of intent to commit another felony as a factor, as a main, as a basis for triggering the aggravated assault would be foreclosed by the plain language. [00:03:00] Speaker 01: I think that, yes, I think that argument can be made. [00:03:03] Speaker 01: Obviously, I think that Kaiser modified Stinson in a way that [00:03:08] Speaker 01: that makes Kaiser applicable here. [00:03:10] Speaker 01: But I do think that the text of 2A 2.2 gives lots of different factors that increase one's base offense level. [00:03:20] Speaker 01: And I think that the broad addition under the commentary of the intent to commit any felony seems contrary to that list of factors. [00:03:31] Speaker 03: And then Kaiser applies to [00:03:36] Speaker 03: agency interpretations of regulation, correct? [00:03:38] Speaker 03: Correct. [00:03:39] Speaker 03: Okay. [00:03:40] Speaker 03: But if commentary goes through notice and comment rulemaking, then we wouldn't be in Kaiser World anyhow, correct? [00:03:48] Speaker 01: Well, not necessarily. [00:03:52] Speaker 01: I mean, I think that with Stinson, before when Stinson first was issued, one of the reasons that they applied [00:04:01] Speaker 01: One of the, they discussed in Stinson initially that the commentary didn't go through notice and comment, but then after Stinson, that's never changed. [00:04:08] Speaker 01: They have never, they've never gone back to change the fact, their consideration of the guidelines just because now the commentary is considered by Congress. [00:04:17] Speaker 03: But it also goes through notice and comment rulemaking. [00:04:19] Speaker 03: Correct. [00:04:20] Speaker 03: I know that that's I'm sorry any other area of administrative law where Kaiser is applied to notice and comment rulemaking as opposed to interpretive regulate interpret interpretations and regulations Not that I'm aware of your honor, but this would be so your argument is that we should apply Kaiser to decide whether to defer to a notice and comment rulemaking [00:04:42] Speaker 01: Well, the first thing that we do with Kaiser is look at just the term aggravated assault, right, and decide in the normal textual circumstances if that's ambiguous. [00:04:53] Speaker 01: So, and my argument is that aggravated assault is not ambiguous. [00:04:58] Speaker 01: And even if it were ambiguous, then we still get to move on to whether or not it's the definition that is created by the- You don't really have a Kaiser argument here. [00:05:07] Speaker 03: You're just arguing that the plain language of aggravated assault forecloses interpreting that to include conduct undertaken with the intent to commit another felony. [00:05:20] Speaker 03: Put aside your separate argument about why you don't have that intent here, but. [00:05:23] Speaker 03: I'm sorry, can you repeat that? [00:05:25] Speaker 03: So your argument is that this isn't even a Kaiser case. [00:05:30] Speaker 03: Your argument is that the commentary is inconsistent with the plain language of the guideline itself, full stop. [00:05:40] Speaker 03: And we can tell from the guideline itself what aggravated assault includes. [00:05:45] Speaker 03: And so [00:05:46] Speaker 03: even if we were in, even if it's a notice and comment rulemaking rule that we're analyzing, you would say, doesn't matter, plain language, if you're the guideline or nearly a statute controls. [00:05:58] Speaker 03: Is that your position? [00:05:59] Speaker 01: I believe so. [00:06:01] Speaker 01: I mean, I certainly, you know, I think that Kaiser applies in the sense that we have to go to the first step, which is, is the term that we are interpreting ambiguous or not. [00:06:10] Speaker 03: Well, you can do that under any regulation, whether notice and comment or interpretive. [00:06:14] Speaker 03: Right. [00:06:15] Speaker 03: Correct. [00:06:15] Speaker 03: And so you're just stopping there. [00:06:17] Speaker 03: Correct. [00:06:18] Speaker 03: So because this guideline or this commentary did go through notice and comment rulemaking, as well as presentation to Congress. [00:06:25] Speaker 01: It did, I believe. [00:06:26] Speaker 01: I mean, it has. [00:06:27] Speaker 03: Yes. [00:06:28] Speaker 03: Yes. [00:06:28] Speaker 03: And so it's not just an interpretive regulation. [00:06:31] Speaker 03: It's the equivalent of a full-blown notice and comment regulation. [00:06:35] Speaker 01: Well, but I guess that goes back. [00:06:36] Speaker 03: But your advisor never applies. [00:06:38] Speaker 01: I guess that goes, I do think that Kaiser, I think that Stinson applies to the commentary when Stinson, the Supreme Court has not told us that Stinson no longer applies to the commentary because it's now subject to notice and comment. [00:06:50] Speaker 01: And I believe that Kaiser applies to Stinson. [00:06:55] Speaker 01: So yes, although the commentary, although. [00:06:59] Speaker 03: Did Kaiser say it was changing anything in Stinson? [00:07:02] Speaker 01: Well, I think that it included it in its footnote regarding whether or not. [00:07:06] Speaker 01: Here's something we've done is not overruling a prior. [00:07:08] Speaker 01: That's not how they overrule their prior process. [00:07:10] Speaker 01: Well, I don't think that they've overruled it. [00:07:11] Speaker 01: I just think that it I mean, the language in Kaiser said that they were restating the Seminole Rock deference. [00:07:18] Speaker 01: and also re-emphasizing its limits. [00:07:23] Speaker 03: They were talking there about interpretation of a regulation, not a notice and comment regulation, an agency interpretation. [00:07:30] Speaker 03: Correct, but yes, that's true. [00:07:32] Speaker 03: This is just a different world. [00:07:33] Speaker 03: I'm sorry? [00:07:34] Speaker 03: This is just a totally different world. [00:07:35] Speaker 01: Well, it may be, but I encourage this court to decide to [00:07:41] Speaker 01: side with the other, not side, that's a horrible word. [00:07:44] Speaker 01: I encourage the court to use the reasoning that's used by many of the other circuit court of appeals that do find that Kaiser modified Stinson. [00:07:52] Speaker 02: I'm a little bit puzzled by why you're struggling against Judge Millett's characterization. [00:07:58] Speaker 02: I mean, your argument is a textual argument that aggravated assault is clearly and unambiguously excluding [00:08:11] Speaker 02: an assault with an intent to commit another felony. [00:08:14] Speaker 01: I don't even think it's excluding it. [00:08:16] Speaker 01: I think that it, but it doesn't. [00:08:17] Speaker 02: It's not defined to include every single felony. [00:08:21] Speaker 02: Right. [00:08:22] Speaker 02: An assault that is committed with intent to commit another felony. [00:08:28] Speaker 02: And on your second argument that the two are really not separate felonies at all, even if we accept your rule that [00:08:40] Speaker 02: the same conduct and intent can't be used to establish both the assault and the other felony. [00:08:47] Speaker 02: Even under that rule, doesn't the government point to separate intent to engage in civil disorder, for example, in the second felony, the 231? [00:08:59] Speaker 02: You don't need to show any intent [00:09:02] Speaker 02: engaged in civil disorder to commit an assault against a line of officers or not? [00:09:08] Speaker 01: No, but the 111 offense is a general intent offense. [00:09:12] Speaker 01: So it's just both of them just require the intent to resist or to act. [00:09:18] Speaker 02: To do the act. [00:09:19] Speaker 02: Right. [00:09:21] Speaker 02: So one of the assaults is the actions. [00:09:28] Speaker 02: Well, there are three. [00:09:31] Speaker 02: Stevens's aggression against the officers. [00:09:37] Speaker 02: And then the 231 is all of those repeated actions in concert with the mob of people trying to overcome the officer's ability to guard the Capitol. [00:09:53] Speaker 02: That seems like that's even on your view, which would say, look at the facts. [00:09:57] Speaker 02: There's a different set of facts that are supporting the 231, no? [00:10:02] Speaker 01: Yes, I guess the mob element is there, and that's not present in the 111. [00:10:08] Speaker 02: And they're trying to overcome their ability to guard the Capitol. [00:10:12] Speaker 02: I mean, you could think of other assaults on an officer, retaliatory assault on an officer, or just an anti-police assault. [00:10:20] Speaker 02: This one has a kind of operative context that is quite distinct from the ordinary assault [00:10:28] Speaker 02: of an officer. [00:10:29] Speaker 01: Sure. [00:10:29] Speaker 01: But I still think that the intent in committing the 111 offenses was the same. [00:10:35] Speaker 01: I mean, Mr. Stevens didn't show up to the Capitol by himself to resist or obstruct the officers. [00:10:42] Speaker 01: He showed up with a group to do that. [00:10:44] Speaker 01: And so there's no intent that makes it just a 111 offense. [00:10:48] Speaker 01: That makes sense. [00:10:51] Speaker 02: Except that if somebody were trying to cross across the Capitol during this period, not realizing what was going on, [00:10:58] Speaker 02: you know, and was startled by an officer and assaulted them. [00:11:01] Speaker 02: I mean, that would be a very different isolated. [00:11:05] Speaker 01: Sure, absolutely. [00:11:06] Speaker 01: But that's not the circumstances that we have here. [00:11:10] Speaker 02: And can you do a little bit more about to explain you rely on Judge Amy Berman Jackson's reasoning in the Hamner case? [00:11:20] Speaker 02: She declined to treat a January 6th defendant's conviction for violating 231 as an aggravated assault. [00:11:26] Speaker 02: to which 2A 2.2 applies. [00:11:31] Speaker 02: But she, as I read that bench ruling, she is explicitly distinguishing a case like this one, where the basic offense level is set by the 111A conviction, and then the 231A3 serves as the other felony. [00:11:50] Speaker 02: Can you explain how you nonetheless take support from her reasoning in Hamner? [00:11:56] Speaker 01: Well, I believe I mean her reasoning was that the that the commentary doesn't say a separate intent or a separate offense I'm sorry that that the commentary requires an additional felony and That's not again. [00:12:12] Speaker 01: Mr. Stevens his actions were all one. [00:12:14] Speaker 02: They were all one action But she's specifically it and I'm looking at pages 14 to 15 of the of the [00:12:27] Speaker 02: Sensing transcript. [00:12:28] Speaker 02: She says we're not using the 231 offenses another felony for the 111 offense in in that case in Hamner we're going the other way and that was what she found to be problematic. [00:12:41] Speaker 02: So she found a case like this one. [00:12:43] Speaker 02: She was saying that that wouldn't be problematic. [00:12:45] Speaker 02: What I'm finding problematic, she says, is the 231 is the base offense and the 111 is the other felon. [00:12:50] Speaker 01: Right, right. [00:12:51] Speaker 01: I guess I'm not sure that there's a distinction. [00:12:54] Speaker 01: I mean, there were facts in Mr. Stevens's case that took his 111A offense to make it not the highest, but sort of the middle ground, the exaggerated. [00:13:10] Speaker 01: He made contact. [00:13:12] Speaker 01: that kind of thing. [00:13:13] Speaker 01: So I don't know that that makes the Hamner case different. [00:13:18] Speaker 01: I understand what she's saying about the 231. [00:13:20] Speaker 01: I understand the question about 231, her statement about 231, not being able to use the 111, but I feel like we're doing the same thing here. [00:13:29] Speaker 01: It's just that it's grouping. [00:13:30] Speaker 01: So whether it's one or the other, because in the PSR, the government chose to apply 2A2.4 to 231 as well. [00:13:41] Speaker 01: So it was all in one group. [00:13:43] Speaker 01: So I don't know that it's distinguishable from there. [00:13:50] Speaker 03: All right. [00:13:51] Speaker 03: Just real quickly, why isn't it that your whole argument's a harmless error here? [00:13:57] Speaker 03: Because the district court has said, I'm not even applying the guideline commentary. [00:14:02] Speaker 03: Correct. [00:14:02] Speaker 03: I'm under 3553. [00:14:04] Speaker 03: This is a sentence. [00:14:06] Speaker 03: Full stop. [00:14:07] Speaker 03: Even if you win on your guidelines argument, [00:14:10] Speaker 03: This is the sentence. [00:14:12] Speaker 01: Right. [00:14:13] Speaker 01: So as far as harmless error goes, the judge, in making that statement, the judge said he wasn't relying on the commentary. [00:14:23] Speaker 01: I'm sorry, that he wasn't relying on the commentary definition. [00:14:25] Speaker 01: But then he cited to Blacks the definition in Black's law. [00:14:29] Speaker 01: And I think that that, I actually think that the Black's law definition supports our argument. [00:14:35] Speaker 01: It talks about [00:14:38] Speaker 01: Pardon me, I can't remember the exact language, but the language, the definition in Blacks makes it seem as though, like many other states have done, an aggravated assault can be an assault with intent to commit and then murder, rape. [00:14:55] Speaker 01: I can't think of another example of those examples. [00:14:58] Speaker 01: And so although he said he wasn't relying on the commentary, what he is relying on is something that we believe actually supports our position. [00:15:06] Speaker 01: because it references another felony, but not in a way of any felony, another felony that would be specific. [00:15:18] Speaker 03: I'm still trying to get to the harmless. [00:15:19] Speaker 01: So you think that he doesn't know, he didn't really mean what he said. [00:15:23] Speaker 01: Well, I think that he didn't, the way he justified it is contradictory. [00:15:32] Speaker 03: it backs into commentary by referencing Black's law addiction. [00:15:36] Speaker 03: Right, correct. [00:15:39] Speaker 01: All right. [00:15:40] Speaker 01: All right. [00:15:41] Speaker 01: Thank you very much. [00:15:42] Speaker 02: Oh, I have one more. [00:15:43] Speaker 02: I'm sorry. [00:15:43] Speaker 02: That's OK. [00:15:44] Speaker 02: I have one more question about the government's use of a kind of block burger analysis to say whether something's another felony and whether you had any response to that framework. [00:15:56] Speaker 01: Well, I don't think that. [00:15:57] Speaker 01: I don't really. [00:15:58] Speaker 01: I don't believe that it's a obviously it's not a block burger test because block burger doesn't apply to the guidelines. [00:16:07] Speaker 01: But by analogy, that kind of reason. [00:16:10] Speaker 01: Yeah, I don't. [00:16:11] Speaker 01: I'm sorry. [00:16:14] Speaker 03: We'll give you a couple of minutes to reply. [00:16:16] Speaker 03: OK, thank you. [00:16:17] Speaker 03: Mr. Hill. [00:16:33] Speaker 00: Thank you. [00:16:34] Speaker 00: May it please the court, Dietrich Hill, on behalf of the United States. [00:16:38] Speaker 00: Tristan Stevens violently assaulted officers as part of the mob during the attack on the United States Capitol. [00:16:44] Speaker 00: When he did so, he also had the intent to commit civil disorder. [00:16:49] Speaker 00: That was aggravated assault, and the District Court correctly applied the aggravated assault guideline. [00:16:54] Speaker 00: At the threshold, the commentary definition does govern. [00:16:59] Speaker 00: The meaning of aggravated assault is at least ambiguous here, and you can see that just by looking to Black's law dictionary, in addition to the fact that of all the other sources, almost every source has a different definition of aggravated assault, including all of the state laws cited by Stevens here. [00:17:20] Speaker 00: And then the commentary definition is at least reasonable, again, looking to Black's Law Dictionary, as well as the fact that the very structure of the guidelines, including its treatment of Section 113A2, general federal assault with intent to commit another felony, which goes to the aggravated assault guideline. [00:17:39] Speaker 00: That shows that the guidelines themselves arguably require this definition. [00:17:44] Speaker 00: Under that definition, Stevens's assaults were aggravated assaults. [00:17:49] Speaker 00: They involved an intent to commit another felony, 231. [00:17:54] Speaker 00: The plain meaning of another felony here is a felony with different elements. [00:17:59] Speaker 00: And there's no dispute, Stevens does not dispute, that these felonies had entirely different elements. [00:18:05] Speaker 03: The key- You said in your brief that sentencing looks to conduct, not elements. [00:18:11] Speaker 03: That's what sentencing is about, as opposed to conviction. [00:18:14] Speaker 03: And so it seems that you're flipping that around now when you say, for purposes of applying the analysis as to what counts as another felony, we should look at elements rather than conduct. [00:18:28] Speaker 00: We suggest that you should look at elements just for purposes of determining the meaning of another felony, and then real conduct to turn whether another felony occurred. [00:18:37] Speaker 03: I mean, I understand what that means, because that could give you, one can imagine, a situation, and they say this is one. [00:18:44] Speaker 03: where maybe Blackburger would give you one answer on elements, but this was the same conduct just being counted twice. [00:18:54] Speaker 00: Well, I can't. [00:18:55] Speaker 03: So you can't sort of say let's do elements and then let's do conduct. [00:18:57] Speaker 03: I mean, it's they can contradictory answers. [00:19:01] Speaker 00: I guess there could be a situation which they give you contradictory answers. [00:19:05] Speaker 00: This is not that situation. [00:19:06] Speaker 03: What would happen if they if you had contradictory answers? [00:19:10] Speaker 00: We think that the elements test at least explains the meaning of another felony. [00:19:17] Speaker 00: So yes, if they gave contradictory answers, the elements test. [00:19:21] Speaker 03: What possible evidence is there that that's what the guidelines that the Sentencing Commission meant when it said another felony as opposed to the natural common sense meaning other felony conduct? [00:19:32] Speaker 00: Well, it's not clear. [00:19:34] Speaker 00: And so first, we looked at plain mean. [00:19:35] Speaker 03: No, I know. [00:19:35] Speaker 03: But I'm asking why you're importing elements [00:19:39] Speaker 03: in as a framework for analysis here when it doesn't, by your own brief, elements analysis doesn't apply at the sentencing stage to the guidelines. [00:19:49] Speaker 03: Are there other guidelines where they do a element by element analysis, like a Black Burger analysis that you can refer us to? [00:19:55] Speaker 00: Well, I would point out, and it's a little bit different, but the other thing in the guidelines that supports this analysis is the firearm possession guideline that we cite in our brief. [00:20:05] Speaker 00: where the commission specifically changed the commentary to make clear that even very closely related possession offenses, such as state law burglary that primarily involves possession of the firearm, should be treated as another felony offense because they have a different element. [00:20:22] Speaker 00: I guess you could say different conduct too. [00:20:25] Speaker 00: But that would be the primary support. [00:20:27] Speaker 03: But there's no language like that by the commission here. [00:20:31] Speaker 00: No. [00:20:31] Speaker 03: So doesn't that suggest the commission had a different meaning here? [00:20:35] Speaker 00: I would argue that there was no circuit split over the meaning of this, another felony. [00:20:39] Speaker 00: There was a circuit split over the meaning of another felony offense, which led the commission to clarify that. [00:20:46] Speaker 03: And the commission's clarification should also point to what it... Are there other circuits that agree with your Blackburn or reading of another felony test? [00:20:54] Speaker 00: I haven't seen any circuit case directly on point here. [00:20:57] Speaker 03: Right. [00:20:59] Speaker 03: We will have had its natural meaning, like it does everywhere else in the guidelines, unless it says otherwise, of looking at conduct on elements. [00:21:07] Speaker 00: I mean, fair enough. [00:21:09] Speaker 00: But we also certainly win because there's different conduct here. [00:21:12] Speaker 00: And the key distinction would be between the intents required for these two different offenses. [00:21:20] Speaker 00: The assault offense requires a very general intent. [00:21:24] Speaker 00: at most an intent to injure, but that includes just an offense touching. [00:21:29] Speaker 02: But even in that description, you're going back to the legal requirements. [00:21:34] Speaker 02: Can you give us your answer in more factual terms? [00:21:39] Speaker 02: Because I think that's what the question is. [00:21:42] Speaker 02: That's how I understood this questioning to be proceeding. [00:21:45] Speaker 02: And I understand Stevens's counsel to be saying that on the ground conduct [00:21:52] Speaker 02: is the same, and the inferences that the court drew in terms of meeting one legal set of elements versus another may differ. [00:22:02] Speaker 02: But if we're looking for sentencing purposes, the conduct, it helps how there's different. [00:22:08] Speaker 00: Well, the conduct is the same, but the intent is very different. [00:22:12] Speaker 00: The intent is a specific intent. [00:22:17] Speaker 02: Intent also proved, at least in a case like this, circumstantially by conduct. [00:22:21] Speaker 02: So if you could, again, tell us. [00:22:24] Speaker 02: Oh, sorry. [00:22:30] Speaker 02: Yes, I am coming to my appointment. [00:22:35] Speaker 02: Yeah, tell us what the district judge would have looked to as an evidentiary matter that would be different on the 231. [00:22:42] Speaker 00: I mean, I agree that the conduct is the same, Your Honor. [00:22:46] Speaker 00: The district court was thinking about the fact that there are two different intents, and particularly that the same conduct is really directed at two different harms here. [00:22:56] Speaker 00: There's the 111, which is about an officer's physical safety. [00:23:00] Speaker 00: That's what the Supreme Court made clear in the United States. [00:23:03] Speaker 00: We feel that you don't have to know that there's an officer. [00:23:05] Speaker 00: You don't have to have any intent to impede. [00:23:08] Speaker 00: Section 231A3 is at heart an obstruction statute. [00:23:13] Speaker 00: It's about protecting officers' ability to do their duty during a civil disorder such as the riot here to be able to defend the Capitol. [00:23:22] Speaker 00: And so Stevens was doing two things. [00:23:25] Speaker 00: albeit with the same conduct. [00:23:27] Speaker 00: He was both physically attacking the officer and he had the larger purpose of trying to prevent that officer or those officers from doing their duty during a riot. [00:23:36] Speaker 00: That's aggravated assault, both in the most technical definition and in the larger definition, because it's assault accompanied by something that makes it more severe than your ordinary assault, for example, during resisting arrest. [00:23:50] Speaker 00: And the circumstances here, of course, were especially uniquely dangerous. [00:23:54] Speaker 00: This was a massive riot. [00:23:57] Speaker 00: And the fact that so many people were doing what Stevens was doing, committing a 111, accompanied by the 231, the specific intent to prevent those officers from performing their obligations, is what made this so dangerous beyond an ordinary 111. [00:24:13] Speaker 00: And that's what district courts have agreed in hundreds of these cases. [00:24:17] Speaker 03: Why do you agree that the conduct is the same under 111 and 231? [00:24:20] Speaker 03: 231 requires that you act during a civil disorder. [00:24:24] Speaker 03: 111 doesn't. [00:24:26] Speaker 03: I thought you just said to Judge Pillard you agree the conduct is the same. [00:24:30] Speaker 00: Well, in the narrowest sense that the particular assault on the officer was also the act. [00:24:35] Speaker 02: But for example, 231 requires a nexus to commerce and it requires, you know, a civil disorder. [00:24:44] Speaker 02: You could have a 111. [00:24:45] Speaker 02: I mean, it's maybe one way of thinking about it is there's an overlap between some of the actions, but the lens of relevance of what conduct you're looking at, the narrative is very [00:25:01] Speaker 00: different for the 2 yes, the narrative is very different and that's the fact that there is a civil disorder going on as a matter for them. [00:25:10] Speaker 02: It doesn't matter for the one 11 that's right fact of a nexus to commerce doesn't matter for them. [00:25:15] Speaker 00: That's right and this that is why committing the harm simultaneously is so different than just the one 11 because the civil disorder because you're preventing the officer from performing his or her duties during the civil disorder. [00:25:28] Speaker 02: So what is it that you are conceding when you say the conduct is the same? [00:25:32] Speaker 02: I find that a little bit confusing. [00:25:33] Speaker 00: Just that the same physical part of the attack, in other words, with Sergeant Cannell, the pressing of the riot shields to try to crush his face. [00:25:43] Speaker 00: That was the same, both the act to obstruct Sergeant Cannell and the act that is assaulting, resisting, opposing, beating, et cetera. [00:25:57] Speaker 02: But there's also, for 231, the conduct of being in a crowd, being in the tunnel, trying to get to the doorway of the Capitol, being aware that the police are setting up a line to try to protect the Capitol. [00:26:12] Speaker 02: That's a lot of fact that isn't the same. [00:26:16] Speaker 00: That's right. [00:26:17] Speaker 00: And in a broader sense, that is different conduct. [00:26:19] Speaker 00: And I think that also goes to a different intent as well. [00:26:22] Speaker 00: When you know that you are in the middle of a civil disorder and you're committing this assault, that's worse than when you're committing an assault on the sidewalk, some kind of retaliatory assault or just spur of the moment. [00:26:34] Speaker 03: Can you talk about your harmless error argument? [00:26:36] Speaker 03: And that is, I understand the aspects of the district court decision on which you rely, but is, [00:26:44] Speaker 03: Councilor Mr. Stevens just said the district court did go back into the commentary by referencing blacks and its inclusion of assaults with intent to commit another felony and it's a [00:27:00] Speaker 03: a powerful presumption that if there was an error in applying the guideline that is the starting point for the sentencing discussion, that if an error is found there on appeal, this is just obviously a hypothetical question, but if an error is found there, then isn't the best thing to do to send it back so the district court can think again in light of the right guideline? [00:27:26] Speaker 00: Two points, Your Honor. [00:27:27] Speaker 00: First, in terms of using blacks as an alternative basis than a guideline commentary, the district court looked to the broadest definition, where it's circumstances that make it more severe, and looked to all of these points, the ongoing civil disorder, and not just the fact that blacks includes intent to commit another felony. [00:27:46] Speaker 00: But more broadly to harmless error, the district court made very clear that it was relying on 3553A factors, such as respect to the law, lack of remorse, need for just punishment. [00:27:57] Speaker 00: as well as factors that are more specific but that the guidelines did not account for, including the number of officers affected and the uniquely dangerous situation at the Capitol on January 6th. [00:28:07] Speaker 03: No, I understand. [00:28:08] Speaker 03: It's not that the question here isn't whether the same sentence could result. [00:28:12] Speaker 03: The question really is, given that we live in a world in which the guideline is the starting point of discussion, and if the starting line changes materially, like 50% here, [00:28:26] Speaker 03: isn't the better course to let the district court, with that information in hand, revisit the sentencing decision. [00:28:35] Speaker 03: It's a much, much bigger variance. [00:28:40] Speaker 03: It's a dramatically larger variance, at which point the court might want to think about, well, in what circumstances do courts make variances of this magnitude? [00:28:49] Speaker 03: And the stuff that district court just didn't have to think about, given the starting point of the guideline that was chosen. [00:28:56] Speaker 00: I do think the test, as I understand it, is whether remand would likely be futile. [00:29:01] Speaker 00: And the district court is so clear here, indeed explicitly said that even if Stevens's counsel were right on every aspect of the guidelines, he would vary to reach the same ultimate conclusion on the sentence. [00:29:15] Speaker 00: I can't think of a case in which futile, in which remand would appear more futile. [00:29:20] Speaker 02: I guess, I hear you and I appreciate that, but I guess the, [00:29:25] Speaker 02: Two sort of uncertainties that that leaves me with. [00:29:29] Speaker 02: One is that the cases that the government cites, the Kaufman and Thompson case, are cases in which the change, the differential, still would fall within the guidelines range. [00:29:41] Speaker 02: So here we have something that is actually in both cases would be outside. [00:29:45] Speaker 02: Or in the case of Judge McPatton's actual sentence is a variance. [00:29:55] Speaker 02: But also it assumes that a district judge, that confronting the actual applicable guideline doesn't affect the district judge's reasoning. [00:30:08] Speaker 02: And I guess the shorthand way of putting it is, if we were to hold this error harmless, then wouldn't we have to so hold every time a district judge says, and I would come to the same conclusion no matter what, [00:30:22] Speaker 02: all the district judges would have to do to insulate their sentencing, their guidelines errors from review is just say, I'm wrong about that. [00:30:31] Speaker 02: I would reach the same result. [00:30:33] Speaker 02: And we have a lot of, I mean, that would undercut Melina Martinez, it would undercut Gall and Rita and a lot of cases. [00:30:42] Speaker 00: On the first point, Your Honor, that's right. [00:30:44] Speaker 00: They were both within guidelines changes. [00:30:48] Speaker 00: I haven't seen any case like this. [00:30:50] Speaker 00: So there's nothing to contradict the more general principle that if remand is futile, then affirmance is appropriate. [00:30:58] Speaker 00: With respect to what the district judges might say, [00:31:02] Speaker 00: I think this court can look to the specificity and clarity of the alternate reasons for giving the same sentence. [00:31:10] Speaker 00: If a district court said nothing, but I would give the same sentence, that might get a different level of review than a situation here where the district court goes through many specific reasons as to which he is varying and would vary in the face of exactly the guidelines that Stevens's counsel was proposing. [00:31:31] Speaker 00: The district court was clearly disturbed by what he called the frenzied efforts, the contempt and aggression shown by Stevens. [00:31:39] Speaker 00: I think just looking at the video here, it's disturbing every time to see Stevens' actions. [00:31:45] Speaker 00: And the district court clearly was disturbed by Stevens' lack of remorse as well. [00:31:52] Speaker 00: Essentially no apology and a list of excuses at sentencing. [00:31:56] Speaker 00: So, I don't think the district court could have been more clear than that he would give the same sentence on remand. [00:32:05] Speaker 02: In terms of Judge Berman Jackson's analysis in Hamner, I mean, there is a, I guess it's a little bit unclear from her bench ruling why the, you know, which one you choose as the initial felony and which one you choose as the another felony should make a difference. [00:32:26] Speaker 02: If in this case, the government has said the 231 is the initial and then the 111 was the another, do you run into the same circularity? [00:32:34] Speaker 02: Or I guess it doesn't work that way, I bet. [00:32:37] Speaker 00: I think in that case, the district judge was specially thrown off by the fact that it was a single 231 plea. [00:32:43] Speaker 00: There was no plea to a 111. [00:32:45] Speaker 00: And she felt that there was an excessive amount of circularity and going back to the 111 and then back to the 231. [00:32:51] Speaker 02: If we were to agree with her, can you help me understand why that wouldn't require us to hold the same here? [00:33:05] Speaker 00: I do think it's different when you have the 111 as the offense of conviction first because there's no requirement to go from the 231 back to the 111 to find the assault and then from the 111 back to the 231 looking at intent to commit another felony. [00:33:20] Speaker 00: That seems like a different situation. [00:33:23] Speaker 00: So having the 111 first makes it clear that there is a felonious assault involving, and then you looked through the list of the commentary definition and see, yes, there was an intent to commit the 231 added onto the 111. [00:33:36] Speaker 00: You're not looking at the 231 and using that for every step of the process. [00:33:43] Speaker 03: Just one other question, because you have a lot more familiarity with this than I do. [00:33:48] Speaker 03: Have you seen variances before? [00:33:50] Speaker 03: I mean, the variance here using the government's [00:33:53] Speaker 03: The court's chosen sentencing guideline starting point was up nine months from the top. [00:34:01] Speaker 03: And here it would be more than double the top. [00:34:11] Speaker 03: Have you seen variances that much before? [00:34:15] Speaker 00: Not in my personal experience, I can't think of one. [00:34:21] Speaker 03: Or red cases, where you've seen it? [00:34:22] Speaker 00: I off the top of my head, I can't think of the name, but I have seen circuit cases from other circuits, affirming variances that were as much as twice or more the guideline sentence. [00:34:33] Speaker 00: That would be an unusual cases, but I think this is an unusual case for the reasons identified by the district court. [00:34:40] Speaker 03: Thanks. [00:34:43] Speaker 03: Thank you, counsel. [00:34:43] Speaker 00: Thank you. [00:34:46] Speaker 03: This salon, why don't you take two minutes. [00:34:51] Speaker 01: Thank you. [00:34:52] Speaker 01: I'd just like to address the point that Judge Millett was just making about the variance. [00:35:00] Speaker 01: If the court had applied what we are arguing is the correct guideline, 282.4, then [00:35:10] Speaker 01: The variant, essentially what's happening here is that we're claiming, if we were going to claim that there was harm, if the court were to find that there was harmless error, that would be finding that the explanation for a nine month variance is the same as an explanation for a 36 month variance. [00:35:26] Speaker 01: And Mr. Stevens, we would argue that that just cannot be found harmless. [00:35:30] Speaker 01: That's a huge difference. [00:35:32] Speaker 01: And so we would ask that this court remain for resentencing under 2A 2.4. [00:35:36] Speaker 01: Thank you.