i hope you all didn't have too much difficulty getting getting here this morning i'm advised by the clerk that all individuals presenting argument this when you're here so we'll proceed with calling the day calendar our first case for argument as united states for says hampton seventeen thirty six eighty counsel thank you may please the court my name is tina schneider i represent russell hampton were here before this court for the second time and direct appeal of my client's two thousand and eleven convictions for drug conspiracy racketeering conspiracy and a nine twenty four c firearms offense  arising out of the racketeering conspiracy in march of two thousand and seventeen this card issued to summary order remained in my client's case for recent and saying affirming the convictions and the holding in part that rico conspiracy is a crime of violence under subsection a that is the force or elements clause where here today asking this court to revisit and correct that earlier time in the sense that you know later on somebody comes along and says the supreme court comes along and says you've been wrong the question is whether this issue in this case is or not yes and this is what i would say to that is that this court got it right for thirty years ruling in every single case that conspiracy fell within the risk of force clause that in a subsection b and in barrett which was decided since this case this court was very clear that conspiracy falls within the risk of force clause this case is a categorically categorically or categorically although whether or not subsection b of this definition is void for vagueness and if this court does not correct its earlier ruling on this issue and the supreme court analysis that's kind of two pronged of c three b the risk of force clause i'm not sure why we don't reach the same conclusion i here as to your client given that the object of the rico conspiracy was attempted murder and murder that's what corey here asking the court to do we're asking the court to find that my client's rico conspiracy falls under subsection b the risk of force clause instead of subsection the elements clause that what i'm asking don't we the same result that it was a crime of violence his rico conspiracy that focused on attempted murder and yet murder using the barrett analysis yes you do but there are three reasons why it's important for you to reach this issue  first is as i mentioned if the supreme court invalidates that second clause and you don't correct this error mr hampton serving time for something that's not really a crime the second reason is the law is always changing and so we we don't know the implications of this in the future if this wrong decision remains on the books how that might affect mr hampton but thirdly and i think very importantly is that what this court decides is important whether or not it has and just like i'd just like you to drill down a little bit more and explain what immediate effect it has for your client were we to correct or alter the reference from c three a to c three the immediate effect would be if the court if the supreme court invalidated that clause found forward for vagueness then his conviction would then for that firearms offense would then be vacated i'm saying you should do i'm saying you should do it and law of the case is just a doctrine that says well we won't mess with prior decisions in the same case unless we should and here you should because it's wrong and so since we weren't we get there i want to be something you said a moment ago if we do that and revisit it you are not making any argument barrett would not apply here you question barry but you don't question barrett's application here i just yes exactly that's right that's right and we are raising an issue in this case that that subsection is unconstitutional so since we were before this court in march of one possible disposition that is to recast the decision if we were to get past the law of the case argument recast the decision as risk of force clause and then await the supreme court's decision on review of barrett yes your honor is that right that's right we have another issue that has arisen very recently about the first step which had language that showed that they considered conspiracy as the poster child for risk of force the risk of force clause number two was barrett this court came out with a beret decision which is clear and the third thing is that the solicitor general the solicitor general's office indicated in its response to our petition for search that this court may have wrongly decided the issue may have wrongly cast mr hampton's rico conspiracy under subsection a rather than subsection be so even the government i understand not this office but the solicitor general's office believes that issue was wrongly decided in this case so under law of the case doctrine we would ask that you reconsider that and correct that error i don't want to be  rico conspiracy the government has to prove as i understand the precedent that the coconspirators agreed to conduct the affairs of wrath of the enterprise through a pattern of racketeering that no particular predicate has to be proved and i just want to be clear that you don't think that makes any difference for the person found guilty of an actual conspiracy  violent crime as in barry now just to give you all parts of my puzzle so that you don't feel that you didn't have a chance to consider all of them of course in your case your client was found to have committed to violent predicate or more violent predicates and so i'm trying to figure out whether there are more steps in this case than him barrie i would argue that the even fewer steps in this case then and there to help me out ok so first off my client was not found to have committed any racketeering acts he was found to have committed ra tearing conspiracy well that and the racketeering at three quel the theory see under attempted murder among conspiracy to cause deprived in different small conspiracies not the actual substantive right but if that were if the predicate crime were the only crime barry would control that it was a conspiring to basically have ok so but now my question is to you for a rico conspiracy you wouldn't have had to prove predicate you've only had to prove the agreement that and so i'm asking whether that makes a difference and whether the fact that he was found guilty of predicates that under barrett would be deemed violent crimes makes makes this  irrelevant because as in barrett we would have a jury finding that evolved him self in violent crimes two things your honor if my client had been convicted of the conspiracy to commit second degree murder or the conspiracy to commit attempted murder those crimes under barry those would still fall within the wrist of force  and not the force secondly i understand ok and that's not what i'm asking ok so secondly i would say barrett was a hobbs act conspiracy this is a rico conspiracy rico conspiracy you don't even need to show an overt so if anything a rico conspiracy is more clearly not in the elements though that's not your client's case here i mean what one might very well say is that in a rico conspiracy it depends on whether the defendant is found guilty of violent predicates and your client was i would respectfully disagree with that because  conspiracy just like any other conspiracy elements of the crime do not include force threat of force or attempted force in a conspiracy it's all about the agreement nothing has to happen it's not an element of the crime and so under barrett it would fall within subsection b sabera tells us if the underlying the object of the conspiracy is a violent crime under a because of the has those elements under barrett the conspiracy to commit that is a violent crime under subsection bit well except that the agreement here is plea as in the indictment as an agreement to engage in narcotics trafficking and violence i mean that and multiple acts of violence that's the nature of the racketeering enterprise here what the jury was asked to find and what they did find was whether he committed conspiracy racketeering conspiracy whether he was guilty of that and they were asked to find whether what the predicate acts were and all the predicate acts were conspiracy they were not the substantive thank you thank you but what can i ask one hopelessly elementary question i keep stumbling when you talk about when a boy talks about conspiracy to commit attempted murder i mean either you're aspiring to murder yes let's let's attempt to but not succeed that's not  leigh please the court good morning my name is tiffany alien i represent the united states your honour's and looking at the underlying case that was decided earlier the one lie which triggers the question whether or not there's error is the court's in the court's decision and had stated that it was addressing the issue as nine twenty four c three b however and analysis to the extent that if you're reading the body of the analysis it really does refer in essence to the twenty four c three b analysis is sites elder it describes the fact that  while you know if the conspirator if the object of the conspiracy is a crime of violence then therefore it is it becomes that conspiracy becomes a crime of violence for purposes of nine twenty four c generally c three generally so the question before this court is whether or not that summary order contains clear error requiring it to take another look at its earlier decision and to in essence affirm from what i'm gathering i don't believe mission nighter is is is asking for a reversal of the conviction which is changing area of the law that's been developing and it's highly technical and in particular in the context of rico conspiracy wouldn't you agree that the layers of analysis are yet one more step removed in a did larger i guess more numerous than they were in barrett which really its ruling was based on hobbs act properly so don't we have some additional questions to answer here such as the kind that judge read she was posing but is this the case to answer those questions i mean basically we had a trial here and those issues with respect to the facts prove and as hers with respect to mr hampton's conduct was established and found proven by a jury it was found proven that he was in involved with the  conspiracy to commit murder the murder of the dupree of indifference murder of carmela rogers he was also found to be it was proven and based on the facts of the trial that he was involved with  the conspiracy to commit the attempted murders of the other victims so in this case one where you're applying what we have right now as the law specifically barrett and going through the analysis at the end what we have is even though i'm going to step two part even though the issue may not have been squarely before the jury whether or not this rico conspiracy predicated as a crime of violence the jury that crimes should her client can't get any relief here so that what is the government's response to that i would think that the twenty to fifty five process would provide an avenue of relief if there is a change in law and depending on how the supreme court decides to apply that law whether retroactively or not you know i was in the middle of a lot of the post johnson litigation so i feel like we would be put in that position again just in terms of  addressing a twenty to fifty five argument at that respective be prepared to concede that this is a violent crime under being rather than under a given what the past the initial panel found i think right now as a state of the law based on barrett it is a violent crime based on a and b based on reading you know that reading of them together here is that so clear that mean barrett involved the crime the conspiracy for which the defendant was convicted he would deal in with the predicate that you didn't even have to prove to find the defending guilty of a conspirator rico conspiracy only requires you to prove that the defendant's agreed to conduct the enterprise through a pattern of fact hearing it doesn't require you to prove any predicate does it i agree it does not but the whole substantive nature of rico conspiracy is an enterprise of racketeering activities an enterprise where people are engaged in violence and intimidation if the if the defendant hadn't been found guilty of while and predicates if he'd been found guilty only of narcotics predicates other coconspirators were found guilty of the conspiracy to commit murder and that would would you take the position that under barry that this particular defendant is guilty of a violent crime i don't know what i know to be frank i wouldn't know how i would analyze the situation but certainly here you know i would say that for i have not had the opportunity to engage with the level of analysis with respect to how rico conspiracy as a crime fits within the new evolv definition of crime of violence because that's not what the original position was in the paper i mean initially the argument trajectory for mr on behalf of mr hanssen was reverse the conviction i you know since that were somewhat shifting to this point but you know i think it will require additional briefing if we're going to discuss the analytics of of what's being addressed now in terms of the thoughts of does as rico conspiracy distinct from and cops act conspiracy because the agreement relies on merely  on the agreement or to grant review of this question not rely on the precedent you want opportunity for further briefing you didn't fully brief it in the papers to this court i what i would say that not on of they on the focus of what you know where racketeering conspiracy falls i mean at the time that i was responding barrett had just come out so it basically printed provide us with you know a better road map in terms of looking back on this but that's where all the complexities lie with respect to this case because the original decision in scott was a summary order we have the one line where you know the order says that it's disposed of that it wasn't going to address the nine twenty four c three b issue and then everything else was just simply you know relating to the law that expressly discusses one twenty four  three b but under these circumstances if you know if we if this court requires us to further brief we would like to have the opportunity to re evaluate a take a deeper dive i would say with respect to whether there is a distinction between recall conspiracy or hop second and hopes that conspiracy at this point i'm going to say no but i haven't had a chance to really look deeply into the issue of nasa schneider when he someone ask you now to if we don't review this question if we don't reconsider does the government dispute that if the defendant would a petition for certain could he could argue that it's it was wrongly treated as an as a violent crime under any cannot be a violent crime under b because they they do not think barack can be squared with the my you just beat that they could they could seek review on their bad argument i don't  mean you know in the government's or petition we were just when we realized i have you know those solicitor general's office realized that there was a disconnect between the citation to elder and nine twenty four c three so i think they may still oppose a certain other foundational on other grounds but certainly it may it would recognize that now at least it's been addressed here before your  and unless the court has any further questions and i also want to apologize there is an error in my brief in the conclusion section i asked for affirmative the decision in order certainly you know i was asking for a firm it's of the judgment and conviction but now based on our argument it could be a firm and your prior decision an order thank you very much for your time thank you very much you have two minutes rebutt thank you first this court indo previously considered rico conspiracy it was in the context of the juvenile delinquency act but it was the same provision and indo this court found that rico conspiracy fell within the risk of force clause secondly rico conspiracy does not have as an element force threat of force or attempted force so it cannot fall within element of the of the the crime and here the enterprise is defined as one aimed at narcotics and acts of violence so if you prove that enterprise why haven't you proved why haven't you kind of cleared that hurdle i understand other enterprises might not have any violent component but this one i not sure it doesn't solve your problem so i think it does because the jury is instructed the elements of rico enterprise rico conspiracy are that the defendant knowingly joined in enterprise where someone where joined you're in it yes but we're looking at the elements and that the enterprise has certain objects is not that the enterprise is violent is not a not before the jury it may well be a violent enterprise but all they have to find is he knowingly joined made the agreement to join the enterprise and the judge here instructed the jury over and over the agreement that that's the gist of it is the agreement thirdly it's not just one line in this chords earlier decision this court found in its earlier decision that it didn't even have to reach your arguments about the constitutionality of subsection b because this court was finding he fell within a i think we have the argument ok all right thank you very much well argued i will reserve decision