this is the case in which mr that's the flautist threw rocks at a border patrol helicopter trying to scare the pilot away he pled guilty and at sentencing the government sought to contradict the factual basis for the guilty plea in order to obtain a sentencing enhanced meant in our brief we argued two issues first the court applied the wrong sentencing guidelines and second that the court had failed to apply the proper evident standard of clear and convincing evidence to the facts it used to enhance mr it's a flawed assistance my argument today will focus on subsets of the first issue regarding the proper application of the sentencing guidelines basically what type of the song this was what the differences between element i mean offense and a mirror sentencing enhanced meant and which guideline should apply when a dangerous weapon such as a rock is used merely to frighten without the intent to cause injury or the intent to commit another felony the argument that the lower guideline to a two point four should apply in this case and in such cases begins and ends with the factual basis for this case mr that's a florist's pled guilty using a specific written factual basis that was accepted by intention at the time of the sentence think national of the government reserved its right to present additional evidence regarding state of mind and sentencing and that's a direct quote so i think the government wasn't challenging the notion that this was done without intention to harm what was the purpose of that remark going to the movie mark had two purposes were there two permissible purposes for that which was why we the defense did not object to the government's request to serve them right first with respect to where within a specific appropriate guideline range mr ressa flotus might fall mitigated term a middle term or an aggravated term within the sentence the government was free to present additional evidence regarding the state of mind more importantly the government was free to present evidence that there was intent to commit another felony there are two parts of the sentencing guidelines for aggravated assault the government argues are applicable here the first is that a deadly weapon is used with the intent to injure the second is that the deadly weapon is used with the intent to commit another felony the factual basis for m established that he did not have the intent to injure that he only had the intent to threaten or to frighten the pilot of the helicopter this was an element of the offense the factual basis did not set forth any information the intent to commit another felony because the intent to commit another felony is sentencing and handsome and it is not an element of the offense and was not properly part of the factual basis for a guilty plea the government was free at sentencing to argue that mr recipes had the intent to commit another felony and the government indeed did so the government had that opportunity and took that opportunity to present evidence regarding additional felonies the second part of my argument deals with the appropriateness of the court's finding and the application of law to the court means the government was free to put forth additional evidence it reserved its right to present additional evidence regarding state of mind he did present additional evidence state of mind with respect to the allegations that mr ressa float i said committed illegal reentry after deportation and also the government alleged that he was involved in alien smuggling the district court based on the proof that the government put forth its sentencing stated quote for the record the evidence does suggest by a preponderance of the evidence if not more that he  flotus was involved in alien smuggling on activity or also i considered that too and that's taken from page one twenty one of the excerpt of the record the court added he also committed a felony of being here illegally in the first place so both felonies were taken into for both of the underlying felony offenses the government reserved its right present additional evidence the government presented additional evidence but what the government presented evidence of was felonies that were already completed and the district court are the error that the court made the error of law was and then believing that those completed felonies supported the application of the higher sentencing guidelines they did not see these were completed offenses assuming that the court's fact finding was correct its legal analysis was that he had committed these other offenses i considered that therefore i'm applying the higher sense and guideline the law required that if he threw the rocks with the intent to commit another felony not already having completed felonies then the court could apply guidelines but he also i want to talk for a moment so we're running out of time here fences you agree with that yes your honor with specifically staten did deal with an enhancement within a particular guideline in that case i believe it was a substantial risk of death from the manufacture our position is that these facts are analogous to those and they're an instant in that anything that's used to enhance a sentence whether it's going from guideline to a two point four to a two point two or whether it's going within a guideline how such an incredibly disproportionate effect on the sentence requires proof by clear and convincing evidence and in this case as we noted in our briefs the difference in sentencing would have been i believe from a two to eight month range under two a two point four to a thirty seven to forty six month range i gather that there there is no ninth circuit law that agrees with your recommendation is there your eye as to which to to increase the level of pro four rocks that a united states border patrol helicopter that was engaged in his pursuit the first of these rocks passing directly through the main rotor blades now so i want to talk about that for a minute i look at the record here on page forty two lines eighteen through twenty the pilot says so my altitude was basically varied from it went up as high as probably five hundred feet to the lowest probably two hundred feet i don't know how good this guy was with rocks but that's all along the way it is a government service like contending that rocks went up through the rotor blade we are your honor and i would point the court to the excerpts of record at page seventy nine think one of the things that's not understood in this case is the pilots talking about flying over very rough terrain and an excerpt to record page seventy nine he states at one point that he was three hundred feet above the base of a ditch when a royal and the defendant was charging up the hill towards the helicopter so taking it strict strict with a green arrow basis the defendant does is not really the facts here that the pilot testified at that point it was over a ditch it's very hard to tell but you're still talking about at least the length of a football field the longer you're on and the district court did hear testimony from agents darren's and there has been no showing before this court that that testimony that the district court relied on was clearly erroneous and the court found it to be a lot so i guess that's really the issue isn't it is it clearly erroneous to believe that somebody is so good that they can throw a rock five hundred feet and pass through a rotor plate your honor find that difficult to believe your honor at sentencing the government did present a videotape of the actual train it is shown we had the pilot i'm talking about terrain i'm talking about the distance to the rocks and if you had to go your honor we don't know what that distance was and i testified what the distance was he testified that he if he had fallen straight down it would have been about a three hundred foot fall on excerpts to record page seventy nine that's a football field in length correct but he also testified that the defendant was coming up the hill that was at a forty five degree angle from the helicopter so he's not necessarily that far of a distance away when we when we talk about the length of travel on the rock additionally you're saying that you think that because the agent flying a helicopter so testified and because there was no testimony to the contrary other than the intent that we are bound by what the agent says you're honest here and i think it's a cliche or so obviously not bound by but it is a clear review and the government recognizing that this was an issue did provide to the district court and i dish an eleven and specifically in the form of the videotape to demonstrate how this was possible and to augment the testimony of the pilot and the district court obviously found that probative in this case would you believe that a guy could throw a rock into the air of a football field in length you know i believe that if he was standing at the top of a hill in a helicopter with three hundred foot over the ground over an undertaker still talking about football field it like that just has what the agent testimony is if i understand it is that from that point on the heel where he threw it to the rotor blade it was anywhere from two to five hundred feet you know out of that was to testimony the age  and from going out with the agent taking this videotape we did show the court evidence to support that in any case i don't isn't it more likely that he was in fact trying to scare him rather than to physically harm him and i don't want him to stay away from where he was but he wasn't trying to bring it down because it wasn't realistic that he could throw that for the defense other actions on the stand in addition to throwing a rock show that that clearly was not his intent when the defendant through these rocks if you're for these rocks to be charged up the hill towards the helicopter when he threw the rocks when he was finally apprehended by the apprehending agents he continued to struggle with them  arrest after they took him into custody he continued to try it's not what you're that's not why you're charging him it's because of the rocks used as a weapon let's get it got to separate these things that we know not necessarily on it  is evidence of his intent and the district court properly found that that was a window using the court's words into the defendant's intent at the time of this assault he was doing everything from threatening the ground agents don't let me see your face don't let me see your family's faces plea hearing when the spellman gets up and specifically pleads guilty to this offense without and intent to harm so should we not have even been taking this subject up your honor i don't think that's correct at all especially in this case where the governor made a clear record and indeed defense counsel expressly acknowledged that the government had the right to present additional evidence with regard to intent this was the agreement where the change of plea actually occurred before the district court which ultimately pronounced sentence and that district court based on the records that existed didn't find anything wrong with the government presenting additional evidence of intent but now kind of joke isn't that a mistake not at all your honor the government accepted that factual basis with the provision that it would have the the right to present evidence of intent at the time of the state of the state of mind and your colleagues suggests that there were other issues with  the change of please perceiving the court question defense counsel it's my understanding that neither side is precluded from doing that at sentencing and defense counsel acknowledged that so if they truly felt that that was the case they had the right to make that statement then the government had the right to decide whether or not to accept this plea but that was not done the government accepted the factual basis based on that provision in any case there's certainly insufficient to apply the aggravated assault enhanced meant for two other independent reasons and that's the defendant's intent to commit this assault with the intent to commit another felony and both the thirteen twenty four alien smuggling violation and the thirteen twenty country he led it pursuing a just on a forty five minute foot pursuit through the desert with this helicopter assisting and at the end of it that's when he threw the rocks up into the rotor blades of the fences and completely just and your honor for the purposes of this case i would refer this court to the two cases cited in the government's brief ramos giddiness and hernandez herrera which both indicate that the found in offense is a continuing offense desert but also had a flashlight and there was testimony about his use of the cell phone which certainly is indicative of someone who's acting as an alien smuggling not simply as a person who arrived in the united states and its testimony of agent taylor guides carry flashlights defend this argument that the government is precluded from proving that says an element of the offense is also contrary to case law and the case of united states against g m in the united states against sanchez this court is very clearly held that assault is a general intent crime and intent to cause injury is not an element of the offense based upon the foregoing reasons the united states would ask this court to affirm the district court sentence for three independently justifiable reasons first the defendant clearly showed that he had the intent to cause harm tejan starnes when he used a dangerous weapon against him second the defendant committed the assault and furtheran you're out is the first issue i would like to address is that the plea colloquy the government has stated that the agreement was that the government could present any evidence and that the defendant had no objection to its reservation of right this was not the agreement that the government could present evidence that contradicted the factual basis the defense did not object because it was perfectly permissible legally for the government to present additional evidence regarding state of mind at the time of sentencing to deal with issues that were not covered in the factual basis the government was entitle to present additional evidence and the government was prohibited from contradicting the factual basis this was a mistake by the district court the district court accepted the factual basis once that factual basis was accepted if fact it became collateral stoppel on the district court judge to then find facts that contradict it this under more sin and undergo the defendant would have been prohibited from contradicting the factual basis for his pl and they feel the stain that's in man spent by saying it was with the intent to do another felony yes your honor but they did not do so in this case the evidence that the government didn't present which was permitted did not support the court's legal conclusion the court's factual findings are based on the evidence of the government presented were erroneous because these were completed in france which the government has stated to the united states versus jim for the fact that an assault on a federal agent is a general intent crime that jim's general intent only relates to the identity of the officer fiola requires an intent to assault and the type of assault that was intended here was to threaten or to frighten i see i'm just out of time if i may briefly a little more at least to answer questions anyone may have the question i have is you know i think at the end bank case where we have this continuing violation issue ending is lo s and whether you know that can get activities on this side of the border and in this case if he was still involved with distinguishable from the fact that mr ed it's a flawed as was a passenger in the vehicle with the other immigrants the driver the vehicle was an entirely different person when the vehicle was brought to a stop after the police chase the driver fled into the darkness of the desert all of the other in documented immigrants flat mr s a florist ran into the desert where he was pursued by the agents he was in no position to round up those other immigrants again to put them back into a vehicle or in any way engage in if that's his connection with the others had ended at the point at which he fled into the darkness even if it's found legally to be a continuing offense if the person is still in contact with them or still holding them or driving them or having that the district court had committed clear error even following a conference of the evidence standard with respect to this second felony where does leave the sentence so your client from your perspective his sentence should have been given a clear with respect to the sentence the lower guideline of two a two point four should apply under his criminal history category into because of a creepiest illegal entry conviction mr rhett's a florist would be within a range of two to he months at the time of sentencing he had some twenty months almost twenty one months in custody so arguments for time served and a sentence of two to hit months which is what we are seeking thank both council for their arguments and that's the floor it shall be submitted