appeals we have four cases to be submitted today on oral argument we'll hear the first two an intake a brief recess before completing the arguments and move start with united states versus fernande l one point two based on his prior florida convictions for attempted second degree murder with a weapon today i'll be referring to that florida fence as attempted to prate mind murder the standard to review review is to know vote and today i intend to  dress one of the florida offense does not qualify as an eric attempt or more narrowly as generic attempted murder florida attempt is broader than generic attempt first of all we consider the that what generic attempt is it's an intent to commit some other crime that's what we know from sanchez and from garcia figaro it's also if the second component of generic intent is a substantial step in furtherance of that intent the problem we have here in this case is that in florida if the underlying crime is a general intent crime like deprived mind murder is then a state the state can prove an attempted that crime without without ever establishing that defendant intended to commit the underlying offense that's discussed at length in the florida supreme court case of brown state the brown in the dissent by justice harding in that as an offense where they completed crime does not require a specific intent to kill and that's and therefore an attempt does not require a specific attent it intent to of someone that did not and that the act was imminently dangerous to another and demonstrated a to preyed mind without regard for human life and so that does not require a specific intent moreover generic attempted i know we've got all these intricacies with the guidelines and specially crime of violence and i know we use the categorical approach we don't look at the specific facts but we have a backdrop here as i understand it of a man that shot three times and hit one person shot three different people and hit one is that correct yes you know what that that if yes or in this case says  that that the duo drove up to the victim's residence exchanged words with the victims and then opened fire with a twenty five caliber blue steel firearm so that that was that that those were the that the facts in the p s r and so it's just hard to imagine how that cannot be a crime of violence again on a stamp where you're coming from but explain how that isn't how florida would require more in canton that the brady which is a case that's discussed in brown and is also a sighting of briefs that's a case where the defendant was charged well this is this is the evidence from state v brady the evidence at trial reflected that brady fired a single shot at ricky mack intending to murder mack the bullet missed mack that hit an unintended victim toyah harrell injuring her in the hand soon the jury ended up convicting brady of attempted second degree murder of mack and carol so even though he didn't intend that harrell the conviction of second degree murder of mack and that the court in that case said that based on gentry which is another florida supreme court case and the evidence presented at trial and that as outlined above which is basically that evidence i just told you about it would appear that a jury could reasonably conclude that brady intentionally committed an act imminently dangerous to others including mac and harrell without regard for human life which would have resulted in death had the bullet fatally struck either mac or harold that is by intentionally firing a deadly weapon in close proximity to both mack and harrell the defendant intentionally committed an act that had death result it would have constitute second degree murder correct he pulled his pistol and shot three times and hit one now again imo we don't look at the specific facts but in looking at the statute that's what i'm asking you about what is it in the statute that you base your contention on that it doesn't require if the intent is goes to the actress race which is the adequate shooting not the criminal result which is beyond so what is it in the statute that you base you don't have to have intent to commit attempted murder but the elements of the statu deprived mind regardless of human life the elements of attempted to pray for my murder defendant defended intentionally committed an act such as the shooting which could have result in the death of someone but did not ok that's general intent to intend the act and the act was and only dangerous to another and to demonstrated to deprive mind without regard for human life deprived mind is basically a heightened form of recklessness so you're not intending to kill that you don't necessarily have to intend to kill that person and so that's what makes florida an outlier is because there's only three or three states in the tire united states that say you can intend to commit a reckless crime that requires only recklessness as a result that colorado wyoming and florida but every other and all of that in our survey of the law was found thirty eight states that explicitly said that you can't that makes no sense is illogical and that's the gear approach as i understand it requires us to look at the combined offense of attempted second degree murder and that one is to apply the categorical approach but if we follow the approach in rodriguez us khurana which is the federal drug conspiracy statute that really just looks at that sentencing commission would have intended for attempt to mean anything dramatically different than the generic top contemporary meaning of attempts in the conspiracy cases there was a split it was divide between federal law and state and number of states in the model penal code as to whether the generic conspiracy requires an overt act well we don't have that kind of division in authority here about whether attempt to require specific intent to commit the underlying offense it's pretty the way of authority is overwhelming in our favor so i don't think that the government can point to any evidence that the commission would have considered anything other than generic contemporary meaning and if for example in braxton scream court considering federal attempted murder of an officer in a footnote said that common law in tampa quire specific intent and it interpreted the federal statute  crying requiring a specific intent to kill so i don't think that the commission would have to attempt crimes any differently than what the supreme court's interpreted federal can drug conspiracy cases the cases you cite for that you say compel us to look at the statute as a whole attempted second degree murder as opposed to looking at those florida attempts satisfy the standard attempt meaning and is second degree murder satisfy that offense there typically cases especially  ones from other circuits where the substantive offense lacked the requirements right yeah and in the courts as you have it when you throw attempt in there that gives it the necessary mens rea and so they actually found that it was a crime of violence that's this is a different situation where you're wanting the combination to take away the men's rights act does that matter the difference you know we've argued it both ways in this case it doesn't mean we feel that we're entitled prevailing to either approach on the one hand a conspiracy to murder with with generic conspiracy to murder and this was the approach of castro gomez which the tenth circuit case and gomez hernandez which is the ninth circuit case mr hernandez agrees with that  approach generally because it does compare his actual offense of conviction to the generic counterpart that seems to make the most sense but he also recognizes that in cases such as garcia's figaro which consider florida attempted aggravated battery battery on a police officer this court did separately examine attempts from the underlying offense after it already found that this subset of fans had use of force as an element so we've argued both ways we feel we're entitled guideline which has conspiracy aiding abetting attempts and then the such an offense and how to analyze it whether you apply a generic roche or they just look at the the language of the guideline itself to determine whether it comports with the generic offense it analyzed and it's categorical analysis and analyzed conspiracy by itself then it analyzed then it said well we find it more appropriate and we believe it's more appropriate to analyze it more narrowly as conspiracy to murder and so found i'm sure that that analysis that nevada conspiracy to murder comports with generic conspiracy to murder murder but then it went one step further and said well we think that under the blanket language and context of the guideline that the sentencing commission would have and tended that a conspiracy would not have an overt act requirement because a federal statutes many a number of federal statutes do not have a overt act requirements and also the model penal code did not require an overt act and there i think there were something like sixteen states that don't require it so it's said that under any of these approaches basically the  generic attempt requires there's overwhelming weight of authority that it requires a specific intent to accomplish the criminal result which in this case would be the crime the killing that's described by the crime of murder that the united states isn't playing there and the claims that he's raising as i understand this claim is that generic attempted second degree murder requires a distinct means rare element from the completed murder one that limits the culpability to specific intent to kill so he's claiming that there should be a basically a new methodology a ploy by the district court and this court any court that's construing it and that you as judge costs just said you look at the generic meaning of of attempted murder rather than then applying the approach that you have traditionally clock i would brief it more fully worries me is that you put in the pipe i put in the standard the plane air standard but did i did i extrapolate further and go into greater detail on why it's it's not plane air and it's not just i approached it from the standpoint of it's it's air it's i mean there is no air what i should have done and i apologize to the court i should have have taking it one step further and explained why it does not play an error because because he's asking for a the court to deviate from the traditional standards our methodology and then what incident happening is that what he's actually doing is he's telling the district court that is just simply foreclosed so what he's done is he has he has denied the district court of any opportunity to address the claim at all were taking a position of course we not the parties decide on our standard view and it seems in the written written objection the district court the planet argued florida's definition of a temple broader than the modern generic govern ition and that's why i'm just struggling with why is this plain era well that's that's i was struggling with that too but when you win the argument that he's raising it for you is not just what he objected to is that that it's a very specific argument that that you have to in your construction of or the the method by which you determine whether this is a crime of violence that you you rather then doing as i was getting ready to say doing the the traditional view which is set out for example in god god can i can pronounce the name good day or  once you determine that then the question is is that ok what was he convicted of it's attempted second degree murder well then the question becomes is ok so has how does the sentencing cases is that the the syncing commission has not has not distinguish between attempt and a completed offense and it's a numerate offenses and actually there is one three five six and what this court has said attempt need not be separately analyzed because an analysis of the elements of the state statute prohibiting the old underlying crime is sufficient for classification purposes so the position that the court has taken is that the since in commission has not distinguished between at attempt and a completed offense so what the the the defendant or hernandez has asked he was asking the district court to do or is asking you to do for the first time an appeal is actually do distinguish between them and so did the question is did he make did he get the district court the opportunity to address this question and it comes down to the the specificity of his objection which which for the most part his objection was to to to go into the the traditional or the the method that the court the question becomes stand then does does his attempted second degree murder fall within the generic definition of the substantive offense for attempt the what this court has done it when he's talking about the ins ray element the generic attempt does not have a specific intent to kill this court held and and and mot dato is that the men's re element which i think is the most it's is articulated he is charged with attempting then the actress reyes is it is that has he taken the substantial step that there must be an act of co operative of the actor's criminal intent and the act of course must be more than mere perpetration and when you look at the the mortise second degree well actually it's go back look at florida's attempted attempt statute florida but will this work court held in garcia figured out that it is it is is not broader than the scope of the generic definition of attempt as as for purposes of two zero one point two and what florida has done is they have construed the statute as it's a tip statute as having the same miss ray element as generic criminal  intent to commit the crime and when you look at the jury instructions that are published by the florida supreme court what are the elements of florida's attempt  second degree murder statute if there are two one is the best way to do it is just simply to put it before you defended untinged would committed an act which would have resulted in the death of a victim imminently dangerous to another and demonstrating a deprived mind without regard for human life so essentially florida applies this in accord with the generic definition of your brief that you dispute the defense's characterization that only three states allow or have offenses for attempted murder that don't require the specific intent that for a murder to result i five read is many lower a few articles as i can and try to read you going through the state statutes it's interesting when you read them for example there are some states that don't have require specific intent but the intent may be in the may be found in the knowledge element for example florida has and be the the the part and differ culpability requirement on second degree murder one of the the requirements is that knowledge as a person of ordinary judgment would know reasonably certain to kill or do serious bodily injury to another so my question is would a state that recognizes the specific intent to kill notwithstanding that that  not in considers this as a general intent crime would another state recognize this as as if you're going to call it implied a specific intent to kill would another state recognize this as as having the specific intent to kill but for purposes of when you're applying the syncing the sins in compliance with the sense in commissions intent the question becomes does the offense for which the defendant has been convicted made fall within the generic definition of murder and for purposes of second degree murder attempt a second degree murder it has the copiable mental state of deprived heart indifference which is as this court  recognized as an element of generic murder now and other states were which which recognize specific intent to kill as the necessary element that too would fall in the generic definition of murder because it is also a kopelman a state that is recognized so the question is is that is that is that florida th elements of his his prior conviction are not broader they have not brought in the florida statute or the onus of conviction or not broader than the generic definition of murder and of courting to  that the the the issue before the tenth circuit in that case was substantially different it was whether a state statutory definition of a tip can cure a substantive offense is overbroad until requirement for purposes of determining whether an attempt to commit an offense constitutes and numerated crime of violence offense for purposes of to a one point two b one a two in this case and for this case is that is that you don't have to go there because it it falls within the generic definition of the substantive offense and if it isn't the overall point of that case and the others like it that you you look at the actual offense that are convicted of which is not second degree murder if it was just second degree murder there'd be no debate or precedent but you look at the actual offense which is attempt to commit second degree murder and then look at whether that fits within what most states are doing mean a conviction formally denominated this in attempt you could have done so it could have listed as a numerated offenses it could have listed birder assault attempted murder in new why well that that attempted murder may be recognized as an a a conviction formally denominate is an attempt to look at two to a two point one which is entitle what's it called assault with intent to commit murder  as i'd like to address the standard to review that but first while we're on the last point i would like to say that that this court i don't feel this court would be at liberty to just jettison the categorical approach in garcia figueroa which is a fairly recent case he doesn't fourteen this court said in united states sanchez this court set forth the framework for determining whether an attempt all of attempt qualifies as a crime of violence for the purposes of two one point two as explained in sanchez the guidelines do not defined attempt therefore the court employs a common sense the cup a common sense term according to its generic contemporary meaning so basically you have a recent case that is saying that the meaning of misunderstanding of the court's precedent is that basically we understood miss understood the impact of garcia figaro and is judge marshall pointed out you know you don't weigh that issue anyway because we have to rule on the standard  e yes you only do have to you do have to rely on the standard of review we we haven't our position is that we haven't weighed the arguments that we're making when we when we framed it as a foreclosed issue in the in the district court because of cases like and you know ortega which say a misunderstanding of this court's precedent is not a waiver it's not invited air and in our written objections we did alert the district court to the fact that in florida unlike in most other  jurisdictions an attempt crime is not always a specific intent crime we cited to justice hard this myth or supreme court justice hartings dissent and brown v state we also at sentencing orally we made this point generally when we were arguing for that's page seventy nine of the electronic record on appeal and our position is that all of this was sufficiently specific to alert the district court to the nature of the error that we're presenting here in this appeal today you may be right and i don't know that just by making an argument below even though you say it's for close you preserved it for appellate review but doesn't that mean the whole point of requiring people to make preserve their objections in a lower court is to give the district court in the first instance a chance to rule and when you tell the trial court well we this is we lose this argument if a circuit forecloses it you're not giving the district court an opportunity certainly encouraging the district court to consider your argument so why why should we treat it is a noble review first of all as i said in indian ortega that misunderstandings of the law are different from this this wasn't a case where we were correct that it was foreclosed this is a case where counsel misunderstood the impact of garcia figure it was not an intentional or knowing relinquishment of this argument which makes a difference secondly the district court judge did accept our written objections which had these arguments and them and typically written objections are sufficient to preserve an error for appeal we know that from but their dramas never analyze the issue i assume because even the defense is telling them it's foreclosed that's true the judge did not did not talk through it at the sentencing hearing the  our position is she did have the opportunity to for two reasons one they were in the written objections which she accepted and she could have looked at them and she could have recess she could have taken a moment to look at them secondly we did we did praise the argument orally when we were making our objection we take seventy nine of the transcript we point out and i'm quoting here but in my research on florida statute supreme court of florida justice actually pointed out that the florida attempted murder statute requires lesser culpability it requires general intent which is different from almost every single jurisdiction in the us which require specific intent and this attempted to pave my murder doesn't actually exist in most jurisdictions so although we had presented as a foreclose issue we did centrally make the arguments the heart of the argument that we're making now in this appeal and judge the judge had an opportunity to hear that and so we feel that the judge had an opportunity to decide this issue the district judge when you say judge this issue is foreclosed but law requires less culpability as the district judge opposed to them stop the sentencing hearing and go research all of this before imposing sentence as what cost it says the whole point of objections is to tee it up up the issue with a district judge so the district judge knows exactly what you're saying and can rule i understand as i understand your point your honor but we're saying that it was sufficiently specific to alert the district judge that there was this error and the judge has clerks the judge is able to understand that there may be an issue here and i