a drug traffic the crime without any showing that he knew of the barrel length of the gun in question or that he was required to know it this was a due process to file ation of basic criminal jurispruden which presumes a mens rea or knowledge requirement criminal statutes are presumed to require at least knowledge of their elements factual underpinnings the statute in question is a is one well known years greater then the general violation of one hundred and twenty four state which mandates five years it is a separate standalone crime a greater offense than the general offense described earlier in the statute as kicks in it needs to require require that brian itself did a did as statutory construction of the of this particular statute and distinguished it from the sentencing factors are section that we're talking about is the is the following paragraphs of paragraph the if the if the firm is possessed by a person and is a short barrel rifle it's a separate part of this and subsequent to the dean case o'brian specifically distinguish the two there's a paragraph that i quoted in the in the briefing that specifically characterizes the earlier portions the brandishing and the discharges sentencing factors the weapon characteristics by contrast are statutory factors in a separate crime but when any factor that increase the mandatory minimum be treated as an element now i mean the distinction that they were drawing doesn't be innocent which isn't the case here well congress apparently considered it in in the way they distinguished the mandatory minimums they made they specifically made toting a weapon during a crime it's a five year mandatory consecutive if it's got a short barrel it's a mandatory ten reflected in the mandatory minimums that are so different there are twice what the regular weapon would do with with well i have a question relating to something that you said mister nance and that is you did you talk about whether the extra time meant that congress wrote recognize sixteen inches would know that a short barreled rifle would spread out the shot and be more dangerous for any people in the vicinity who had resisted the robbers and if that's true why why does it have to be shown here to me is on the barrows precisely less than fifteen the st part of your question i will try to ensure that i know the robbers really think it through very carefully will we the requirement is there because congress imposes a distinction congress distinguished it congress thought it was a more of a more culpable thing they did the same thing with the machine gun the automatic weapon thirty years there and they said that you as an offender has to now we'll hear from the ms banker the government followed by ms elliott mak thank you your honor and good afternoon may it please the court aaron back on behalf of the united states the statutory language is clear in order to hold a robber accountable for carrying a short barreled rank all during and  and during and in relation to a crime of violence like robbery the government need not prove that the robber knew the characteristics of the firearm that brought it within the statute moreover there is no canon of that you've already referred to in dean and the united states supreme court that determined with respect to a parallel provision of nineteen and force the and that is one a three year relating to just completely correct it does need to be found by a jury beyond a reasonable doubt and the language that we hear in the supreme court case that is in dean and o'brien is really distinguishing between two different things and i'm trying to draw a distinction between three different things when tiger explained in my right now after i don't know mind dean and o'brien we're looking at two separate questions whether something is a sentencing factor or an element and and essentially treated the universe as opposed to thing principle is that we read our congress and legislation as it is written and the nd principle is that in general region not make something criminal without some of men's rights attaching and the way to harmonize those t throughout the throughout the criminal code indeed we see it throughout individual statute for example and there is although that the court the supreme court held that the knowledge requirement has to apply not just in the possession of the firearm but also in syria the person status and know their status that makes them an island all it did not go on to apply that and there's no court i'm aware of that has applied that to the fact that a firearm moved in and our state substance of the particulars that distance and in any particular amount there's no mens rea i'm going to find so that it's clear that it is the functional equivalent of an illness and must be proven beyond a reasonable doubt and the reason for that your honor is elaine and i think that you raised a did not address whether they had a mental illness or attached to them and although they did not in fact he certainly did not overrule o'brien certainly o'brien is still good law for its conclusion and it certainly change the increased by a finding that particular finding must be made by a jury beyond a reasonable doubt it is not a can i just stop you sir if you as you described it as repeated shows there can be elements that don't have  so i guess i'm still not understanding why you're invoking the enhancement language instead of just arguing that this is an element but it's a lot one of the elements that doesn't require that i'm as rare and it will seem like you could apply d that there is no in a letter cold distinction when you're thinking about what the government has to have to whom and how the government has to prove it the question is you know what does the government have to prove and again there's no that it was not obvious that this was a short field rifle he had to take a portion or unscrew a portion of the rifle as i understand that to measure it and there's no standard measurements or no guidance so he put a yardstick or something down the barrel to show this and he testified it would not be obvious that this was a firearm that violated the prohibition one hundred short barrel fire the nd point distinguishes o'brian at page five hundred and seventy seven of that decision i must admit that i don't know a lot about firearms but i would like to address judge fools comment about the inherent dangerousness of a short barrel firearm i was curious about that myself as to why this was a prohibited earth or far more heavily regulated type of weapon and  on page four of the reply brief i have a citation to some ancillary authority that actually does not support the notion that it was it's a more dangerous weapon but rather congress than acted the statute because they perceived i believe in the thirty's that short barrel firearms were the choice for criminals and they were easy to hide because that's all they prohibited short  firearms because you could put them under your roof i could not find anything that indicated a short barrel firearm was somehow obviously inherently dangerous as to the innocent versus non innocent conduct i would direct this court to arguments in reply regarding the failure to register a short barrel firearm and in six circuits including this firearm and subject to regulation and that's the united states versus gergen in this i think the court should reject the argument that the the mens rea element as to the other portions of the charge is somehow somehow obviates the need to find a slightly unter requirement here and in that regard i direct the court to florists united states which is a case where the supreme court considered whether there was an additional mens rea or who applied to  person who was committing the listed predicate crime but no inly transfer or used without lawful authority a means of identification for another purpose and there the court held that knowingly applied not just to the defendant's possession or use of the fake identification card but also to the fact that the identity on the card was of another person and there the court of clyde what it called the rule of statutory interpretation that when there is an express mens rea element as to one element of the offense it applies to all of the elements of you so in this case the trial court erred in removing that knowledge of course probably one could find a rule of statutory construction construction that would apply to either construction of the statute but in my view flores figaro is more because it involves the pred and then the underlying question of whether you knew it was the identity of another person is more a political here finally i would and this the government has not mentioned them in their argument but the government's johnson in this case and i know the court in its order before argument wanted to concentrate on this st issue but were not can see it well will give one should take another two minutes and cover your other issue thank you your honor the court should reverse here because as to mister johnson the court improperly told the jury that if it found beyond a reasonable doubt doubt that johnson is a complicated question of how to instruct the jury after taylor but taylor is not a case that removes the question of commerce from the jury's purview it is a sufficiency case it's somewhat confusing because the court does suggest that as a matter of law  you rob someone who is engaging in the illegal marijuana trade the element of affecting or or effect in congress over which the united states has jurisdiction has been satisfied but i don't think you can the court is correct in informing the jury of that fact i think the jury can and the court can inform the jury that it finds that be robbers in any particular case targeted a drug dispensary because there were drugs there and because they were likely to have cash he may have satisfied the element but of course taylor doesn't say anything about it and quite frankly leaves open the question of whether or not a legal  you i haven't sat down and thought about how to draft the correct instruction your honor but that was not what the jury was informed here i was that were set forth here i mean there still is an element in the statute that is affected congress that has to be submitted to the jury and here the court i mean the the the jury instruction to me is somewhat confusing because it has that element but then the judge goes on to sort of take it away in the one line which you have quoted from the jury instruction which is you have so the board element is the robbery affected or could have affected commerce over the over which the united states summary judgment kind of finding on juries also have to find that it was affecting the market for marijuana but it does i don't think that is correctly summarized here in the jury instruction in fact the judge has told them this was commerce over which the data tell them that it had to find it was a it was marijuana no so there's still a thing for the jury to find under taylor and ridge yes but here the court removed that in my view the headline eighteen in that instruction removed that question from the jury by instructing the market for marriage this was a market for marijuana and it was congress under which the united states has  receiving informally because your argument about commerce it wasn't really republican argument that i don't think well the government said that and therefore i feel like just goes to show that advocates in the state of washington are nd to none there was so say that