john to make it easy mr john pled guilty to illegal reentry after deportation and his sentence was enhanced first of he was previously convicted of kidnapping and manslaughter in california he was sentenced under the new guidelines to a one point two and there's no dispute about the calculation of those guidelines the question is whether he should have gotten an additional history point  based on the belief that he had two convictions for crimes of violence and we submit that it was reversible plain error to impose those that point there's no dispute that we're here on plain  error there is also no dispute that california kidnapping is not a crime of violence under this court's precedent it doesn't have the use of force because for example it can be committed by tricking somebody into believing that you're a resting them and it doesn't meet the generic definition of kidnapping so the government's response is that well this defendant had an enhanced moment or they talk about it as a conviction for causing great bodily injury and that makes that a crime of violence we think the ninth circuit is absolutely right in ramirez versus lynch that it is not a crime of violence for two reasons first as the ninth circuit recognizes that enhancement is an enhancement it is not a conviction and the guideline talks about convictions the supreme court used some language about being convicted but it's clear looking at staff the and the case law that it is not an incomplete conviction in fact the statute itself talks about punishment and the case brought talks about and even in this case the defendant pleads true or admits true to the enhancement it is similar to sentencing enhancements in federal court for example in the drug statute eight forty one a defendant convicted of some type of possession with intent to deliver a controlled substance gets a significant sentencing enhanced meant if he caused serious bodily injury or death for example a five to forty range would rate be would increase to ten to life and it's exactly the same as the california case under prend ian cotton in a lean in federal court those facts would have to be alleged in the indictment and found by the jury but they are not a separate conviction they are an enhance and so for that reason alone the california provision is not does not render the kidnapping conviction a conviction for a crime of violence the ninth circuit also pointed out in remarriage versus lynch that the while and as the ninth circuit points out it can be based on accidental conduct it is still the law and lay a cow that negligent conduct cannot be considered the use of force in fact there doesn't have to be any force at all the california provision just like eight forty one can be applied to distributing drugs that causes serious bodily injury and i apologize i found this when i was preparing and i'm happy to a twenty eight jail letter but in people in people versus martinez which is that one seventy two cal california reporter third seven ninety three that is exactly what happened somebody delivers  controlled substance to a person and then she dies so the bottom line is that twelve twenty two point seven is neither a conviction nor does it apply all the use of force and therefore it cannot turn a kidnapping into a crime of violence the second argument the ninth circuit the tree talks about recklessness the treated differently than we do they do your honor and the language in any opinion says negligent and reckless but if you look at some injury and talks about accidental conduct is enough and that's negligence so i don't think that the ninth circuit reckless to sit distinction makes any difference in this case and as i'm noting it doesn't require the use of force at all it can be i give you drugs you overdose therefore you get the great bodily injury and hand what if we're not sure if we're not sure then it's not plain that's true your honor but i think that it is playing based on the california case law i think it clearly is not just starting from it has to be a conviction and it clearly is not a conviction there is no case law that indicates that twelve o two two point seven is a conviction and the contrary is true in fact it's clear that california it's clear from the judgment in mr johns case it was not just a conviction it was a sentencing enhancement and therefore it would not believe never held a student seeing enhanced mint used in this way ha question is whether the manslaughter can get the extra point and again i think that looking at the plain language of the guideline and its commentary and the reasons for amendment that the manslaughter cannot get the second point this guideline first of all it talks about a point the guideline itself says a point resulting from a conviction for a crime of violence that the commentary talks about conviction with an ass for a crime of violence that guideline provision both the government and i in our briefs talk about the change in two thousand and eleven when  guideline was changed to address the fact that multiple sentences can be considered a single sentence if they're in the same proceeding in fact that extra crime of violence point dates back to one thousand nine hundred one when it was added and when the guideline for single sentences was different the guidelines at that time talked about related sentences and treated them as a single sentence if they were related and what the original crime of violence extra point guidelines sad was that prior convictions of crime again convictions of crimes of violence not arising from the same incident that would either by otherwise be treated in other words the concern was where they would be related and interestingly in midst your child's case even under that original guideline he would not have gotten an extra point because the kidnapping and the manslaughter were part of the same incident it was all part of the same often so he wouldn't have gotten the point and and the subsequent amendment similarly seven o nine talks about multiple prior sentences for crimes of violence and gi example of the two robberies the government talks about the two thousand and fifteen amendment to the career to the provision ensuring that a crime of violence is counted under the career offender provision and i think if you look at the reasons for the amendment and the way it works it doesn't support the government's case of anything it supports ours the problem with the career offender guideline and the reason they have that for that change was the idea that defendants weren't getting career offender treatment at all because somehow the predicate often the crime of violence off then it's was a shorter sentence than some other one and therefore wasn't counted what they said and in fact that would be very rare the example of threat after an robbery it's hard to imagine that robbery would get less time but the idea was that they shouldn't the defendant should not escape career offender treatment just because it's the same but in fact even that change specifies that they were only get one predicate so in fact if a defendant had say two concurrent robbery convictions they wouldn't get two predicates they would get one so i think both the language of the guideline particularly the language of the commentary and the history of the reasons for that amendment reflect that it has to be to crimes of violence kidnapping is not a crime of violence so he should not have gotten the extra point i would note also that i don't think that the distinction between consecutive and concurrent makes any difference the guideline in the commentary makes no such distinction they talk about concurrent and consecutive the court can certainly figure out which sentence was  longer and then they were stacked together if anything there could be cases where a consecutive sentences even under this theory would not result in an extra point if somehow the two sentences were less than thirteen months but only added together ended up being more than thirteen months in that case the extra conviction would have gotten a point and there would not have been the additional point so then we turn to the final question which is this is on plane air i think and i do samantha i do think the error is plain i think that it's clear this isn't a conviction it's clear it's not a crime of violence the judge gave a guideline sentence she express some concern about it she expressed concern about the nature of the off then but weighed against that is her recognition that it was a long time ago that appear there's a discussion it appears to have been it's a very serious off and it appears to have been a major scuffle that went bad in which everyone was injured it was twelve years before the sentencing and it had six years since there was an off and the government themselves the prosecutor only asked for a guideline sentence and so we would submit that in fact the guideline the judge did give three months above what was the appropriate case law but isn't that our case law and how would you address that this is a fairly small error even if you are right well i would know it and i know the court is aware that the fourth promise before the supreme court and what the standard is  moving along but that being said and i think as the court recognizes that the court's precedents are kind of all over the map about three months but i would turn i would i would direct the court to the supreme court's case of glow versus united states which was an ineffective assistance case in which the supreme court basically recognized that any time that is greater than it should be is a significant error and i do think in contrast to some other cases it's not obviously if it was five years it would be much better but three months is a significant difference it is particularly significant in light of the fact that the set this often swas twelve years ago the nature of the error itself which is treating it as too often says incorrectly treats it as too often says it was one it was happening that went wrong and for those reasons i would submit that it affects the fairness integrity of the proceedings that we know would automatically be three months to fruit where we know it's three months above the correct guideline i would like to believe that that on when we go back the judge would give the bottom of the guidelines and then it might be nine but she made it very clear she wanted to go to the top of the guidelines so thank you thank you good morning in may please the court and record for the united states the district court here properly assessed one criminal history point under for a one point one primarily for the reason that the defendant's conviction for kidnapping while causing great bodily injury did qualify as a crime of violence but even if this court were to disagree however the defendant has not met his extremely difficult burden to establish reversible pla error let me begin with the merits and whether there was error with respect to the ninth circuit we disagree that this is not a crime i would point out to the court that this was in a footnote of the ramirez discussion and in fact in some essence it was dicta because of ramirez court there the main issue was whether a particular california statute i believe was felony child abuse was  divisible or indivisible and they found that it was indivisible and that was really the end of the ballgame and then there was an argument about twelve twenty two and the court said well we decline to examine the sentence and handsome because of the  visibility but and then it goes on then it says but it's not a crime and oh by the way it can be committed recklessly or negligently so there are two points there and i want to address why i think each of them are we know that any fact that creates a mandatory minimum sentence or increases a statutory maximum sentence is in fact an element of the all fits let me read the line from a printed this is footnote nineteen of a pretty on the other hand when the term sentence enhanced is used to describe an increase beyond the maximum authorized statutory sentence it is the functional equivalent of an element of a greater often than the one covered by the jury's guilty verdict indeed it squarely within the usual definition of an element of the office and this was fleshed out more in a lean which is more recent lean they talk about a new aggravating crime and here is the quote in this is from page twenty one sixty one of the lean this reality demonstrates the core crime and the fact triggering the mandatory minimum sentence together constitute a new aggravated crime each element of which must be submitted to the jury i've already explained in my briefing why this was an element or excuse me why this fact that twelve twenty two enhancement had to be pleaded in the end dykeman and either proven to a jury beyond a reasonable doubt or admitted by the defended in open court but what we now see is based on the lean together the operation of these two creates a that in the government's view that is the new crime it's not simple kidnapping if it was simple kidnapping we agree it wouldn't qualify as any circuit court ever held not that i'm aware of the truly novel argument  i believe yes it's unknown to to be frank it's an unusual fact pattern which i think is why it hasn't come up before in terms of twelve twenty two in particular in terms of the federal courts i really all i c find was the ramirez case too as opens the door to all sorts of new crimes of violence it it depends i mean i think it depends on how each state statutory enhancement works you know and is specific in our play and let me let me say here it's it's not that the twelve or twenty two point seven enhancement automatically means that every single crime that attached to it is a crime of violence i think it turns on also what is the core crime because a federal public defender is right this has been attached most commonly in the drunk driving scenario which way a call says does not and th normal sense that qualify as a crime of violence if obama defender did share that case with me before argument and i appreciate that and it does apply to furnishing drugs that with but here the core crime is kidnapping and i think that's we can't lose sight of and it's a novel argument but it also points out that this is unclear i mean it's not clear it's not obvious that this when it qualified let me get back i said there were two points that the ninth circuit made the first being on whether it's a crime in the second on reckless or negligent and they rely on the the intermediate appellate court case now they're they didn't say that the conduct was accidental the quote was it's the accidental nature of the injuries and i want to refer the court to what pr that here's the quote here appellant turned his vehicle onto oncoming traffic this volitional act was the direct cause of the collision and therefore was the direct cause of the injury in some sense the precision what was going to come in boise and in this which is court recognized in mendez and recast the focus when it comes to the use of force isn't necessarily on the defendant's mens rea it's on cases that are cited now again it's in the drunken driving context which i agree is different but it's not negligence it's recklessness and we know that recklessness qualifies so with respect we disagree with the ninth circuit and again we would point out this is in a footnote it is a novel issue it's on plane air review it's not clear on this and there's this you can't manage that this is the problem you shouldn't get double deference in this you know  different context surely but you make a normal argument and then say well then it's not plain whether my novel argument is clear right or not so we can't show clear air it would seem that you would if you were making an argument to establish and they can't or something that they're arguing an awful thing to show why but whenever it's the government so arguing something that's a novel treatment then and then we say oh well it's not clear so you manufacture journey lack of clarity i mean it's not a criticism it's a compliment to some extent what i'm saying it's not the normal plane as i said they're normally doing for something that would be an extension protection and then we say well you can't show that's plain yet sure i'm unaware of any case that has made that distinction that you're talking about whether it's from the government side versus the defendant's side we don't know what would have happened had the defendant objected you know had the defendant objected below and said whoa whoa whoa this does not qualify as a crime of violence because it's simple kidnapping i would hope that in that case the trial a usa would do his her home her own research or contact the appellate division and then we might be presenting this argument before the district court we didn't have that opportunity because it wasn't raised and i don't think we should penalize for that i know you don't like these novel arguments but i'm going to proceed with my other next novel right argument which is on the four one point one and the text of the and found not to go to just because of the absence of clarity due to some novel argument that no one adopted and not in those words southwick i believe there's the tray ho case which talks about the playing in current case law correct as opposed to perhaps something could be developed later that would make it less clear and that to me is the more settled way to be considering plain error in each of the plain because here is something out there that one day california or somebody else may say is a right way to be looking at to so i'm just thinking that maybe this conceptually a problem and taken us down the road you are taking us no matter how good your arguments are i  at bottom the question is is it clear is the error clear or obvious and i'm you know if this isn't an attempt to manufacture muddy the waters to make it unclear you know this is just saying that on the merits it may or it may not qualify and if it does and for that reason it's not clear obvious and i think that's the way that it should be thought if it was one thing to say something might be a crime of violence no bias said one way or the other but here we have some wall this says here is how to to look at this particular crime footnote and ninth circuit not the two best things to be saying to this court but nonetheless real law out there yes the difference is however and there have been cases and i forgive me that the case name escapes me but i know there is you know there's been recent cases in which this court has held in the crime of violence context where another state statute did qualify as a crime of violence well i actually believe it was the ninth circuit in the case i'm thinking of and they say well there's a published ninth circuit case directly on point it says it's not therefore we're going to find it's clear obvious th circumstances here are different again this is in a footnote it's in in the government's view it's dicta and so i think this court should view it with a healthy dose of skepticism not because it's a ninth circuit but because in just it's it's the issue is not analyzed properly to get to the conclusion that they reached if i may turn to the for a one point one issue and why it's also not so clear i agree with the federal public defender if you look at the commentary it's clear that both of them have to be crimes of violence the problem is that's not what the guideline text says it's the commentaries different in this area isn't it it is corporate it is well it's not just random musings certainly you know it's it's isn't definitely you said it's incorporated in so it's an application though so it said this is how this should be applied the problem is that arguably it conflicts with the plain text of the guideline itself the guideline itself doesn't use the poor girl i mean for whatever reason it says add one point for each prior sentence resulting from a conviction of a crime of violence that did not receive any points and when this i'm in so when this first came into being back in one thousand nine hundred ninety one and they use different language slightly different language there i would know that that was before the stinson decision which you know talks about the conflict between guideline text and commentary maybe the sentencing commission didn't really think it was in issue in terms of the conflict between the text and the commentary because the commentary says well the commentary is clear on this point  even if you disagree with both of those both of my merits points and you find that it is clear obvious the defendant still has to meet the third and fourth prongs of plain air review and i don't think he can on the third prong certainly there's molin that for the government essentially to show that there is no reasonable probability of a lesser sentence we have that here i mean here we have and this is that all away sixty three when the district court is going through the colloquy the district court expressly states it's reluctance to stay within the guidelines range for get what the government recommended i mean the district court obviously has an independent obligation to decide what is an appropriate sentence under the thirty five fifty three a factors  expressly stated its reluctance to stay within that and then it imposed a thirty month sentence which is at the high end of the range and it stated that it was necessary because of the serious nature of the prior convictions and if this were a preserved error i would not be arguing that it's harmless the burden has shifted however the burden is now on the defendant to show a reasonable probability of a lesser sentence i don't think based on those statements he can do so if you government sites and it's brief one of the factors that comes into play is the criminal defendant's criminal history we can consider what we can consider the facts for whether it's a crime of violence it certainly can be considered for the fourth the defendant here kidnapped and killed a man what in the words of united states versus prieta oh would the public perceive any grave injustice in this being considered a crime of violence under those facts the government thinks the public would not perceive any grave injustice we have even if you disagree with my third prong argument the district court statements at sentencing reflect its careful consideration of the wouldn't want to serve one extra day of prison that i don't have to but it is still something that this court considers and so long no hernandez the disparity was six months that was insufficient in waikerie it was one hundred eighty month federal public defender that sometimes when it comes to the fourth prong it is very it's an individualized case determination under oppressed absolutely absolutely and i expect no matter what happens in you know in the government's view that was taken only on the shot point wasn't that i mean it's whether or not the the formulation of the fourth prong to shock the content that's not our formulation that's mirroring this court's exercise of its corrective discretion the government does not believe so if the court has no further questions we ask that you affirm the judgment of the district court thank you thank you with respect to the novel issue about whether twelve twenty two point seven is is a conviction the statute the california statute itself talks about punishment and judge all right as you've spoken about opening the gates i really think it's the same thing  eight or it could be the same thing as an eight forty one in handsome and serious bodily injury if the government is right then a defendant who is convicted of possession with intent to distribute drugs that results in serious bodily injury or death and there is a jury determination or it in mission of that then suddenly drug trafficking becomes a crime of violence and i think it's very clear that that's not what the case law is the california cop courts not just the ninth circuit talk about this is an enhancement finding true to an allegation it is not a conviction and when we talk about a functional equivalent that's exactly what the court was saying in a pretty in cotton aniline it may not be an element but it's the kind of thing that has to be proved to a jury beyond a reasonable doubt and that's what twelve twenty two seven is but it is not a conviction with respect to the fact that the california often has to be bullish and all that is lay a cow when they talk about delish and that was the argument l a account the person deliberately bullish intentionally gets behind the wheel when they're drunk it's still negligent it's still accidental and in fact the dissent in mendez enrquez warned about the slippery slope of relying on whether something is bullish and the question is whether it can be negligent it can and in fact it can be mere delivery of drugs resulting in death which clearly is not the use of force in terms of the fact the guideline itself talks about a conviction i think that's just grammar the guideline says that you get one additional point for a conviction it wouldn't make sense to say you get one point four convictions and then as the court has suggested this commentary is really just reading what the guidelines says there's no inconsistency the history of the guideline both before and after stinson is this was to address the problem of people who have multiple convictions for crimes of violence particularly way back when and separate incidents that there should be an additional point perhaps you want to use your last few minutes to talk about prong four and whether or not your client criminal history would dictate that irving would would lead us to not correct this error i don't think it does your honor because in fact and in contrast to molina martinez who had something like five or six burglary convictions  this is his only conviction it's a serious conviction but it is one incident it is as i say the kidnapping that resulted in someone killing the defendant and it was twelve years earlier all of which are factors that the court did consider in terms of the length of time there was a discussion about why he came back it is certainly a serious off answer but it is only often and the nature of the error the error of treating it as separate convictions goes to the heart of the fact that it isn't separate it's it's all one serious incident but it should have been treated as one incident you're on thank you this case is submitted the court will