c one requires a district court to find not just that the defendant's actions reasonably cause the victim to fear immediate harm which the district court to do here and which we do not challenge but that enhancement also requires the district or to find that the defendant intended to and reasonably does cause the victim to fear immediate harm and without acting with awareness that harm would be imminent court had made a factual finding sufficient to come within that submission with an awareness that this would likely cause harm it might be enough but what's troubling here is that we have tension in the guidelines between an intentional act and a reckless act and that's what we feel we disputed in the district court we did not dispute that mr gonzales in reaching for a fire was recklessly causing harm and in that moment certainly there were four police officers who saw that three did not feel immediately threatened but one did and that's enough that's enough that's that's enough that officer reasonably felt fear that's enough to satisfy the fear but the question is was the act intentional or was it reckless and the district court simply did not resolve that issue the district or court's factual findings on the issue are contained in for a gun in the presence of law enforcement officer an intentional act that is reasonably designed to cause harm or could it be a reckless act now the district court relied on ford and ford came to the sensible conclusion based on the three a one two unless you can infer intent under the circumstances which the court in ford said the district court could reasonably infer in those circumstances that there was an intent to cause harm to reasonably  this here he could have left the gun in the car when he fumbled it and put it up and running and not reach or i don't know if we could make that assumption because then that would have disarray to recklessness i think what's really interesting is when we drill down and look at the cases cited in ford you have one of two situations one where an individual discharges a firearm there's no doubt that that's going why the not to two hands when it was falling down and he was trying to get away and i don't know if the record supports that factual conclusion that he was real that enzo testified yes but and had the don't get me wrong  see more if judge parker had said he drew it with a firing grip then i think our inquiry would be over because i think that you can infer intent under those circumstances and the case of i would cite for that is robinson you drawing the gun because he intended to use it unlawfully against the officer which is what the court found in roberts judge parker's finding is not nearly so sweeping because robinson goes on to say there was of course another reasonable explanation that robinson was trying to get rid of the gun before the police found it and in robinson they said well you can't really draw that conclusion if the court finds that he was drawing the gun because he intended to use it awfully against the officers but judge parker didn't make that final here what we have here is we have a two part formula why else would he be drawing his gun because he's aware of the habit of the albuquerque police department at that time he was under a consent decree from the justice department because we had a basically one officer involved killing of a suspect every month for many months over a year so that now it would have been better in hindsight for mr gonzales to get on the stand and testify this i'm going to concede that that was probably my error but we were arguing instead short of his testimony that the evidence was susceptible of two reasonable inference and when he's pulling a gun it would be reasonable to think i'm going to get rid of this gun so i won't kid shop either when i'm running or when i'm going on or when i try to escape and when you look at the can must see other inference other cases that were cited for you had like you said either a discharge or you had a breach during a physical act of resistance you had officer saying to the subs that drop the weapon put it down let it go stop fighting and none of that here none of that was in time with him he was not caught with no he had discarded it and he rant you know now and i think that's where we do have a situation where the court failed to to consider both elements of the aggravated assault necessary to impose the six level announcement rather than the three level answer and this is the reason why i could i could i just interject here make sure i'm understanding the argument it seems like in the last few minutes the discussion was what can one infer from what happened and that seems factual in nature but at the beginning of your argument and as i'm understanding your brief isn't your challenge not so much to what inferences could be drawn but more to the standard that the court in the sense that are you arguing that the court failed to address the intent part of the standard yes words it's not if you're not challenging angels haven't made that clear but what we have here is we have a legal standard that the court failed to apply well ok but let me ask you if if if if we agree with that argument court didn't didn't specifically address and at the record is sufficient to uphold the court sentenced don't think it is just not this and the reason i say that is because the court focused exclusively on the  element whether or not the act was reasonably reasonably cause the victim to fear and of course focused on that today exclusion of whether or not the act was intended to cause a victims  of aggravated assault but it's kind of close to it that are not so sure that i know that's what i'm asking i think it's more i think that phrase it like this it involves conduct that encompasses one of two elements of the traditional common law notion of aggravated assault one an attempted unsuccessful battery or what's called menacing and really we have the menacing portion of the statute at issue here to menace someone is it simply to brandish a because the guidelines themselves say it's to apply in circumstances tantamount to aggravated assault and aggravated assault like i say involved traditionally either an attempted that or menacing and i don't think we have the attempted battery so the question here was that those are the elements of aggravated assault aggravated yes that is that it's either that attempted battery or the menacing and in that circumstance the case this is why it makes a difference because a question will then be is every act of reaching for a firearm in the presence of law enforcement is that all it's an intentional act designed to cause fear or could there be circumstances where that is recklessly done and that's what divide think ford is incomplete in that in deciding whether or not on these facts under these circumstances is it reasonable to infer that every time you reach for a gun in the presence of the police you're intentionally intending to cause harm and i think this is one of those cases particularly where you don't have the police saying drop the weapon or you don't have an act of actual physical resistance where the defendant is trying to go for the weapon in those cases inferring inferring intent is not a difficult thing to do because you're being grabbed you're reaching for something that could cause harm you're intending to continue this process but when you're getting out of a car and you reaching for a please the court counsel my name is maria song and i'm an assistant united states attorney in the district of new mexico i'd like to begin with a question that you asked judge mathis in and that is the language in the guideline about it being tantamount aggravated assault i would propose that the reason why that's in the guidelines is because they the commission wanted to punish conduct that involve either the use of a deadly weapon or conduct that actually did result in serious bodily harm moving forward is our position that a defendant assaults an official victim when the defendant's actions would put an important officer in reasonable apprehension of suffering bodily harm  not specified to a law enforcement officer in three c one two you can put anyone in danger and so the difference is that the commission has decided to punish more harshly when you put an actual law enforcement officer is there regardless of whether it's salt or aggravated assault do we apply the common law definition so courts that have l organism yes but if you look at simple assault then and i'm taking this from the call their own case that this court decided that involves an attempt to kind of made a battery or an act of putting another in reasonable apprehension of bodily harm is there not for the nd part of that if it is should is there no element at all it's our position that there's not and that there's nothing in the language of the guidelines in this court precedent that would require that a court to read an intent element into the official victim guideline here if for purposes of the hypothetical was if we were to say there would be an error in it is not it is i still don't believe there would be an error because there's nothing on point in this circuit that directed the district court to apply a level of intent to the defendant and i think the lead court said it best even if you're looking at the common law definition of assault the science your requirement for common law assault is blurred by confusion and contradiction and so it's not entirely clear from a review of the cases in this circuit or circuits outside that there is an actual requirement that there be an intent element or are they really talking about whether there should be a specific intent requirement or whether you can infer a general intent of choir meant by the conduct and i'm sorry judge the more i just missed the st part of your question difference between specific intent versus general and so i think that's kind of what this breaks down to in our position is actually that i mean i guess i would call it you know the st that you don't have to read and tend to requirement into it but then the nd the nd intent element that we're talking about which would be an awareness of consequences that's more akin to general attack intent and then specific intent is that he has to actually intend for the recipient to feel the harm of his actions and so yes i think it does break down into the woods while our position is that you could break it down into three different intent elements the st being that there is no requirement for any intent at all i was a little confused about your response to judge bacharach when he was asking about looking to these common law definitions of intent and correct me if i'm wrong but what i heard you say well there's no there's nothing in the this is the guidelines question and there isn't an intent requirement in the guideline that isn't that the whole point of looking at the common law definitions is to aid us  understanding whether the reference to assault in the guideline means that there's an intent requirement in applying the guideline is just that the common law is being used as the source of guidance there yes absolutely and the point i was trying to make with judge bacharach is that even looking at the common law definition that doesn't definitively answer the question for you all right and i was planning to ask you what your your best case was to show that the guideline has no intent requirement and then we got your twenty jay letter yesterday is that your best case well i think that that that the the dean case stands for the proposition that there's when you're when you're talking about sentencing liability and you've already found that the defendant has committed a wrongful act there's there's nothing offensive about punishing the defendant for accidental conduct there is one case out of the th circuit the carmichael case that case is unpublished but in carmichael the th circuit did specifically find that there is no intent requirement for the official victim guideline i just a what i'm having trouble with here is that the courts that have looked at this issue in the past have looked to these common law saying is that really your best case well your honor and the reason why i submitted that case is because i think that the supreme court in dean what they discussed is whether or not it was appropriate to punish conduct when the defendant acts accidentally and there what they said was you know in that context you're accounting for the harm resulting from the manner in which a crime is committed and i think that that same type of rationale can there this court found in an unpublished decision that the act of reaching for a loaded firearm was enough the fact that the defendant did not actually point the weapon at an officer did not mean that he was not going to use it reaching for the fire does it make a difference of whether there was an intent to reach for the actor drop it work to pull it is either one and it really i think it could it really be an assault even a simple assault if you're if you you should have an awareness of the consequences of your act when you're fleeing from law enforcement and you reach for a firearm it's reasonable for you to know that a law enforcement officer is going to interpret that action as hostile against requirement then i think your intent does matter i would point out that here there's no evidence in the record that he was trying to throw the firearm away that simply an argument that was made by his counsel and judge the more i think you hit on this but the district court not only did detective n f l testify that she when she fumbled the weapon he was reaching for it that is a specific finding that the district court actually made so if he was simply trying to discard the firearm then why would he then have attempted to reach for it as it was falling and so our position is that the record here is clear that you can infer that he did have the requisite intent to no matter what lies that are harmless error argument it comes at the end of your brief sort of looks that way where you say no court has held that a defendant must intend but even assuming that standard applies have to remain and under our case law for every sentence and i would say no your honor and that's because there is ample evidence in the record for this court to infer what the defendant's intent doesn't doesn't their case law set a pretty high bar this back if there's an error well your honor i would say that that that pertains to the way that the district court that's a legal application so this court reviews that you know follow the factual findings that the district court made lend itself well the district court didn't make the finding because it didn't say it's subjective intent doesn't matter the district court did say that but the district court also made a finding that had the defendant not fumbled the weapon the defendant easily could have used it look to the ford case in the port case the district court did not make a specific finding about intent however on appeal this court found that the district court could infer from the record that ford had  that's evident in the record and our st position is that the district court did not air because there's no precedence from this court that specifically told the district judge it had to apply a specific standard so what the court did is it will look to take to the th case to cases outside of the circuit and came to the conclusion that it didn't have to make a finding with regard to the defendant's  intent there's nothing there's nothing from this court that would have required it to do that so it wasn't an error because it wasn't clearly established by this court that that's something that the district judge had to do and based on the record  court there is ample evidence for this court to hold that if there is an intent standard you're going to apply that it was met in this case and if none of the judges have any additional questions i'm happy to return the rest of my time thank you  just have two brief points an observation one we don't have the luxury of reading out the intent requirement because both the guidelines and this court's decision in ford make clear that that is a requirement of three a one  talk about the specific intent a defendant must have a purpose to cost fear that's a specific intent or is so where that is actions may cause fear no one much troubles about its lack of purpose that in the circumstances of lee was like if you're going to drive straight at a police officer in the car even if you just try and you're not going to actually hit him in not even trying to scare me just driving straight at you pretty much know that this person is going to be upset here we don't have such a bright line because we have an individual who's footing with no physical resistance and no command to do anything and before anyone says anything he drops a weapon he said then fumbles and drops a weapon and tries to reach or i'm sorry and tries to reach for and tries to reach for yes and the only other observation i would make is the court may want to advise the law clerks that they can sit on the side of the second wors well with that we'll consider this case submitted and