case on for argument is united states versus r morning mr briggs please the court i know the court has a very heavy calendar today i don't know that i need to take up all of my my time i want to focus on one particular issue this morning and that is with respect to the first charge of the violation the finding by the district court that the government had sustained its burned by a preponderance of the evidence that mr brooks had committed in other crimes that being attempted murder under south carolina law we do with the fact that he  acted as i understand it please correct me if i'm incorrect on pursuant to a plea agreement he did and what he was convicted of is assault and battery and he was sentenced to time served so to have a record especially for this kind of defendant who is not a stranger to the criminal justice system who won what might imagine will not be a stranger going forward that there was a finding that he had committed attempted murder when that may have been the original charge but what he pled guilty to what he was convicted of was assault and battery and he received time served that out a minimum should be should be cured with respect to the other issues the self defense issues the issues that we had raised in our brief i'd be happy to submit on our on our feel rushed by what i said at the outset so at least i mean if you have other things you would like to say to us well i can certainly if the court has any questions with respect to to the to the arguments that were put forward by mr brooks regarding self defense i mean there was a fairly false and not only did he testify himself at the violation of supervised release hearing but there were also these six witnesses who corroborate in substantial portions of his testimony for instance there was really no question that this assailant this this nesbitt individual came at and under another individual with a forty ounce bottle attack that individual and hit him in the head and caused him substantial injury and then turned toward mr brooks as he was coming toward mr brooks he made certain threatening statements to mr brooks putting mr brooks in the position where he felt he had to defend himself the judge irizarry rejected the self defense claims of your fairly suggests particularly the testimony offered by the six eyewitnesses that when nesbitt came up to the first of all that this was an incident that transpired over a very quick period of time and that when nesbitt came upon brooks there was not an adequate opportunity of brooks to to to flee or or to do anything other than try to get that gun that now has been was approaching him with away from the us but there was there was a i think there a scuffle or as as brooks call it a tussle over the gun unfortunately mr brooks at least from mr brooks is standpoint was able to get the gun away from his assailant but i don't think there was an adequate opportunity for mr brooks to retreat under the circumstances nor under the south carolina law did he have an obligation there wasn't enough time mrs watching the other fellow be bashed on the head for him to you know move away from the scene he could have but that's not when he committed that's not the crime that he committed the crime he committed was assault and battery and that was after that initial incident had taken place right that was that he should not have this now that's that's the those are the facts that support your conclusion i thought you just agreed that yes it would support that he had enough time to leave at that opportunity right well had he left at that opportunity then obviously none of this takes place but he was still there at the point in time that  focus on mr brooks and that is the point in time mr brooks had to defend himself was charged with attempted murder and again just to come back to my original point if nothing else the record should be corrected because he did not plead guilty and was not convicted of attempted murder it was assault and battery which is a much lower crime for which he received time served but there's two other violations right yes there are and judge irizarry gave what twenty four months all of that that is correct that is correct and so is there an argument that it's just sort of harmless that she would be given twenty four months regardless i think i think that with all due respect judge belvin at this point since mr brooks has already discharged his term of imprisonment i think any further an plead guilty to attempted murder in south carolina however that's not a reason that judges are you could not find that the defendant committed the crime of attempted murder one of the elements for attempted murder in south carolina your honor the elements of attempted murder in south carolina do as the defendant has contended include the specific intent to kill and that's the element that's at issue in this appeal however courts have regularly held that is specific intent to kill can be inferred from action and it's standard that we would infer a defendant's intent from his actions in this case the action from which the specific intent to kill can be inferred and should be inferred is his shooting the sixteen year old victim in the chest requiring surgery at a trauma center but did judge irizarry make includes a finding as to the elements necessarily the judge had promised opinions specifically describing what would happen in this case however the defendant insisted on having his sentencing proceeding expedited your theory you're specifically shooting someone in the chest your honor is a is a fact from which a court could reasonably infer an intent to kill and that's that's something the courts have held with with some consistency marcus of what there was so that your honor in this case the judge specifically found that she did not credit the self defense of the from trying to understand your theory is it your theory that someone in the chest no matter what ari didn't buy self defense that implicit in that is that what he shot intended to kill and i thought you said to me she being in the chest is always an intent to kill i just want to understand the government's position your hon our position we would take both positions first that even in a self defense cond context one can have an intent to kill that is evidenced by shooting someone in the chest but that that that context is not a political here where the shooting was not in self defense where the story that the defendant concocted about a tussle for the gun was not credited by the judge were that many inconsistencies in the defendant's testimony led the judge specifically to discredit his testimony he discredited his testimony it wasn't clear to me whose testimony she did create it it was unclear what witnesses who were hearsay witnesses she credit in found were believable and how that supported each of the elements for any attempt to murder charge the defendant didn't plead to attempted murder so she couldn't realize that the defendant did not plead guilty to attempted murder and it doesn't appear that she relied on that she did credit his plea to some extent and insofar as self defense is also a defense to first degree assault  battery she could have credited his plea insofar as it defeated the one defense that he presented at trial which did not address the issue of specific intent she also we're just teasing out from the record as best we can whether we can justify this finding but well i would disagree in where did she make the fine maybe in holding that the defendant in the judgment that holds that the defendant committed the crime of attempted murder she made the finding that he had the specific intent to kill and again were two of the hole by virtue of the hol and in united states versus aspirin judge carafa this has held that shooting a firearm in close range evidence is an intent to kill he collects cases from new york courts which regularly hold that in united states versus cooper two ten f thirty three eighty six you shot a kid in the defendant responded along the lines of i don't care he'll how only was he came in the with a bottle these findings are sufficient in light of the fact that the defendant shot his victim in the chest to find that the defendant intended to kill the victim even if he did not this court is held in united states versus bald one seventeen federal appendix one fifty one that there was no prejudice for failing to raise a technical error as to which of several crimes the defendant may have committed because had that in fact been raised the government could have simply amended the report to reflect the proper crime in this case the proper crime to which the defendant pled guilty and which this court should find the defendant committed if he did not commit him to the murder is of whether or not the elements of south carolina law classify them as as one crime versus another and chief judge yours ari's guidelines analysis would have been the same the sentence would have been the same if you did say that she didn't say whether we call this assault and battery or whether we call this attempted murder i would sentence you to the same sentence people do that sometimes judges do that but she didn't do that no your honor although in the statement of reasons she did say that the the fact the circumstances of the case and the history and characteristics of the defendant were the motivating factors behind the sentence those remain unchanged whether we classify the defendant's having shot the sixteen year old as an assault or as a an attempted murder irrespective of that courts of law and as your honor pointed out she also imposed a concurrent sentence as to the other two counts the possession of a firearm by a previously convicted felon and possession of a firearm she has the same sentence there so even were charged one to drop away altogether the court could simply assume that she would impose the same sentence on the other two charges although your adversary argues that least on the papers that she obviously or or at least it may well be that she took her conclusions with respect to the first charge which in your hypothetical drops away and that may have an influence on what you post on the second and third yes your honor however in this case in which the facts again would remain unchanged irrespective of the finding of whether or not a violates that the statute it's unlikely that it would drop away  other courts in states versus dilutes the eleventh circuit six forty nine federal pen exceed fifty seven hells that where one charge was not supported the sentence was the same therefore that disregards decision was affirmed similarly the fifth circuit in united states versus brown six fifty six federal reporter second twelve of four declined to consider the sufficiency of evidence on other charges of review with respect that's a lot of analysis that we're dog to do which analysis your  last analysis that we're talking about right now that nothing would have changed your honor i don't understand the standard of review with respect to whether or not the sentence would have changed however under any standard of review in this case in light of the judges having imposed the concurrent sentences and in light of the facts and circumstances remaining unchanged irrespective of  of standard criminal proceedings i'm unaware of the court's jurisprudence on that specifically in the context of violations of supervised release why would it be any different in this case your honor well it could be different in theory because the guidelines for supervised release operate differently and because again here well it wouldn't it would necessarily be different in this case or in other cases in which the error is a technical error and not a error that leads to some sort of difference in the v the ultimate decision making process of the judge as to what sentence is appropriate under the thirty five fifty three factors which were considered on the record in this case would remain unchanged the only thing that would change is the specific checkbox on the statement of reasons for so unlike in cases in which the sentence that's being reflected the supposed supervised release statute specifically describes different considerations in the context of sentencing doesn't point to all thirty five fifty three factors and doesn't point to the same considerations here the judge adequately considered everything and again the the specific problem the specific flaw alleged by the defendant in the sentence or it's chary in that in that hearing was a lack of finding as to specific intent whether or not that finding was made as the judge imposed the sentence that reflect the seriousness of the defendant's conduct either with that finding as part of her decision making process in which case there's adequate funding to support that she can that he committed attempted murder or without that finding in which case but she didn't say that no your honor but either either she did make a finding and there's an adequate basis to support a finding that that he committed the crime of attempted murder or she didn't make the finding in which case the sentence is predicated on a series of facts in which that finding wasn't made so in either scenario the sentence would remain unchanged irrespective of whether the checkbox is unchecked i'm sorry i can't hear  you i still can't hear you mr brooks but paul could you could you just ask mr brooks talked to the security officer please to our courtroom officer perhaps you could have a conversation with mr brooks and we'll give you if you could do this next week sometime submit a letter of on it or further inform us if there is something more that mr hospital you're here for the hospital all right we're mister mr woodworth apparently is stuck in traffic as several of you may have been on your way over here  so when he gets here we'll hear the argument we'll will not let you go without that