thank you your honor may please the court tracy dry spell assistant federal public defender on behalf of appellate reporter perez in discussing the principle of party presentation the supreme court observed in greenlaw that counsel almost always know a great deal more about their cases than we do and this must be particularly true for counsel for the united states the richest most powerful and best represented litigant to come before us in this case that same richest most powerful and best represented  litigant has conceded not only that the district court applied and erroneous legal standard but importantly as the party with the burden of proof that it failed to meet that burden on a contested sentencing issue in a criminal case the  not identified a single principle of law that the government overlooked or misinterpreted nor offered any reason to disregard that reason to exercise of prosecutorial discretion of the three dozen cases cited in the amicus brief applying section two b three point the commentary to that guideline made clear that it was to be applied when the defendant took actions that would instill in a reasonable person in the victim's situation a greater fear the necessary to accomplish the robbery that made clear of course that the guideline was not to be applied in every robbery case which by definition requires a threat of intimidation or force or threat of force or violence or intimidation the guideline was amended in response to a circuit conflict over its interpretation to remove the word express and made clear that the threat could be implied but the commentary to amendment five hundred and fifty two dollars to the sentencing guidelines retains the requirement that the threat of death and handsome is to be applied where the defendant places the victim and more fear than necessary to accomplish the robbery i think it's important to note that the guideline we're talking about today only applies to robbery even though the federal statute under which mr perez was convicted encompasses extortion extortion has a separate guideline and so you can't be sentenced under the skyline without having made some fear of threat or force or committed an act of intimidation which is defined by definition a threat  bodily harm the commentary to new guidelines makes clear that the fear must be a fear of death it's sight six examples and the only example that does not have an express reference to a weapon or  murder includes do what i say or else and has the slashing motion across the throat the guidelines absolutely do not apply where the defendant makes only a threat of harm and there should be no doubt that that is the basis on which the enhancement was applied in this case now amicus and i have a different interpretation of the record but under either interpretation this case must be sent back and i'd like to start with what i think happened and what i what i believe happened if the court looks at page nine of the sentencing transcript which is document thirty eight dollars towards the bottom of the page the court says we're going to talk about the undisputed facts in paragraph three to thirteen of the p s i i the court makes these finding the facts and then we'll get to the arguments and he likes to use the word spin he says you attorneys can give me your spin after we go through the facts and then judge king spends two or three pages going through the facts and he's he's saying there's an overall threatening tone to it but it's sort of conversational and he's kind of referencing defense counsel's argument that there's a blandness to it and at some point the prosecutor tries to interject and the judge says he interrupts her and he says you've had your chance the probation officer recommended this the government the defendant has objected and now i'm going to listen to the lawyers and make my finding and then again on page thirteen he makes his finding he says i think it should be apply he only says that there would have been a fear of harm or danger and then he says so now so this is where i think we should come out as a result but let me make the nexus ery findings regarding this matter so he's clearly moved away from the probation officers recommendation and he's making his own findings and what he finds is that the tellers could have been in fear could have been and were in fear of danger should they not comply he never found that the tellers were in a threat of death and even if the court thinks that that he did adopt the probation officers recommendation which i don't think he did and i would also just emphasize that the addendum was never mentioned during the sentencing hearing that can't be because what the probation officer said is this threat would have instilled in the victims a fear of harm and therefore it's a fear of death i mean the probation officer it's quoted at page six and fourteen of the brief absolutely just made a false equivalency between a fear of harm and a fear of death which we know the sentencing commission has repeatedly rejected the proper guidelines in this case should have been the one point i overlooked the guidelines do know how to talk about fear of harm and fear of death they talk about harm and bodily injury and other guidelines this requires a fear of death if my client had been sentenced to the low end of the guidelines without the improper to level enhancement he would have been sentenced to thirty seven months by my calculation with credit for good time he would have been released last tuesday so in conclusion there's no case supporting a firm and that cited and amaka says very thorough brief they've offered no reason why the court should reject the government's principled exercise of prosecutorial discretion and would ask that the case be reversed or the sentence be reversed good morning and may please the court the whole marry any appearing on behalf of the united states joining me is this is the united states attorney jessica open off to handle this matter before the district court your honour's the government agrees with mr pereira's district court erred in concluding that his offense conduct satisfy the requirements of the threat of death enhancement and i spent you know contrary to what amicus contends in her brief burn not shining in to help mr prize we're speaking up to serve the people of the united states we have a sworn duty to ensure that justice is done for every defendant and as a laws and policies of congress which certainly include the powers it's vested in sentencing commission are followed the government does not believe that the extension of the threat of just enhancement to the particular facts of this particular case was comply with the intent and direct of the sentencing commission as my colleague noted bank robbery can be considered by intimidation the sentencing guidelines at a two level enhancement to robbery by intimidation defendants who go beyond the mere requirements of robbery but then threaten their threat of death as we've construed that term is inherent in every bank robbery i answered the question of course with respect to the test that we should be applying would you agree with what the rd circuit has said in united states versus  that context can be everything in these cases and court should not necessarily equate all threats of violence with threats of death the reasonable person will view threats as deadly or not depending on the numerable aspects of the situation in which they made to a certain extent and i think what thomas in caps late part of what is in the sentencing guidelines commentary which is that it is an objective test install sorry in a reasonable person but that it also has to look at from the position of the victim of the effects so we do have to look at the overall circumstances of the defendant's conduct for example his gestures what he's wearing i mean so he can't just look at written words no absolutely not and i mean i think that sort of goes to this case where i mean the written word of his own the only thing that mr price threatened is harm i mean look at it in the bigger context of he never states or implies he has a weapon he made no gestures his clothing and his well are you language don't the word harm the machine but his head of a pocket or jewels oh absolutely if there was harm plus we would be in a different case but we haven't the particular facts of this particular case is really just harm period we otherwise have a defend coming in making no gestures sort of his body language and his statements do nothing to indicate he has a weapon and he's wearing a t shirt he doesn't have on a disguise there's no indication his hands are visible and this interaction was a conversational not confrontational if you look at the nd attempted bank robbery when he comes in the bank teller goes to the back room talks to her supervisor asked them to call the police then she comes back out to the counter but she doesn't meet his demands or given his money she keeps chatting with him to st until law enforcement arrives the fact that she is able to get away from him and then comes back right does that suggest anything with respect to whether she was in fear of death i think it can and i think this is sort of where we get into that muddy area with thomas where it's an objective standard but we have to sort of also look at it from the victim's circumstances and i think well it does not to have make or break the day i do think it can inform the decision some wanted to bit anecdotal but it sort of goes to show what all these other factors me you know the fact that we're looking at someone you know sort of from our objective standpoint looking at what he's wearing what he's saying what he's doing where he's holding his hands and then this short of show is that all of those factors were certainly present on this bear and it's creates the inference because we do have sort of a bare record all we know is that there was this note that says do this and you get hurt i have kids to feed thank you and then this is the response that was engendered by this particular subject of parsing in response to that you know if the court has known for their questions and some the government believes that this report both applied the wrong legal standard and had an insufficient factual basis in this particular case to apply the  agreeing to this appointment and thanks to her store sec as well i think you have a very tough case your but we very much appreciate that you're willing to do this i have some questions that concern me and maybe can help me out with them the st one is if this threat qualifies as a threat of death how could somebody pull off a bank robbery and do something less than what mr pres did he did here and not qualify under the threat of death i think there are a lot of examples the defendant could come up and give a note that says give me all the money please do this and i'll just walk away and we can move on with our day  defendant kid threaten a more specific threat of harm that is limited to do this please and i will or or i'll break your legs or i'll break your fingers or i'll beat you silly  the beat you up obviously also depends on condom context i mean why does why does do this and no one will get her why is that any more violent and death you know death fear creating then any of the examples you've just mentioned right i think because get hurt can encompass a lot of things it could encompass you know what i just said which is breaking your fingers punching your silly but it could also encompasses a i don't think it's an reasonable for a teller any person in this to think oh my goodness if i don't do what he's going to if i don't do what he's saying i'm going to get hurt and yeah hurt can be something minor but her could also be done people that get hurt i would you agree that with a rd circuit's standard as it described it that  is that context is everything we have to consider not just the words but also the context absolutely i don't know which is happy me case here's my thought on this it seems kind of strange i've never heard of a bank robbery where in the  robbery the victim teller is told to give five thousand dollars and gives one thousand dollars and then the robber mr per as says wait but i asked for five thousand dollars can't you give me any more and she says ok she gives another one thousand dollars and he says no five thousand dollars can't you give me more and again a one thousand dollars and this goes on five times that doesn't seem consistent with somebody who's acting under a fear of death and then the nd time which we've discussed previously we have a situation where the teller actually leaves the area could decide not to come back if she wanted to has her supervisor call nine hundred and eleven and then returns and stalls again that doesn't seem consistent with somebody who views themselves under a fear of death and while i agree that it's or it's an objective consideration i think that tells us something about the context i wonder if you wanted to address that right i think you addressed actually with the st point i was going to say which is it is an objective standard and it's not that we need to look at the conduct of these tellers here what a reasonable person in this situation fear death and i think they would but moving on to the context that you just described of the st example i think the fact that she kept giving him money implied she had a real fear and i think it's reasonable to assume that fear was death and in the nd situation you're right she went back but when she came back mr perez was agitated and aggressive and demanding that she hurry up i don't think it's unreasonable for a teller in that situation even though she was able to stay and make conversation with him to have a fear of death but what what reasonable teller fearing death would disobey caresses demand for five thousand dollars and instead hand him one thousand dollars installments and engage in an iterative process with him right i don't think the facts of this particular teller i mean i think the fact that she kept giving him money showed that she had some real fear but again i think the the standard is objective and we shouldn't look at the conduct in fact we should look at the conduct of these particular tellers it's objective we should look at whether the reasonable person in this situation would have felt death there's there's one thing that strikes me is this the bank robber wants to get out of there in a hurry around and right and cause some kind of mayhem that's not what they do i agree and i think particularly when he comes in and says do what i say and nobody will get hurt i think a reasonable person would assume oh my goodness if i really don't know how teller are interacting how theory of time i don't think we have that is clear from the record i don't think it was a very very long period of time i think it was a much longer period of time in the nd robbery but again going to your point i feel like hearing this at the st or just reading the demand note that says do what i say and nobody will get hurt i'm thinking the same thing i'm thinking this guy wants to get out of here quickly and so if he's going to hurt me fast he probably has a weapon and i don't think that's an reasonable and fact i think a reasonable person would presume that this guy is threatening to hurt me if i don't do what i say in this one he's he's wearing a t shirt right so there's not a lot of places from the hide in an insured it's not like he's got on a baggy jacket he's got his hand in his pocket nothing like that and don't have that and one case a pair of pants and the other case a pair of shorts even fewer places to hide a weapon so i don't we have to also take that into account i think we do i think that's right we do have to take all the facts and into context but it doesn't mean that he doesn't have like a weapon in the back of his t shirt i mean if again if you're going to reasonable person you're already you know somewhat stressed in the scenario because you're trying to be rob this person just threatened to hurt you if you didn't do what they said i mean i don't think it's unreasonable say maybe he has a weapon that i just can't see maybe doesn't have in his pocket he doesn't have it in his jacket but he could have it behind him but why hasn't the district court's characterization of the interaction between the tellers is as i think  characterize it as sort of conversational and a bland situation why aren't those findings entirely inconsistent with the application of the threat of death and handsome and so i don't think that the district court found i think the district court as my colleague was just explaining was character izing the argument of the defense counselor at the hearing it was saying i think her name is miss cameron i see what you're saying that this was more of a conversational that this is a very bland situation and therefore these people were not in deathly fear and then it went on to again characterize the government and saying well i see that your spin that harm could mean death and therefore these tellers were in deathly fear i think it was a district court was just spitting back to both the government and the defendant their arguments at the sentencing hearing i don't think he necessarily made that finding but even if he did i don't think it precludes a finding here that that reasonable teller would have been in fear for their life but why doesn't the the the statutory language of the of the robbery statute itself that taking by force and violence war by intimidation why doesn't that capture all the characteristics of these particular crimes because in this particular situation do what i say and no one will get hurt means do what i say and someone will get hurt and i think that her could more is necessary i just rest respectfully submit that something more was here and that the district court found that but but if it's the situation that because that guideline covers more than two on  that that it's talking about situations whenever there's a bank robbery there's a threat of death then that would mean that in every single bank robbery case we would have to apply the threat of death and handsome and if the reasoning is that that the mere fact that there is an enhancement doesn't necessarily mean that it doesn't apply to all bank robbery cases because that particular guideline covers more than two on thirteen a bank robberies and i can't really consider that right i mean you don't agree that i'm just trying to gauge what your position is i don't think you're saying that the death and hanson applies to all two on thirteen a bank robbery i'm not i'm not i do agree that there's like like the both the government and the  appellant explained there's something more that has to be there and i think that's something more is here no i don't think the death threat enhancement necessarily applies to all bank robberies so the fact that that guideline covers more than two hundred and three  doesn't really have any bearing on our analysis you would agree with that i think that's right i do think though that in the different context of what's covered under the guideline something in a bank robbery like do this and no one will get hurt could object more happened right i think an objective person i think it's reason a reasonable person would say you know maybe nothing's going to happen here maybe this guy is going to stay calm and everything's going to go smoothly but maybe not and i could fear death i think it's reasonable for a teller to f there my colleagues suggest that the question of application is decided by murphy and i actually agree but prior to murphy murphy was not the st time that this court gave a standard of review the st time and i apologize it's not in my brief  constituted an express death threat and three times the court mentioned the clearer standard and that's what it applied so i think as thomas says we have to look at the contextual factual situation here and the district court is much better suited to do that than the  court were applying a well established wall understood rule and it's not a situation where what the district court is doing here is establishing a general rule it's not as in murphy where the district court said for the st time i have a weapon is sufficient under the guideline to merit a death threat it's just finding that in this particular narrow situation given the factual context here i find that a death threat was made and if your honour's like i could address the court statement at the sentencing hearing but i'm murphy is probably the most cited opinion yes but i don't think murphy is in any conflict with ken souter kens out or says the same thing to novo for not only interpretation but application and murphy there was no reason to look at the the factual things the court the district court there it was and i think the th circuit in the th circuit do a really good distinction and the nd circuit as well as to wonder if you do know when to review for clear air if you're stablish in a general rule like can the statement i have a weapon ever constitute a death threat that's to no avail you're stablish ing a new legal principle but if you're looking at the facts of the case before you which was not the situation in murphy and was not what the what mr murphy appealed if you're looking at the case before you and just the contextual situation the nuanced facts and you find based on those nuanced facts the defendant's conduct as a whole or the demand no constituted a death threat that's clear air and i don't think murphy is inconsistent with that at all so so the magic word is death well that could be or kill i mean i think if you have that that's enough it doesn't quite cut it absolutely not you're on him setting that's absolutely correct that's absolutely correct if if you're going to he's got to climb across the counter and beat her up or something or other i harm could be very long it's got to get out of that bank harm could mean any number of things your honor and i think that my biggest disagreement with the position emma has has taken throughout this said let's go to put the teller and sufficient fear that the teller is going to come back with the money you get with that i don't know that that what his thought was was it within the well if you put if he put i'm going to kill you or wrote it he expected it to convey the same message your honor i think most people know including bank robbers that bank tellers are trained to give over money whenever there's a demand out so i don't think that a bank robber who goes in with this cliche but i think that's the case that a desperate letter doesn't matter well i don't i know that there are certainly very violent bank robberies and this is not one of them i do want to respond to your honor's question about the guideline to be three point one is specific the commission made it clear both with the original guideline and with the amendment that they thought the fear must be greater than necessary to accomplish the robbery and they were very specific as to what that fear is and it is a heightened fear that gets this additional two levels i want to go back to the standard of review this court has been very clear that the under to be three dollars that the application of the guideline to the facts is dunno i disagree with amica says suggestion that it's a clear error when you're looking at the facts of the case as in any case the courts historical findings of fact i haven't read the case you mentioned but that sounds like under the old guideline finding is this an expressed threat would have been a fact you're applying a rule of law to a set of yes so it is to know vo and so we're godless of what inferences i think the court kind of discussed with with amicus some different inferences that might be drawn from the vick the defendant's actions i do believe certainly if the nd bank teller had been in fear of her life she would have wanted to get him out of there and still instead of stalling him till the police arrived or maybe she would have returned to the desk that's what i would have done roselli correct if you're in fear of death why go back correct your honor but but the other way we can resolve this case is by just recognizing that judge  never made a finding that there was a fear of death we cannot ignore his verbal statements which he called a finding for the record that only mentioned harm and danger and so we'd asked the court to court appointed we prefer you having taken the case and we appreciate your habit they could be a make us task will go to the next case martin