good morning your honour's and may it please the court my name is linda herder i'm with the federal decanters office in the eastern district of california i represent and anthony dear and i'd also like to try to reserve three minutes for his bottle i'd like to begin by focusing on the official victim enhanced meant that was one of the issues i raised on appeal the application of this and handsome and under three a one point two b of the guidelines raised mr beers offen level six levels nearly doubling his sentence from twenty one months to forty one months our position with regard to this enhanced ment is not as the government suggested in their papers that the president cannot ever be a absent there three a one point two doesn't define what the word victim is it does suggest an application note five that the president or vice president could be a victim of this offense but it doesn't define the word victim defined in one b one point one where many of the other terms are defined in the grouping chapter there is a brief comment about what a victim is only to exclude those people who are merely indirectly or  in the victim's rights act in eighteen u s c thirty seven seventy one that section just specifically defined scrying victim as a person directly approximately hard as a result of an offense and this definition i would suggest is also consistent with what the common understanding of the word victim would be somebody who suffers a harm as a result of a defendant's action and this particular case there is absolutely no support anywhere in the record that the victim was the president or that the president or vice president or anybody actually stuff or any harm not only was the president not made aware of th threats ever but there are the government never suggested and it's papers or anywhere else that there was any change in his schedule or any effect whatsoever on the president or the office of the president so in this particular case you yes and you look at if third page fourteen seventy six believe that the president could be and a victim because of his status as a governmental official but but i don't believe that it binds the court to find that in this particular case before you that the president was a victim because it was not harmed in any way but in the original disruption well i'm not sure that we can say that there was a nationwide search and it appears that a lot of resources expended looking for this man and i don't believe it specifically states in there whether or not this affected the president's schedule certainly if the president couldn't go to portland because at some point it was evident that mr hines was in the portland area i don't know if that was the facts of the hind case or not but in this case i can say that the facts are definitely there was no effect upon the president or the office of the president nor was he aware in any way and i think under definition of the word i suspect that you read to you that maybe your honor but i still in this case there is absolutely no indication  unless there are any other questions about the victim and hanssen i'd like to move on to statute is violated if it's proven that the defendant intentionally made a statement which a reasonable person would infer that every step beyond would interpret as a serious expression of the intent to do harm and that's a long way of saying that the defendant's intent to either do harm or and any intent he may or may not have to actually threaten is not relevant and that's the test that comes from this court's decision in one nine hundred sixty nine from the concurrence in the rogers decision by the supreme court in the rogers decision it's the concurrence that focuses on the legislative history of the statute eight seventy one also on the first amendment concerns and on other u s supreme court cases and rejects the objective intent test the exact test that this circuit has set forth in roy we just in a rece change your standard and reach seventy one so i'm not sure that this panel could do anything that's that's correct that the castle case i think interpreted as a true threat as one that included a specific intent on behalf of the speaker in another context and left for another day the context of eight seventy one it's difficult to reconcile the right interpretation of a threat and the castle interpretation of the threat but i do recognize that i concurrence and rogers and this court's other decisions in cases like castle that interpret true threats as requiring some sort of intent on behalf of the speaker but here but the threats themselves seem to be very clear but what is missing in this case and what is missing when you have a general intent crime is that there's no opportunity really for the defendant to further explain and ten and perhaps perhaps more importantly the defense is precluded from putting any information about diminished capacity which in a specific intent crime might be relevant to the jury the jurors would be entitled to hear that sort of evidence to determine whether or not the defendant could formulate the intent required you're down to about thirty seconds that you want to say yes please thank you thank you for your letter from the government a the district court did exactly as it was supposed to do it followed longstanding one circuit precedent when it instructed the jury using the model jury instructions and what use the language directly taken from  roy has been affirmed throughout now it also applied longstanding precedent when it applied to sections to any one point six and three a one point two when it calculated the guidelines months downward which departure for diminished capacity and overstated criminal history and it even gave it to two level downward adjustment for acceptance of responsibility despite the fact that the defendant went to trial and he used rather than a subjective intent specifically because the defendant's mental health and did not come into play in this case about whether or not you could really formulate intent and i think the jury had a right to that