assaulting two county correctional officers had the sharper in county jail while they were detained there they were there personal into a contract between the united states marshal service and the county fourteen for establishing federal jurisdiction this is an issue of statutory construction and so of course we look to the language of the statute itself the common meaning of the term assisting goes beyond simply providing services pursuant to a contract it implies or incorporates the idea of a supervisory relationship between the principal and the one providing the services in other words the one providing the services is an assistant subject to the direction and the supervision of the person contracting the services and there in fact some supervision there would visit to make sure that the prison facility was up to snuff and that sort of thing the inter governmental service agreement which  contract provided certain minimum standards that had to be met in order to qualify for the marshals didn't spec sions pursuant to that there were annual inspections to be sure that the sherborne county jail was living up to its obligations under the agreement but as far as the marshal service having any supervisory authority over the functioning of the jail or the supervision of with respect to federal detainees the marshal service apart from the standards required in the service agreement for example there are standards about medical care and that they are deemed to be medium security detainees if for example the marshals service want someone in site with geisha and or want someone in the general population or in a particular unit those are suggestions that can be made but the sherborne county jail makes its own decisions with respect to that the marshal service has no authority other than of course if it's not satisfied it can terminate the contract but it has no supervisory authority or responsibility or oversight over the functioning of the jail or of it staff they had no involvement in the hiring and the training in the promotion in the evaluation of the staff the correctional officers in this case in fact there's no reason to believe that the marshal service even knew that the indian affairs officer was in fact a federal employee the court did not look at the assisting pran the issue was is that person by virtue of his relationship with the a actually a federal employee in the court determine contract where there was a contract involved but by virtue of the contract actually created an employee employer employee relationship such that the court determined that that officer at issue there was actually a federal employees at which point there's no question that the statute applies it did not get into the issue of how we determine whether a local official or private individual who is providing a service to the government does a vendor well how whether what is required for that person to be assisting the federal officer your honor our position is also rest by the structure of the statute itself which applies to federal for coverage for anyone providing services to the government or anyone performing an official function but rather it requires that the assistance be to officer referring back to the federal employee and official duties here there is no federal employee who is being assisted there may be that he was that the jail was providing services that otherwise the marshal service as an agency would have been required to provide itself but this contemplates a  supervisory relationship between some particularly federal employee and the person who is assisting that employee as an assistant to the person in the supervisory position there is nothing like that relationship here in addition the legislative history and position on that particular day united states marshal happened to be there was attacked and they came to his aid and were also attacked i think that i would have to think about that but i think that in that situation i think that in that situation contract or not that would be an example of someone who is assisting very directly a federal employee namely the person being attacked and therefore the statute would apply although it's positive that the marshal was just physically there and was not the person attacked but he was there doing supervisory duties of the contract day day to i don't think that the mere presence of the marshal if his presence has no bearing on the  a different unit or or whatever but is not involved in the assault in any way i don't think that is sufficient to trigger jurisdiction and in fact in the reid case which we've cited the fifth circuit case and there is seems to be a division or a split of authority within the fifth circuit itself but in the reid case i would say that the facts were somewhat similar to that there was an f b i agent and a member of the joint state federal robbery task force in hot pursuit of this bank proper during which the assault occurred on a local officer and the fifth circuit said that that that mere fact that the federal officers were part of the chase was not sufficient to establish your honor is consistent with the cases that that the government sites that go the other way which focus on the the performing of a federal function is the language that is used by many of those cases my problem with those cases is that's not the language of the statute and those cases are not wedded to the language of the statute which it seems to me is the beginning and end of the analysis here in the reid case in the sap case they parsed the language of the statute and both came to the conclusion that assisting requires more than simply a delegation of authority but rather an actual supervisory relationship which doesn't a federal function come from some discussion in the supreme court's fiala case and should we give that some respect the yeah obviously we should always give respect to what the supreme court has to say but that came up in a very different context which was the issue of whether a defendant to be guilty of a conspiracy the object of which is to assault a federal officer whether there is a requirement that the defendant know that the person was a federal officer and the court said that because the statute protects federal functions as well as federal officers that specific intent requirement does not exist i would say that that is a very different context from what is required to show that someone is  assisting which where there is specific language in the statute which can be interpreted and it would not be appropriate in the supreme court certainly did not suggest that we should inject into the statute in the language provide serve providing a federal function which congress could have made as the basis of the statute but did not your honor unless there are other questions over deserve the remainder  than yours tom hold horses for the united states i represented the government below in this case as the defense has correctly pointed out the really the only issue in this case is what does the word assist mean in the statute the the defense has this court has argued to this court that assist means directly assisting and yet the statute does not say directly assisting it says assisting if congress had wanted the statute to be narrowly construed as the defense has you is arguing then congress could have easily modified that term and in fact when the when congress amended the statute in one thousand nine hundred six it made it even broader because the statute used to say employed to assess it now says assess also at the time of that amendment in  congress with well aware of all of these cases cited in the government's brief congress did nothing to distinguish those cases and as as the court is well aware under one construct of statutory interpretation  congress is aware of the law and lets it stand then congress intended to let it stand i know you cite the case are there any published opinions holding that an assault on a county official falls under eleven fourteen and i believe that our brief cites every case on this issue so do any of those apply it to a county official yes you are with the the murphy all fours with our facts here before circuit i believe you were acting pursuant to a contradicts your own and that's the case were as is the court may recall that the fourth circuit said it didn't even matter if there is a contract as long as the  correction officials are performing the functions of the marshal service that that is enough and that the court specifically stated which is referenced in our brief that  see if i can find that well anyway i cannot find the citation at this point but it's in the brief but it's significant here that the contract provides for someone else county officials to provide core function of the united states marshal service the marshal service has five core functions we don't need to go into all of them but one of them is clearly prisoner custody and safekeeping here the marshal service has in a way contrary it has contracted out that service throughout the country the sherman county jail is one of those facilities in which it's contracted with these employees then who were assaulted or performing duties commensurate with that of the united states marshal not only that but the persons who assaulted them or federal detainees the very people who are the purpose of the contract in the first place this is not a case where the government has charged state an assault committed by simply state prisoners sitting in a state prison and it's charged only federal detainees sitting in a  a federal marshal who is designated as the federal case season in the investigation his name was deputy wooten and he testified for the government at the motions hearing the primary investigation though was conce y we must concede was done by a sheriff at the sherman county jail so you your are we feel that these cases that have been decided in the in the week feel of those five circuits that have decided these this issue on all fours with the government's argument today there isn't one case there isn't one reported case that has decided otherwise in a contract kind of purely state officer pursued and a federal bank robber confronted the bank robber and then was shot at then and only then did a f b i agent and another state officer show up on the scene so it cannot be said in that case no one could say that that the state officer was assisting an f b i agent because he wasn't and that's what the fifth circuit said but what's significant is that before and after that decision the fifth circuit addressed cases virtually identical to here at least the same issue and those cases are cited in the government's brief there's shock as well trained decided in two thousand and three or if the federal prisoner assaulted a correctional officer employed by the corrections corporation of america on a contract to assist b o p s officers then came the read decision but then came the gardener can see decision in two thousand and seven or an appeal employee of a private protective service agent under contract to guard a federal prison in a hospital setting was deemed to be  protected under the statute so it's clear that even the defense's own case it's only really published a case that it cites is clearly distinguishable and even the fifth circuit distinction before and after the sap case is a case that has never been cited by anyone for the proposition advanced by the defense and in fact in sap ten years after the decision the ninth circuit reaffirmed fiol is teaching that section one one one four is designed to protect not only federal officers but federal programs the type of program that we have here and that's united states versus sirrah cited in our br that is far more remote from our case of course the matthews court addressed that is it that well i believe the government's position would be that if if the department of agriculture culture hires employees to perform functions that would be identical to federal agriculture officers and one of those persons is then assaulted and in the course of performing that duty that he would snooze the only difference is that a department of agriculture employee would be handing out school lunches as a normal part of their duties and i think it's just that the federal government is a large institution but it does not have that these people to perform all of its functions so it needs services of other agencies and sometimes state agencies yeah i mean i guess the question here is not as if this would go on prosecuted there are certainly state offenses available you know and i guess the question is is this properly brought federally you are the  the government has not brought charges against this is not of her garden variety assault case this is a car assault committed by three federal the teen use against corrections officers who w government has not gone too far here there are instances which we could talk about where maybe the government could go too far but here when congress and the courts drafting a very broad statute which says assisting assisting and then the court or the supreme court states that that assistance includes both officers and federal functions of those officers this that's precisely the facts of this case and that's what five circuits have held the the governor or the defense in its opening statement of the issue says that there is a split in the circuits but i mean there is not going to do all five of the cases you talk about involve a contract where in a situation where there is not a a federal employee physically present not all five circuits have to address the precise issue here that is a prisoner in a in a setting prisoner setting what do you do but i do many involve a contract where there is no federal official present us all all of those cases cited by the government involve cases where federal agents were not present and were not under direct super did not directly supervise and state officials are acting pursuant to a contract either state officials or private companies assisting the federal hotel that has been seized by the u s marshals the marshals and then contracted out a company to fix up that hotel or that apartment house and that handyman was then assaulted while the court in that case held that that did fall under the purview of the statute that's the case that question how far can this go and and i think that that case is on the outer limit because it's a private institution isn't really a core function of the u s marshal service the court held there was i think it was a federal function here we have a just spot on core function of the marshals we have federal detainees who are had been who have been charged and and the contract between the united states marshals and the sure and county jail was designed to govern these federal detainees and those three factors i think make this just right in the heartland of what that statute was trying to do yet as to the sentencing issue i just want like to point out of course is the court is aware that the playing error is the standard here and in a thirty page sentencing transcript judge frank a very experienced district judge had hundreds of sentencings in the past that fence points to a few lines of that transcript to somehow suggest that judge frank didn't know we had this discretion to consider the defendant's upbringing it sure sounded like that the record in this is is it's an odd thing i think that you know you can interpret i many ways the way the government interprets it is that the judge was referring to something he had said sort of a paragraph before in the transcript but it's clear from the whole record that the judge did consider three five five three eight factors there were it was extensively brief team never suggested that he was not going to consider the three three five three eight factors and we believe that even if there is some procedural error there that it certainly does not plane error given that that robinson received a sentence less than those two  received it within guideline range sentence and in fact a sentence that in effect was far below his line sentence here because half of it ran concurrently trying so when he says and the law does not require or permit me in my judgment to look at that what do you think that that is all we believe that he was referring as the state in our brief t shouldn't be looking at the other defendants backgrounds that he had considered because he talked about seeing a lot of different people in his courtroom and a lot of different people with different brack backgrounds but i think you're saying that he did not look to those cases he's looking to this case so we interpret it why wouldn't it be why wouldn't it be him looking at the statement just prior to the use of that word where he's talking about i've made mistakes  many have made mistakes and the sin is before the one sided than yours and i made my share of mistakes and use we're at a point now with a series of events like this were simply justice does not require the law does not require or permit me in my judgment to look at that why wouldn't that be that could be at your honor it's unclear i think we can agree on that but what's not unclear is that judge the government emphasizes that this was a core federal function because these were federal detainees but i want to emphasize that there is nothing about the government's argument that would require that the perpetrators of the assault be in federal custody you know i thought about that too because i was going to ask a question about that but the more i thought about it would they really be if they're supervising state detainees would they really be assisting the marshals in the marshal's duties well the the record shows in this particular case that the gamma unit where the assault occurred had a mixed population of state and federal detainees the correctional officers are assisting the marshals a supervising the federal detainees who are there i would say that it's irrelevant who perpetrates the assault county or  federal because at that moment the correctional officers are assisting the marshal service and i think that week by supervising the state detainees no because there are federal detainees  are being supervised at that same time being stationed in the gamma unit with federal detainees is a service to the marshal service and so it doesn't matter who assaults them but i would say that we go much much further than that not i think that you're completely correct in your department of agriculture analogy and similarly i think that the various vendors who serve the sherborne county jail if anything your honor as i've argued in the pretty if i think the handyman case is an easier case it's less of a stretch because that hotel was being managed directly by the marshal service it's as if the handyman was working in a bureau of prisons facility here we have a county facility county officers there could have been a county defendant who could could be prosecuted