opinion in our lane dealing with mandatory minimums and the fact that any element that a judge would normally find that would increase a mandatory minimum must now be submitted to the jury to be found beyond a reasonable doubt is an important starting point for this decision here we're talking about a sentencing guideline determination by a judge that isn't just a slight adjustment to a defendant's potential  talking about the addition of terrorism to the element of a crime that can be completely on terror related and that addition of terrorism rockets a fairly reasonable sent seventy to one hundred months depending on how guidelines are calculated right off the charts to life and while the guidelines as the supreme court has told us are certainly advisory they still pursuing to go all merit significant consideration and as this court has continually held and embraced in there is every time the court releases its docket opinions there are a number of unpublished challenges distances citing themes and saying there is a presumption of rely on reasonable us applied to a sentence within a guideline range now just because in this case the judge within the statutory maximum of section twenty three thirty nine a it still falls within the doll lane framework of the sixth amendment protection because in essence the four a one terrorism enhancement so took the case out of a typical judge discretionary decision that it triggers that sixth amendment protection that mr mohammed was entitled to and even though the court did find within the statutory maximum as the supreme court noted in our lane it's sad indeed if a judge were to sentence such a finding would violate the sixth amendment even if the defendant ultimately received the sentence following within the original sentencing range and i would submit to the court that is what is happening here when guidelines like the terrorism enhancement are applied in sentencing cases where a judge makes the determination on presumably a preponderance of the evidence standard judge allowed to reach outside of a defendant's case look at related defendant sure the facts are the same the defending the same but he's not in the same indictment it is a separate indictment the judge presided over that case saw that case as the court can see from the submissions from the transcript got involved in the case asked question of nearly every witness took a personal interest and in my opinion took an interest in my client and began to point the finger at my client and began to build a case against my client in a situation where i can't challenge those witnesses who are testifying the cooperating witnesses co defendants that the government brought in against this other defendant in an unrelated  case i think you're on the transcripts from the other trial issue that's correct and address and you know it's in a federal statute it's in the guidelines and it's in many many cases saying that no limit should be placed on the district court any information about background character conduct the person convicted in the and are accused of crimes were convicted why doesn't that just wipe out the argument you just made and generally i would agree and for  application of minor guideline enhancements that swing a sentence a very small amount i think it should and i think that is a good standard but i think the sixth amendment trumps the precedent that's out there and the federal enhancement has such a dramatic effect on a potential guideline sentence i think in those cases the it just as in where the courts have the supreme court has now said the ratcheting up of the floor of a sentence also impacts the sixth amendment that that this is a unique case where the sixth amendment and the right to a jury trial the right to know what your your potential sentence is is impacted in these rare cases so i'm not asking the court to step in and say a judge can't make any decisions based on any evidence it sees what i'm asking the court to do is to say when there is a situation where a judge is taking information that defendant does not necessarily have as great of an opportunity to challenge or argue and the result of finding that evidence number ponder and standard this incredible disparity in a potential sentence that in those cases those elements that suggest life sentences for guidelines that that  creates that trips the sixth amendment protection that in those cases there needs to be a different standard and there needs to be an opportunity for a defendant to directly challenge evidence that's going to be used against him  second circuit isn't that about the best explanation of the standard we should use the underlying felony be calculated influence or effect a government isn't about the right standard again i think that because of the terroristic nature here because of just like in a first degree murder case where the punishment is so severe there needs to be a higher a premeditated murder there needs to be that extra burden of specific intent so that as a charge the a court in the four circuit outlines that there was that push that extra knowledge that they knew exactly what they were doing not as in this case that they were going under the idealism of protecting a nationalistic interest of protecting fellow citizens and my question is do you think that the award and we'll call it   as a knowing in terms of model penal code has a knowing standard or knowingly standard do you think that's what they're doing i that's what i believe good and by the time you get to the third opinion and is it you  it is was discouraging when they had such clear language in chanda can lead to one end to that did that nevertheless regardless of where they stand this court this district certainly doesn't have a case describing what that is i think under any kind of ideas of fairness and common law of what requires a heightened mental state certainly this should be one that requires and i mean the original decision making in jan the certainly suggests that they're going down th path that this isn't just a common crime this is a you know certainly the biggest portion of of criminal justice right now how we deal with terrorism and how we deal with terrorism and cross section with the first amendment and i'm certainly not suggesting the first amendment case but it becomes a very intellectual coming together just as premeditation in a first degree murder requires that extra premeditated state and because of that i think specific intent certainly should be applied and that should be the holding and our well do you do you believe i don't like the government's argument but is it your understanding that a century the government's position in this case is that under guideline three a one point  four to terrorism guideline a plea to the substantive offense to which your client pled which is providing material support to terrorists in the novice self is enough to trigger the enhancement that they had all this stuff about what was in the other transcripts and everything else is essentially immaterial i think that the government will argue that just as the probation office essentially put that in the p s r so why is that argument wrong could be if you look at the stance you who ever provide maybe to a conspiracy or something or eighty and i'm betting in that in a not a self not enough to trigger the enhanced but for the very reason why we did not agree to that section of it when we played guilty is that it is in essence a separate element of the crime that under the statute the statute that we specifically pled to you can in theory you could go abroad you could plan a murder you could  take steps towards that murder and it could have nothing to do with terrorism and that's the argument there was a separate element that had to be proven to the court at least under the current framework at least to a preponderance of the evidence standard and that we put into play that challenge to that element and that's why i don't think it's just an automatic go in this case because that was a put in a moment part of a separate separate element to what to the offense it's an yes well but but by pleading guilty don't you admit that element no we did not because we pled guilty to a subset of a crime that doesn't have to include terrorism and we specifically in the plea agreement put that element in issue by not agreeing to whether or not terrorism applied maybe i'm confused you pled to thirty twenty three thirty proven was that in fact there was terrorism going on or terrorism related i guess i read twenty three thirty nine a that it doesn't it by the very fact that you have to make a decision of whether or not an enumerated offense occurred and whether or not terrorism is related it doesn't close out the chance that there is a way that you completed this count without it being a terrorism related and i only have about a minute left may please the court counsel my name's william morris i'm here on behalf of the united states it's not appear in the circuit i'd like to address the defense's arguments that he began with and then return to the three  construction that was discussed a moment ago with respect to elaine this court has been clear in the word the decision that the preponderance of the evidence standard is all that is necessary for the government to establish in the sentencing hearing and for the were the same witnesses who were lined up to testify against the defendant the day before he entered his guilty plea their statements were the same ones provided to defense counsel in discovery in anticipation of the trial as i understand the defense argument it is that if there is a substantial increase in the guideline sentence than the transcript cannot be considered what i would respond with is first there was no objection of the district court to our inclusion of these transcripts and we filed these transcripts at the sentencing hearing for precisely this reason to make sure that everyone was on notice that we intended to use them a second to defense relied on those transcripts there are certainly portions of those transcripts that are favorable to the defendant and his arguments such as calls that these men discussed they made from somalia the defendant in answer in two thousand and eight and then third and perhaps most importantly when the district court made its ruling on the three unhandsome and with the district court stated was that the facts stipulated by the defendant in the plea agreement demonstrate that the defendant's actions were involved or were intended to promote crimes that were calculated to influence or affect the activities of ethiopian government and the transitional federal government of somalia and that comes from a government appendix thirty that's the courts world discussion of its opinion not from the written decision that's in the defense appendix unless there are further questions on that fact the government's position is that district judges should be allowed to as your own or judge benton said a moment ago consider anything that's brought before them so long as there are some relevant hearsay it's if it am a little bit concerned about the notion of of of due process requires some notice as to what is going to be relied upon so that they can in theory everybody or maybe call or recall that witness to the stand did you give notice extensively from the transcripts we had it was only recently when we had the trial was october thirtieth two thousand and twelve the sentences were in may twenty thirteen we started from the transcripts extensively and we provided both counsel so they had their own copy of the transcript as well as the court of course with the transcripts that we had which were draft at that time so we cited extensively from it to specifics they cited extensively from it and i would submit that the district court was entitled to weigh that certainly the defense didn't get a chance to cross examine them but that goes i would submit to the weight of the evidence not a wholesale exclusion of the trial judge's ability to consider it i would also cite to your honor's and we referenced in our brief united states versus rivera rodriguez where the first circuit said the district court is free to consider evidence from a trial proceeding which the defendant was not present where there be anything to prevent a defendant from if if for the fact from another witness that something says something very incriminating at a different trial that you're going to rely upon is there anything that would prevent the defendant from calling that person and asons cross examine them at the sentencing i can't think of one your honor i would think the defense would be entitled to subpoena that party to testify i don't know whether there would be fifth amendment rights that defendant could invoke but here these defendants were cooperating so i imagine that that was a possibility and i would just cite as we did in our briefs that the defense brings to the court's attention studies that are abroad that are discussing the nationalistic motivation of some of these defendants in some ways those are very similar to these those are not witnesses who are being called to testify papers and in articles that are being written and presented to the court for its consideration but that's just my question was low different i don't recall from your brief and i'm looking at it now but correct me that you used they did not object to the sentencing transcripts in the trial court yes your honor and i i was just looking at that this morning where i was waiting for you we do discuss that and it's in the recitation of the proceedings in the first part of the briefing but it is it in your argument portion of your brief words you know i was looking at that this morning i very similar standard it marched through starting to beginning in this is a there are several prongs to this analysis and it certainly isn't the simplest way this could have been accomplished i would submit but the way it stands is the district  begins with whether the offense involved or was intended to promote and here i believe the district court referenced both but primarily focused on the involved problem and for too involved a federal crime of terrorism the court  turns to the definition of federal crime of terrorism your honor was discussing a moment ago whether it automatically triggers it in this case eighteen u s c twenty three thirty nine a is the provision of material support and then to a conspiracy to kill overseas twenty three three nine it doesn't reference terrorism it doesn't appear in the statute other than in the title of the statute and eighteen u s c nine fifty six also does not include the word terrorism that is a conspiracy to kill overseas with the defendants were charged or what the defendants including the defendant on appeal here were charged with was providing material support to that conspiracy to kill overseas so the government's position is that when you do the analysis of the federal crime of terrorism you first determine what is actually the second step is it the requisite offense and here it is twenty three thirty nine is listed as one of the federal crimes of terrorism that's the easy step the harder step is and what the defendant grapples with and other courts of appeals have discussed is this motivation versus intent prong and that's on whether the offense was calculated to influence or affect the conduct of the government so we would submit that the united states would submit that there is that second step in the  simply being convicted of a twenty three thirty nine and it is not in the analysis that the court must go one step further and determine whether it was calculated to influence where fecht the conduct of government well done the does the smaller government i would say not necessarily that specific but you're are you going to go about if if this person was acting on a belief that he was avenging someone's husband or wife infidelity that would not if that was what the defendants intent was that was the intent of the different not his motive but his intent then i would submit your honor that it would be outside of the three day if this defendant had been hired to kill someone and thought that the person they were killing was the wife or the husband of a spouse and that was the understanding then that person's the outcome of their offense would not be in effect on the government you agree that the standard here is a knowing standard  the model penal code and i i mean i don't disagree with that your honor i'm not as versed in the model penal codes to know that fact i'm happy to submit some supplemental briefing on that and if you could it would  help i know what you say about twenty three thirty nine a and you're right but i noticed the sentencing commission calls a statute providing material support to terrorists and you notice that correct your honor ok so how much more do you have to do you say the a one case and case i'm saying that correctly and there it says that you focus on the intended outcome what was the activity calculated to accomplish not what was the defendant's motivation behind it and even the one case reference specific intent i don't think that that's the crux of the issue whether it's pacific intent or not i think where the defense and the government part ways is on this motivational discussion a law on jail and i would submit even  end have moved away from any discussion of motive and the reason is as the one court stated motive is concerned with the rationale for an actor's particular conduct it would be very difficult inquiry for these district judges to try to understand the defendant's motive whether defendant's motive was noble or not noble that's not the turnover they do that kind of thing all the time capsule i v that this is in too tough a standard i think the what the guidelines contemplate is not motive they contemplate on the effect of the offense in the one case that you're on a reference to i think gives two examples of why that's the appropriate analysis the assassin who's motivated simply by money but knows that he's going to kill the head of a government that person clearly is subject to three a even if his particular motive is simply greed they also discussed whether the was done to impress a terrorist organisation quickly there was one case i wanted to bring to your honor's attention on this and when we addressed the model penal code in the supplemental briefing we can reference this as well but a recent case out of the sixth circuit discussing the atte noble but there is you also know that there may be it may have the effect of undermining the government to you you're you know you want to rescue somebody from captivity or you want to i don't know i have to think jews during the holocaust to prevent their they're going to also wish but you also know that you're undermining the german government at the same time where the or that person being of guilty of of terrorism under this statu and subject to the enhanced when i think the and we actually litigated something similar to this not not that fact pattern but specifically whether someone who was taking up arms against the government could be charged with some sort of lawful combatant whether they were doing something that was lawful as an act of war we had motions in limine on this before the trial and judge davis excluded that and said it was a reference it wasn't relevant more specifically to your question i think the the issue that is being addressed in these facts are people getting together in the united states and deciding to take matters in their own hands and going overseas to kill this sort of conduct being off limits and being criminalized by the three day goes back to the neutrality act in the days of george washington when they wanted to keep america from inciting our allies to retaliate against us because small bands of men were going off to fight the french or the english so i think under your fact pattern if the german government of men here were conspiring to to take up arms against the german government during world war two i think that  conceivably they could be subjected to this i think it's an awful fact pattern i don't think the united states would prosecute that i don't i can't speak to that but under that fact pattern i think that taking up arms in secret and going overseas to take up arms against a foreign government could bring you within the purview of the statute even if the motive was entirely noble and and even something that we would commend someone for doing correct your honor and the nobility i think is in some ways in the eye of the beholder and so many of these defendants that we encounter see their conduct is entirely noble under their their value set in fact this recent case the right case that i cited to your honor's discusses that that someone is motive was in their belief a law benign to assist oppressed muslims is still subject to this enhanced meant and that's from the right decision the g o c decision talks about that the one decision also says the motive is is not the relevant in couple of things i want to address quickly before i get to the obvious of what's the meat of this argument today there are some circumstances where we could not call the people who testified against our clients in the other trial this is the circumstance no criminal defense attorney in their right mind would allow a cooperating defendant to be subpoenaed and testify  prior to their own sentencing it's not inconceivable and certainly there are fifth amendment protections that would permit that person not to testify and so with all due respect of the government i think that for sure what happened here i must also thank the government for making a better argument about twenty three thirty nine a than i could but the government's argument is correct and what this court is grap is the very issue of the nobility of somebody's quest for lack of a better word and because that nobility or because whether or not their motivations to go do something may have been and good that is the exact reason why we need a heightened standard when determining whether or not a terrorism enhancement applies and that's why we need  heightened set of proof in order to determine whether or not what someone has done constitutes an act of terrorism at one time is something that is as the court pointed out we all would agree is an extremely would have been an extremely noble act may not have been seen the same in pre world war two times when the country was isolationist state and so to a least require before the heavy hand of the life sentences is handed down that the government prove to a higher standard of proof beyond a reasonable doubt standard and to present evidence that a defendant has the opportunity to fully examined put to the test yes we used the transcripts as well yes we knew we were on notice as attorneys for mr mohammed about this trial we attended the trial of course it's in inside of our case and how we can argue to the court about a sentence but just because you see something just because it's out there doesn't mean you get an opportunity as an outsider to truly test the mettle of it it's one thing to quote three in the questioning personally focused on our client to simply ignore it who had not have done any good and i think it's the reason why when we go to sentence go to pass judgment on people accused of these most serious crimes we can simply do it at a lower standard and that a greater intent is needed than just knowing that something like well let me ask one question time and you had you made a reference a couple times to judge davis being so involved in i think you if you haven't explicitly said that you've implied overinvolved and became personally involved in this case doesn't that then raise the obligation to file a motion to recuse i mean are we going to be back here in a twenty two fifty five saying that that either you are in a fact that they that the that there was some constitutional firmly in judge davis even sitting on this case i think there's some possibility of that yes it is a game day judgment that we made and not filing a motion recusal motion that has you know is rarely granted and saving that relationship that you might have with the judge for the sentencing of your client thank you thank you very much case has been well presented by both of you we will take it under advisement and render a decision in due course and we thank you both for  being here today and making that presentation