good morning honors may please the court my name is allegro glass hauser and i'm representing mr roman who now mr now returned to the united states to be with his family he didn't present fake documents he didn't try to sneak into the country he didn't lie federal agents and he didn't commit new crimes while he was here he just went to the airport hoping that he could return to his home where he had lived legally for twenty years to return to his family to his partner and the three children in these circumstances the forty six month sentence was an reasonable mr who now had a compelling life story but the court gave no indication that it considered he was raised in extreme poverty one of eleven siblings who had no water or electricity but he rose out of that he graduated from high school went to some college got a job provided for his family his motive in illegally returning to the country was simply to be with his family he apologized to the court and said one day he hoped he could return legally this was not a front this was clearly trouble  prime robbery slash burglary conviction the only thing the trial judge said that related to mr was asking a question about the prior conviction but the prior condition conviction putting aside for a moment the correct applicability of the enhancement was already very strongly taken into account in the guideline range that was considered here was a sixteen point enhanced moment so the trial judge's comment a question about that enhancement isn't enough to satisfy his obligations to consider the thirty five fifty three a factors so this is this is a case where reviewing  honor with respect to these arguments yes right right and i take it your concern is that approach a principal concern is that there was not an adequate statement of reason is that correct right there was an adequate explanation of why the sentence was chosen and in this group more didn't expressly adopt the p s r and if it had with that it made a difference i do believe that would make a difference here your honor because the defense counsel made many non frivolous arguments for a lower sentence many which i've already articulated and also specifically with this guideline seventy percent of people on this issue putting aside the issue as to whether the sixteen point has been applies technically on this issue the judge can consider the specific facts of the crime right that's correct rather than specific facts of the crime or this is a home the seventy percent of the of the people who got the enhancement got below guidelines sentences you know there are aggravated felony is an aggravated felonies and some of them are very aggravated honor he was punished for that crime understand that but but you're not suggesting that that's not something that the judge could take into account the dude can of course take into account the nature of of the crime but this the sentencing commission did see fit to actually change this guideline shortly after mr now was sentenced finding that it was overly severe and resulted in disproportionate punishment and if you were sentenced today or recent interviews remanded for every sentence his guideline would be lower it would be thirty one to thirty seven months and so this isn't a situation where that situation if the judge it would have a rather different situation if the judge just said well i think it's forty six months just because and gave an above god mind  e yes your honor be different if it was above guidelines but i think it's important in looking at the sentencing the judge in addressing the enhancement which actually did have specific things the judge needed to find the judge didn't find those things it didn't rely on looking at the elements of the statute and just focused on the facts just didn't say and i'm just considering that in the thirty five fifty three a factors judge actually said nothing about the thirty five fifty three a factors except the magic words honor i can't say what the judge did while remaining quiet but the judge didn't even mention the facts of the crime itself and it's it's worth mentioning yes your honor and the twenty eight day letter doesn't didn't change my opinion of that i had already argued in my mean brief that robbery under the subdivision that the government now believes is the correct one was not a crime of violence the reason i focused on the other portion of my argument is because mr had no sentence ends in december of twenty eighteen and because the guidelines have changed and this issue of whether his per convictions our crime of violence would no longer play a role at all at a recent in seeing for mr he now to get a practical benefit of a resentencing the court could decide on on these other issues without having to wait for jones wait for battles or wait for any other agreement the eye of the sentencing commission or is it that my understanding is it has happened very shortly afterwards it's not mentioned in the record but i think it's important in considering what might otherwise be looked at as a just regular within pending in judges home up their sentences waiting for it to come into play in appropriate cases and i'm wondering if that was the situation and if defense counsel did not make an application to defer the sentencing until that new guideline went into effect might there be an ineffective assistance of counsel claim lurking in the background here i don't believe so your hon the official report of the sentencing commission had not been released on this i'm not sure what was far as far as you are aware i don't think that it would be ineffective assistance for not to make an application for the sentencing because we hear through the grapevine that the sentencing commission is thinking about something i'm just concerned about the timing of the commission announcing this amendment and the sentence and time i had written the reply which is why it's now clear that if you were recent and see would get the benefit of this this lower guideline that would still take into account this this conviction that he had if the sentencing judge and applied the crime of violence in handsome and the range would have been correct me if i'm wrong forty one to fifty i think that taking taking into account that conviction again suggested as the only factor in consider mentioned in the sentencing shouldn't be enough to satisfy the court obligation to explain the reasons for the sentence and take the individual's background and the circumstances of the offense to account let's say that ultimately this court adopts the reasoning of the since documents on appeal that subsection is also not a crime of violence because it has this strict liability aspect for the aggravating factor so the robbery statute is the same with the burglary statute in new york it prohibits the commission of the fence by you or another participant in the crime it's either or and if there are two people the underbidding factor is a strict liability crime you don't have to have the intent for the aggravating factor the use of a dangerous instrument to be convicted under new york law and that's different than federal law would be for eating in a crime where you would need to also have the intent or the the aggravating how would you how would you respond to the argument that the career offenders guideline that's at issue in in jones is different in significant ways from the illegal guidelines so that in jones the definition of a crime of violence included the the before school was directly in the definition itself and the enumerated offenses if it wasn't also involving violent force but here in comparison by contrast the only definition provided for a crime of violence is that why is it sufficient that robbery is among those numerated offenses defined as crimes of violence and i think that maybe the government's strongest argument  which i will let them make but as the jones court decided the case and i don't know what they'll do in the future they disregarded the pain and disregarded the commentary in the enumerated offenses they didn't the panel didn't discuss the presence of the numerated offenses and when the list is the same for the illegal re entry commentary as it is for the clear offender guidelines it wouldn't make sense to find that there was a crime of violence based on that list in one but not in the other and the court does take consideration of enhancements that have such a severe impact on a sentence you determine the strictly and when considering that i just think that it would not make sense to to look at them differently but i understand that something that depends really on well yes i mean the jones panel has precedence in those cases the problem and you're telling us that given the jones panel is waiting for better and that may not come down until june and then after that's decided the drones panel will presumably get additional briefing on the your guys out of prison anyway exactly and that really is why i had shifted my focus for this argument to what i think are very significant reasons to remain and anyway void this very complicated and likely very lengthy wait to determine the technical legal issues involved in the guidelines and that and what is the enhanced meant that now applies under the current is based on the length of the sentence for the underlying crime exactly and your man would qualify for a twelve and has leave based on the sentence is that right or is that wrong i believe it's ten your honor but the new range would be thirty to thirty seven ok so it is it's significantly lower but not you know not as low as it would be without the other enhancement and the enhanced i'm just just i'm just trying to understand the interrelation of because what happened in the amendments is not just a simple reduction it's a substitution of a different standard exactly so under the new standard you're telling us that your client comes out with thirty to thirty sixty to say thirty to thirty seven thirty thirty seven under the old guidelines if the sixteen point enhanced does not apply what is he dropped back to would be eighteen to twenty four he would actually be better off under the old guidelines if you are correct on your procedural deemed the appropriate ones and the court can avoid maybe ever decide already served thirty seven months nobody believes he's already said serve the twenty four and certainly the eighteen which is what he would be eligible for under the i know but if we go to the man on a theory that has something to do with the new guidelines that wouldn't necessarily that would lead to his immediate release because if he were sentenced to something within those guidelines and again he might not be because the who knows what the judge will think is reasonable if we were somehow to send it back for him to rethink the whole thing but under the guidelines he would still have some more time to serve to me where under the old guidelines he could be worse off or he could be better off depending on a rather arcane set of rules that we're all used to categorical approach whereas under the new guidelines you'd be somewhere in the middle  regardless but i take it you and your client have considered all of this and that's why you're pursuing this appeal in the way that you're pursuing yes right i mean what i want to make it clear that i'm not saying that the other argument is not val complicated decision as to how you would handle you the rematch either event on remand right i think the point is overall the sentencing judge here didn't do enough to either explain his reasons for why he applied t sixteen point enhanced been or explain his reasons otherwise for the sentence and it's just it's not enough to take it didn't take enough into account mister individual background and circumstances at the sentencing hearing you your honor the government intends they did satisfy his burden and or explain why you are this is a guideline sentence there was no need to is actually the low end of the guideline to lows into the guide guidelines there it just so we can clear one bit of debris does that mean that you really can't rely on the burglary theory here because the judge didn't say anything about burglary and the pre sentence report didn't say anything about about the violent nature of the underlying crime judge lynch mentioned was a very violent robbery and burglary where a knife was put to the other victims throat so i believe you know based on the fact that th brief these documents leave no doubt the defendant committed a crime of violence or they show that he was convicted in a new york state robbery in the first degree not submitted to the district court they were not your honor and and part of the reason why they were honor i don't believe that's necessary because i believe it would be harmless error and that we can just based on what's in the record now and nothing would change you know the defender was convicted of robbery in the first degree subparagraph three that is the use or threatened use of a deadly instrument we talked about jones your first second encounter with respect to the argument that there might be a strict liability if there's a second person involved i gather your argument would be the indictment makes it clear your argument that you say that as i understand it that the the defendant was convicted of first degree robbery with with a subsection three aggregate gating factor of the use or threatened immediate use of a dangerous weapon under new york or ma though under as i understand it mental culpability i'm quoting from people who are says parker mental culpability with respect to need not be proven as to any of the four aggregating elements of one sixty point one five and first degree robbery with a subsection three constitute  the threatened use of a weapon which is capable of causing serious physical injury i'm not sure that how that occurs with any other mental state the only way that would occur as a matter is if there were an accomplice in other words if if you are the getaway driver or something like that you are responsible for the crime that the principal commits even if you the accomplice lack knowledge that a deadly or dangerous weapon whatever the language was used or threatened and now it can we tell from this indictment it's only a one person and i and and there's no reference to any aiding and abetting of course under federal laws my understanding that you don't need to reference section to the aiding and abetting statute in order for that to be effectively alleged against somebody the government could rely a trial on the theory that the defendant was aiding and abetting rather than a princip even section two isn't mentioned do we know anything about new york law on that issue that you know your honor so for all i mean you know i mean this is this is the kind of thing that gives the categorical approach a bad name i suppose because as far as we know no one thinks there was a second person in this he what there is no reference to accomplices in the indictment there's no reference to the complicity statute in the indictment and yet what we are arguing about is whether hypothetically this could be under this charge he might have been guilty of a crime that a involves too little force to be generic robbery and be he could have somehow been an accomplice who was strictly liable for a deadly weapon threat by somebody else but isn't that where we are under the law that we're looking at this hypothetically what is the the  least couple person who could have been convicted under this indictment i don't mean on the face of the been there is no whatsoever to actually i do see him reference both in count one ending count three the defendant or another participant in the crime used to threaten the immediate use i hadn't noticed that before but and then also same thing on the third count the burglary count if it's the same thing or another participant you know if somebody discovered at the last minute that now wasn't the guy with a knife to the throat but was a getaway driver he could have been convicted under this indictment and  necessarily reasonable conclusion is warranted in the overwhelming majority of cases if you look at the defendant's criminal history which was examined by the district warden pretty expansive a levels his two thousand and ten robbery  convictions not to belabor the point stem from a very violent crime he also has a two thousand and nine one thousand nine hundred seventy salt conviction for causing physical injury with a deadly weapon is a violent man obviously his previous sends didn't looking at it as to burglary so i under new york law again quoting from a case of people versus santiago the only intent required for conviction a first degree burglary the intent to unlawfully enter a dwelling for the purpose of committing a crime doesn't that suggest perhaps that first degree burglary that's an element not a means to the s b proven as an element would be subsection three here which is the use of dangerous use of a of a and used with venues of a dangerous instrument so you have to prove that the in terms of intent written if if jones is good law then you lose or do you have stolen other argument in your i don't just good lawyer jones only looks at sub paragraph to which is possessing of the weapon here subparagraph three is the actual pointed out in the indictment it says or another participant in participant in the crime use the weapon is not boilerplate that's what the statute requires so this under the categorical approach whether or not he's charged with a  not relevant because the statute states that it's he or another participant in the crime friends or uses the dangerous instrument and that's why this particular subdivision of robbery doesn't isn't a crime of violence doesn't doesn't meet that standard the government also said that the judge had examined mr record and done an expansive review that the record doesn't support that there was no examination of mr hu now not that the court was required to do an extensive examination it wasn't but it was is required to do some examination and he was a family man there was no dispute he was returning to the united states to be with his family that all he did was try to do that that he didn't have any aggravating conduct with respect to the crime that he was being sentenced to here he went to the airport and said just trying to come into final three cases as i said were on submission the clerk what you're