birthday was june twenty eighth two thousand and seven that was approximately a year and a half after the rico conspiracy began and the vast majority of the criminal conduct that was alleged in the indictment and most of the overt acts that were listed on the jury she took place prior to his eighteenth birthday the only act that took place after his eighteenth birthday of which in that indictment was  attempted murder of eric clay and of the five overt acts that were listed on the jury sheet that was the only one of which he was acquitted so the only facts the only overt acts of which he was convicted all took place prior to his eighteenth birthday the law requires that the jury be instructed that it to be making determination as to whether the defendant ratified his conduct in the conspiracy after his eighteenth birthday  the jury so be instructed to me you're arguing against should find the law so requires well i've already i would rely on the on the on the machon case your honor that is a sixth circuit case that we've that we've incorporated i's that we are not governed by six circuit d which we are bound by makes really quite clear that if there is evidence of ratification after eighty that that's you know now maybe wong is bound by that decision are we not well i believe that this court actually can make adjustments to present to decisions like juan and i think that the court should take into consideration the particulars of this case sheet and the only thing that the defendant did after his eighteenth birthday was the one that had the not guilty box say the only thing the defendant did and it was evidence in the record on that he took various actions after he turned eighteen cluing fleeing on foot when he was stopped in car as can't also flee again i guess where there were drugs in the car and that the court or in fact finder could have found that those acts reflected ratification isn't that correct that is correct your honor that is correct but we still have a case this the very type of case we should look at plain error most fiercely because it i don't mean that you were of a lawyer then intended to send it but this is exactly the kind of situation where by not receiving it by not objecting early you create something in which whatever air or very may have been was not was not cured that is if somebody had said something it wouldn't and the question of whether it should victims i can't that may very well be judge caliber a sleep at the same time though you have a man with a fifty year sentence most of the conduct that he committed he committed when he was sixteen and may please the court i'm tina schneider i'm here for russell hampton did you have the microphone delegates you speak ok thank you great i'd like to start with our sentencing issue originally there was a mistake in applying the grouping rules which meant that mr hampton was placed at a total offense level of forty one when he should have been at a level forty no one noticed no one objected the court very dead all agree right now that that was an error great and so the issue really the court the government agrees there was an error and that it was a clear error the disagreement between us is about whether that affected mr hinton substantial rights in the cited in reply brief which is understandable because bennett came down in between but i don't see what the issue is unless for fact that they went down for some other reason namely the change of  guideline takes away your right to appeal the initial one and frankly i don't see why that would be i think that's completely irrelevant i agree you're under the government does make that argument that this court cannot address a challenge to a sentence that no longer exists that is that original sentence of three hundred months and the conspiracy counts because it was then reduced to two hundred ninety two months and thirty five eighty two motion but that does not make sense he didn't waive his right to challenge the sentencing procedure original  that there is a statute which combination in combination with the policy statement i'm not sure we talk i'm talking of the same thing as you are but it is my impression if you're talking about the reduction of sentence by virtue of the change in the guidelines the statute as i understand it when taken in combination with the policy statement for business is a reduction below the lowest level permitted by the guideline and that's a statutory command and not a policy statement command and the judge did go down to ninety two and he had no authority to go any lower that's our point exactly your honor in the thirty five eighty two proceeding and that you are say but i might have gotten a lower sentence had he been right in view nischelle sentencing and this has nothing to do with the change in i took advantage of that to go down to do ninety two but that doesn't waive my saying that the original sentence was wrong you would say that the initial error infected the whole sentencing proceedings including the second go round right  conspiracy is a crime of violence within nine twenty four c the government in its brief contends that rico conspiracy falls within the force clause that is that they contend that it's a felony that has as an element the use attempted use or threatened use of physical force but as the judge instructed the jury in this case and as the government requested that the judge instruct the jury in this case could conspiracy has three elements none of which involve force and agreement to which the defendant knowingly entered that someone would commit at least two racketeering  it's notable for what the jury doesn't have to find the jury doesn't have to find that the conspirators actually engaged in the racketeering activities or that the objective or purpose of the conspiracy was achieved and i haven't we said the people and then if you put that together with the case i can never pronounces it isn't oh ok then don't you have even under a modified categorical which is essentially what we're doing enough relied upon and it's free there is case law from this court that says a conspiracy to do a violent crime falls within the residual was  it cannot as a panel of this court overrule that prior line of cases starting with but the point here is that the forced clause and nine twenty four c refers to force used in the commission of the offense and the commission of the offense is that agreement and the courts prior rulings that say oh a conspiracy to commit a violent act is itself a violin that rests on the proposition that when people talk about doing this violent crime it's more likely that that violent crime will happen in the future and based on legal pal and then language in johnson more recently there's a temporal limitation in the definition of nine twenty four see that i don't think this court honored in its prior rulings on this issue thank you very much  know his touch on it with great concern i believe first and foremost that the federal juvenile delinquency act is jurisdictional hence anything that should have charged anything that the jury found anything that took place in this trial should have been preceded by a certification by the government you have already heard mr press tell you that i'm not  true and when you say anything that's based on it because of what the ages of the defendants yes i'm of the x alleged in the indictment yes think that because the vast majority not just the vast majority but every act that went to jury as committed after the defendants turned eighteen michael h or is it inconsistent with the statute judge to make the factual determination on the record as a whole about a matter such as jurisdiction based on what acts were committed when as  proven by a preponderance during the trial except he didn't well he didn't submit it to the jury right the judge made a finding the only finding that the judge made was in that role twenty nine i'm sorry you're  question is whether there are was a certification which it was not correct or if acts were committed th finds afterwards that certain things were there i've never seen and never jurisdictional thing govan way in this case the jury never had a chance to i know we didn't but your argument seems to be you see what my problem is i do judge and i recognize that but that should have been something that the court should have sorted out for the jury it didn't and i recognize that some of the fault lay with trial attorneys because we did not think of it until later and we could have cleared it up but we didn't and if the question is jurisdictional it doesn't matter when we thought of it the way that you proceed ideally is that the case tried in federal court the court says to itself i don't know whether i have jurisdiction of this case but the only way i can find out is from the jury verdict at the end of the trial so the trial goes through and then the judge instructs the jury no we don't find post eighteen ratification judge says well i guess i didn't have jurisdiction take this case somewhere else and retry it and where is the way your system works well where would the f j d a requirement of certification fit in if the government an alternative route right but if they lie on if we rely on what you say is the jury's obligation to make the finding we're not using the certification  reusing the post eighteen ratification road and the judge discovers after a five week trial that the case should have been tried elsewhere that doesn't sound to me like an ideally designed system then either way my clients  our clients lose what would you have the court do and what would you have had us do in order to avail our clients of the opportunity to be a judge is juveniles or a judge as adults either way they're entitled to a very fact of the layout the judge will about gave you suggest it is something that a court like most jurisdictions will questions should focus on and say is we're enough to go forward even but we don't have red acacia but i'm simply looking for a way to our clients to have as i said it's very easy from what judge caliber is the sad what you say your question is what can our clients have done well they have made a motion early in the proceeding at the start of the judge we make a motion to dismiss this case because the federal court does not have jurisdiction of it there's been no certification and there were no pos ratification act then the court will ask the government what do you have to add to his or jurisdiction the government will say and maybe it will get certification at that point or let's say we can show post dating certification judge maybe has a hearing on post eighteen certification and the issue is brought up before the judge at the start rather than after the end of a five week trial in the ideal world you are correct judge absolutely corr had that happen at the beginning we wouldn't be here at least on this issue but it didn't happen and here we are and i'm trying to figure out and present to the court what did you have a problem but i know but my clients i'm trying to figure out if there are others if you ations like it suppose it's a diversity case then at the end of the case the jury finds somehow that someone is not a the court this is just a statute that says the federal court is not to try that the different type of jurisdictional issue and that's the kind of case the one the judge calibrates you now raises where where  result can be justified that after the proceeding is all over i can know of a case that even went up to the supreme court and when i went up to the supreme court for the first time absence of jurisdiction absence of diversity was raised and supr throughout the trial but that's not that's not comparable they had a case where eighteen years later that does not have to hear from the government doesn't thank you thank you very much you have one minute for court monica richards for the government i almost don't want to say a thing about point one on the one twenty first see issue i think the court is on to it that the suggestion that was made by your honor that the proper procedure werther a concern on the defendant's part would have been to make a motion and it could have been dealt with pretrial or any time during trial frankly the nine twenty four c i'm sorry the juvenile i'm sorry on the juvenile issue the first issue the  and the government did do that with regard to one defendant in particular it wasn't like this was something the government wasn't aware of that was neither defendant in the case who was under age seventeen at the time that we initiated a prosecution and that person we did follow the certification procedures and that person was certified as a sealed proceeding and then brought into the case the case was brought in that's so it wasn't that it wasn't out there is a possibility that that could happen that the certification purcel that and people rightly that troubles me for the government was aware of it then wouldn't it was saved us all an awful lot of trouble for government in views on an issue which uses after all jurisdictions statutory jurisdiction will not constitutional had said to the court oh by the way there is risk broadly i mean just in terms of government behavior i'm not saying you just oppose a reversal but in terms of government behavior if a government nuvi issue was very near and didn't bother to the court did have jurisdiction because there was no issue here there was plenty of conduct that occurred after age eighteen it's a conspiracy to somebody have to make a finding on that i mean it's a factual issue doesn't it did you would say did you ask the question of ratification is a factual issue right but it wasn't raised during the trial we knew going into it that there was evidence of conduct post eighteen activity you see that's exactly what problems me if it's a factual issue and it wasn't really now we can look and see whether were enough facts of there may well be but it would certainly have been helpful to us if it was a factual issue a court was made aware of it clearly record was not made aware of it i disagreed and what then what troubles me is it you're telling me that the government was sufficiently aware of the question not  we're not saying certification was required i'm just asking why but the government knowing of the issue and knowing that there was a factual question which goes to jurisdiction i didn't do what the government should do because my government is not his judgment about his said one hundred times working for real apartment prosecutions but is working from a department of justice do what justice would require now it may well be  invest case it is perfectly ok because the facts were there but i'm still troubled by what the government didn't bother doing that's asking the government in every case where there was conduct before age eighteen no i wrongly didn't raise it didn't bother i'm not saying he decides his case i'm just saying i'm probably ok i appreciate your honor's concern and i'll certainly raise it with my office let me ask you for the question the issue was raised after after the jury had been discharged and this was this was a case of these is the sum of the defendants where the vast majority of the conduct was preety and there was little bit of contra posted eighteen and i i agree with the with the government's statement that that there was sufficient evidence from which a fact finder could find post eighteen ratification at any time that it was raised but i'm just puzzled why didn't the government ask the judge to make that finding when the issue was raised when the defendant said hey you know the court had no jurisdiction to try us it wasn't  there with regard to the question of ratification but i'm not sure that what was found here and does any of that i still think on the plane or review implication of whether or not there was prejudice or effect to substantially right that the evidence was more than sufficient with regard disbelieved i mean as a witness some witness testified to the post eighteen conduct which you properly argue is sufficient to establish ratification about what a fine evidence we're disbelieve what  could if i could contrast this just with a simple drug conspiracy here we had a verdict sheet that indicated that had separate acts that had substantive acts that also had to be found so that here but in a case with just a simple drug conspiracy where the conspiracy began before eighteen and continued with conduct post eighteen that issue those who serve you terminations would never acquired a special verdict sheet in a jury finding unless the ratification issue had been raised on a stalking about i understand i'm talking about a judge to call this behavior post eighteen if it isn't a fact what is it about then that this is just a threshold determination this is an effect of proof beyond reasonable doubt i guess maybe maybe that's why i'm sort of hesitating is make  it didn't need to be decided by a jury and shouldn't be decided by a jury but that doesn't make it not a fact that needs to be determined by somebody if it's right if it's a fact at the if the if your honor is discussing a fact with regard to the specific requirements the f d a that's a f j d excuse me that it's a threshold determination and not something that requires a fact proven but you know but proof beyond a reasonable doubt then one is that we don't treat agreement it's not an element not an element by any means thank you thank you i'm sorry thank you that's i'm not saying it's an element i'm well aware it's not an element it has to do just with the jurisdiction of the court it has to do with which court should be handling this case it doesn't have to do with guilt or innocence but that doesn't deny that it's still a fact subject to dispute whether it's true or not true i agree but that's why you hear what the judge did i was still trying to get to your honor's question with regard to the ratification process that specifically here type of question and whether there in fact was ratification is a different question from whether there was sufficient evidence to permit a fact finder to find ratification is not right i mean this is like like the third day of law school we're talking about there a fact finding bible is record that there was post a he read it again stressing the procedural posture this case that was not put to the judge no no there was no finding there could have been a finding this issue that's presented to the court right now is whether or not the jury instruction was correct or incorrect at my opponents or even arguing that the asking questions so i have in from the us a copy of government rule twenty nine  brief that highlighted for the district court the post majority conduct response to the rule twenty nine motion of the defense is that right wrecked so but in response to that the district court did what the establishes defendant was under the age eighteen when the offense was committed we discussed conspiracy and then the order is on page eight to thirty seven the written orders on page eight to thirty seven i'm sorry pitch to thirty nine oh i'm sorry it just refers to the transcript of the proceedings on july twenty fifth and during in the transcript of the proceedings that appears between eight to zero seven and two thirty four  and i'm looking to see whether the court made any mention of that aspect of the rule twenty nine discussion and at two thirty to two thirty two the court as i said keeps is dealing with in the procedure of context with which it was presented that even after a timely objection if the record establishes that found it was under eighteen i'd agree with that but this is not the case here is very come back to the fact is very anything in the court's actions not that there could be but is were anything in what record did that would allow us to say the court must have considered that to be valid  and looking at a two thirty where the court says i mean that as we come back to the fact once the court has determined that it has subject matter jurisdiction because the government has satisfied the threshold showing required by wong you're you're saying to us that the defendants have not made an argument to us that there was no basis the defendants point is this should have been argued to the jury they're not making the argument a twenty a letter or some reply about it i can understand why in your initial brief when bennett had just come down a few weeks before you might have missed it but after it was a know you were going to be heard this point your honor but i think that was can content with the context concept that the court was aware of it since it was really raised in my opponent's brief with regard to the clear air i don't disagree that this was a case where level forty was in then years later because of a change in the guidelines hampton comes in and says i have a right to reduce my sentence to free ninety two and then says in bible way i should have appeal original so why does he lose his right to say my initial sentence was wrong just because the guidelines have come in and he's taken advantage of something else i don't think he did and i think i addressed that but i think that my point was that with that intervening in this i call that an anomalous procedural pastor here that your honor just describes that the best he can do is the tuning only it can do better because knowing what the guidelines are now with three ninety two at the bottom with the gun i'm sorry i should have been with maybe we'll maybe it won't but why does he lose his chance to ask the district court to do what happened in bennett if i go again your honor that's all i can say is what i said in my brief if that's the court's decision as to vacate both decisions i'm not going to file any sort of motion for reconsideration or rehearing i was but if i was troubled by what you said at that point that is that at that point you might make an argument that you didn't rig you would get that he should get it vantage whereafter if that is relevant of the changes in guidelines which sounds pretty drastic to me i certainly didn't intend it that way and i spoke to my opponent prefer a game and i certainly didn't intend it that way but i'm all that i was saying was based on the ineligibility further for the for the thirty five eighty to see he would have been eligible for that relief at that point thank  understand it with regard to the sort of conspiracy on top of conspiracy discussion but courts i think my initial thought on that was that after reading the reply brief especially it was that courts of long recognize conspiracies to commit substantive offen offenses pose as great or greater dangers to society that the collective agreement to do something so even though this was a conspiracy to commit murder and it was a rico conspiracy looking to the object of the conspiracy we can't deny that here we were talking about murder we were talking about the ultimate use of force or threat of use of force case regardless of which prong of one twenty four c three stephanie we're looking at for crime of violence so here there's nothing that calls into question that use of force prong the district court twenty four wasn't convicted with regard to the he was convicted on the count four as it went to the jury so that was the rico conspiracy oh i see what you mean i'm sorry but the jury right the findings of proven related to yes both the murders the attempted murders and then the drugs yes i'm sorry rico conspiracy you'd still look to the object and that's different than looking at substantive acts that when we talk about the rico offenses we look at the subset of acts and this jury was specifically instructed with regard to count four the one twenty four c count was specifically instructed that in order to convict on that count it had to find specific crimes of violence and those crimes of violence included the murder and the attempted murders and they did find so proven with regard to three of four with regard to two the defendants and all four with regard to the others i'm sorry all four with regard to two defendants so this is different this isn't the case to make the argument that there's some problem with the specific finding the object of the offense because here the district court clearly instructed the jury before it could convict and had to find a crime these crimes of violence is proven you think the residual clauses that's really not in play for the very good thank you very much