reversal when a sentence is premised on either legal factual errors in this case the district court made both legal and factual errors when it applied a two level enhanced or more than minimal planning to mr coombs is aggravated assault conviction this is the case where a woman mr combs assaulted a woman in a public restroom in yellowstone park the legal air that we are contending the district court made was incorrect interpretation and application of the more than minimal planning enhanced  which according to the guidelines requires a couple of things more than is typical to commit the offense and it's simple form it exists if there were significant affirmative steps taken to complicated it was only detected and therefore were contending that there was no more than minimal planning involved the guidelines speak in terms of and you can correct me i won't take the time to really pull it up here but it talks about more complex than in its simplest form right that's that's the predicate for the enhancement that's correct ok well most of the cases at least if not all of the cases if you  occur in the context of white collar crime and in those cases which is where those cases generate that enhanced one is generally used one can accept that as being the given but i mean and in those cases you're going to have to be more complex because in its simplest form this fraud appearance is going to be somewhat complex so why do why does that really help you because in its simplest form i can come up and knock somebody in their head at that that you   yes you are but the distinction is and i grieve the white collar crime cases do necessarily involve more complicated activity are to lead it was one where they said it wasn't it was easily detected this is a drug addict but i did find i in preparing for this oral argument i actually did find the th circuit case where  defendant who planned his attack in advance he got his girlfriend to drive him to a location and he told her and let me take the wheel for a while he pulled out a knife he drove her to a secluded area take off all her clothes and put her in the when you drove i mean it was quite a bit of of advance preparation so then ultimately drive her to a wooded secluded area and assault her and you infer from that what more than minimal planning well that's a that's a necessary and sufficient problem sure that was sufficient for more than minimal planning it doesn't say that was necessary for more than minimal plan was pre planned well in advance to take this woman to a to a secluded area and insulter i also found again not in my brief i'm sorry in my preparation for oral the th circuit where they reversed the conviction where more than minimal planning enhanced mint had been applying to an aggravated assault conviction in invent situation  these are inmates in a county jail and a prisoner is brought into their cell area that they've all known for a long time they chatted up one of the ultimate defendants goes in make some phone calls and learns that the the new inmate is about to testify perhaps you know this from your memo ok yeah it was obstruction of justice and i think retaliation were the charges but anyway for that one of the defendants went and made a phone call and learned that this new guy is going to be testifying in a federal drug case against one of their friends and so then they call this guy over and beat him up and they're charged with obstruction of justice in retaliation and the district court applied the more than minimal planning enhanced and and the th circuit vacated remained and send you know there was no elaborate s here this was not this was not a significant planning no elaborate scheme no sophisticated plan yes he made the phone call and then collective is friends but this is not more than minimal planning it was in my interpretation an example of minimal planning which is what we're contending here that mr can engage in minimal planning well maybe counsel you could tell me just connect the facts why is this insufficient in this case maybe instead of comparing it to other cases or just help me understand why you think the facts in this case r paragraph the revised p s r paragraph twenty six dollars the defendant was in a women's restroom and he covered the lower part of his face with toilet paper in an effort to conceal his identity so why isn't it more in the minimal planning it's minimal planning so he was in a bathroom stall and someone comes in and shuts the door and so perhaps in the minute before the assault took place that he thought i guess to devise this sort of ill conceived ill conceived attempt to conceal his identity he didn't conceal didn't have the schemas which had he had a scheme or had he had some other way to conceal his identity i could see how that would be how that could constitute more than minimal playing in prison prisons are filled with stupid criminals i mean that just as he fails of doing what he was trying to do doesn't mean he didn't do it right no i don't know why ok so if he had kept but kept the toilet paper on tight we doubt to that's a  distinction with a difference i think in this situation in these facts yes that's an important distinction it wasn't that he concealed his identity he didn't conceal what you said it was doped up he put on toilet paper he was trying to do that right perhaps but he didn't and so is the fact that he didn't succeed relevant the fact the reason why that fact is relevant or important is because he didn't take significant affirmative steps to conceal his identity he sort of hurriedly and interrupt only attempted to but didn't because he took no be to suggest the finding that he did this hurriedly well let's assume that's an imprint so it's a factual inference maybe he didn't do it heard lee just group it up and if each screwed it up then we're in the same place right there is no  that would be viewed for clearer we didn't turn the hurriedly is not an inference the court has made that's correct that's right ok now on the point about the fact i take it the part of this is being framed  spontaneous act well how do we know it spontaneous he says he's in the bathroom and he could have been waiting in line and wait there's no there's nothing in the record to suggest that that's not what he was doing is there no but there's nothing to suggest there's no no no one who said yeah my song go in there fifteen minutes earlier there's nothing to support and in fact the p s r didn't even say that it just send he was in the women's bathroom it didn't say he was in there waiting that's come later with you know subsequent iterations of what happened by the government but but the p s r sim quite simply said he's in the women's bathroom ok well there is ambiguity as to whether he had been there in in there a long time or not in their long time in the court finds it sufficient facts to find that he was in there long enough to plan then under the standard what does one do with i mean under the def what if i'm not making myself clear under the clearly erroneous standard what does one do with that i mean if the court finds that he's in there a long enough and there's nothing in the record that would say he was actually did there was any i'm not saying was the defend burden i'm just saying there was no record evidence to suggest him but he went in there that he went in there two seconds before it happened you're correct your honor but the point is under this under even under the deferential you know clear error standard it is certainly minimal planning is that the question here is is it more than minimal planning and i would just say under this tom pia case and certainly under the other cases that are cited in my brief where there were aggravated assault cases on the wind river reservation it was certainly more planning than what happened here yes was there was there a time period when he was hit in that bathroom he was obviously in the bathroom before this woman arrived how long we don't know was he waiting we don't know was he using the toilet we don't know is it a reasonable or that perhaps a minute expired before he went in and salted or yeah that's a reasonable inference but but this does that make it more than minimal planning or just minimal while i look forward to reading toppin understanding that but let me let me ask you this if i  make what difference does it make whether it was you in this situation whether it was a women's breast room or a men's restroom there was some discussion i think that was one of your factual errors that that the court made some some statement to the fact that  the restrooms were different when in fact they weren't different what difference does it make because because this far as the as far as the record shows there's no basis really think there was a so and i'm asking was it that there was a sexual dimension to this i mean he beat her up but i mean there's no evidence that he tried to do anything sexual to or run that's correct ok i've got nine seconds do you want to go well no you do not either way  or not if i was saying you could ever bottle thirty seconds if you want to if you want to go on now i just really going to answer your question but what was the relevance of that he was in the women's brower i do it please the relevance is that if you look at it's it's cited in my brief or were detailed in the brief for the district court sense and he was in the women's bathroom or he should have noticed the accommodations so the inference is he went in there and knew it was the women's bathroom there's really again no evidence in the red that the bathrooms are the same so he wouldn't have gone in and said oh no you arnold's in here i must be in the women's bathroom now they're the reason it's important is because the implication from the district court is he that he went into the bathroom to assault a woman and had a plan to do it and that's why it's significant thank counsel my name is christine martin's and i represent the united states we're asking this court to affirm the district court finding both the sentence was procedurally and substantively reasonable this court's review is for so i'm going to start off by talking about these extra cases the th circuit case and the th circuit case i think it's probably a little dangerous to address cases that are outside of the briefing but just based off of what we've discussed here i think that th circuit case hits the nail on the head in terms of sufficient and necessary that problem certainly such a calculated attack would give you sufficient basis to find more than planning but that doesn't answer the question for us what is necessary to find more than minimal planning so i think we can set that aside and then the th circuit case where we're describing this as an obstruction case i would point the court to application no two for the more than minimal planning unhandsome which has found it to a two dollars b one so application no two tells us that the more than minimal planning handsome and also exists it's significant affirmative steps were taken  you've already read top i have not well then we're both fine wine and i don't know whether this is necessarily a good exercise engage in but to the extent that we're going to do it my impression from what defense counsel said was it wasn't based upon that overlap provision it was based on actually finding that it was not meant to write was not more than minimal planning but i think that the point here is that our application note expressly excludes circumstance circumstances that sound very similar to that so i don't think that's helpful here and i would agree with your honor but that application note i think is very helpful in figuring out exactly what it was the district court was doing when it was viewing the facts presented to at so that application note tells us that we need more than what is necessary for the commission of the offense and its simplest form and it goes on to give examples of taking actions to affirmatively conceal the offen including things like donning a ski mask were during a victim but telling us also that simply waiting until no one is around to commit an offense is not enough on its own so we don't have to exclude those facts are not going to find it just basically or simply because it's a defendant has waited to commit an offense so looking at the facts here at the district court specifically listed and you'll find this in the appendix at page ninety six dollars ninety seven cents listed the facts that it relied on it relied on the fact that he was in the stall in the women's restroom that he waited until the victim mc was in the stall had closed the door that he wrapped his head with toilet paper and he barged through the door and i think these facts support the finding of the district court well is of material that he that whether in this case but i wouldn't concede that the district court was wrong either at page three hundred and fourteen in the record you'll find the diagram submitted with coombs is sentencing memorandum that actually show that the layout of these two bathrooms wasn't fact different bathroom which we could infer that's what the district court made meant by accommodation in pretty natural evidence yeah but i don't think that the record is crystal clear that the district court actually got it wrong and so when we're talking about the factual findings that's where we come back to the standard or if you are looking for clear error in those factual findings and there is something in the record that supports the idea that these restrooms were different and if the district court simply chose the wrong word to describe it or a word that would leave this court with some doubt about exactly what it was getting at i don't think that's quite enough to support clear error you're saying there was a room and they said that there was record evidence about this different configuration that you're talking all right well what from the point what from that would have led the courts infer that he knew it was a women's restroom as opposed to a men's i mean that the fact that they have different configuration would not speak to that gender issue i don't think it would but certainly the court is allowed to take notice of the fact that these bathrooms are generally clearly labeled and the senate as respected or reflected excuse me in the p s r even had some post secondary education so that he certainly could read write understand the english language all those sorts of things to be able to realize that he was in the wrong bathroom but what i'm getting at is why is it does it really matter i mean because this old has not been as far as i could tell from the record nobody's labeling it a sexual assault so i mean does it really matter whether he knew he was in a women's restroom good or just wanted to assault somebody that's absolutely true your honor i don't think that it makes or breaks this case whether he knew he was in the wrong bathroom or not so when we look at his actions here we have coombs who is in a bathroom stall closed into the bathrooms stall he is armed he has bear spray he has a two inch pocket knife and he has those large rings on his fingers someone else even if he doesn't know it's a woman coming into that after someone else comes into a bathroom and goes into their own stall and closes the door his response to that is to wrap his face in toilet paper in a makeshift disguise leave his bathroom stall  the door of the other bathroom stall to gain access to this person enter that stall spray that person with bear spray close the stall door behind him beat that person and prevent her from escaping him as he beats her even going so far as to hold her still to be beaten now when we look at that chain of events the question really is the necessary versus sufficient facts to find that more than minimal planning aspect and i think that's where we can come back to that application note number two to this guideline here when we wait to commit this offense until no one else is around that's not enough by itself but we can certainly think about it and added into calculus and then the guideline gives us a specific example about donning the ski mask here defendant has wrapped his face in toilet paper specifically to conceal his identity and there was no other logical in e that the district court had to draw from that action this court pretty recently in dickerson said that where the facts in a case support two views of the evidence the district court is dot going to use or excuse me clearly error by drawing one of those permissible inferences so certainly the district court was not required to direct draw any other inference and it was a logical inference that that step was affirmatively taken to conceal his identity furthermore district courts are not required to put every single reason that they find or a sentence on the record and so i would submit to the court that positing there are other reasons clearly available from the facts your honor that he closed that bathroom door behind him i think that that could have played into the calculus here about whether he was affirmatively attempting to conceal this is solved in the fact that was occurring and you know as the comment explains we can also look at the fact that he waited until no one was around well that's not sufficient oh well we don't have to we don't even know that do we i mean that there's a there's a question mark as to whether he waited i mean as i said that may go in your favor of this judgment in light of clearly running a standard we there's no evidence in the record as to how long he was in there as there are there's no at evidence in the record as to the amount of time he was in there but what it is in the record is that where there was actually no one else all right well that's different than him waiting told there was no one around that implies somebody comes in and he waits they go out then he does the assault we don't have that right we don't have ok but based on what we do have i think that it's at least fair to to allow the district court to think about whether or not there was anybody else around when that assault actually occurred so all of those facts support the district court's finding that  more than will planning was here in this offense and that's really the heart of the procedural question before this court under call is whether or not the district court correctly calculated the guideline range based on that more than minimal planning unhandsome and so finding that there is sufficient evidence in the record to support more than minimal planning and handsome and then we would move on to the substantive question and it's worth noting that if the sentencing range appropriately calculated then when we get to step two look at the substance of the sentence we have a presumption of reasonableness that applies to that appropriately calculated guideline sentence he didn't even get the top of the guideline range right that's my mil he had a middle guideline range your honor the guideline based on his criminal history category and the enhancements that applied was a seventy to eighty seven month guideline range below the government requested the eighty seven month sentence and he only got seventy eight and i think that it's also worth noting here that in both the defense's sentencing memorandum and before the district court the defense characterized what they were asking for as an extreme variance they went so far as to ask for a probationary sentence based on these facts and that's actually completely contrary to the guidelines not only an enormous downward departure but his sentence is in zone d of that chart in the back of the book where we presume we're not going to allow a probationary sentence so that question on appeal the request on appeal has changed from a probationary sentence to a sentence of fifty one  again that gets us down outside of the guideline range and we would not only have to and decrease for those two levels for the minimal planning enhanced but we also have to get a downward you i mean what you were talking i was working the god in the minds as if it were a departure but doesn't work well and i think the only reason that i point those things out to the court is there's discussion in the other side's brief about his criminal history being overstated and when we look at the question on under the substantive question where we would be looking at a variance rather than a departure we aren't challenge here on appeal finding any actual mistake as to that calculation essential is that we're asking for a day or the defendant is asking for sort of a discount on his criminal history in order to make that more reasonable on his variance and and substantive argument but again i would say that the district court was well founded in looking at this particular offender's history finding that his history included multiple violent assaults that included weapons and imposing the sentence that it did well st for specific in general deterren recess thank you