united states and it's all before please be seated good morning and welcome to join you were term of the fourth circuit judge screen and i are quite pleased to have judge given the sharing the bench with us this morning will proceed to our first case united states versus car thorn mr robinson may proceed when you're ready thank your honor and may please the court my name is matthew robinson on behalf of the  as a career offender under the federal sentencing guidelines at sentencing well and the basis of the argument is this he was convicted of a state of virginia statute of assault and battery on a police officer sounds like a violent offense but titles don't mean everything in this particular offense the virginia statute reveals that a mere offense of touching can result in this if and this conviction and the reason in this instance that mr karr thorn received a felony conviction was because it involved a police officer we know from the record of sentencing that in this case that the the offense involved mr karr thorne spitting at a police officer when he was running eighteen years old right but we don't get into the actual conduct you agree on that i agree on that i am only pointing out for the record that that was stated no shephard documents were looked at the indictment wasn't looked at plea agreement anything like that was not reviewed to determine this and that's the crux of our argument is that the district court categor even if we were to disagree with the circuit court as to whether that is categorically a crime of violence you're working under a plane your standard here and since you are there's a circuit split where you had the  first going one way on this issue the seventh going the other way and before circuit not having a definitive case involving assault and battery on a police officer that is not a published case how can it be have been playing error for the  had picked the wrong side the circuit split assuming that we would agree with you well i would like to answer that question in two with two answers first we would argue that it isn't plainer we recognize by looking at the record that counsel defense counsel at sentencing did not specifically object to the career offender enhanced meant however the entire so mostly entire sense in or a good portion of it was spent on on with the judge and counsel  discussing this offense and whether or not it is truly a quote unquote crime of violence and in that sense we would argue that plain error is intended to apply in situations where issues really pretty prominent display on the record i have to agree with you your honor that so therefore what's your second reason the second reason thank you the second reason is that it is a plain there they does playing the the law was clear at the time ok that when engaging in analysis is whether or not a crime qualifies as either a violent felony or controlled substance offense or whatever the predicate offense may be that the court is supposed to engage in a first a categorical determination as to whether or not the offense qualifies and here categorically although there's nothing specifically about the virginia statute out of this circuit there is explicitly law that states for a crime to be a crime of violence it has to engage more than just an offense of touching it has to be purposeful air deal with situations similar similar to this not with the virginia statute that we're talking about but they talk about the fact that the case law required the court to engage in a modified car categorical prochoice at this point the case law required that that was clear that approach never happened and that's the first part of the plane arest test is whether or not the air is clear i can't argue that the air was clear that this particular virginia statute is not a crime of violence but i can argue and i am arguing that it is clear that the court had to engage in the modified categorical at the sentencing hearing if it was to apply this  enhancement and that brings the second part was that they did affect mr carter and substantial rights or the integrity of judicial proceedings and i would argue yes it does this is a situation where if the modoc categor approach had been applied we can demonstrate that mr carthew and sentence would be at least fifty two months lower and that affects his substantial rights it also affects the character  the reputation of judicial proceedings as well because citizens want correct findings higher courts especially when it involves freedom and liberty and this is a criminal but he still deserves to be treated fairly under the law so our argument is that it does apply that plane air review if it does apply it satisfies that in this instance again the difference here is this mr carthon pled guilty to two counts one was a count under eight forty one twenty one united states code eight forty one b one a an offense that carries a statutory maximum  of life and a minimum of ten years he also pled guilty to a nine twenty four c offense which carries a sixty month consecutive penalty on top of that the drug offense the court now and the guideline of the guideline findings in the pre sentence report are clear on this you know the difference is is obvious without the enhancement for being a career offender is guidelines would be one hundred sixty eight to two hundred  n explosive conduct because it's likely to incite the police officer to commit violence on the perpetrator well admittedly  think this is a matter of opinion but i think it's also a matter of opinion and applying common sense certainly in offensive conduct could that affect an offensive touching could rise to the level where it could present a serious potential risk of physical injury or violence and maybe it would if it was at a bar or a nightclub or if they had a weapon in their pocket or something along those lines but this was an eighteen year old boy and a police officer and police officers are trained to deal with the public he got what he deserved he got arrested and he pled guilty to that offense but it's certainly not a crime of violence and it certainly i think the fact that it was a police officer involved in this offense lowers the risk actually of any potential violence that could ensue what exactly was the error here the air yes but what was the error that you claim was played well the the error is that the court threw a made a categorical finding at the sentencing hearing that the offensive in virginia this particular statute sentencing range into the guidelines so if we were persuaded that this is not categorically what's the outcome for your client what's with well there's  consequence of that but i think we are to potential consequences if you know what the court wants to do but one would be to remand back to the district court for the court to engage in a modified categorical approach because frankly my argument is not a crime of violence or doesn't satisfy the definition is there's nothing on the record and in the form of shepherd approved documents that can demonstrate that it is and the court needs to go back and look at the on the record before it sent it back for a recent and seen and to explain that this is simply not a crime of violence under the categorical approach and or under the modified categorical approach based on the discussions that occurred with defense counsel and the judge that you know everyone was appalled that this young man spit on a police officer i would be appalled too but it's not a crime of violence and i think the writings on the wall even to have about fifty two months or so from his sentence he still can be punished and to be punished for at least two hundred twenty eight months so that's in less there are other questions i would reserve the please the court good morning my name is on and ram swami and i represent the united states our position is that assault and battery on a law enforcement officer under the virginia statute is categorically a crime of violence due to the serious risk of physical injury under the residual clause but before reaching that there is the threshold question of whether what standard of review applies here i would note that on page eighty five of the transcript when asked defendant carr thorne's counsel had no objection to the pre sentence report other than a fair sentencing act argument and as did defendant carthon had no objection be in the context of what we would argue was a thirty five fifty three a inquiry the court after making findings in the dock adopting the pre sentence report without change at that point ask what am i to make of the conduct of the spitting in the face of a law enforcement officer now and in that context it appears that the court is asking for an explanation of the conduct which counsel gives  that this is a crime of violence but goes on to explain the type of things that have to do with the history and characteristics of the defendant growing up without a father guidance and attributing this to him in his words being a fool so the government's position is that playing their review is applicable here yes you're on ok no i'm not aware of any case i'm not saying there aren't any but it seems to me this court has always said that a misapplication of the sentencing guidelines that results in an increase sentence is plain error are there any cases that  when it comes to the interpretation and application of the guidelines plain error is going to go to apply if the defendant got a sentence longer than the sentence he would have gotten through a correct application of the guidelines and isn't what's before us in this case an application of the guidelines well it may be but in the plain error analysis in order to get to the the if the guidelines for misapplied resulting in a lengthy or sentence than defendant deserved you must first satisfy the three the three other requirements the first is that it is error so as argument that is not in error as applied to this what if we disagree with you but if we say that categorically assault and battery a police officer is not a crime of violence categorically where does that leave the if if this court takes the position as the seventh circuit right that categorically it is not it would be remanded to re sentencing but so you are agreeing that that would be a misapplication of the guideline i would agree that if if the court is looking to for b one point two a one as to the physical force requirement which is what the eighth circuit appeared to in combining those two requirements look to first the otherwise cause it ignores the holding of the other two circuits in this matter at that risk as as the court in williams said always accompanies this type of salt it is it is in effect a powder keg the involving a trained police officer i would expect disagree with that your honor and in the white case this court stated that the identity of the victim the relationship of the perpetrator and the victim did not assist in the inquiry right but what i'm saying is if did well if the identity of the victim doesn't assist in the inquiry then the police officer is the victim in this case was he not it's a man who was spat upon your honor in the white case it said in that instance in the misdemeanor crime of domestic violence the identity did not  somebody has spotted him the argument that a police officer is is more likely to engage in restraint where i would contend a police officer is trained to enforce the law than if he is the victim himself of an assault that crime committed in his presence to which he is duty bound to respond and likely armed and in that regard it is much different then we extend the ordinary domestic assault which may be accompanied which may be accomplished in the fact of the conviction of assault and battery on a law enforcement officer but if the court is looking beyond that we state in our brief the the conduct of spitting is likely not to have come from a shepherd approved source  dialogue between the defend right and that and that that conduct because it's not likely to be shepherd approved is not likely to be found in that inquiry but it is in here in the now your own now no i think the inquiry you're saying if it is not categorically and i apologize if i misstated that if it is not categorically a crime of violence then you lose because it's in a separate case and the guidelines is not correct the only way that you only way the government prevails today is if we agree with you that this is categorically a crime of violence assault and battery on a police officer in virginia and argue with that and i would state that if it is remanded for instance for the court to look more conduct it's encouraging exactly the type of many trials that shepherd taylor are meant to discourage and that conduct if the court only looks at conduct at sentencing then we may end up with a result that ignores for instance can't for instance context the seventh circuit looking at examples de minimus examples of poking your finger on a police officer's chest as an act bravado but if that ignores the context of say an officer responding searching for a victim and someone steps from the crowd and pokes her finger of his finger in her chest and says you're not going to you're going to find that person here that that still is the risk in hears in the fact of conviction that it is an assault on a law enforcement officer so any assault on a law enforcement officer will that takes you back to well if the modified approach is meant to look at the conduct right but there's no shepherd approved documents in this case to prove so if isn't it true that if we go to the modified approach the case has to be reman i'm not certain that it would be your honor what we don't have in this case because there was a concession is really the kind of things we had in white where it was contested is anything other than what's in the pre sentence report and  district court's conclusion but the modified categorical approach it as this court in the example of the baxter case recently before this court of a virginia statute burglary statute that was seen as as broad it was appropriate in that case because of the determination of what constitutes a generic burglary in that case the character of the building but here we say all of that is in compassed in the statute of conviction itself i would i would distinguish hampton again it appears that the seventh circuit in hampton combined look first to the first definitional promise for b one point two and looking in that that physical risk and then concluded because the physical risk wasn't present in those and their words in most cases that they weren't going to apply the otherwise clause but there's no there is no examples given there's no evidence given about that most cases instance that is that is different than the analysis both in the first and tenth circuits which we contend rely more on the statute i mean the guideline itself that has to do with risk and the more recent cases interpret in that specifically sikes that that that inquiry as to risk would be redundant if you're looking at the purpose of violent and aggressive but the more recent crimes this court is has look have to do that has not found to be a crime of violence have more to do with intent such as the north carolina involuntary manslaughter under peterson but in the nat case of virginia case which interprets assault in that case in the sexual battery context it was clear that you cannot have committed a an assault under virginia law without intent and that is the end and itself which which controls i would note that in the instance of this case there's a footnote in the for nand as first circuit opinion footnote three that in such an instance when an actor commits what is a de minimus or nonviolent type assault that the council may raise that issue for the court and pointed out and seek downward variance and that is precisely what we see happened in this case counsel while conceding the issue that it was a crime of violence explained it was spitting it didn't involve violence and attributed to his youth and sought a downward variance ultimately got a downward variance on other grounds i want to correct one error in my brief cuts case which is twenty eleven is unpublished it relies on the published williams case but i don't ask the court in any way rely on that being unpublished i want to point that out but it it does show that that holding survives both chambers and i would reserve the remainder of my time if the court had any other questions thank you very much counsel thank you you've reserved a little time i think the easiest thing for the court to do would be to rule against me rule against your long court carthon i think the easiest thing to do is to say that an offense of assault and battery on a police officer no matter how de minimus is a crime of violence because it's easy to put those words together and anybody reading my studies i find that particularly difficult well i think i think the easy i say it's easy because anyone reading it who are reading an opinion in the public would be able to say of course it's a crime of violence it's assault and battery on a police officer but that's that's that's the reason i say it's the easiest thing to do ties up everything in a night nice little bow nothing needs to go back for recen but i think that it's a mistake i think it's a mistake to say that an assault no matter how de minimus is a crime of violence simply because of the victim officer if the lawyer if if i'm a district judge which i happen to be if the lawyer comes in and says these guidelines are all calculated correctly is it my obligation then to go back  and recalculate them and second guess everything the probation officer says in his report well your honor i appreciate your question and i understand the dilemma that puts a district court judge in sentencing  however that's the reason plain error review applies on on an appeal on if this is sent back because there is playing because there was no modified categorical approach that was honored undertaken at the sentencing hearing to apply this enhanced meant clear when you're in a helicopter but when you're down on the ground it's not quite clear say fifty one and handsome and it's been you know and not just the fourth circuit every circus been struggling with these determinations including the supreme court and it's because the supreme court comes out with different guidance at seemingly every two years or so and they say she but the fact is is that at time of this particular sentencing the law was clear that when you engage when someone is being classified as a career offender that the court is supposed to engage in a modified categorical prochoice to determine if that is actually the case and here this there is not this is not a categorical crime of violence you can't say by looking at the virginia statute that it is and in this situation  i don't think that it requires the district court judge at sentencing to do second guessing of the probation officer or prosecution or even a defense attorney i think it's just part of the analysis it's an analysis that the court must go through in determining whether or not the sentence is being correctly handed down or not if you know i could equate it to you know drug quantities or anything else that they court makes a factual finding out sentencing i try as a defense attorney do the best i can to make the objections that i think a reasonable however if you miss the judge is there to make a decision on the law and apply the facts to the law so i just think that that in this instance is you know that the case law was clear that the district court should have undergone this analysis everyone should of probation officer prosecution bents know and there are no more questions i would remained the case for new sentencing thank you very much counsel thank you your honor we will come down and greet counsel and proceed immediately to the next case