we gave you oral argument yes almost made it to the end of the year may please the court i'm here today representing the defendant michael bork and i'd like to reserve four of my minutes for a bottle if i'm right thank you your honors  after the nine hundred and eleven attacks the sentencing commission amended sentencing guidelines specifically to a six point one and when they amended that guideline they did a couple different things one is that they added  threatening communications to that guideline and expanded that guideline to include that offense the other thing they did is they added a four point inherence mint and that four point enhanced when it was designed to be imposed in cases where there was a disruption of either government function or public function or private business function by the communication or in cases where the government was faced with a cleanup or a decontamination process or other resulting charge or charges and costs relating to that communication and for distinction between substantial disruption and substantial expenditure that's correct your honor and we basically are talking expenditure this is that this is an expenditure case yes your honor and so that that section be the substantial expenditure is for toxic cleanups it's for you know decontamination or other related cost with regards to that it was intended for those kind of cases in which something really bad happens in the government's faced with a big cleanup it was not intended for a case such as this and it in this case is the most the generic maybe innocuous version of this of this kind of case that occur this is the events that occurred in this case occurred on august th that is when other defendant in this case made that phone call and caused this offense to start rolling by august th the very next day the case is over the defendant is already admitted to the crime he's submitted to a polygraph he fails the polygraph he admits to the crime and the case is over yet somehow the district court imposed a four level inherence men for this this expenditure which which there are of which there's nothing even in the record to support that there was an extravagant expenditure in this case and so we're asking the court to overturn and to and to allow a reset and sing in this case without that four point answer now i think i stated in my brief and in the government stated as well there's not really a lot of case law on this particular and hence when i cited to a th circuit case and in that seven circuit case the court went through and found that there were over two hundred person hours that were expended in that particular case and found that that was close to the line as to whether or not that constituted substantial or not but the yes or substantial expenditure does it re to whether this is a new crime normally with in that conceptual basis i'm i'm struggling with the idea that  good trial counsel said the government's investigation was normal when it was heavy and big and appropriate for the danger that was presented absolutely but it was within that normal charged crime help me help me with what the test should be if you fall within the month of cases and is that does that suggest that the enhancement is not appropriate because you don't fall outside what the government would be doing any time it has charged under that portion of the statute and we would submit that that is the case and that's the case for two reasons one is how the guidelines normally operate right we have a base offense level and then we have a hansom and to that base offense level those enhanced months are designed for not the normal rights of the base offense levels ois this is the normal case when you start adding facts that are not the norm to the normal case that's when we start adding and handsome and such as leader or organizer or obstruction of justice things like that that is that are those are the basis for why we have those an instant's nd if you take a look at the laundry list that is within that particular guidelines and the two a six point one before guideline it gives you a really good idea of what the sentencing commission was going after when it was looking at these substantial expenditures when it talked when it talked about that government disruption public disruption you know things things where like did that what they were getting to is if the subway goes down in new york city for two weeks because of this or if there is a toxic spill and it c the e p a time to you know to to have to clean it up they give you that thirteen list of all those things that they were intending for this type of and hence meant to apply to right and that's what differentiate from the mine run case and in this case again it couldn't be more couldn't be more mine and as a matter of fact if anything it was less than the average case because of the repetitive of not only the year not twenty hours but maybe two hundred is maybe two hundred is right yes so why how does that help you well it helps me because the government chose not to present any evidence on any hours and then the government was aware of the fact that this was a contested sentencing guidelines and hence meant prior to sentencing they chose to not in their sentencing memorandum or at the sentencing hearing itself present any evidence whatsoever on what the number was but you know what we're looking at here now i will admit and i think my opponent points out that there is some case law as to to j one point three that says that well we don't have to have particular down to the down to the number number and i'll admit that probably in cases you don't need to have it an accountant figure it out down to the down to the half hour but you need to come up with some  you need to present something that shows this is over and above the norm on a case and in this case everything that they pointed to at least everything they put into and don't only shows that this is the average case right now it's just me and  was made on a similar offense there's three cases and shows kind of the what happened in those three cases and how it was far more significant than it was in this case right so in this case we have the fact that the f b i had to drive ninety minutes to go and visit defendant in this case well he lives ninety minutes away from the nearest f b i office i mean that's there's nothing substantial about that you know whatsoever and again once they got there they interviewed him and they want to around town found try to find some cameras that would show his you know whether he met with somebody or not got back got a polygraph in place had the polygraph again on the same day and then he fails the polygraph that same day and then he confesses to the crime all in that same day this is this is not the case and again this is a significant and handsome and so the base offense level here is twelve there was incident which we absolutely agree applies with were guards to a government official being the victim in the case we don't contest that whatsoever but going from twelve an adding four that's one rd more over on top of what the average base offense level is it's a significant enhancement in this case and as i stated in my brief the guidelines range here is thirty seven to forty six months the court imposed a sentence of forty months without this enhanced minute immediately drops to twenty four thirty months what's more without this enhanced meant the court can consider the last part of two a six point one which says that you can actually subtract four levels when all of the above don't apply and so it could even be a it could drop down i think twelve to eighteen months in this case so the enhanced mint is significant to this individual and greatly enhanced since it is a really concerning what was done here absolutely it gravely concerning that's not the standard for whether this and hence mental plies or not and that's not the standard for whether substantial resources were expended in this case it could be the most heinous version of the case and if they solve it five minutes after it starts means that there's not substantial resources in the case right but i do agree with you and that's probably part of the reason why the court may have been sought that enhancement in the government sought them he hasn't because it's disturbing facts and  you know the individual was obviously has some mental issues there was a mental competency exam that was done before he was allowed to plead guilty t in the case as well so but again bad facts shouldn't make bad law and to and allow the enhancement in this case is to literally open the floodgates for this to apply to every single one of these cases because i can't i almost can't think of very many scenarios where this doesn't where that would be less cost fact for clear error the findings of fact are clear air but the guidelines application to those facts is do novo and that's what we're asking the court to do is to appoint the judge make a finding of fact that there was a substantial expenditure of funds of if i can finish the what were really the thrust of our argument here is that the guideline was never intended to apply to facts such as this well ok intended but we we do construe the guidelines consistent with statutory construction rules which we look at the text of the guidelines and look at what the text says absolutely absolute as opposed to the policy behind it absolutely or o that the text bothers me a little bit too because it doesn't use the word resources it uses x substantial expenditure of funds right here the government saying well we used a lot of our resources and i'm saying ok or their funds the if it was sent back down why would the government be barred from putting in the evidence in the record because they shouldn't get a nd bite at the apple in this case because they were clearly put on notice that they should  that they should present evidence to support their enhancement the government has the burden of production in persuasion for every guidelines and hinzman but then you analogize to a case that's somewhat different scenario isn't it yes it's  a different scenario but that doesn't the their burden of production was no different  response to the information provided by the appellant that a former united states attorney was about to be kidnapped raped and set on fire and expended at a conservative estimate over one hundred man hours in that response that lasted from august the th of two thousand and seventeen to august the th of two thousand and seventeen base of the questions i have three points i'd like to get to the st being whether the government had met its burden of proof in regards to what was in the record what is in the record to support this in hand meant are two things one would be the pre sentence reports that details the factual allegations including the response on page three through five additionally the government fatah since the memorandum on document  thirty under page i d one hundred and eleven to one hundred and twelve which again in more detail a document but didn't didn't the court below say that there were no evidence of expenditure in the record i don't believe that is correct in terms of specifically that and if you actually look at the record while there isn't a grand total amount of hours or money there is a particular lies and with specificity the number of hours that are were expended if you go through it o versus gerar in the similar case using the similar language unnecessary expenditure of funds under two j one dollar said that in that particular case they had moved equipment from washington d c to the troika they had deployed surveillance teams to be prepared if necessary to respond to the false information that was provided and in that particular case this court in united states versus gerar found that that was sufficient under the same words substantial expenditure of funds and the reason being of that is that with funds working around the clock this is through all the means on both august the th of two thousand and seventeen in august of the th of two thousand and seventeen that these people people are paid overtime their pay their salaries to respond expenditure or how that relates to people who are employed by the government already doing the job that they're employed to do it seems to me that there is an intentional difference in disruption of war versus expenditure of and the problem for me is it's your birth by a preponderance of the evidence to show it and other than general information of what we are response and already existing documentation nothing was put into the record at all with due respect your honor i disagree with that as indicated in the piece are and more particularly in the government sentencing memorandum they talk about how the f b i received a tip from a west virginia took several hours to anything in addition to the normal p s r information of here's how here's how the crime occurred here's what happened i just didn't think that there was anything submitted in an effort to carr they didn't object to the factual basis but they did object to the enhancement correctly because they said what they said was that and nobody denies i think that this was you know a terrible crime the allegation which at the time the government took reasonable efforts to quickly investigate and as you acknowledge this went from the th of august to the to the night august the the the basic guidelines take into account this particular  crime what we're talking about now is the information put in the record to support and justify the enhancement and that's what i think the government put nothing in there to to to to establish their position that these he when he admitted that's correct after his polygraph examination in the early morning hours of august the th of two thousand and seventeen but it is routine at the discourse level that the things contained in the p s r or proffered by the government if they go ultimate conclusion so there's a significant portion of the record in those two documents to indicate that there was over one hundred man hours at a very conservative estimate and really even if there is one hundred man hours what is there to to support that that meets the requirements of these this extraordinary expense i think it's a matter of whether or not that assertion even if we find that the person that they spent under that was does that does that meet the the definition of this extraordinary expense under the guidelines i think that's the issue and what makes this extraordinary expense is opposed to the expense of investigation yes you're on that point i don't think is the appropriate standard that it has to be unusual or above the average take for instance this routinely happens in other cases say child exploitation child exploitation cases usual usual case so the idea that it has to be extraordinary are above the quote unquote average case is not supported by the case law the only case that they say is because statutes specify objective fully quantifiable information and an objective fully quantifiable piece of evidence satisfies so you get the enhancement here the question becomes whether you have any evidence in the record that is objective fully quantifiable as to any substantial expanse and if substantial expanse is what goes on in the normal case then why is this an enhancement i mean because what you have is you have a normal mine run case i mean that's that substantive reasonable in this black letter law so you've got the normal case that's what you're charged with that's what you're convicted of then you have a question as to whether there is an appropriate in handsome and maiming it's a matter of degree beyond what the normal case would have if it weren't how could it be any enhancement of the normal charge well st of all of the guidelines work there are over twenty five dollars statutes that refer to this particular gun i mean handsome and so could be the basis or average of making threats making hopes but also what's contained in this guideline are false leads so the base offense of a doesn't start with the average terrorist threat kidnap and kill a former united states attorney it starts with the average among the aggregate of all of those statutes so for a specific offense characteristic to apply you should not look at it in terms of a threat to kidnap a uniform united states attorney if anything that's already extraordinary in terms of to kidnap rape in set on fire the nicest ternium and therefore that the government responds with an all hands on deck reply it's eleven different agencies  four hours i mean that's what that's my concern because i would expect any crime like this charged with this horrendous type of threat that the government would absolutely respond with all hands on deck that's the expectation now the question becomes whether there is substantial expanse not just by now the people who already give their time and work and jobs and life to government s but something beyond what is normally done which leads us to a burden of proof that is required and i'm concerned that under your argument anybody who could be charged under the charge that was given for this case is also guilty of substantial disruption or substantial expenditure because it has become the niger of the crime no your honor what with few things one you could be charged with this particular fence for less far less egregious or salacious activity and so therefore did the degree was elevated by this particular defendant's actions so you could be charged under this a forty four  set off the alarm bells in which mr bork in did in terms of twenty four hour united states marshal protection they would not provide that for someone who was not a former government employee and so the idea is that this was already not a run of the mill case and thirty one domestic terrorism is the find is any act that endangered suman life intended or appearing to intend to effect government policy within the territory united states so this is terrorist activity the government would argue when you threaten to kidnap set on fire a former united states attorney for her conduct as united states attorney this is precisely terrorist activity is precisely by definition under the united states code a domestic terrorist act if it were to be so any time you make that kind of a threat even if it's resolved within twenty four hours it's automatically substantial disruption in substantial expenditure st off you know on or it was more than twenty four hours as indicated started august th of two thousand and nine well ok thirty hours we're talking about a number of our see if there was a little bit more time because it took them a while to go find the guy and getting and then they hit it i mean there's no question they hit for twenty four hours but it was twenty four hours i'm struggling with this becoming the nature of the charge and that's not what enhanced ones are for but during that twenty four hour period a cuba my opening statement is seven different agencies get involved from raleigh north carolina f b i traveling to buck north carolina a person being put in solitary confinement based off of this information the united states marshal service issuing twenty four hour surveillance on this particular home yes it was thirty hours as you have indicated but it expanded geographically expanded state local and federal agencies and therefore this is above and beyond that the said one hundred dollars in general we would have an extra fifty hours that we wouldn't have done and that's an expenditure of x why doesn't the requested enhanced money why doesn't the government have proof additional proof of the enhance record and what's contained in the records of explaining all the different federal agencies involved all the different man hours to a degree were specified within the record in the government since the memorandum in the presents report and so there is enough contain already in the record to make the finding that a four level enhancement just like the court did in gerar this is not distinguishable from that in terms of someone testified that they were going to be engaged in terrorist activity they moved equipment but the only other things they did were good surveillance team on standby and the court found this court the th circuit found that that was enough for a substantial expenditure of funds and this case is no different from that and so there's already enough in the record in order to  opposing counsel this one hundred person hours is a new fact today you will not find that in the record anywhere and that's part of the problem right but this is a you're not going to find that their sentencing memorandum you're not one three case not not our case right number two draw our not only was an unpublished case but it was in the interest brief and there is so the court made a general review trying to come up with issues and did the the term of funds right because unto a six point one before it's a substantial expenditure of funds to clean up decontaminate or otherwise respond to the offense under the two j one three the language is number one the language in the guideline is substantially interfering with the administration of justice the commentary notes say that the substantial interference with the administration of justice includes unnecessary expenditure of substantial governmental or core resources not funds resources which resources obviously could include person hours and that's why it's broader and that's why it's mixing apples and oranges to just take that to j one point three case law and convert it over to this particular guideline loesser any further questions we would ask this case to be remanded for recycling all right thank you thank you for that argument case will be