i'm jennifer kaufman here on behalf of robert wagner i'd like to reserve three minutes for rebuttal thank goodness so i've read the number of issues in my brief but today i'd like to focus on three in particular if i may those are the violation of mr dog or its right to due process by applying for we be retroactively in his case the invalidity of the terrorism adjustment and so far as it applies to solicitation offenses and the failure of count one the civil rights count to charge a federal crime st due process that your daughter engaged in the conduct underlying his conviction in early tw and fifteen at the time binding circuit precedent in this and every circuit that had addressed the question was that reckless offenses did not mishaps with you my meeting on your end so i don't have to do it i don't want to make it  r you cannot speak at all it's just you and i right now due process notice retroactivity going isn't that the case that the defendant been brought in for we be face the exact same problem there was no precedent for using recklessness and yet the courts in the supreme court affirmed the st circuits rule that records offenses qualify for purposes of this division or crime of domestic violence which is a different a different statute obviously with different t with the question about whether there's been a due process violation is after the perspective of the people to whom that new law is applied and in that case those particular defendants would have expected it to precedent when it when it when it applied right when it held the reckless defense in that case qualified now were we beat is a little bit different i'm not sure that the defendant in that case argued that it would be improper to retroactively apply this court's decision should hold that reckless offense is applied to him and the reason it would be different in this case is because mr dart is making that argument and it is a due process violation to apply it to him and the error is plain even in the advisory guidelines system when there's a miscalculation of the guideline range the the courts find that pla error as a matter of course even though there's you know the conviction remains and the person on remand could get the same sentence but that's always plainer and i would say that in this case because the error is that he was convicted and it was in violation of the constitution and the sentence was increased effectively by fifteen years as a result of that error that it seriously affected the substantial rights to stansell rights and the fairness of these proceedings so the  situation is different here because he's raising a case this is the judge that again i don't know that this was one of the three arguments you wanted to raise but if you don't mind the question i had you  it was partly mishandled had to meet on my and if you need to speak price explain saying it covers all of them but why wouldn't i agree with judge that and why would if it is in any part of th you want today why doesn't it give the district court the discretion to reject tony this daughter to vision is st of all before i answer that question directly i'd like to say that mr daughter does not appeal the rejection of the plea agreement unless this court does not vacate his convictions his argument is that when you all remanded the case knowing that concede just take it out of the case you could feed the discord specific lee has the discretion to reject it right yes and you you can see that this plea agreement before you get to that argument you want to make which i know because your br is all the tie specified in eleven c one a because it includes a recommendation that they will not bring in dismissed other charges it is in the heart of charge bargain i have to say i'm not sure i understand why it was in any agreement from looking at the agreement itself i mean i'm just not sure i understand that it has this point about if someone violates the terms what can happen like what's worse the language which is said straight up if the court accept this no charges your dog looking at paragraph eleven and you know i can imagine the implication that that's what's going on but i must say it's not clear to me and it doesn't help me to save the h  by the parties that it was a charge a bargain in the sense that had he pled guilty pursuant to the plea agreement the governor was not going to be bringing other charges i understand what the court is saying but his position is if it's if it's if if he was going to plead guilty to it it was going to be because the government could not bring other charges his and his position in the district court below was that it did include a charge bargain in part it was of the type to charge bargain  i think that is it and i'm sorry i haven't been focusing on this because it has it is it is a conditional appeal and it's mr dog or its position is that he st and foremost would like to consider his arguments about the invalidity of the convictions so that it's it's not something that i was completely prepared to get into the weeds on about this particular thing but there is language in the plea agreement that we did point to in the court below that we said supported the argument that it is in part a charge bargain what is what is the import of that if it's got some ports or some elements of a of an agreement in a are you suggesting that he could reject some parts but not other parts and if so how would that even work well in the district court below the argument to mr dog made was that he could reject some parts but that mr daughter could conceivably still plead guilty to the plea agreement and so far it's a as it's a b agreement  but the district court rejected that completely and said that if he pled it would be outside the plea agreement that was sort of an unequivocal statement and that it couldn't predict what would happen and that he would be convicted he would remain convicted of the two convictions that he was convicted of and it put him in a position that he felt that he could not knowingly and intelligently make a decision about whether to plead under those circumstances and that is why he returned to this  that the the the formation of an l l c and there was purchase of ink and supplies during the relevant time period which is february to april th two thousand and fifteen and that's all that the evidence actually that was going on but in the period wait what i thought two witnesses testified about the camp the camp is that's the only additional fact that and i'm glad you brought that up because the camp is incidental to the the camps newfound decision the judge setting references talks about summer camps being enough so if and it's got to be right that they i thought they testified that the educational of some activities related to that took place in the mosque but it was very vague and it sounded as though the large majority of the camp activities and anything to do with the camp is really more about the the community as a whole and that the mosque the the the part that the mosque played in the camp was incidental to the camp that had the camp in it had this been a church which is summer camp took place every year and that's where the camp took place it might be different but that's not what the evidence established the camp from the evidence took place on the property and mostly and other buildings and on occasion it sounded like sometimes there was some educational r threat again known to them they canceled the camp this year well daughter actually threatened to harm more than just the mosque he actually threatened to harm the building that the other two other buildings one of which was the building that the camp took place and i'm so i'm not remembering exactly what they called the building believe it was a community center and there's also a kitchen and outdoor kitchen i think but that the camp itself took place mostly in the rest of the property and that was included in the threats the the language that was being used by mr dougherty he was talking about all of it i can't i don't i don't know that it's that it can be fairly said that the camp was cancelled solely because i mean if he had it was because children were coming to the property where all of the buildings were that he was talking about destroying  rebuttal judgment can you give any other questions no thank you that's the part you have any other questions no thank you ok you'll get your full bottle why don't we hear from  and everything here is brain put cation in fact even the in addition sentences followed by you know waiving statute of limitations so it's just i find it very strange in my business how they're normally done is this an unusual wand what am i missing your honor codes for when the where this is it an unusual agreement but i think the language that judge mckeague earlier pointed out in paragraph eleven that the an addition to that that the united states could pursue any charges that the united states dismissed or any other charges that the united states agreed not to pursue that a good balance even a language well not not that i'm familiar with that it was crystal clear what type of plea agreement was to the court so the court understood what provisions it was operating under so i'm a little on clear i don't think this is a maybe it's standard for chattanooga but i'm not i bet i could find quickly a one hundred plea agreements that include the language i've just described at the beginning or a separate section with a promise not to bring additional charges which i don't see and here we have to do it by implication in the language you point to is boilerplate language that often include so then every plea agreement will be transformed into an eleven c want to say in this case your honor getting all the parties and the district court judge sudden i thought judge collier and i thought this whole thing was so strange it seemed like just collyer with construing our opinion as to whether we thought it was an a b or c agreement i mean i had this whole idea that everybody understood something seems almost delusional i mean that and i'm and frankly i'm blown away by why the agreement itself would not reference a subsection of rule eleven that couldn't be more simple or more clear about what the consequences are if you sign this given what a big difference there is between an a and a b then and i don't get it just that you're certainly correct th district court did rely in part on this court's opinion is as for an understanding of why mr dogger would have been prejudiced by the rejection of the plea agreement and understanding the purpose of the limited remount but  that the parties did understand it didn't stop you right there sure i can tell you i can tell you for a fact we did not know what we were doing on this point but if one were to draw inferences from what we did you would have drawn exactly the opposite inference which is that it was a b and the district court had no support so i just i'm baffled at every front by what you were doing by what his coffin was doing in bar with the judge who's doing well and i asked the judge sutton nor can a court transform one type or putting that created man into another especially a court of appeals it's an agreement between the parties exactly you're looking you're barking up the wrong tree certainly you're honoring what we understand the district court to have correctly done here is that the court on the limited reading and understood that this court's prior opinion had corrected the legal error in terms of what are the elements that are necessary to sustain a seventy five the account that the court's opinion really looked to what are the requirements to plead guilty but this court's opinion didn't address the efficiency of the plea agreement in general in the normal based on the language that we've cited and based on all the parties understanding and paragraph eleven was to see one a agreement and there was nothing in this court's prior opinion that would have up into the discretion that the district  promise not to bring other charges include a specific paragraph about that isn't that standard practice i mean if i go back and look at eastern district the part of the plea agreement them i'm not going to find that in a  to your honor i can't speak to what the usual practice in the eastern district of tennessee is but again the parties all understood in the district court understood that whatever against that usual practice that this agreement was nonetheless a c one a agreement and the the rule doesn't require that there be a certain way that it is or isn't set out and given that that would you know the agreement and the charge for going to all parties understood that they were making and here the district court said that under the discretion that it has in its rule that it has to under the sun ok mike you've got we got the point of what happens if it's in a the protest this is like and slightly different way of asking the judge to parse question in the agreements ok so we can agree with that or b is it that isn't it not is it not the case that they often have a paragraph or paragraph eleven in other words when you have the agreement ever thing some of that language certainly could be but again here the parties understood this to be based on that language here that it was a charge bargain he wanted a agreement and in this case there were two bases that two independent use of force clauses that were independently sufficient for the district court to find that count one involved the use of force the notion that people read that you know d the use of fire a dangerous weapon doesn't inherently involve the use of force simply isn't correct  on that turning just to answer some of the court's questions that you had earlier raised about the interstate commerce it's clear is that i to mock had a connection to interstate commerce and again the standard of review here is you in the light most favorable in the light most favorable to the prosecution so there's no question that a rational trier of fact could have on the basis of a summer camp  doesn't under the language of the statute the mosque have to be used in interstate commerce or in any activity of acting interstate commerce directly in the mosque is using activity affecting interstate commerce in the use of the summer camp that as the court pointed out there is is testimony that it was used in the religious education camp religious education classes so that was one use and then the other use was activity and i agree maybe the summer camp handled this but i'm skeptical of the bookstore and is simply an employee going to staples to buy and can print earth and other things and offer a business to be the time of this threat or any time before and right now that's correct your honor and so we've cited in our brief some cases that say that you know the diner that was put in arson prior to its opening in the building that was vacant it's long it's there are activities that are you know in the process of those had both interstate commerce activity you're talking about the st circuit in the other circuit but those had activities both before and after the threat that were clearly used in interstate commerce whereas here you're pointing to the l l c and going to staples basically the diner was i don't think that that had other activities other than the commercial activities to prepare for your honor so i think that this case is a lot of last question i promise on this my point is is in the diners case they were clearly getting stuff from out of state to prepare the operation and what i don't understand is under your scenario then even jones is wrong because that someone going to the store to staples to buy stuff for the house if you're setting bay store your house would ultimately be used in interstate commerce and if the statute said will be used i'm i think i'd agree but i'm skeptical otherwise your honor i don't think the distinction can turn on to whether one goes to staples or buys product i mean you could certainly show that the products x table had come from across interstate commerce and again this is preparing a business to do substantial interstate sales and i don't think it magically transforms into substantially affecting interstate commerce simply on the day that the you switch on the open for business sign but in any event if the course was what i what i would counsel what about the broader point that jones reyburn from that circuit where you had a church that was simply pain other radio stations out of state it's not even operating its own radio station it's just sort of engaging in commerce i think the evidence here is arguably stronger than the evidence in rayburn where you have both the long standing summer camp and the bookstore at the mosque well i mean one shouldn't one focus on the main news the main news of a mosque is for religious purposes i mean under your presumably tithing would count as long as somebody tried from across the state line and you know i would have thought the better way to think about it is not with some mosque this is for spiritual person purposes not commercial and all religious institutions are going to have some peripheral in savannah whether it's a camp of bibles camp or whatever it might be and don't look at the main not be incidental and figuring out how to apply  there a number of cases that have side guys operating at daycare and again this is named in a normal kind of just local community daycare this is a camp where children came from across state lines so even if the court is concerned and i i think the operation of the business that actually prints books and sells them that maintains a mailing list of people out of state that's not enough the kind of thing that every church is going to do and so is it going to federalize arson of every kind of religious building at the idea books evidence is specific and different i think for most houses of worship but the summer camp that attracts you know students from across the country that certainly is distinct and that's not something that's just like a local daycare or a local you know week long religious camp in the summer i don't know how and your honored last on the terrorism enhancement that the district court properly applied the terrorism enhancement in this case this court's decision and graham makes clear that the offense can be applied to offenses of conviction that are not in self listed enumerated federal crimes of terrorism finding that the dip in its conduct was calculated to influence or affect the conduct of the government through intimidation coercion or retaliation against the government and notably the defendant is it challenging the actual factual finding related to the bottle yes i i would actually after i've said all that returned to the plea agreement and it's because of some of the things that the court said during the most recent conversation and so i don't know which which of which of you said it but some one of the judges said we did not know what we were doing frankly when it made the statements that it did in the opinion and i'd like to say that it it sounded to me that the court was of the view that if it were a b p's meus he won the agreement that the court was saying that the district court must accept that agreement and in that event excuse me the plea under the agreement agreement i do think it is the kind of language that shows up in the agreements yes in fact you know at st the government said the cork could not reject the when the judge suggested he couldn't get the plea agreement i think it did catch everybody by surprise and there was some you know initial statements were made and then there was some regrouping and for mr dougherty perspective for it to be a big remit means that the court could not reject it and that would that would have been something that would have been you know he that would have been his position i thought you said in the initial call you with us that you thought it was in part in a agreement and everyone was operating under that assumption below that is why it is that his position was it was both it was something that the district court could not reject because it was a be agreement that part of and but that it could conceivably in theory reject this even that was his position and that occurred of course i mean we agree with all the time can be of the type that are a and b that happens every day in america if that is the case then why the is in it that the language of the rule says that you can reject it because it says if it's in a the court may accept the agreement reject except for the part that it's a the agreement i believe we cited a case in our pleadings below in which the the court of appeals there and i'm sorry i can't remember the name of that but the court of appeals there said you could reject the a the charge bargain agreement and that the court must accept it if it accepted that he that factual basis was sufficient for the plea and then at that point you would vacate the convictions then mr daughter would ask for the court to make that clear to to say that  because what happened was when the district court said we you know that i'm rejecting this plea agreement in whole and and so therefore anything you do is going to be outside the agreement and that means who these convictions will not be vacated that put him in a position where he could not knowingly and intelligently move forward so if the if the court meant that if it's a be agreement it should be rejected and it is of the agreement and that means the court cannot reject it then dog would want the court to make that clear i feel like i'm probably you know you've gone all over it i just want to one of the factual questions i mean is there anything else that would help us understand whether it was be and you know the hybrid thing doesn't really answer it because it could be being in a respect which is not adjustable right and so that it's not very helpful to us to use that so it's really  agreement that it would matter in this sense and i'm just asking is there any other evidence that we could consider on that point i don't know that i have any other evidence that i could offer at this point except to say that it was it was not clear that if it was a the agreement even in part that that would mean that the convictions would be vacated and mr d would want that to be clear in order to know what he's doing when he's but you know if he's in that position and that's that's really the most i can say about that at this point ok all right well let me just make sure the judge mckeague you have any other questions ideal but it's still helpful to us and since this is a sequel we thought this was the best way to handle it so thanks so much for your briefs and arguments and the case will be submitted thank you thank you you are now in silent mode your honor and terry please confirm when the attorneys at both disconnected they have disconnected and it's time thank you very much your honour's if you need to contact the operator in case you cannot hear one of your colleagues you just need to press stars erode and then she can verify for you that everyone still on the line and do you require it and i hate thanks so much you're welcome happy holidays thanks for helping us make it work absolutely thank you very much of the holidays to you as well do you guys require anything further this time i don't think so ok operator please assure that the judges once i hang up that no one else is on the line yes ma'am thank you very much have a great day