levels the microphone just a little bit thank you rather then applying the clear and convincing standard as required by jordan mesa states use and valencia and as recently reaffirmed by this course decision in the valley case and so doing the court committed procedural error based on that is our request at this court vacate the sentencing of remand with instructions to apply the correct standard which is clear and convincing here at the six level increase under jordan had a disproportionate impact on rather than applying it to a two two guideline at the court applied it should have applied to a two four because there was no there was insufficient evidence that mr morales had intended to cause bodily harm to the to the driver of the other vehicle we also know under the jordan case that there are two factors that are relevant to the court's consideration of whether or not the clear convincing a standard should apply the st of those factors is whether or not the offense level was increased by no less than four here we know the offense level was increased by six levels would you not believe that the government would contest that that factor has not been met here at the base offense level was eleven look and visor guideline of twenty seven to thirty three months that the government's position was under two a two dollars and the court found that his advisory guideline range was fifty want to sixty three months under the preponderance of evidence entered now the six factor which is from jordan is sort of the heart of the issues here your honour's whether or not eighty eight percent increase in the advisory got that range is sufficient the factor is whether or not the god line range was doubled here one additional level would have resulted in mr moore elsa's guideline range absolutely being doubled and said we are three months short of a doubling of the advisory lottery mr alice went from what was a relatively short sentence a little bit over two years to an advisory guideline range of under five years the question is whether that's exceptional you say that it was the original guideline range the original god on range or on it that we had proposed was twenty seven to thirty three months members she sentenced him he was sense of thirty months your honor now that the midpoint of the original guideline range that is correct your honor he was sentenced to the midpoint of the correct guideline range however in this case requiring the government to prove by clear and convincing evidence those factors there is no bright line rule what the government is requesting is that the court adopt a bright line rule we would ask that this court reject that approach to say that three months is totally insufficient versus a sentence that is three months longer doubling would be sufficient it is our position that that simply does not make sense under this circumstance there's a couple of factors that we also ask the court to consider also this is not there's no bright line rule here what we know is that if mr morris had gone to trial and lost there would have been a doubling because the guideline range would have doubled however because he pled and receive the benefit of acceptance of responsibility he is in a position where he has title to a lower standard as argued by the government of preponderance vs clear and convincing had he gone to trial at a loss as our position that there are so those circumstances that that would be a completely irrational result that a similarly situated individual is entitled to clear and convincing because that person went to trial versus ms your argument is that the government couldn't prove clear and by clear and convincing evidence of intent and the car ease if you are you conceding that the government proved intent by a preponderance of the evidence no your honor is our position that either under preponderance and or clear and convincing that the government did not did not prove that mr morale is when he threw the chisel at the vehicle door inadvertently striking the window had an intent to cause bodily harm to look at what did what is your view of what he intended to do or are in our view is that his intent was to call cosby hc ular damage to the car as the court is aware the court says i do it again you take the totality of the circumstances why i was not sufficient for a preponderance of the evidence and i would submit that was not sufficient because all that did was reinforce his original statement which did not evidence an intent to cause bodily harm evidence an intent to cause damage to the door his intent in hitting the car perhaps to frighten the other driver was not an intent to actually strike the the occupant of the vehicle it was our position that the evidence at best demonstrated that he had inadvertently struck the vehicle window and it shattered during the entry into the revealed cation pretty clear that the district court didn't believe what he had to say about his intent no your honor what was clear is that the district court did not give credit to some of his earlier statements about what preceded the altercation however the court did give great way to his statement of his intent at the time and found that  statement that he was one intending to hit the door and that he would do it again the court found those statements meaningful and arriving at its conclusion that that he had the intent to cause bodily harm the court found credible and agreed with his statement that he intended to hit the door it's it's it was clear from the record that the court said he gave great weight to those statements and considering the in finding that he had in the course finding that there was a preponderance of the evidence that he intended to cause bodily harm to the driver  your honor the type of damage and injury that we're talking about here i think is important also to keep in mind it is not what we're talking about is a general intent crime with a very specific  intent guideline provision and that guideline provision and particularly when we're talking about the type of bodily injury that is involved here we can see that throwing a chisel at a car vehicle while that might be dangerous or reckless it does not rise to the level of the good morning your honor may it please the court my name is alexis loeb and i represent the united states in this appeal there was nothing exceptional about morales to sentencing under either a preponderance or a clear and convincing standard a burden of proof the evidence demonstrated that morales intended to cause bodily injury when he threw a chisel through the window of his victim's car while both cars were driving down the freeway it eighty miles per hour during the morning commute and then when morales later said that he would break his victim's window all over again the court however was correct to apply the preponderance of the evidence standard because even if the valencia factors do apply to this case they point in favor of the standard and the application of the aggravated assault guideline because there was no extremely disproportionate effect on morale a sentence relative to the offense of conviction as the cases that morale is himself has cited show starting with the issue of the application of the valencia factors even if the court does apply them looking at the cases moralities cited it's clear there was no extremely disproportionate effect the via case the subject of defendants twenty eight dollars a letter is a useful counterpoint because there there was an eleven point difference in levels and the sentence  was more than quintupled it went from one to seven months up two hundred and thirty seven thousand two hundred and forty six months the the jordan case there was a nine level difference and again the sentence there more than doubled the hopper case the sentence was based on acquitted conduct again it more than doubled and there was a seven level increase that mays hasta his use case again a nine level increase more than doubling the length and in that case the defendant was convicted of one crime and sentenced for another the court has never found extreme disproportionality on facts like these where at most only the th factor favors defendant which is the difference in the number of levels where the sentence is based on the offense of conviction and where the defendant actually receives a sentence within his own guidelines range this court's decision in pike in pike the this court remarked that the court has never applied the higher burden of proof where it is only the th factor the difference in the number of levels that favors the defendant defense counsel mentioned that argued that w perhaps this this this was a close case the sentence was almost double but the test here is whether the sentence was extremely disproportionate it's not it's not a question of of was it was a close and in  certain cases such as the felix or the riley case the sentences have been almost more than double or even just about double and the court hasn't found an extremely just proportionate effect there that's simply not the test the in addition to finding here that mr morale us intended to cause bodily injury was not clear error there are three main bases that support that finding the most important is the offense itself mr morale us pulled up next to his victim while they were going eighty mph on the freeway and he threw a chisel breaking the glass of his victim's car the court and the court found that mr morale ases self serving statements that he intended to hit the door warrant weren't credible the court described them as falsehoods what the court did credit was mr morale a statement that if he saw the agent again he would should put on that statement your honor i think that we should put we should put weight on that statement because the interview report does indicate that morales indicated that he would that he would break the window again and someone who just intended to hit the door when they see the window break they wouldn't say that they would in that moment they would be remorseful and wonder how you actually prove intent to commit bodily harm  even by a preponderance just throwing an object does that prove intent to commit volley harm your honor i think throwing an object that fact alone may not always demonstrate intent to commit bodily harm but we don't have just throwing an object here we rely on the fact they were he pulled up next to him and they were going eighty five or eighty miles an hour on the freeway but when i look at that backed i think well how how good can your aim be when you're driving at eighty five miles an hour how can you be for a minute and in the get his head as opposed to you're just having road rage and road shows will you know and i think regardless of whether you have road rage or it's something you thought about in that moment you are so angry that you have intent to cause bodily harm and the the car the agent was driving was a large s u v so it's clearly reckless and there's no intent is can be can be challenging because it of course require substantial yes yes circumstantial evidence into consideration exactly and i think that  pulling out from under from behind agent curtis pulling up next to him picking up a chisel throwing it with enough force to shatter the glass i think that that alone even regardless of what morales said afterwards thinking maybe that's it your honor and in some ways we're very lucky that it was a trained special agent driving the car who is used to driving under stressful situations because i know for many of us if a chisel was thrown directly at our window and broke it when we were going at that speed on a crowded freeway there would be an accident can i ask you about the your argument in the brief that this whole area the law doesn't apply the base offense level calculations how is that position consistent with the message and the opinion of deval cases which seem to apply the test when is here you start with one guideline and it cross references you and flip you to another it applies to those types of determinations and that's to be what we have here so i want to know how you respond to those cases yes your honor i have a couple of responses st of all in neither of those cases was this issue squarely presented so the court in those cases applied the valencia factors but didn't have before at the argument that the valencia factors do not apply outside the context of guidelines and handsomeness and when that argument has been squarely presented to the court in felix in darr in collins each time the court has said that the valencia factors only apply in the context of sentencing and han a cross reference slip from one guideline to another where we have held that it doesn't apply i am i am not aware of a case holding that your honor but i would  sentence the defendant based on uncharged conduct and i would also like to point this court to the hopper case which is one of the case defendants cites and there are the court applied the clear and convincing burden to the enhanced mens but in that case the appellant's also made an argument that the court had sentenced them under the wrong guideline and there the court simply referred to section one b one point two of the sentencing guidelines which directs the court to apply the most appropriate guideline without applying any particular hidden burden of proof so i think that to his use and panetta dhaval the question was not squarely presented to the court and those cases are distinguish because they involved the application of the cross reference to sentenced the defendant based on one charge conduct and it in addition your honor even if the valencia factors do apply those cases there in those cases there was a much more extremely just proportionate effect one case involved in nine level difference the other case involved a twelve level difference and in both of those cases the sentences were more than double and they were based on one charge conduct i c m out of time if there are no further questions the government would ask the court to affirm the sentence thank you   result in a god line range that is as high as some of the cases cited by government counsel it was still significant we have here a case that is three months short of a doubling it cannot be the case that three months  the difference between something that is exceptional and something that is not exceptional under these circumstances and it is only results in a not of a doubling because mr around us pled also additionally honors here we have a sentencing recommendation from probation of twelve to fifteen months it is no doubt exceptional when a defendant who thought they were looking at a sense of on the low end of possibly twenty seven months a little bit more than two years in prison all of a sudden are now looking at a sentence of upwards of nine much short of five years in prison that is exceptional under these circumstances also with respect to the see i'm out of time couple more minutes your honor the whether or not it could have caused damage to the vehicle we believe is not the issue the fact is whether or not he intended to cause damage we would cite for the court the e r at you both for your arguments this morning the case just for you to be submitted for decision