convictions and then ms smith will address the restitution issue which mr fields and mr ms m b both join and mention also address the bodily injury unhandsome in which only mr greater challenges on the one twenty four c conviction in these people's until those who are decide to my not necessarily your honor there's precedent for this court to go ahead and decide this case regardless of when and how my it is decided arises in the civil immigration context not the criminal context but the holding this case is certainly a reasonable option too and if the court opts to go that route we would simply request an opportunity to submit supplemental brief reversed if the ninth twenty four c convictions disappear then the court does not need to address the other issues that we've raised in our briefs but in the event the court does reach those issues i'd like to briefly address the  narrow disagreements that remain on those issues i'm turning first to the dean error and the basic issue is whether at the district for it aired and ignoring the nine twenty four c sentences when it set the sentences for the pr counts under d and that's that's no longer correct so some sort of remained is appropriate and the only dispute now is which type of remain on the court that issue should be a floor remained for reception saying or limited remained and we believe a full here the court also orders re sentencing when the sentences for the predicate counts fall at the bottom of the guidelines range that's also the case here mr ms abby was sentenced at the bottom half of the guidelines range the district court calculated for him and mr fields was sentence below the guy bites range that was a political to him it sentencing with your technical legal points but this is an extraordinary case given the facts the extremely violent abuse of mr harris and would be idea that we're having this debate about whether  whether crime qualifies as a crime of violence both under nine twenty four c and under sixteen b and this court held in jenkins that kidnapping at least under the elements clause is not a crime of violence  that's correct accomplice liability require specific intent and under this court's are more decision for at least for at least in one thousand and four see a fence that means that there has to be advance knowledge of all of the elements of the lower courts to consider the nine twenty four c ascensions saying elements so used brandishing just charge but the roseman decision it cell focused on carrying this court's are more decision and then extended that analysis to the sentencing unhandsome an element brandishing discharge and under that case the advance knowledge requirement not only has to go to the use element but also has to go to the discharge element so hero that  unintentional so there's really no evidence here that would support a verdict even under the correct instructions now emphasize lastly that the court doesn't need to reach the only an issue if it if it as i can your honor mr mazembe you would like to join mr field's request and that is different from what is in his brief yeah suits my my client has decided not to waive the attorney client privilege it will say that i met with him yesterday in south bend and he has indicated that he now like to join mr fields are classed and that the sentencing records are very similar for the two defendants the sentencing records show that because of the dean error in both cases the district court ignored the nine twenty victim having sustained permanent or life threatening bodily injury and it did so based on a misinterpretation of the guideline the district court began by saying it cannot conclude on the record for it that the injury was permanent but then it said it didn't have to conclude that because the area was life threatening and it decided that all truth i'm afraid there's a few second delay from where i am  error applies here we think this court's rebuke standard overview is to know about if this court disagrees with us on that this court should not find that there was no clear error because this court reviews factual findings for clear error and the district court in gauged and no factual inquiry and made no factual findings and its determination that this and has been applied rather the district court looked only to the language of the guideline which says in the case of kidnapping life threatening injury is encompassed by maltreatment to a life threatening degree e g by denial of food or medical care and the district court all of it apart from the nature of the injury itself the fact that the degree guideline definitions and thus would warrant the enhanced while the district court didn't find that your honor the district court didn't find that what happened to mr harris amounted as a factual matter to maltreatment to a life threatening to agree the district court looked only to the example the guideline provides which is denial of medical care and it said mr brazier could have gotten the victim medical care and didn't so i think that conduct places this case within the within the scope of the enhancement and that's a problem your honor because the district court didn't engage in a factual encouraged to determine whether this really amounted to maltreatment to a life threatening degree that means that on the district court's reading anytime there is a denial of medical care it is sufficient for this in hansen to apply for a cut scratched finger precisely like that you think that's what judge miller meant i think that if judge miller's if we were to remained on this issue the records should be limited to the record established in mr brazier sentencing and could not take account the later evidence of how permanent the injury to mr harris was i think this court should remain and on the basis only of the record that was before the district court when it made the term nation i think honoree man and the government would be able to bring in evidence that was not before the district court in the strip razor sentencing could bring in evidence that the injury was permanent and then mr brazier would be and would be entitled to an opportunity to contest that evidence now the government  you i'm a little confused here be so helpful if you could just say do you want a full remain and or do you want a partial what is it that you want a limited remained or a full we think there should be a full reduction in order to affect the guideline that's correct your honor we would need a two level reaction is that a problem since you're asking for relief that was not asked for in the district court i don't think it's a problem your honor because first  government doesn't argue that this court's review should be plain error and is therefore waived that opportunity and somehow we also sometimes feel some obligation to defend the work of district judges from conducted but that's not the in korea conducted here the district court looked only to the guideline definition that says denial of medical care and decided that was sufficient and did not engage in a further factual and crew as to whether the injury was life threatening and that's what the district brazier offer any his own evidence on this question no he did not because the government didn't even argue that denial of medical care was sufficient the court moved to that and sat it  a defendant may have when he threw these from prison so why isn't it appropriate to have to rescue two patients just in case the defendant doesn't win the lottery or his consideration to a defendant's ability to pay and this district court said several times in the record that mr brazier has no ability to pay and has no ability even to pay a fine on on quote the most generous of installment payment schedules and that no one could pretend that mr brazier could pay this restitution order now or when he gets out but nevertheless the court imposed restitution on the extremely remote possibility that mr brazier might win the lottery or have an idea with great market success when he leaves prison if that's the standard your honor that transforms what congress intended to be a discretionary restitution scheme into a mandatory one is it your position  in smith that the discretionary decision is an all or nothing one for us to show that is if the court exercises discretion to say  interpreted yes your honor under thirty six sixty three the court must consider a defendant's resources in deciding whether to impose restitution but if it decides to impose restitution it has no discretion  it does have discretion to impose a schedule with only nominal payments if that's all the defendant can manage that's train i agree your honor that it does but i think there is a way to read that section covering nominal payments that make some sense that section distinguishes between a president and a future ability to pay it says if there is no present ability there is no ability to pay any amount of process of restitution present tense or if there is no ability and the for seeable future to pay full restitution under a reasonable payment schedule that would get it paid the court can impose nominal payments that that there might be some ability to make future nominal payments but the district court here found that even under an installment schedule this defendant couldn't make payments yet nevertheless imposed restitution liability for restitution joint and and several it was an abuse of discretion your honor because while this district court did recognize that mr braziers involvement was serious it described mr bridger as having quote the least serious involvement of the three it described mr braiders involvement as quote not as significant as mr fields it said further that all agree that mr brazier was not as involved as mr fields in mr ms and a district court explained that mr brazier didn't choose mr harris as the target he didn't shoot mr harris he doesn't appear to have been directly involved in the ransom negotiations for the collection and nevertheless  mr brazier is jury acquitted him of the one twenty four c charge which means they found he never possessed the gun that shot mr harris and mr district and the district court found on the record that mr bridger didn't shoot mr harris and i ask you about the prospect of mandatory restitution here because under section eight seventy five the ransom demand statute in our opinion  if i read your brief correctly your hypothesis is that a ransom demand might not be a threat of violence because the kidnappers might intend to be threatening not violence but only to keep the victim alive and well forever that's correct your honor and that is our reading is that because of the elements of a seventy five k and chain new director as to any kidnapping case categorical approach in determining whether something is a crime of violence ordinarily we also though pay some attention to true to reality is there any incident you can tell me about where that has been a ransom demand has been backed up by that's correct your honor but it's reading is in line also with black's law dictionary which notes that making a ransom demand is defined without reference to any physical force or attempted or threatened use injury is appropriate that would make mr got mr frazier's guidelines range at the fence level forty two which corresponds to three hundred sixty months to life that's a lower range than he had before which was just life and it may please the court good morning your honor sniffing a whale and here in the after united states of america i'd like to start with the sensing enhancement and judge hamilton we agree with you that this is an intensely fact specific kind of question as to whether a injury amounts to life threatening or permanent bodily injury you know this guideline has basically three buckets serious injury permanent or life threatening and then somewhere in between so it's asking the district court to determine the severity of an injury and that's something that's a factual finding that these courts make on a regular basis and it's one this court should defer to judge hamilton we've also not found a case in which this court has reversed the application of sense and in this case the district court heard actually three times mr harris testify he reviewed the evidence three times it heard testimony from the sister about what state he was in from that passer by found him in the alley  to the extent you're relying on the denial of medical care as a form of life threatening treatment then if any case in which you've been seriously injured but not immediately give in inflicting serious injury on any let me answer i think there are a bunch of questions in there your honor if i can take them in order there have been very few cases that have interpreted this maltreatment portion of the guideline i think between the two parties we probably cited all of them in the federal register that we could find i think morgan the ninth circuit case is probably an example of where the injury might initially be serious but then because of the defendant's actions and the defendant's district court found that it rose to the level of life threatening and that's really what that maltreatment examples about it's about a case where an injury because of the defendant's treatment because of the conditions in which the victim held doesn't rise to the level of dazed from blood loss he's been duct taped he's been held for about five hours and then he is as i think your honor said dumped in an unfamiliar alley only one of the defendants thought he was on the verge of death so they thought that this was light threatening at this point and they chose to dump and leave him to die it was well within the court's discretion to find that this rose to a level life threatening but would you agree that it's problematic to rely on the permanent nature have had the opportunity to respond to that particular information absolutely your honor and we're not advocating that this court affirmed based on the later submitted affidavit what our position was in terms of how this court could a farm on an alternate your honor in the restitution context that affidavit was there for restitution and part of the restitution was based on lost wages so if mr brazier did think that the injury wasn't really as serious as mr harris was claiming he did have a chance that but we're not this information is going to all come in and i think that kind of points out where we are in terms of this guideline that by the time we get to mr fields the court had this affidavit in front of it and finds that mr harris has suffered what's likely to be a permanent injury let me take a step back and say it's absolutely our responsibility to make sure the jury instructions are right and we embrace that responsibility i think the a u s a relied on the pattern seven circuit instructions at this point which are  thought we were through most of these problems right now but we thought we had to your honor and we do acknowledge that there was an error in this case since your honor is there i would briefly say that i do think any or in this case is harmless  counsel said that armor decided the requisite mens rea after discharge that's not right armor was not a discharge case rosemont was discharge case christopher dean the earlier supreme court opinion was an aiding and abetting discharge case and what they said in that instance is that you don't have to intend that the discharge occur it's all that matters is that it's an accident we think that that's the correct standard and there's no dispute here that the gun was hold off in light of demise i understand your honour's are probably as anxious as we are to get a decision on to my own which we expect is going to resolve the sixteen b issue there are various circuited sions up there for nine twenty four c as well t but we would also like defense counsel be happy to submit supplemental briefing within thirty days or whatever your honour's would prefer about the effect of demin this case because i do think at the very least we hope it resolves the mandatory victim restitution activists you and whether that applies in this case and whether sixteen b is unconstitutional we also do hope that it's going to resolve the one twenty four c and so we would request this court do hold this decision in light of to my i guess if this court were so inclined to resolve mr braziers issues which don't involve them i could sever his appeal since he only deals with the restitution and serious or permanent bodily injury mansome and if i can just move to the restitution issue of judge hamilton in answer to your question this court in united states v day found that under the discretionary restitution act when the court decides to order restitution it is required to order the entire amount and that's because of these one thousand nine hundred six amendments to the mandatory victim rest touche enact discretionary restitution act and the interplay between those two defendants haven't asked this court to overturn day i don't think there is any good reason overturn day but i do think day is important in this case also because it overruled the line of cases or the line of reasoning of the defendants rely upon that a restitution order that's quot sham or impossible to fulfill is reversible that's no longer the law and as this court stated in day what the made the discretionary restitution act requires and that's the act i'm talking about right now is that the district court consider the defendant's financial situations there's no dispute here that the court did that the court ultimately found that yes these defendants were indigent at this point but it shows rather than that the defendants get off scot free in terms of restitution that it was going to say if you make any money down the road you're going to have to pay back the lost wages and the out of pocket medical expenses for the man you shot be pistol whipped and section of eighteen u s c thirty six sixty four talks about how to apportion payments for an indigent defendants now we are talking about the payment schedule at this point but if indigency work complete defense restitution there's no reason to have that section in the restitution act it just doesn't make sense restitution act on its face acknowledges that there are going to be some indigent defendants that the court can order restitution for the district court in this case chose to order restitution and i think it's important to know how it's structured the restitution payments it wanted the defendants in prioritizing mr harris is out of pocket payments the court acknowledged these defendants probably can't pay one hundred ninety three thousand dollars when all is said and done but it's hoped that they would take advantage of the educational opportunities in jail and be able to come out and help mr harris recover some of what he lost as a result of their actions that's not an abus honor certainly certainly anyone in their seventy's is capable of earning a very good income and being a productive member of society we've in place that and i think if you have life in point well i think part of the problem  support argument is that he's arguing for him portion bend and i think that necessarily requires some sort of tacit acknowledgement that he is going to be able to make money down the road and otherwise why would you care about apportionment and i think or superior presume that we could but i think we should address it your honor i think the appropriate course in this case would well i guess it depends on some of the questions judge hamilton was asking about whether eight seventy five  qualifies as a crime of violence as a higher risk strategy for this court that is a higher strategy for this court especially given we think the district court's actions in this case were perfectly appropriate so i think the court could affirm under the mandatory victim restitution act i think it were this court so inclined to affirm mazembe embrasure sentences under the discretionary act i think it probably would be appropriate to affirm fields on that ground i don't think there's any real practical difference we are conceding that mr field's restitution should be reduced by about three thousand dollars because of a technical error so i guess to the extent that this court's going to do anything with mr field's restitution that's what it would be i'm unaware of any difference in terms of whether this court says this restitution is under the and mandatory victim act or the discretionary act i don't know of any practical difference between the two let me if i may just briefly discuss mr along those lines by raising it for the first time here and so we would say that that issue is in front of this court mr fields hasn't pointed to a single case where this court has adopted that remedy and the defendant didn't cure or ten the first curate in case we sight of the three was asked for that same thing he asked this court to strike one of his nine twenty four c convictions and affirm the sentence otherwise this court rejected that overture he hasn't pointed to any reason why this court should treat this case any differently and so we suggest that the proper remedy for this court to reverse the one twenty four c convictions would be a full resente g i know there's a lot of there your honor so i'm happy to answer any other questions this court  that are more does apply here armor held that had to satisfy an accomplice liability instruction there has to be advance knowledge of all of the elements it did not matter that the statutory definition brandishing require specific intent complex liability require specific intent and that doesn't change if the principal offense does not require specific intent like just charging dean was not in aiding and abetting case the earlier dean case the defendant there admitted that he was the arm robber and so he was he was treated as dep principal defendant the principal actor so there was no need to consider accomplice liability in that case  and just to be clear mr brazier was acquitted but in the other two defendants cases there was no evidence as to who fired the gun all three had masks and all three had guns according to the evidence in those cases thank you as i know i exceeded my time and i have a minute just to respond sir i'd like to begin by being responsive to your question about remain and i want to clarify that we are seeking a full reset and saying we're not seeking a full  the district court would consider whatever evidence the government mr brazier brought in as to what enhancements apply in what sense trippy the government says that the district court decided on the basis of the factual record that the injury was life threatening and that's incorrect your honour's again the government the district court looked only to the guidelines definition the government asked this court to take a tour through the trial record and engage in a factual and curry in the first instance that the record didn't support a conclusion that the injury was life threatening and i'll just close with a point on restitution which is that this court's decision in de is not controlling here while restitution was discretionary in that case the