united states versus rodriguez may please the court counsel for the government my name is as a spill key and i'm representing the appellant anthony rodriguez who is before this court challenging his sentence of one hundred eight months because it was based on an erroneous finding that he committed the offense in connection with another crime namely attempted murder based only on what the district court observed in a surveillance video the court found that the yes the crime is charging as pled guilty to was one twenty two g one felony in possession of ammunition yes no your honor it was not  well i agree with your honor and i believe that the bronx district attorney is the proper venue for such a question mister rodriguez is basically being punished without the complete process of a trial and without being charged  first notice that mr rodriguez got that he was going to be that he might be punished that he faced punishment for attempted murder was in the government's  soley on video footage which captured without any sound the appellant firing a weapon now there's no dispute that he fired a weapon there's no dispute that he brought the weapon to the  i guess standard of review is the phrase i want when we review what it is that judge nathan determined and it seems to me she laid out on a couple of pages of transcripts i won't read them to you but how she reached the determination that she reached no your honor we we argue that he did know both standard holds here and the government does she made a determination as a matter of law that this set of undisputed facts that's right your honor instituted adequate proof of a mental state that would support attempted first degree murder that's correct your honor and  dealt with the voluntariness of a confession the district court viewed a video that captured audio as well but at the district court did not rely solely on the words spoken  in that regard it could have just relied on a transcript of of the interaction between the suspect and the police officers rather the district court and then later on this court  noted in observed what the demeanor was and what behavior what the tenor of the conversation was it was not there was not just the firing of four shots he was waiting for the car coming down the street you the shots were shots at the windshield calmly walked away got on his cell phone met up with a friend and went into an apartment building as that sounds like it wasn't something where he was surprised or he reacted to violence directed at him how can you not draw an inference that it was premeditated intent to kill under the circumstances well your honor we don't dispute that well rather there is no we made no effort to show any justification that this was that the shooting was done in the in the heat of passion or some or something like that that there was any legal justification for it rather we just simply can't tell and  the fact that until what well your honor that what the intent was what the specific intent was now but that for instance the district court viewed the video and saw someone acting calmly i saw someone  acting who is full of adrenaline and sort of pumped up i didn't see someone who was who was who could just go in at the very next moment and have a conversation with his mother let's say  so we also have very different things from the same video evidence or right we saw there for things and therefore we each have a different view of what the facts are and therefore why don't we leave it to the district court to make a factual determination which we then review for clear or because it's a the district court came to an ultimate legal conclusion on the mental state and the facts or the as in hoc we have the exact same this court has the exact same material to look at as the of the legal conclusion as to the mental state is still a factual determination is it not it is your honor but in the same way that in the same way that voluntary ness of a confession is which was what was  every other case every case that the government sites in that the district court cited had other evidence to to show specific intent to kill there is no other case that i'm aware of or that the government has brought to the court's attention that has anything other then that has a conclusion of specific intent to kill based soley on video footage i'm not sure what audio what and how many cases are there out there that have sort of this this person by observing the way the person behaved a state of mind will know your honor i mean one could find a a specific intent to kill based soley on video footage on different facts in those other cases that the government sites and that we site there is for instance in united states versus stroman that's a foot chase into a deli and when the shots are fired at close range it's it's on foot and you have a stationary target here we have not an automatic weapon a rapidly moving target and basically in the stroman case you just have different facts you can  find a specific intent to kill based off of only video footage but just not here because the car was moving too fast both because the car was moving too fast because if you had a real dumb person stupid person i think she's a hot shot and can hit any winning target you know as a specific intent to pick off somebody in a car driving but well we just don't have that from the video here if there was other evidence of that then maybe yes that could support a specific intent to kill i see that my time is up and all reserve the rest of my time for rebuttal think i'll give you two minutes  morning your honor may please the court my name is jason richmond and i'm an assistant united states attorney here in the southern district of new york i represented the government in the proceedings below and i represent the government on appeal today the district court thoroughly examined the record before it all of which pointed to the conclusion reached by judge nathan that the defendant engaged in an intentional premeditated attempted murder on the afternoon of october twenty sixth of two thousand and fifteen as such the district court correctly applied the sentencing guideline for attempted first degree murder and the judgment should be a for as your honors are where the evidence before the district court consisted of a series of surveillance videos from the afternoon of october twenty six twenty fifteen based on these videos the district court made several inferences and found several related facts in support of its conclusion that the defendant acted with the specific intent to kill his target and b this act was premeditated bronner's the district court found several related facts which contributed to its determination that the defendant acted with malice of forethought or with the specific intent to murder the occupant or occupants of the vehicle more specifically at page one hundred four of the record the dish report found that the manner of the shooting and more specifically that multiple shots were fired at a close proximity and that a moving vehicle which had clearly been targeted evidenced his intent to murder in addition your honor i note that courts have found that behavior before shooting such as in this one including bringing a gun to the scene of the shooting can support the intent with which the act itself was done just for you argue for  it does not in this case in this case drew inferences from the facts that were presented to her the significance of the evidence before her was certainly argued by counsel as your honor got to with his question to defense counsel those inferences are certainly still being contested judge nathan was the appropriate venue in which those determinations were made i appreciate mr richmond that you said to him in this case it would make a difference could you give us your give me an example of a case in which it would make a difference i'm trying to figure out where this line gets certainly and i think your honour's questions got to the point which is that these are factual determination specific intent and premeditation are factual findings by the district court cited in our brief as this court is found in summary order as circuits throughout the country have determined and as if this had gone to trial a jury or a bench trial a judge would have determined these are factual findings in hoc and  the cases it cites voluntariness is a legal determination and i think the hoc opinion emphasized that on uncontested facts particularly a legal determination is review de novo whereas a factual determination such as these determinations at issue continue to be reviewed for clear the factual determination then gives us leads to the legal conclusion of which guideline provision applies correct  i don't think anyone today is contesting that premeditation plus a specific intent to murder equals attempted first exactly here exactly and moving forward pointed to your questions if it is not just that the district court is the arbiter of credibility of witness credibility such that an uncontroverted record means that there should be de novo review there are other justifications behind why the deference is granted to the district court including that watches the witness use common sense or use the triggers that we as directors about to you know conclude whether the person is lying telling the truth or might be weighing different evidence so that's why we have this deferential standard of review of  without any kind of credibility determination your honor among other reasons i think there is a public interest in traditional con man stability and that is promoted by treating the district court in its traditional role as a finder of fact the legitimacy of a trial court in the eyes of l igants could be impacted if on a supposedly uncontroverted record a de novo review was done of factual findings it would multiply appeals by endorsing the retrial factual issues and it would reallocate judicial authority when judge nathan heard argument was in perfect position to make her determinations based on those arguments and made factual findings that are traditionally within the province of the finder of fact which was in this case so only review absent questions from the court your honor the government would generally rest on its brief the dish of court thoroughly evaluated what was before it found multiple pieces of evidence leading to its factual determinations regarding the defendant's intent and regarding the fact that the defendant acted with premeditation your honor got to some of those regarding premeditation including his behavior before his behavior during his brief behavior and subsequent to the shooting in question i would also note which  and fourteen shooting which occurred a block away but in terms of the attempted murder of the occupants we don't know anything about the occupants of the vehicle or what happened here and i have one other question because i sort of watched it back and forth back and forth and i'll ask mr snow get his well who is the guy across the street your honor we don't know how i would submit that it does again sort of speak to the defendant's both his premeditation and his intent to act there's someone who walks next them on the sidewalk and there is someone who walks across the street defendant doesn't just choose a target a wild and randomly shoot at either of those individuals he waits and he's lying in wait for his target when that target approaches he takes   now my colleague characterizes the the district court's decision as a finding of fact and i differ with that and i i would cite united states versus goddy and quote in determining the appropriate standard of review for a district court's application of the guidelines to the specific facts of a case it should follow a an either or approach as a judge newman's decision right this is united states versus god before five it's from two thousand and six i'm not sure if i think it was judge newman helping this court articulate the standard that you're trying well the both of you are trying to tease out for us now right now it's not so why when he says that why i went to court this court says that that we look at that it's a matter of law as to which which guideline is applied to the facts we still have to determine what the facts somebody has to determine what the facts are before we figure out the legal issue of which guideline applies well not not if the facts are completely uncontested as they are here and in my colleague refers to inferences from the facts but that is it's what the court was doing is applying uncontested facts to uncontested elements and then coming out with a final legal determination on the guidelines well an element had to be determined to figure out which facts were uncontested so but there was an element the the the knowledge element you're not going to divine from anything other than infer make drawing inferences from what we want to observe that's right when we  the mental state element i should say that's correct your honor when we have such a limited record all right and your argument as i understand it is look you there is you can't infer intent from what it's the the the facts are in poise there that you can't that the government has not met its burden of a preponderance of the evidence so that you always need a witness in your view that somehow adds that element not at all your honor what would be necessary to have seen in the video for us to affirm the district court i think that there would be this would be a much closer question if there was an execution style  shooting if there was no but in this case is there anything or because it was a car driving by and he took four shots at it with a non automatic weapon yes i would say that there is no one can never even if one absolutely has an intent to kill somebody in the car you could never infer that from watching somebody dumped four shots into the windshield of a of a car that was coming by that you've been lying in wait for you know you're on i'm not saying that if if if if  he had disabled the car somehow and it's was able to stop if he should the engine block not shoot a person i guess you could shoot the driver and that would sort of disable record the tire but yes your honor i'm i mean to say that if you shot the tire you'd be arguing and that's all we got to shoot you'd be arguing that there was no intent to kill anybody because he was just shooting a car well if he had continued shooting at the stationary car then this would be a much closer case absolutely ok