move on to the next item on calendar united states versus president rosa and ralph and as counsel approach mr buehler understand you can have ten minutes that posed the question of whether he assaulted or whether he was acting under his right of self defense no one prior to right before jury instructions looked upon the case as involving two incidents  langley got up and began to run in the street pres chased him by by saying that that latter part of the interaction between them was not one to which the self defense instruction applied the judge effectively directed the verdict because it's there was there was no no aggressive action at that point but off willingly and there was some it's a little bit hard to tell on the tape but according mr prez's testimony he was really just wanted to make sure that the officer wasn't going to grab a weapon and turn on him after the officer fell and he  of fell on top of them he said he swung a few times and didn't hit him then he got up and he ran now given the context of what happened here and if you look at mr president as to money he's been bullied belittled provoked and then eventually violently thrown to the ground by the officer and then the officer grabs his arm and keeps holding on to the arm and finally and his instinctive reaction in the heat of the moment was to follow the officer out of the fear that the officer was trying to create a little distance and then come back at him with with a weapon now that happened in the matter of seconds the question is whether it was reasonable for mr peres to have that fear under those particular circumstances and then to react the way he did by initially following the officer for his own protection i submit that when judge klausner took the latter half of the latter portion of that interaction and said there's no right to self defense there the game was over and it's clear the jury treated it is over because the jury didn't deliberate from eight maybe three minutes and team back but had the jury been able to to apply their judgment their common sense to the overall situation know who's telling the truth initially in the in the initial altercation but whether mr pres truly was acting still out of his sense of protecting himself when he followed the officer outside the gate i think the jury could easily have decided he was and in all of this does our constitution not allocate to the jury the function of deciding that kind of question so i and guilty verdict i submit that that's what happened in that it violates violated mr president to a jury trial in the case law says that the senate entitle to a jury instruction entitled to the jury's decision on any issue where there is any foundation any evidence even though the evidence be weak insufficient inconsistent or doubtful credibility by by by brutal correctional officer it was some at some foundation from which a jury could have found that he was acting reasonably out of a sense of what matter if you could clarify do you do you agree with the government or what the basic facts are of what happened to the officers and as your dispute about how those should be characterized under the guidelines already or do you see there as being a disagreement about what the injuries were and they really are separate because the other two defendants are not part of the initial altercation they come out they have their own interaction but for mr mr pres there's a big disagreement as to what the nature of that interaction was the government's brief is replete with accusations claims contentions that mr brewer is pummeled the officer that he struck him many times and so forth and on the other hand if you look at the video and i've tried to make that possible by in answering it and so that in that court it's clear to me that at no time can you see on the video prez's fist or hand strike the officer but counsel what i think the question was what about the injuries say hit him once say them ten times let's set that aside what about the injuries do you dispute the faults i'm saying the medical records are unreliable i'm saying you have you have brief references to some of the types of things that would add up to two serious vitaliy injury the  you're representing mr president's presence found guilty with respect to the assault on officer langley all right yes and officer langley was off from work from may th until late july right so about two and a half reason that four hundred and fifty six months off i don't know if he was going in and just reporting certain things that weren't really really really true and i think that's what the probation officer was saying i don't really have any solid evidence here of something that serious it's a big sentence so it's not as if you know it's just a few more months i mean it's a big difference in the guidelines it's not necessarily big difference in the sentence correct i mean you've got a sentence here was well below the got life yes but it's a big difference in the on the basic facts if you look at the medical records over and over again it's contusions abrasions and strains that's the diagnosis bruises scrapes and stains are the diagnosis in this case and that's what we contend does not constitute serious with respect to the standard of review generally with respect to a factual finding that the standard of review would be clear air in this case in our sentencing this report did not make any factual findings and therefore for the case cited in our briefs we say that it should be  it says requiring medical interventions such as three hospitalization or physical rehabilitation he went to the e r and then had a number of follow up visits with a doctor why why doesn't fit within  that guideline ok with respect to my client pled guilty early and the government had a theory that each defendant was responsible for the assault on all the officers my client by the end of that theory that theory was disapproved by the jury the jury rejected it so my client was the only one found guilty of assaulting both officers and in fact he didn't he did not assault langley but with respect to officer langley there's a lot of contradictions in the records you notice that he was repeatedly cleared to return to work and the doctor repeatedly respond to the worker's compensation adjustor he needed more time in fact in the same report the doctor said the workers compensation adjuster he's a little anxious needs more time to recover in that same report the doctor's objective his psychiatric condition was that his mood in half were normal there was no distress noted no anxiety no depression so it's clear the doctor was trying to give him more time off work even though the underlying medical condition didn't justify it and that's why i think he was repeatedly cleared to return to work and i also wanted to point out with respect to the accuracy of the medical records in one case officer langley report he been tack by six or seven inmates and we know from the video that's not true he was attacked by one in e and the government's cooperating witness may have kicked him once but so there's a lot of exaggeration in the medical records and i think the point of that is that langley wanted more time he was repeatedly cleared to return to work repeatedly given more time but by a sympathetic doctor who's in trouble reports were inconsistent as to the nature of his injuries and that's and that's why we think the district court especially when you're talking about a sixty seven month difference in the guidelines which were contending has to be found by clear and convincing evidence the district court had an obligation to scrutinise what exactly were the nature of these injuries and in this case the guidelines require that you have medical intervention such as surgery hospitalization it's called rehabilitation and w your comment about his treatment in the e r that's not hospitalization surgery or physical rehabilitation it's a serious difference between bodily injury and serious bodily injury and that the guidelines make it clear that it has to be a serious injury in this case over and over again you look at the medical records all it is is contusions abrasions and strains and in cancun you know you said a moment ago that there was no finding by the district court but why and i agree we didn't say very much about mention that there was another defendant was also tasting officer langley outside the court yard after the scuffle inside of it as defending him solace what you define a good solid do he peeled off and ran back to his place his opportunity to retreat back to his cell prior to chasing officer langley outside the court yard nor was there any mention of the fact that correctional officers within victor ville do not carry anything but officer langley outside the court yard so a jury could have found that it did not he did not in fact commit assault so it wasn't in fact a directed verdict as to defend the reality  i want to start with the fact that it wasn't just cuts abrasions and mild injuries it was much more than that and as and he also said that he had had it as a result of this incident had issues with his marriage psychic issues that affected him moving forward and that's fine it's eleven that's interesting when does that satisfy serious bodily injury bodily injury seems to exclude that type of evidence so on i'm sorry i'm so under the the definition of serious bodily injury in the guidelines it specifies that it's not just physical appearance also mental impairment so the government's contention here is that if you experience psychological fact for instance p t s d in certain courts have found that p t s d is a factor in considering serious bodily injury that would be that would be the instance here is that something analogous to that and it doesn't just end there i think the court before it trial testimony here which makes it significantly different than the events leading case where the victim was even present in court in fact they didn't even locate the victim it was all based on testimony of other witnesses defended in fact cites the court did and so you know if we think that the standard of review is or that the the standard of proof is clear and convincing evidence what are we do with the the lack of an explicit finding from the court on the knee of these facts that you're talking about now you are the cork in this court to make any finding that's sufficient based on the record before that court and so in this instance that court had sufficient facts the government's st this is the government's position to make that finding and it made it clear that he definitely made clear that he made a finding of serious bodily injury that's clear from the record and i can cite to the record cites for this court if it if it so desires i mean i know that he said that  with respect to one of the senses no question this is an aggravated assault then he goes on to say in that same sensing there was serious bodily injury to the officers and should be punished as an aggravated assault and that's found at the government's excerpts of record seventy four dollars that was  today i understand but the guidelines are advisory correct yes and the cases that set up the clear and convincing verses preponderous were when the guidelines were mandatory correct that's correct your office filed a brief about a year ago in a case called veera a that argued after the beccles decision that our case law about clear and convincing in jordan those types of cases is just wrong and that we're the only circuit that seems to cling to this old rule i know you didn't make an argument your brief in this case to say that we should overrule all of those cases in light of back and if you're not that's fine i'm just curious have you thought you thought about this is a little bit prepared for this case have you come across any more thought as to why we are continuing to apply clear convincing when this is all advisory anyway you're out of the government actually did file in its answer brief it to drop a footnote yes they continue to believe it's incorrectly decided i think that's right i think in guideline it makes some sense that you need a higher burden because you can't appeal at that time three thousand seven hundred and forty two the statute that we talked about with evans would have precluded your appeal if there was in fact a guideline sentence within the range that's no longer the law that's no longer without having for that can i'm happy to present further you know as i was there is a lot of blue but it's we always spend a lot of time about arguing about guidelines when it's all advisory just you know there's some old cases that are still requires do some stuff i'm not sure we need to do anymore but if you're out and you to jordan i think the other case that's more apt in this instance is going solace which the court this court found that even under a plainer stand which the defendant real concedes is this is a review of whether clear and convincing evidence implies that  that instance it was not plain air to find the enhancement and i think that's the case that the government would propose were followed turning to the just the self defense instruction issue i just have a couple more points  this is this interview is playing there jones versus united states makes that abundantly clear defending can't lie in wait until after the jury instruction is given especially in this case where defendant was made aware by the the court that it was going to give this instruction that was clear from the record and then he waits until after the jury is sorry excuse and jones makes clear that that is not permissible the case is that the defendant cite all predictions jones as the supreme court is the law the land  as for the other issues in terms of the jury instruction that there's no question that the that was not objectively reasonable under the circumstances what defendant pries did and chasing also langley outside the court yard issue and then finally with with regard to the subset of reasonable this is a court have any question with regard to that issue but i do have a question though about the correcting the conditions of supervised release and i wonder if you could say you know when we raise the question of not the same time first of all your honor at several points were made by counsel one was that the codefendant who threw as did not cease after the officer who drives also did not have an altercation with the officer for thirty four minutes before and therefore would not have been in the same state of mind had the same level of fear and excitement that had been created by by the officers attack on on  he had no reason to need to he had the reasonable opportunity to retreat that subjectively true he could have done this way instead of that way the question was did you have a reasonable fear that even if he didn't go the way he did he might still be subject to being his conduct was objective lee reasonable it's a question of whether given what he knew and what he had been through did he have a reasonable belief at that time or is it clear beyond reasonable doubt they did not have a reasonable belief that time that following the thanks i just want her briefly respond to a few things that the government's counsel raised now st of all he said that there were multiple hospital visits but if you look at the record they went to the emergency room and received minor st aid and reported the low moderate pain and moderate minor st aid does not qualify as requiring medical intervention such as surgery hospitalization or physical rehabilitation we think that minor for states simply cannot be encompassed within the definition of serious bodily injury he also said that had to physical therapy appointments that was considered by the rotation officer and rejected again because no evidence was presented regarding it but again we discussed how the cannas of construction require that when you have a term stating medical intervention such as severe why isn't that sufficient they both or they had a lot of pain i think there's inconsistent reporting due to the amount of pain and i think that at nish really in the initial medical visits it was reported as low to moderate pain it was reported that severe when it came to trial he was testifying against his attackers that's when it became extreme pain and i think the more reliable reporting is the contemporaneous reporting rather than when it came to trial