may please the court david mackerel on behalf of germain patent mr patents base offense level was increased by twelve levels resulting in a sentence of approximately seven additional years based solely on the conduct of another but the relevant conduct provision contained in one b one dollar a one b requires additional steps in order for defendant to be held accountable for the conduct of others our pe focuses on the st twenty one dollars there must be a jointly undertaken criminal activity and the acts must be within the scope of that jointly undertaken criminal activity into the acts must be in furtherance of that criminal activity obviously we recognize that guideline includes a reasonable foreseeability requirement we don't argue that here the commentary also provides additional important guidance in how to interpret that relevant conduct provision specifically note three states quote acts of others that were not within the scope of the defendant's agreement even if those acts were known or reasonably foreseeable to the defend it are not relevant conduct under subsection a one would be for that reason the district court or when it found the acts of another mr harris attributable to mr patt within the robbery guideline in the official victim enhanced met that's at play in three a one dollar both are obviously implicated by the relevant conduct guideline we believe the court can resolve both through that mechanism the are not at issue the district court found the government agrees mr patten was incarcerated he was in custody of the topeka police department for an hour before mr harris shot detective to the scope of the criminal activity jointly undertaken is the scope of that jointly undertaking criminal activity of factual finding you know so do we here to do the nd part of the question i i think that's correct as far as factual findings are our position is is there isn't really much disagreement about the scope of the problem is the government argued the scope expanded by the flights and then the district court found that therefore mr patten was liable for basically everything that happened after the flight and i think we would concede that is if this happened while mr patton was driving mr harris away in the car we wouldn't be here it would be of appropriately applied language and i can point some of the language well let me read you some language it says a conspirators arrest by itself is insufficient to constitute his withdraw so is it correct to say that mr pattens arrest alone is insufficient to constitute withdraw under melton your honor and in an office on the same page but in in melton at fourteen o provision limits accomplished attribution to conduct committed in furtherance of the activity the defendant agreed to undertake the defendant cannot be held responsible for conduct committed after he or she could no longer assist or monitor his or her coconspirators so our position is an automatic bar you're arrested you can't possibly be liable for anything that happens after that's not our position on it we tempted to make that clear in the reply brief we did not apologize our position is a rask plus continuing role that they're playing and so maybe this isn't a clean way to explain it but it seems like there's a presumption that if you're under arrest relevant conduct liability ends but that was a presumption  overcome might easily be presumption of the wrong or that additional evidence of a continuing role in the conspiracy or whatever the jointly undertaken criminal activity doesn't there need to be some evidence of actual withdraw for example and in some of the conspiracy cases it would take the form of the defendant affirmatively withdrawing from the conspiracy or cooperating with the government and we don't have any evidence of that here is that correct correct no no additional evidence of affirmative step and then if arrest alone isn't isn't enough as you've indicated it's got to be arrest and arrest plus if the who has the burden on that issue do you have the burden is the defense have the burden to show withdrawal or does the government have the burden to show continuing participation once you have this arrested i mean does melton help us on that issue i want to i want to for just one thing to make sure we're not track and i do until it's your question that the conspiracy cases that the court discusses i don't disagree but conspiracy liability is broader than liability under the relevant conduct provision and it turns on that jointly undertaken criminal activity the agreement portion so while that's something that's a i think it's an interesting point let me just on that particular point is the standard for withdrawal from a conspiracy different from the standard of withdrawal from jointly undertaken criminal criminal activity yes and why and what if you got any authority for that i think melton's helpful on this i  attempted to find cases that sort of tried to synthesize those two rules i mean we have those cases that are discussing the statute of limitations as far as conspiracy liability in kind of an arrest context in the years the hearsay exception in those cases i couldn't find any cases that explicitly tried to sort of combine those concepts you know we argue the melton concept seems sort of naturally related to them but to be frank as far as authority i couldn't find a case to try to synthesize investigation did mr harris make statements about mr patten and implicate him we also have maybe a more thorough record than we might have otherwise because mr harris was prosecuted in state court and we have the entire transcript of his trial and there's nothing in either of those documents that shows an extended agreement that they had said hey if we go to let up you do this all the living ask you particularly if we're looking at it potentially either is  get out of the car assume that you're going to you're going to you're going to flee and harris is going to flee and so i think with the district court is banking factual finding is well the originally joint jointly undertaken criminal activity was conducted robbery and then it expanded for the flight he enabled mr harris with his gun to go in and leave and he's on the loose with a gun and so then mr harris mr patten is captured mr harris a and so why isn't it of fairfax a reasonable factual finding that there was jointly undertaken criminal activity to enable mr harris to flee with if i understand the court's question i think the government at least sort of briefly references this type of argument almost a but for type situation if mr patten hadn't taken certain steps mr harris couldn't have done these things and i think it's resolved on the st step the acts have to be an agreement as to be jointly undertaken criminal activity  yes it's worse as willis which is another case from this court isn't directly about what for but i think it it makes this answers your question this is the case where mr willis gives accurate logon information to his drug dealer as like an exchange she thinks it's told or at least there's evidence that it's to collect debts but not maybe not surprising to anybody the drug dealer uses it to steal people's identities and to do other identity type offenses the court this court remains that case agreed to undertake so again here the drug dealer couldn't have gotten over people's social security and all their information but for willis giving that information but wilson's agreement wasn't i would give this to you for the purpose of committing identity theft or what other other implicit agreement in order to enable him to do it to enable heroes to flee so again i think i think the enabling is sort of about for me to disagree on that i would agree with the court that during the course of flight we wouldn't be here we would be making that argument that's the scope maybe as they're both getting out of the car if this happened simultaneously this is sort of the a couple cases that the government pointed to gamez is one where it's almost simultaneous it's a th circuit case in nola which is unpublished the case is sort of a concurrent it's happening as the two were fleeing but that's not the facts before us there's there's clearly a break in time and our position is time isn't really the issue but there are certainly a  they got out of the car and when they decided to rob the convenience store i assume i think reasonably that they weren't going to just hang out at the convenience store they were going to get away however they could  and so i'm i guess what i'm not following here is why when harris was filling that was still part of the jointly undertaken activity here's flight after mr pat is under arrest it is not joint in any way why not did he know that mr patten had been arrested i mean weren't they really did at that point just splitting up and trying to get away with this yes far as harris is concerned that's part of getting away that now if it's a month later and that's another matter but you know i don't think it takes it takes a while to get away i understand i i don't think it's that it's a timing issue i think it's a was there agreement did well isn't isn't the issue isn't the issue really come back to the arrest in the aftermath of the arrest is not really what we think arrest ultimately resolve the case yes you're not alone as you said that the beginning if the government had additional evidence that th two had said hey if we split up make sure take out any officers or if for example mr patten lied to police and said oh mr harris dumped his gun don't worry about him or or something like that maybe that would be the additional evidence test we don't have any of that are and what did what did the district court do with the arrest at the hearing what the what was the district court's analysis it didn't appear that the district considered the arrest wasn't argued yes yes we cite milton in the district and and so why isn't that an important part of your argument as far as just the lack of sufficient factual findings well if the court didn't consider the arrest me think the arrest was a lynch pin here isn't isn't that really your arc is that the is that the error you know it in the beginning brief we certainly cite but the st up under the guidelines of the commentaries the court has to make sufficient factual findings if  please the court here at mass as the united states during for the district of kansas candidly we're working with a set of facts that doesn't lend itself to a lot of case a port there is not a lot of precedent in this area and so arguably the court is strictly in the th circuit is left with an issue i think that it's going to have to sort of synthesize the issues but what i would say is i don't think that the conspiracy law unnecessarily lin's a lot of support here i really think this is a guidelines issue and how you apply will be one point three rather than the conspiracy as this court is as i said repeatedly conspiracy analysis  much broader but this is very fact driven and the court i think bacharach especially has has centered at the issue on what role does the arrest play in this circumstance does it does it sort of is a sort of a demarcation sheerer that anything after it really does not lend itself to a responsibility on the part of this to patton just because his or her ask you to clarify your your when someone withdraws from a conspiracy or the acts afterwards are not attributable to someone who is in this case was in voluntarily arrested really doesn't lend much  that the government in mel conceded that the participation in the conspiracy had terminated with the harassed i take it you're not conceding that the arrest terminated the joint active not a ok then then why didn't it because it doesn't lend the nuff credit to the fact that patten set this in motion by agreeing to flee and avoid detection he again as we've used the term prior able to continue to flee which is with well within the scope of the agreement of the parties which is to avoid detection and flee from the robbery there isn't any doubt there doesn't need to be a but how did he continue to participate once he was before he was arrested what about the arrest itself the arrest does not matter under the circumstances the fact that they agreed to flee and that that is within the scope the fact that harris continues to flee all of that remains attributable to hatton because patton was the driver which enabled harris to fight so you're saying the arrest is irrelevant it is irrelevant we do not believe it has really any impact on the on the facts of the of the agreement on flight to avoid prosecution because when when patton agrees to drive away from the scene that gives harris the opportunity to continue to avoid detection by flying sophy's undetected for a i think the i think it's the taylor case of the th circuit sort of lends to the idea that the time away from and maybe this goes to the nd issue more than the st is about as far as a media flight and i don't want to conflate the two enhancements here i think we would lose on the immediate flight issue on the on the nd enhanced been under three a one two i don't disagree that it might be attributable to him in the instance of a factual situation as you would raise if he were to confront law enforcement officers and law enforcement officers knew that he had engaged in their head in gage in this robbery and were trying to arrest him for that and he fights back or shoots or something to that degree there could be an argument there i think it's much harder because again this situation was very fluid because remember there are officers who are remaining on the scene they are looking for him so this is all confined into this area of trying to get both of them arrested and so to sort of divorce the idea of patton's involvement simply because of the arrest again gives no credit to what he did to allow harris to continue to flee and well is there anything that patton could have to get himself off the hook of having mr harrison's conduct attributed to you in our pinion other than the fact well what if what if you've been arrested and and to the arresting officer i know where mr harris is going to go and i'm going to tell you so you can catch him i don't think that absolves him of liability if harris because remember he gave harris the opportunity he has a painting enjoyed activity even though it's cooperating with the government it's not participating in joint activity be on the arrest it's the issue of and i think that's where the disconnect is between the parties here is that somehow the the act of assisting harris post arrest has to be an action post arrest our position is the decision to enable harris through the driving is enough to be a recipe our is a relative if you got any cases that would give us thank you no any support hurt and that's the unfortunate reality of the factual scenario under this circumstance you don't see this very often in many instances when you have a confrontation and i think mr magriel would agree if the confrontation in the shooting that occurred immediately when they were stop this isn't an issue those enhanced ones are going to apply it's the fact that there was and there is an hour difference between the arrest and when mr harris engaged detective hill and the question only is is how much liability is attributable to mr patten for that enormous let me ask you let me ask you this what if the government go to the scenario i gave you where mr pattens arrested and he starts cooperate with the government which under the conspiracy case he says i didn't deem to be a withdraw for here it wasn't just the happenstance that it wasn't charged it's a conspiracy that we're outside of looking at any of back lot and there are a lot of listening to circumstances here because of course mr harris was charged with capital attempt conspiracy as much as they were engaged in the fact that patton was a principle under aiding and abetting theory and that's what he was charged with is this is is this the the the the point  saying or implying that there is really no such thing as with role from the scope of the of whatever the joint the scope with which you're going to take criminal activity is and that's why i think you're drawing a conclusion that his arrest really can't make any difference as opposed to conspiracy so so in other words with you're saying is once he agreed in your view to to join we're going to take criminal activity to flee it doesn't matter if he's cooperating in that matter what because this scope is whatever it is it only ends when harris is captured because once he enables the flight is that a factual finding the  again you ask that question and i think that's i don't know that there's necessarily a disagreement about the fact that patton was the driver so the fact that she drove is not in in dispute but what they  d jointly you know the scope you know the driving every everybody agrees with that as opposed to the where the rubber meets the road is whether there was jointly going to take in criminal activity to leave here's here's how i would answer that is that the the actions of both mr harrison and mr patten demonstrate the agreement clearly they knew that they were being followed clearly they knew that the situation that they were in require them to flee on foot now and that agreement was demonstrated by the by both of them going in opposite directions there are certainly i think it's fair to say there's nothing in the record to suggest that the two of them decided in the car that if you go one way i will go the other their actions demonstrate that  term earlier with mr magri all that that was it was sort of an implied agreement you know six and one half dozen the other their actions demonstrate an agreement to avoid detection and to flee from law enforcement officers this is not uncommon you see this all the time in situations where officers immediately or on the scene in the confederates flee from the scene in there chased that agreement once it start again i think to not hammer the point home more than i need to was that once that agreement started the arrest really largely became an irrelevant standard or irrelevant issue until harris was captured because patton at every turn enables harris to continue to flee and that's what we're arresting our position on and i don't want the court to lose sight of that fact that's why i don't think conspiracy law really plays here because the agreement itself doesn't really lend to a conspiracy type of riemann's it wasn't an agreement i mean obviously they agreed to flee patterns driving harris wants to flee and they want to get out of there that agreement exists that's a good site it's dunster would you agree that it's at least possible for a party to an agreement like this one to withdraw from the agreement oh certainly it's certainly possible you certainly could have a situation where someone stops the car immediately as you referenced earlier that they could stop and get out of the currency i don't want any part of this in the longer he did this i graeme the driver i don't want captured for their own conduct not for three well not for three and one two that's where i want to get to the issue of the immediacy of it that i think is a that's a different animal and i think that's a tougher question for the port because there's so little case law on that if the court would allow me to move t i think that's really the issue here and to the to the idea that the action itself of shooting detective hill had to be immediately within the you know the larger or robbery the curd in this case i think does a disservice to the whole idea of how this rule is to be a plot so for example say for instance that they had gotten into a  is arrested but but harris is on the run but they know where he is and they get into say a long slow chase the takes maybe two hours and but at the end of that harris shoots the shoots the pursuing officer that's clearly not immediately within the context of the robbery but it's certainly within the scope of the robbery because they are chasing that's our position that that the term immediate to apply it in a circumstance to say that it must be instant to the actual robbery itself does a disservice to the facts that generally apply under these circumstances because you know these events as demonstrated in this case it takes times for for officers to find the individuals and in this case it was simply one hour it's hard to define in what do you don't we have to do a definition of a media and it's not fine in the in the dark of the case the court says to sort of fall back to the traditional methods of looking at the definitional sections and again we think that does a disservice to factual scenarios if you can find yourself to the idea that it is instant because the situations like this are so fluid when officers are coming onto the scene and the reason that i used it in the converse in my brief is to suggest only this in those cases those were situations where there were individuals who there were days beyond where the actual incident occurred were three a one dollar was was sought to be applied and clearly in those instances days beyond that's not immediate but the fact remains is that they they took time to consider whether or not that was immediate so our position was in the event where a court is going to going to at least contemplate the idea of more than twenty four hours being immediate it certainly is within the realm of possibilit one hour from the robbery falls within the term immediate as what we believe the guidelines in the sentencing commission would understand that term to mean particularly in the context of robbery situations when generally you have situations where the individuals do flee from the scene so what's the standard that we apply well in this court has said regularly to look to other parts of the guidelines to try to reach a decision and i think to give a full appreciation of the term immediate i think you have to synthesize that with the one b one point three language of scope because if you use immediate and scope to an area which i don't think the commission really would want the court to do that the court understands a broad interpretation of the guidelines is the appropriate manner in which to do it and i see i'm sorry i see my time is quite over we seem to be in a pattern today of doing what  i do apologize list or disney questions we would ask the court uphold the lower court's decision to apply these enhancements thank you thank you very much thanks to both of you for your arguments this morning did he have any extra time oh sorry about that  'll consider the case submitted and counselor excuse