good morning welcome to the united states court of appeals for the six circuit we have i think three arguments this morning please call the first case if you my name is or can do and i'm here representing petitioner mr charles edward adams mr adams spoke out against police cooperation for his words he was punished not once but twice when the district court mechanically applied a sentencing enhanced it without any consideration of the first amendment protections to which we are all entitled for this reason we asked the your honour's remain on this case for we sentence when this first amendment analysis is can is conducted mr adams his statements are properly characterized as protected speech but then how could he be guilty your honor he pled guilty to the underlying conviction under fifteen thirteen be two however he reserves the right to appeal his conviction i'm sorry his sentence and that's exactly what we're doing here this enhanced man also punishes somebody for making threats with intent to cause bodily injury with the intent to obstruct justice however at no point did the court consider whether or not these statements were properly considered true threats why did they need to he admitted they were while he admitted that these at that they were threats for the purposes of the conviction he has consistently objected to the application of this enhanced he has admitted that they may have been threatening in nature he has never admitted that they fit the requirements of the enhancement with all due respect i don't know another we really care what he what he whether he agrees or or not do you agree with the underlying proposition that the supreme court has told us that a true threat is not protected by the first amendment yes your honor i do so the the can the offense of conviction at least as i understand it so tell me if i'm going wrong here requires him to have made what in the first amendment context we would call a true threat yes your honor so once having admitted for purposes of pleading guilty that he's made a true threat why on earth would we let him go back now this court has stated in united states versus pharaoh that identical conduct cannot be punished in two separate ways in this mechanical manner and you can if congress or the sentencing commission inten yes your honor however this enhanced mint is intended we can to this conviction to count for situations where there are multiple pieces of conduct here we don't have separate conduct separating the conviction in the enhance this particular offense could be could be added in different ways you could go in keys somebody is to lead testifies against you you leave court you take your key and you run a big line down the side of their car yes your honor that would kept under that that would violate the statute with yes your honor it was ok but in sentencing that person or the person who makes a threat of physical injury or causes physical injury it it's not double counting to treat them differently right if your honor there is a separate conduct so the act of killing the car and then if the person makes threat on top of that we're dealing with two pieces of conduct the actual physical damage itself and then you know i'm saying there's no threat on top of the person does it believing the person who's testifying will get the message there's no there's that that is the conduct in that case your honor if the enhancement was applied as automatically as it was in this case i'm saying it's not double counting i'm asking you is it double counting if you look at the facts of the case and those facts distinguish the way the crime was committed from other ways the crime could be committed so that when you look at the sentencing commission's intent or congresses in ten there's a reason for in the hand seeing the penalty when the crime the same crime is committed one way as opposed to another way does that violate the rule against double counting if there is only one set of conduct as in your hypothetical the king of the card then i believe it would violate double counting here we're dealing with a situation where there is nothing distinguishing the were counted for the purposes of conviction and the statements that were considered for the purposes of this and hence meant adding this first amendment analysis well that's a conclusion so let's let's look at that for just a second and and tell me where this analysis goes wrong it at least looks as if the crime here is for threats to retaliate the enhancement addresses threats to obstruct justice so you can retaliate in a way that would not obstruct justice so he might have we're talking about these facebook postings but they do seem to be the conduct is the same if you define it as posting something on facebook but the conduct is different if you look at what the precise threats were once to retaliate one is to obstruct justice so that doesn't constitute double counting what's the matter with that analysis or your honor there is a rhetorical difference but yes your honor of in a manner when you are condemned when you conduct yourself in a way that intends to retaliate against a confidential informant there is nothing that distinguishes that from intending to obstruct justice the act retaliating against the confidential informant in and of itself is an obstruction of justice much of that's what was being asked why why does retaliation always constitute obstruction of justice or the retaliation against the confidential informant always constitutes an obstruction of justice because the confidential informant is there to facilitate the proceedings of justice but let's assume the retail lieschen occurred after the proceedings are absolutely finally complete all the pills are done or you obstructing justice at that point if you retaliate for something that somebody did against you a couple years ago in a case perhaps not but that is not the case that we have here but taught we're not talking about you want to talk about what happened here and we ask you about theory when we ask about theory then you want to talk about what happened here so they're not this they i'd be the same but they're not they're not always the same would you at least concede that they're not always the same or so then your responses and this particular case this conduct was the same it was both retaliation and retail location in order to obstruct justice that is that your argument d g r r r thank you because this conduct in this particular case was identical for the conviction in the enhancement the district court erred in not considering the first amendment analysis adding an extra additional step to separate the underlying conviction and the enhancement when this was a standard do you advocate we should be measuring this question by a for the first amendment question here on whether or not these statements are protected because this is a constitutional question the should be reviewed to know did he objected at the time of sentencing he did not make it he did not utter the words of first amendment objection he didn't object then we look at things for p right yes us to the question of whether there was a procedural error that should be reviewed under a clean air standard so we're let's assume there's there's error not sure that the earth is clear but why is this resulting in some sort of  amount without the enhancement he would have been at a base level of eleven this would have led to a sentence of somewhere between the twenty seven to thirty three month range with the enhancement added he was eligible for a offense  sorry sentence with the base offense level of nineteen which was a sixty three to seventy eight month long sentence you can't possibly turn your plane air just because you get a longer sentence no you're on every case no your honor however because  this this at this error implicates a constitutional right and we have the precedent in cases such as the united states versus tomlin how does a implicated constitutional right right back where we started if he's admitted that his conduct constituted a true threat there is no constitutional violation period there is no constitutional violation at the conviction stage for the enhancement stage the question as to whether or not his statements were threatening remains unresolved in the pre sentencing report on page twenty one the probation officer noted that the objection to the application of this enhanced meant remained unresolved and the two parties argued back and forth as to whether a reasonable person should have viewed these statements as threatening in nature so by ignoring this question altogether by not resolving this objection by conducting a rigorous first amendment analysis the district court committed this kind of appalling error the judge say what w the judge judge's actual finding the judge accepted the government's argument believe the words were quite frankly your honor it doesn't get more threatening than this the judge accepted that statement that was the extent to which  first amendment was considered this brief of a consideration of the first amendment cannot suffice to be the kind of rigorous can textual analysis that is required before classifying speech as truly threatening why do why on earth do you need a more rigorous on the internet and then posting threats that suggests that either he or somebody else either he's going to kill them or somebody else should kill him on his behalf how on earth can you get more threatening than that your honor we can look to other cases where very threatening speech has been held to be protected when bold and when viewed in their full picture for example in united states versus what's the speaker uttered that lyndon b johnson the president would be the first person in the  his rifle that is speech that is just as threatening if not more you have to rely on the first amendment i mean the problem i'm having to be relying on the first amendment you have you have to say that this speech is protected and as judge makiko said your it's not protected if it's a real threat i mean either he was guilty or he was and he very well might have won this case by going to the jury and saying look i mean you know these are unfortunate words but this wasn't a credible threat this is street talk to this man never thought that anybody should really go defense and maybe you can even satisfy the elements of the of the offense but it would be unconstitutional to punish bad speech because of the type of speech it is because there's no intent so do you it seems to me that one could make an argument that ok you can have the facial elements of the offense but when you're talking about the conduct is posting it these words the words threaten butterly injury and it was retaliate ing because of the information but that one has to engage in a different inquiry in deciding whether  threatening to cause physical injury there's something different that's intended there that you really are looking to whether the person  intended that the person believed that there was a chance of being injured injured or something but and i'm not sure that's a winning argument but to me that's a very different argument than saying that whatever he said no matter what the threat no matter the implication the interpretation is protected speech there was a long winded way of saying that but do you why do you have to rely on the first amendment to make this argument your honor there are two i'm sorry see that my time is  center there are two elements to this enhancement the threat aspect which is the first amendment analysis and the intent aspect we have chosen to proceed on the first amendment threat aspect analysis because there is still an open question as to whether objective or subjective intent should be considered that is why in our last brief we asked that your honour's consider staying this case until united states vs alone is decided by the supreme court which would resolve the question as to intent they think you morning to me please the court my name is robert parker for the united states i do want to make it very clear at the outset we do understand the distinction the defendant is trying to make in saying that the first amendment forbade this particular enhancement without affecting the plea or the finding of acceptance of responsibility we just don't think that that is a meaningful distinction based on the claim that the defendant is raising for precisely the reasons as a judge like you can judge white that you were saying there's no way that the district court could have made the findings that the defendant now wants the court to have made but why wasn't it open not that the district was compelled to make the finding but why it why couldn't the district court look at the situation as separate and apart from the conviction he admitted that he posted something that had a threat is that necessarily mean that he threatened physical injury i mean do it was the judge compelled to if the judge believes that yeah his words may have caused someone to do something because that's the world we live in even though he didn't way was the judge obliged to impose this enhanced i think the answer is yes and the reason is that the plea was not simply to making a statement that contained a threat he pleaded to and this is within the language of the statute he pleaded guilty to threatening to cause bodily injury to the confidential informant that he knew he was threatening to cause bodily injury and that he did so with the specific intent to retaliate against the confidential informant for having gotten for having given information that led to the arrest of adams's friend and so that is a very different circumstance from simply saying well there was a communication here and i find that it ended up containing a threat problem is that he admitted to the subjective intent to threaten correct you can't retract that now i think that's right so you have to construct an argument that you have one set of constitutional protections for the underlying conviction yet another set of first amendment protections for an enhancement but the bottom line is how can you have a separate set of first amendment protections for an enhancement for speech that doesn't get cancers protection to start with i think that's exactly the bottom line here i think that is the bottom line i would also note very briefly he had another stage of the sentencing when the court was considering whether to grant an acceptance of responsibility credit he expressed lee disclaimed any reliance on a constitutional claim he had filed pro se letter with the court at one point in which he said something to the effect of i was just exercising my rights to free speech and he then came into court his turn came into court and expressly withdrew that letter because it was inconsistent with acceptance of responsibility and he got three points the maximum credit as a result so it seems like what he's really saying is not just that there's some distinction between sentencing and the plea what he's saying is there's some distinction between sentencing enhancements that hurt him and everything else and  simply i don't think that that's a correct distinction and also just like to make a very brief point about plain error the arguments that the defendant the defendant is right that he challenge this enhanced meant that the arguments that he made in the district court had nothing to do with constitutional protection he argued that the way the enhancement is phrased it requires the defendant to actually have threatened to cause the harm personally now the district court rejected that the probation office also rejected it and the reason was these statements certainly could be read to threaten personal harm and in any event that isn't necessarily what the the guidelines are meant to to prohibit so i think that that argument although a colorable argument was incorrect and he hasn't raised it here so that's the that was the nature of his challenge in the district court turning to the double counting issue for a moment that issue is raised for the first time in the reply brief and so i think the court could consider it waived but even if the court considers it it's incorrect this court's cases have repeatedly health that the only circumstance in which double counting occurs between the application of a base offense level and an enhancement is if the only conduct that qualifies for the base offense level also qualifies for the enhancement on the theory that if that were what the sentencing commission intended they would simply have made the base offense level higher that's not the case here the base offense level here applies to all forms of obstruction of justice to plies equally to the defendant who shredded documents and the defendant who murdered a witness and then there are enhanced means when you commit particular aggravated offenses as mr adams offense but doesn't get the enhancer well i actually think that's incorrect just a move in the interest of full disclosure the enhancement says that it applies to threats to cause physical injury or property damage and so i think that the  apply in that circumstance that this enhanced mint is intended to get the defendants who commit aggravated offenses like a violation of section fifteen thirteen and it's intended to distinguish them from other instructors of justice who may just shred documents or lie to investigators something like that as i was as i was saying the robbery guideline for example has been enhanced meant for robbing a financial institution but it's certainly not the case that if you're commit convicted of bank robbery under section twenty one thirteen of the code you don't get the enhancement because your your the elements of your offense necessarily include a financial institution same argument would apply to every drug case when and i think that's right acted of possessing or an intent to distribute drugs and then you're enhanced by the amount of the drugs but you've are it's the same as saying you get convicted because of drugs so you can't you can't dance because of drugs right of course i think that's i think that's right the final point i'd like to regards the request to hold this case for a line is we don't think there is any need to hold the case for a lot of us the question presented in a lot of us as i think my colleague alluded is whether the constitution or the statute issue in that case which is section eight seventy five of the interstate threat statute whether those provisions require a subjective intent to threaten even if the court answers those questions in the affirmative it would not affect this case for two reasons first because as you pointed out he had a subjective intent to threaten because he admitted in his plea agreement that he knew that what he said was a threat and that it was a threat to commit bodily injury and that he made it with the specific intent to retaliate against the informant he did not there is nothing in his plea that would support the inference that this was in fact a joke or hyperbole or something of the sort moreover when you look at the elements of the two statutes to section eight seventy five which is at issue in all honesty and section fifteen thirteen here they could not be more different section eight seventy five the only thing that must intentionally be done there is to transmit a communication and as long as it's later found to contain a threat you are guilty here you have to knowingly make a threat with the intent to retaliate and we can't think of any circumstance in which a defendant would satisfy those elements and not have a subjective intent to threaten so for those reasons i don't think there's any reason to hold for a l i think it would depend on context and i think the context is very important in every threat case you could imagine a circumstance for example where a defendant post something that says you know i this person was arrested i'll bet there was a snitch i don't know who that is but whoever it is i hope he dies i don't think that that would constitute a violation of section fifteen thirteen well it's not enough to say i hope he does or or you know i'm going to kill him i find out who we is and yes yes they're the informants in an image he is still intact there would be some question as to whether there was actually fear  of real harm there if however the individual said let's say that the informant was acquainted with the individuals making the statement said wonder who the informant is you know who you are and i'm going to kill you but i think the question is whether it is calculated to place a person reasonably in fear of death or injury and what about the people that signed on you know you're in a chat room somebody apparently has person knowledge of what's going on and says you know this is just outrageous and the guy should be killed in and then people are time  going yeah snitches to be killed you know shoot the guy and you've got ten people who are just feeding on each other they all committed the offense i think from a strictly from an element standpoint yes i think the question then is deep prosecute all of them they were not all prosecuted in this case the reason they weren't prosecuted is unlike mr adams most of these were just one off statements now maybe those are threats within the meaning of the statute but the decision was made to prosecute mr adams because he made the comments repeatedly he was by far the most prolific he did so over the course of several days this was not just  momentary outburst he knew one of the arrestees was personally acquainted with the case he was in the community it was not that you know as you probably know on facebook anybody who may see the post common you could be in tokyo and comment he was right there and he had a violent criminal history that was well known to people in the community and his his criminal history is extremely violent and includes firearms offenses in fact he was unsupervised at least at that very moment for having possessed a gun as a convicted felon so those are the reasons why mr adams was prosecuted was there any other questions we asked the thank you for thank you i like to begin my rebuttal by addressing a point made by opposing counsel that mr adams was prosecuted because he had posted multiple times whereas others had not that is not indicated in the record we have no idea how many times other people were posting in fact the record does indicate at least one other individual a should gentry who posted at least twice or you spend a lot of time on this don't forget selective prosecutions issue in this case does your honor however the fact that other people did not comment multiple times does not distinguish mr adams a speech the fact remains that there are still four very relevant can textual factors that place his statements in a protected spear first and foremost they were posted on facebook facebook being a platform for a virtual rally against police cooperation the mr adams has participated in this rally was started by another individual who posted the original screenshot of a newscast identifying the particular confidential informant among other aspects of the drug ring prosecution that this was all in response to this was public discourse around the issue of police non cooperation a political issue very relevant to mr adams his community additionally mr adams has publicly declared his affiliation with the world of rap music where this kind of rhetoric is very common it is stylized it is hyperbolic it is not a true threat lastly mr adams is nothing to indicate that he is in fact the type of credible threat maker that the speakers were in geoffrey's or aloneness or other cases in which we have found true threats posted on social media lastly alone is is very applicable to this case w aloneness does address a different underlying conviction the question of whether or not as speaker must have subjective intent to make a threat is the same question that is relevant here it is a core issue that the trial court attorney did raise thank you all right thank you the case will be appreciate the efforts of the university of michigan clinic and mr turner as here you did an excellent job on behalf of your client thank you