the court samantha stern assistant federal public defender on behalf of john lennon i'd like to reserve three minutes for a bottle granted guideline for a one point two it's clear prior sentences imposed on the same commission apparently agrees with this majority approach and cites the majority of cases powell and they all feel x and it's criminal history primer which it issued in june twenty sixth and the stern let me ask you a that is this rule is consistent with the commission's concerned with addressing the likelihood of a set of by some and also just punishment generally one offense one offense contact is charged by  summons or citation as opposed to a full blown custodial arrest you're dealing with less serious offenses misdemeanor paddy offenses and if you look at the other portions of this guideline you see the commission doesn't want to overstate  relevance of minor and petty offenses in a criminal history let's say or if it's if it's you mentioned receipt of ism in this case and it's the facts aren't altogether clear even in the record but your client gets here i'm going to say he gets charged with something on september twenty eighth and they send them home we're going to send you the  apparently get strikes with the very same thing september twenty ninth ok isn't that an indication that he didn't learn on september twenty eighth for whatever reason i understand that argument and isn't that a sort of that says you know there was intervening confrontation with law enforcement he didn't learn anything on the twenty eighth and so you know just because he got sentenced on the same day why should we treat this is one a meaning in common usage and also in legal jurisprudence it's consistent throughout and it requires the taking of a person into custody and in the commission's view someone who really offends after a full blown arrest serious offenses and isn't out and for inference is a career criminal guideline so in the consideration of the criminal history and it's considered wants why do we need to consider twice because the commission has made clear throughout these guidelines that patty and misting are offenses are to be treated differently i submit that so i mean that's already in the guidelines that that's already there it's something that the district judge is the where of and will take into account and when you have here entirely different offenses involving different controlled substances  isn't it appropriate to consider whether after the for the first start the guy went home and turned around the next day and didn't exactly the same thing and it was minor  minor that will be taken care of when the judge considers the criminal history and the offenses involved i think it's important that it that the judge apply the guideline tax to as  written and the commission has provided hence that petty in minor offenses of a similar nature to those involved here we really don't want to overstate the defendant's criminal history but there are lists provided in for to i think help us to understand why the commission chose to use the term arrest here rather than choosing the term intervening charge or intervening apprehension commission wasn't just score you know in some states the least that used to be and i think it still is in some states if you get arrested for a missed of certain misdemeanor offenses you're take it into the police station  and even though you might be allowed to quote post bail that could constitute an arrest we're as in pennsylvania you may be told like your client did we'll send you the paperwork we'll send you a summons how do you treat those it's supposed that this incident your client's two incidents occurred in north carolina where they used to have it least used to have that process where no matter what it was  drag in the police station you posted bail and then you went on your way why should we treat the north carolina are quote arrest any different than the pennsylvania rest because that's not the guideline language wellwood that but what i just described with that constitute an arrest police officer stop yat no highway in north carolina and takes you into the police station and records clear that the police have taken the suspect into custody and the i'm so really here making a plain language argument from the guidelines right that's right you're on the word the word we have to interpret is arrest that word has been defined somewhat clearly by the supreme if they did find evidence right during the initial stop right yes your honor and the evidence could have been five kilos of cocaine but if they released them and said will send your summons your argument i assume trying to address or sort of us exactly but judge fisher just pointed out i think quite correctly that it's not always a proxy because you know fifty states have different rules absolutely and these guidelines apply uniformly and in order plain meaning if you think we can go down this road of including traffic stops and summons then you're introducing the ambiguity into the guideline and the rule of law and of the would dictate that this guideline should be construed district court's implicit holding that pencilling aggravated assault categorically qualifies they're basically treating this appeal as a very sentencing proceeding where they can offer a new records to show new facts never before the district court where where was he going to give it raised you're familiar with chief judge smith's opinion in joseph about the distinction between issues in arguments i am your honor where was your argument raised below were can you point to the defense counsel of jack ted after the government of attempted to essentially get a waiver on this issue and he indicated that after johnson pennsylvania aggravated assaults no longer qualifies as a crime of violence that can only be understood as an argument that pennsylvania aggravated assault is not categorically qualify under the remaining operational causes of the guideline and by this time the residual cause was out the and make a determination on the modified categorical approach as to whether the school was your honor should sooner send it back to the district court and allow the district court to determine whether the government deserves a second bite at the apple to offer records never introduced before the district court to prove facts never even attempted they never attempted to establish about at that level me once mr lay object to that sentencing which the government was fully anticipate and when it a waiver on this issue she could have either offered the documents or requested a continuance to allow her to make the record that she needed instead she went forward on the record as it stood and i see my time is up so may have please the court more or when from the u s attorney's office on behalf of the government starting with the issue of the intervening harassed it's our position there really is no issue before this court with regard to the intervening arrest what mr lay history else w i believe you made an a factual error on that and i think we need to pay careful attention to the advent of does it not refer back to the paragraph i believe it's thirty five not only the p s r the narrative in the p s r but also the magisterial district court docket sheet the defendant sentencing mortar and the defendant's rap sheet which lists defendants arrest data september twenty eighth twenty fifteen that's on page two the supplemental  arrest i mean if the sentencing commission wants to consider something else like the difference between the crimes were or an intervening stuff that's one thing but they use the word arrest and if they want to incorporate more meetings than this to rest in that shouldn't they change the language well that perhaps they should but i'm as it stands at this point we know from looking at the reason why we have this action which is criminal history it's to assess whether or not this person is a rift that senate has whether or not they've been stopped by police given notice of their activities being illegal and have continued to pursue that same path would be just redefined arrest though stopped by police for doing something wrong that's your definition of arrest no i don't believe we have to come up with a definition of arrest that qualifies for every purpose under the sun it's simply to identify a bookmark has there been in that interaction with law enforcement why why substitute the word interaction for the word arrest arrest is the word we must home in on correct that's true but it also is les had been stopped on the twenty eighth for failing to signal a lane change and he was stopped for fifteen minutes and they checked his license and registration and insurance and then they history that now i'm just trying to preserve for a one point two is that hypothetical i gave you an arrest well that the contact has to go back to enough i see your point but i think what we have to understand is what i'm asking for any answer yeah i think it's a yes or no under the hypothetical is john francis slay on september twenty eighth is stopped for failing to signal a lane change he stopped for fifteen minutes they issued him a paper a summons for violating the law and he summoned to appear is that in a rush i think that has to be an arrest that's an arrest i believe because why because the car was pulled over or because they gave him a summons because they gave him a summit on it so you're saying your argument which is fine is that any summons equals an arrest so i believe that i believe there has to be consistent federal summons requiring him to appear that's an arrest i think we have to apply a consistent definition throughout that's a yes yes ok but but if he were you know in where you use the word definition where do you get that definition from i think it comes from an understanding of the guidelines themselves and what their intent is ok and that's that and that was initial question i asked miss nerd what was the whole purpose for this quote exception whatever exception it is arrest arrest plus sentencing on the same day mean single episodes or no arrest sentencing on the same day single episode what was the purpose for that the purpose is to identify those that was the debate and to make sure that people with similar backgrounds cyma criminal history backgrounds are treated the same there are we required to follow what the supreme court says and re import defines arrest how can we say well that's very nice but we're just going to give it a different interpretation here because the supreme court case that defines the term morass for the purposes of the guidelines i don't believe once been cited why would we use a different interpretation of a rash throughout all of other criminal law were interpreted for a one point two week wouldn't the default position be to use the same definition of a rush for purposes of forty one point two unless instructed otherwise well i think it goes back to why we're defining it we're defining it for purposes the sentencing guidelines it reminds me of the position you took in the decision in a which is you know arrests for purposes of forty one point two don't we consistent with dr ross questions have to adhere to what the supreme court has told us that term of art means well i'm not familiar with the decision that you're talking about in the supreme court but if it relies on what it means for purposes of the fourth amendment that's different than what it means for purposes of determining someone's criminal history to determine whether or not there is that at this go back to the probation office is supplemental report i mean isn't that just restating the question this before a quirk they were the ones that said there was an arrest they were the ones that categorize it as an arrest but what we have that's the issue we have to decide is was the issuance of that summons for possession of drug paraphernalia and arrest under the sentencing guidelines i disagree with you judge fisher and it's because this report says this word arrest is used in these places and it cites those specific places that's  that's a little conclusion well i believe it's a factual conclusion as a matter of fact these documents saying there's an address there is the legal question of understanding the documents said that mr lay was arrested that's a crack according to the supplemental addendum which the defendant never challenged so we have the issue of we're in here in court on the date of sentencing the judge asks mr lay's lawyer have you read the supplemental addendum and he sa yes they go on to sentencing we get to sentencing and then the a usa is asked her position on sentencing and she knows we have the supplemental and then we don't need to beat a dead horse on this he has as a matter of fact an intervening harassed if mr lay wanted to continue to challenge that he should have some chapters of the on the question who would then be the language used by the person creating the documents that memorialize what happened on september twentieth i suppose that is i mean it has nothing to do with so if if les comes in and he's doing here who are he came in more specifically and said hey wait a minute the sense of hearing you know they're saying i was a arrested i was told i was going to get a summons i went on my way the police went on their way and he has every right to do that but he didn't do it here that's the problem we're facing is that so we have this issue the issue here objected to w whether an interview a summons qualifies as an intervening arrest that just a court issued its tentative findings of the amended p s r comes out with the answer as a matter of fact there wasn't a rast we go on to sentencing and there is never a recognition by the defendant that that is a game changer that is a matter of fact we come to our opening brief and the issue is again is whether the summons qualifies as an arrest by the time we get to the reply of the question of waivers addressed to the extent of this supplement mental appendix needs out salute lee nothing which we believe to be factually in class no i think i mean i'm looking at the supplemental appendix that refers to thirty six  as well as thirty five it does so that's true so how do we know that is if their view of it was that you know thirty six does not talk about a guy being arrested i does not talk about the defendant being taken into custody so why would have been reasonable for them to rely on that consistent with your argument that the issuance of a summons does not rise to the level of  extent you read this is not being clear again the defendant has the burden to come forward and say this is the problem i have with us so that we can decide this before the district court so we're not in the position we find ourselves in now which is addressing an issue that is never there is not before the district court was not before the district court he's now saying in his reply brief we need a full blown custody all are asked to qualify i don't even know what that means it's not even use in the decisions he relies upon in fact and we all feel like the court says an arrest may be simply telling a defendant that he is under wraps i thought they are you did the other way i thought your argument in the district court correct me if i'm wrong i thought it was summons on september twenty eighth did not equal in a rest for purposes of four a one point two that's correct that was their argument that you're saying that they they later forfeited that argument somehow by doing what  it becomes irrelevant it becomes a real whether or not that it whether summons qualifies as an arrest because we have that supplemental appendix that demonstrates as a matter of fact that there wasn't a raft or you know it just repeats the district court by the time  supplemental appendix was issued the district court had already disagreed with their argument and grasset i think the district judge find that that there was an arrest on the twenty eighth of september in the supplemental  the supplement just parrots the district court's findings and then they take an appeal and they're arguing to us just as they did in the district court the summons issued on september twenty eighth was not in a r that seems to be a live issue in this court again our position is that the settlement opec's change that change the playing field but the point still remains that if we are deciding how i don't understand how it could how same argument here because again our position is that it does not parrot the tentative findings it is why why because she does it the probation officer says there are these additional documents that say that there isn't a rast those documents were not referenced in the paragraphs of the p s r and what are those documents the documents are the magisterial just a court docket sheet the defendant sentencing order and the defendant's rap sheet and all of those say he was arrested on september twenty eighth yet they say debt arrest a this is a temper twenty twenty fifteen but they did not indicate that there were eight different currents then what was argued before the district judge originally that there was a stop and  correct yes i mean i think this is this is additional information so it's a question of nomenclature whether you call that a stop and a summons or no arrest and that's the issue we're dealing with and and when that sentencing guidelines say  rest and we are bound by what the supreme court says an arrest is i find very little leeway to wiggle where i understand your position just dropped however our  view is that when you have someone this report says that there was an arrest keep in mind they're relying on the awfully acts which says that one of the ways and harass can occur for purposes of the sentencing guidelines is being told that your entourage we have that as well as the be the standardized forms that are yours that list the date of confrontation with the police as an arrest and called and arrested there is the difficulty of what state law is going to have this is because of variation throughout so essentially what you're saying the supplemental supplemental report said was that wherever he was arrested colder than a rest and they listed it that way on the form and that's base that's the basis of what you arguing here today you say that mr lay did not object well it's absolutely clear that he never objected to this supplemental appendix so to the extent that he wants to argue what you just laid out he has not raised that he did not preserve it for the district court i see i only have twenty three seconds left you know we will give you some time because we do want to hear from you about whether there was a forfeiture by the defendant of the aggregate of assault as a career offender pursuant to row thirty two he had the opportunity to respond a timeframe to respond and object if he wanted to we get to the sentencing hearing and he we know he knows how to respond because he files an objection to the intervening arrest we get to the sentencing hearing he's asked multiple times is there anything else you want to object to and he says now we get to the u s a s position on sentencing and she points out that she actually called defense counsel and said are you going to object on th and she gets no response to that so it's not until that is sad that defense counsel says i do object i object based on johnson and at that point that is a question of whether or not the residual clause about their response regarding johnson i don't understand to be a declaration by defense counsel that we will not be making an argument under the enumerated i understand your concern but let me add just two points one is he's asked a second time at the end of sentencing and he simply reiterate scott's and but i do agree with you that there is uncertainty over what is necessary for purposes of waiver but your point is they clearly stated a johnson argument and johnson argument alone that's correct and keep in mind we are here with counsel parties i mean we have lawyers who are trained that are charged with knowing the law so is the court contemplate what it means to actually waive something keep in mind that that's where we are we're not it's not as if we're with someone who's i'm familiar with these issues we've been dealing with these issues for at least what i want to date myself but a pretty long time so forward and so that there's a plain error and in this case the defendant's position is i don't need to come forward with the documents to show whether or not i was properly qualified as a career offender because i have a privilege that prevents me from doing that and i have a duty to  represent my client so we have the kind of odd situation a defendant recognizing that he's been playing error review but then being unwilling to come forward with the documents and with instead have this well is in this you material i think because you've already produced a shepherd document that this shows there's not a factual problem here that's correct your honor but it just demonstrates the difficulty we face when arguments are raised below and the mr lay keeps reiterating we had our one shot when i q's for being factually incorrect but maybe you're going to show me why it wasn't such a good answer a by the time the supplemental appendix came out the district court had already issued its findings  five even though les was not formally arrested following the first stop it makes sense to treat this event as an intervening arrest the supplemental appendix comes out as your honor characterize it that's correct it really just indicates the probation officers view that the district court came to the correct conclusion about applying this guideline the narrative provided in paragraph three is is really what we can rely on for the facts here it's devoid of any reference to there having been a and arrest that day the supplemental appendix also references a number of forms docket sheets these are these as is a relevant the form doesn't establish that as a factual matter mr lay was arrested that day that's just the supremacy clause issue right i mean we need to have the federal definition of arrest exactly but to judge fisher's earlier question for get what the state says on the form what the state actor does will determine whether in a rustic or what the state actor does or doesn't do correct and then how the defendant does or does not reform his conduct so so i think the factual question is really a red herring this issue was squarely before this court on the record as it stands w conclusion ren talks about how police officers only need reasonable suspicion in order to stop a car we know officers need probable cause for an arrest and we know that certain rights and requirements come along with an waiver when counsel references johnson and the fact that pennsylvania aggravated assault can't qualify after johnson that can only be construed as an objection to the remaining to we've got a distinction there's one thing we know with these series of aca cases over the years is that there's a distinction between the and you're in the fences and the residual clause right yes but in france it is is only a residual clause or even how could it be construed as more than the council doesn't just say johnson you can't rely on the residual clause he says pennsylvania aggravated assault would not count as a crime of violence because johnson applies to two k two point one