category of individuals who require additional protection on the day that mr joe dug he started a fight with his brother the defendant charlie joe he punched him in the mouth face excuse me  charlie joe was sitting down drunk and stricken with cataracts and thus a blurry vision jonathan joe previously engaged in a years long campaign of physical and mental well or for against his brother which those close to him so that he went through life as though he had the use of all of his facilities his sister jackson who spoke during the sentencing phase or so doing during the sentencing hearing stated that mr johnson joe went through life like he had two hands but the government wants you to believe that based on the fact that jonathan joe was paralyzed in the exit but he didn't have two hands nobody went through life like he did i understand but he didn't have two hands he was paralyzed on his left side that is absolutely correct  are you taking the position that if someone can perform daily activities that that person can never be a vulnerable victim that in some circumstances they can my point is simply that the facts of this case don't show that in this case we have ample that there's ample evidence on the record which the court and respectfully counsel disregard indicating that even though he was paralyzed on this left side he did not fall within that group of people well exceptionally doesn't doesn't part of the analysis turn on the manner in which the offense was committed for example would it make a difference to the vulnerable victim analysis if mr joe had poisoned jonathan instead of striking him on the paralyzed side of his body there's a question i struggle with that myself for another example would be if i say mr john of their excuse me charlie joe had simply shot jonathan joe instead the same thing would he be considered vulnerable and to answer the court's question in this situation it's a little bit odd because there's no evidence on the record which indicates that charlie joe targeted jonathan joe on the left side because of the process we do not know in fact there's nothing on the record which actually tells us joe simply right handed and that's the way he bought it you could also infer that perhaps since there the evidence did show there was blood on the ground that jonathan joe had fallen down on his right side and therefore his left side was the only side that was available so when we talked about the facts that are currently before the court your honor raises a good point in that that is the reason for the appeal and that reason is that there are new facts other than the fact that jonathan jo was paralyzed on the left and side of his body which support the notion that he was a vulnerable victim excuse me i should say unusually vulnerable in fact what the court has done and that as this court knows you can't simply look at the classified when t g whether or not individual is in fact you don't usually vulnerable but that's exactly what the district court did and that's exactly what the counsel for the government asked you to do again in other words the government looked at the fact that  mr johnson joe had cerebral palsy and put him in that class of individuals with cerebral palsy and so that he was vulnerable because he was paralyzed on the left hand side the class of individuals the with this court should analyze whether or not someone's  unusually vulnerable is to look at what the actual disability is the actual disability isn't that mr joe is suffers from cerebral palsy jonathan joe that is the actual disability is that jonathan joe was paralyzed on the left side and whether or not that alone could make him vulnerable victim we submit that it does not that mere membership in that class does not necessarily make jonathan joe of honorable victor hello how does your argument square though with  and i'm i'm struggling with the name of this case but it appears to be to snow though that some familiar yes your honor seven seventy one year old man with a deformed hand who walked with a limp and we found that he was he was a vulnerable victim and it seems like similar characteristics physical characteristics to the victim in this case i mean he has a bad hand a bad why with a cane i think is what it is what it said and they said you know we'd never find it just because he was older that he was vulnerable but he had these elements and sounds a lot like a victim in this case how does your case square with that well in a couple different ways when we talk about the ability of the of the individual the victim we know from the record that even though jonathan jo did suffer from that malady which is similar to the malady and the name is tough for you know the case i know of a case it's similar but we know from the record that jonathan joe he wasn't to say he went through life like he had two hands he  his brother with a two by four he struck his brother three times before that before before the fight really got going we know that jonathan joe had his own form that he participated in taking care of so yes in that case that your honor refers to the mounties of the same but the problem the distinction both the distinction and the problem with this case the joe case is that there is no consideration of these other things that jonathan joe to do and that's the difference and also to have a and also i would point out this leads me to another point and in that case  the court stated that although the focus of the vulnerable victim enhanced it must be on the particular traits of the victim information about a defendant may be relevant in assessing the victim's vulnerability that's something else that took place and i think that that's something that was disregarded by both the court and by my steam counsel in this case as well right so you're arguing that now we're on to the part where you're arguing that your or your client had elements of his own that maybe there's a comparative vulnerability argument that's true and i noted in that in the government's response brief they said that they claim that the defense is trying to kind of turn this on its head and say that well just to also consider the ability of the alleged defendant as well so for example if an individual is five foot two but a trained boxer he could still be vulnerable if the person that he's going up against is six four and weighs two fifty you want to take that into account it makes sense to take that into account you should take that into account but the court didn't and we have a similar situation here did you do you think you sufficiently raise this below at the court this argument about the comparative vulnerability yes ok and so tell us if you if you can or if you if you've got it on the top of your head where what where did you raise that i mean i saw like one analysis as to whether or not there's enough evidence before the court to sustain the two level and handsome and when you consider that mr charlie joe's deficiencies were significant as i stated before he was seated was drunk she suffered from cataracts all this is in the record can i can i just ask you though where you find any support for this argument in the guideline or the guideline no it's that court is supposed to consider the characteristics if you well are the or the deficiencies the defendant in determining whether the victim is an unusually vulnerable  it's not there but there's cases that support this notion well that's my next question ok because the example you gave was an example where the defendant is you know the six point six foot four it's is much stronger is much than than the victim but that isn't what your argument is here you're argument here is that mr jones deficiencies were so significant that you should take those into county and and compare those with the victim and my question is whether there's any case that has ever done that that you've been able to find it in that scenario no i don't have a case that i c for the court that says hey this is a situation where the court looked at precisely the defendant's abilities and compared them to the victim in the manner of your honor suggests but why wouldn't you why wouldn't one want to and along with that of the tenth circuit the united states versus to korra the court stated that all of the focus of the whole of victim enhancement must be on the particular traits of the victim again information about a defendant may be relevant in assessing the victim's own or ability so there is at least some acknowledgement on behalf of this court that that's something that should be taken to would would you acknowledge that the victim here jonathan would have been better able to defend himself against an axe attack if he weren't paralyzed on his left side i don't know i don't know if anyone can really i mean with an axe i well i wouldn't agree to that i would not stipulate to that the axe is an overpowering force i suppose maybe territory how about more in a in a more general sense would you agree that someone with cerebral palsy that has is paralyzed on one side is less able to defend themself well they might be somewhat less able but the question is whether or not they're unusually vulnerable and x is a great equalizer but we threw the x out we're just talking in a general sense it depends on the individual and you have to analyze that individual's his own personal deficiencies and determine whether or not those deficiencies make the individual i've got another question for you real fast so it seems in your briefing that one of the things you're talking about is the idea that the victim here was had a propensity to violence himself and had previously hospitalized your client by hitting him in the head with a two by four and on i think maybe even on the day of this attack had had already at tact your clients beating him up you know fairly maybe not severely but you know punching him and stuff like that do you think it makes a difference to have a as it makes a difference at the victim provoked the act no i don't have a case that says it but when we talk about individuals relative disability and also whether or not the defendant in self knew or should have known that the victim was vulnerable i think those facts become incredibly relevant from charlie joe's point of view jonathan joe was not on there's no reason that he should know that he was on  that swamp you want to get into because he he certainly knew what side he was paralyzed which was the side of the injuries i mean that's part of th was vulnerable from charlie joe's point of view mr jonathan joe was was fit he saw jonathan joe working the farm he saw jonathan joe strike him three times in the nose and mouth he saw mr jonathan joe hit him with a two by four in the past so when we talk about whether or not charley joe knew or had reason to know that mr johnson joe was vulnerable good morning may please the court helpful my name is jennifer arizonians i'm an assistant united states attorney down in albuquerque new mexico the district court properly applied the vulnerable victim to point handsome and in this case it made the particularized findings that it needed to make it found that not only did jonathan joe suffer from cerebral palsy but cerebral palsy affects people in different ways and in particular jonathan joe was paralyzed on the left side of his body in that it then looked at the crime in this case wherein the defendant had struck his brother numerous times on the left side of his body the side of his body that jonathan joe was paralyzed what was the evidence about whether he struck him on the side that he could use so in looking at the autopsy report which is a part of the i believe it's a part of the record  all of the strikes x strikes were on the left side of jonathan joe's body so that is he took advantage to the extent that he could he took advantage of the fact that jonathan joe was paralyzed on that side or a reasonable inference at least to me that he did that and as you know i go is that showing that the guideline requires not just that the defendant knew about the vulnerability but took advantage the vulnerability the guideline doesn't necessarily provide that but i think that's that's why i'm asking i don't see that in there but it seems as though yes and now you are going to the government is making here is that he took advantage of the fact that that w side and therefore struck him on that side and the district court of finding that that he took advantage you know that was not part of the district court's finding however it pointed out that he was paralyzed on that side of his body and in fact the majority of the blows and actually if you look at the autopsy report all of the could have defended themselves against that and i do not believe that the vulnerability of be linked to the severity of the assault because if that were the case then the more severe the assault the left able even the able bodied person could be a different situation this is a crime wherein you look essentially in some way this court decided that it has to be some characteristic that renders a bit numb particularly susceptible to the criminal conduct and here we have the defendant wielding an axe against his brother who suffers from cerebral palsy who was paralyzed on the left side of his body and he is particularly susceptible on the left side of his body and therefore the defendant strikes him on the left side of his body so i think it would be a different situation in fact if you did have a firearm and shot someone which was the evidence the jonathan had successful y strengthened himself to compensate and was able to go about his daily activities and be quite quite vigorous in doing so is that relevant to the analysis and you can certainly take that into account in terms of what the victim could or couldn't do but there's no dispute that he was paralyzed it's wonderful that he was he was able to overcome some of his his hardships as a result of the condition that he suffered from but it doesn't negate the fact that he was paralyzed on the left side of his body it's good that he was able to use the right side body but he still there is and there's no dispute that he was in fact disabled in this way so the fact that he could make it through that he could chop wood perhaps i presume with his right side that's great but that also doesn't make him able to necessarily defend from an attack well that i mean he's the record shows that he was able to attack though again with his fist right he you know with his fist yes and i'm i'm not going to dispute the fact that this was definitely a to use not a one sided fight however you know he struck him however many times and then and then the defendant picked up an axe and hit his brother numerous times on the side of his body that he was born so did the records show whether the victoria or whether the defendant was right handed or not that i don't and you don't have the answer for you ok because because a righty swinging an axe as you're opposing counsel pointed out would naturally be hitting the left side of the victim wouldn't necessarily sho intent to to hit the more vulnerable side well i think you need to look at all of the facts so even let's accept that he was right cited every single strike was the left  side i think you can reasonably infer that he was striking the side of him that is that was vulnerable so do you think it matters that the defendant had a disability of his own in this case your honor i do not think it does in fact in all of the cases that i was able to find when you did take into account the book  status of the defendant like brinson center court it was it was in relation to how much more i guess more vulnerable it made the victim so into c for instance you had a victim who was very very small and you had these four men who assaulted in and eventually killed him who were much bigger so they took into the stature for instance of the defendants in that case the analysis in that way or did it acknowledge the conditions capabilities of the defendant can be taken into account whether it's because they're the defendants particularly has particular particular strengths or has particular weaknesses sykora did not to distinguish it that way what should course that that information about the defendant may be relevant in assessing a victim about but in this case that seems to suggest that you would consider the defendant's conditions except the totality of circumstances standard is one that's argued by defendant and there is no  to consider the disability and at this at this moment in terms of the sentencing guidelines i don't know off the top of my head however when you get to thirty five fifty three a factors certainly the court could take that into  again i think that would come in and when you're working under thirty five fifty three a if for some reason the court felt that there was some justification obviously this is a voluntary manslaughter case so in the heat of passion that is the justification for the murder or the homicide at that point so if the court like there needed to be more of a variance because of that perhaps but i don't there was no there was no expression by the district judge you know that no that nd showing needs to be a preponderance showing at this point correct this isn't the defense going to be the hypothetical person what do you think about what if you have another person who was paralyzed on one side and they attacked the victim in this case and killed him and did the same thing it was on his paralyzed with an ax that's that's going into hypotheticals that was sitting here actually i was thinking about if you have the same exact characteristics in the defendant as he did in the right and i think the purpose of this these two points is to characterize the victim for what they are and regardless of what the defendant may or may not suffer from this is to protect the victim the person who's particularly susceptible to the crime and that is and in this case the victim was particular was deceptive on the left side of his body and the defendant took advantage of it regardless of him the other the defendant having suffered from c p or or been drunk or suffered from cataracts or hurt or whatever other malady right so do you think that you're a victim in this case as a matter of law was vulnerable under the guidelines given the factual situation if there are no other questions your honor i would affirm the district court's decision and the sentence in this case so there's no other argument i think we're done and i'm done thank you i think we've used all your time