advisory guidelines range ten fold i'm going to focus my argument today on the two most consequential of those errors which involve the substantial risk and terrorism guidelines the substantial risk guideline in section two k substantial risk the district court however interpreted the guidelines to concern the defendant state of mind and when he acted so that it could be satisfied by the defendant's intent or attempt to create a substantial risk bomb simply did not go off but would have created substantial risk if it had that of course would comply with our jurisprudence how do we make the factual question that calls for experts to upon and upon whether the bomb and the device in question created the risk or not how do we make that determination  t the question of whether the bomb in fact created a substantial risk is a question of fact that's right so in order to meet the standard you know the government would have to prove through whatever evidence was available that so in this case you know there's a lot of things that are said over the course of the hearing but if you look at what the judge actually says when she applies the guidelines you'll see that she is such at this legal standard and says specifically that it only requires proof of used and that he knew that it had the potential to be very dangerous and that he knew of the potential risks posed by each and critically she doesn't find that he was actually present in sufficient quantities or risk of death or serious bodily injury when he did this she made specific finding that he was a risk and then there was also testimony not only from the governor's government experts but  also from the defense experts that it was only fortuitous that this bomb didn't go off and that it was capable of going off how do you respond to that i have a couple of responses  so i think i'm going to start with what the defense expert says because i think it really illustrates the sort of central confusion that you see in this record the defense experts said that this could have killed people if it had been packed with enough and he you know at st what he's talking about of course is bomb could kill people if it could go off within seventy five feet i would want to be with it but then he says i mean it could do that if it had been packed with quality and nobody says that it was and so you know that sort of so when the dist when the defense expert said i could kill people he means it could have killed people if it had in fact contained the right quantity and the right type of explosive but based on all the other the actual experience of the bomb squad the defense experts i clearly did it and when the when the so when the district court says you know when mr went off to our knowledge and picked up the device he could have been killed what you're saying is you know he picked up a device that was intended to be dangerous and that mr and furry created with the attention that it was dangerous but she the bomb could have exploded when officer own ali and picked it up now the government put in a lot of evidence that h p d when it is made correctly is really sensitive and so could explode you know from the slightest impact up they swung it around they dropped it on the ground they shot it with a laser and they left it in the sun for hours and nothing happened to the bomb and so between the failure of the pond to explode initially and the failure of the bomb to explode over the course of the day  that's evidence that the asian t v in this device was in fact to insensitive to explode and officer and all and pick it up and the district court actually says that it was too sensitive to explode under those conditions and i think that's consistent with the evidence that was presented in this case and so what the guidelines would require is evidence that there was in fact a high probability that when officer nolen picked it up that the device could have gone off and killed him but that's not the understood the question you don't understand the question so don't worry so to be clear when i say high probability i mean i'm saying what the legal standard substantial risk requires is some evidence that there is a high of evidence a preponderance of evidence that there is a high probability that this despise would have exploded and injured somebody in this case and given the evidence that device didn't contain a sufficient quantity of sensitive him he the district court couldn't make that finding and didn't make that finding here i think it's also important to note that the government actually wasn't able to say how much of the explosive entity there was in the device while they had evidence of the volume of the container they said they didn't have any idea of the density and they couldn't say that everything in the device was actually on t v and so for that advisory guideline range from fifty one to sixty three months twenty three million two hundred and forty two thousand four hundred and five months and i said seventy to eighty seven in my brief but i think i forgot to account for acceptance of responsibility so this is the difference of of a sentence of four years versus twenty seven years and in this case the district court applied the guideline on the ground that the offense was calculated to retaliate against government conduct but that and specifically she found it was retaliation for the murder of dr gosnell but she refused to find that that murder was government conduct and these findings are insufficient as a matter of law the guideline doesn't retaliation against non government conduct the plain language of the statutory definition incorporated in the guidelines says it reaches conduct that is calculated to retaliate against government conduct and we know that non government conduct isn't reached by the guidelines because the commission felt it was necessary to enact an upward departure provision preservation that i'd like you to address and the nd is is whether it's actually government conduct or whether the defendant thinks its government conduct is retaliated against what the independent perceives to be government conduct so with respect to your st question you know this issue was preserved it's raised in pleadings before police good morning and may have please the court i'm mariska miller and i represent the united states i think i'd like to start by addressing the disagreement between the defendant and the government over what the district court actually found with respect to the  tremendous explosive power well yes they've constructed the way the bomb in the judge's mind would have been properly constructed but aren't we beleaguered with the question of fact i mean in because of the degraded nature of the active ingredient the force of the bomb was as you know the amount that was in the record and not the hypothetical amount that the judge is talking about so how do we make that determination based upon the device that is in front of us or this hypothetical device that the sentencing and more importantly all of the experts who testified about the power of the explosion actually occurred but even then it was still a bomb that was capable of killing someone i know there's a dispute about this so i'll just give the court the record cite but i volume eight page three hundred and twenty six i think the court asked the defense expert pretty explicitly about the bomb in question and the defense expert says you know i wouldn't want to be holding that bomb because the person holding it probably would have died and he also says i w the wanted to be near it because there so would have been charts of from the mason jar but with respect to the stability of the bomb because i think that is an important question i want to focus specifically on the eight m t v and also really mts presents created for the st responders and that's because the bomb squad clearly couldn't just leave this bomb outside the police station in the middle of the shopping center but because of the dangers of face on t v they could pick it up and concerns about the care guideline i have concerns about the official fish them guidelines and give ourselves time discuss those terrorism specifically what was the murder was not a government official the defendant was retaliating against the murder by the town marshal at the time and that's an important part of the story because it's not just that the town marshal had some sort of personal dispute with his friend what happened was the town marshal is called to a bar fight in his capacity as a police officer he read deputies doug he put them into the troll car and then of course he does this egre one of the problems you have that's that's an argument that this might be government conduct but the the district court specifically refused to make a finding about whether or not the town marshal was acting within the scope of his duties as town marshal when he executed deputy dog and i you know i think you can make a pretty good argument that he wasn't don't we i mean at the very least don't we have to read and to get such a finding one way or the other two responses to that your honor st if we look at the plain text of the guidelines it doesn't actually require that what's being retaliate against is objective we government conduct what's important is the defendant's subjective state of mind and then when we go to say that either does it it doesn't say subjective well so if you go to the the federal honor i was a wreck the court two volume one pages three hundred and forty eight thousand three hundred and fifty one which is a letter from mr amphorae explaining why he did this and in his manifesto while he talks about the murder of his friend he also talks about a lot of different incidents over the years or law enforcement killed unarmed civilians usually young people including the incident with the national guard at kent state as well as more recent events like what happened with the police and ferguson and given this letter it seems clear that the defendant was motivated by an anti government ideology and i think that again i think it goes back to whether it's even important for purposes of terrorism whether this was objective league government conduct and so i guess  few examples but go to the one is we can imagine that someone bombs the cia because he believes that the cia assassinated j f k that to me seems like a fairly clear cut of unlawful violence against the require proof that it's subjectively government conduct rather the the district court agreed with what the government is arguing now which is that if you look at the plain text and the structure of the statute it's the mental state of the defendant and whether he two who picked up this fall and brought it into the police station and well no one was obviously hurt by the defendant's actions which was very lucky police officer on allen talked about the trauma  from this and you know as we see from terrorism statutes and in other areas of the law a victim doesn't have to be physically injured to be injured by a defendant's conduct and especially if you look at the polk case from the th circuit that cited in our brief  you don't even have to point to a specific person as long as the defendant attempted to blow up a government will they all of the government officials inside of it are considered victims  to i want to return to this issue of the st responders because again i do think it can be really helpful to the court because the court doesn't have to think about whether the bomb was capable exploding so we have a situation where we have a bomb that's like a grenade that had the pan or moved house and sawn off and the bomb squad only has one option at this point it has to allow him to go ahead and explode this was something they were forced to do and they were put in this dangerous position by the defendant at the same time all of the experts testified about the dangers of the explosion that occurred at that point not the dangers of anything henschel explosion if the defendant had created an incredibly effective bomb but the dangers of the actual explosion and they all said that anyone within twenty five feet of that bomb could have so we have to remember that the defendant by choosing to build a real bomb and putting a thumb cd this incredibly dangerous substance in there and then leaving it where he did the defendant put the st responders into a situation that everyone below agreed could have turned deadly and the only reason it didn't was because the defendant got lucky and the bomb squad did their job well didn't that made on its own before the bomb squad arrived we can't actually infer that much about how stable the bomb was several of the experts say they say that's kind of the nature of a t m t v you know you can drop it once and you can get lucky and it won't have valuate after and of that has already occurred when we have all of the information about how things alternately played out and i think that's kind of goes to this question of luck that you're talking about and that's how the defendant argues that we should analyze risk here with the benefit of tw twenty hindsight but that's not normally how we do this and so i mean we can think of the case with honey cut where someone tries to ignite this extremely large fire and the reason that it doesn't work is because of the sprinkler system and we can say that's lucky or or we can compare it to what happened here where we can say maybe the defendant and honey cut wasn't actually a great arsonist because they should have turned off the sprinkler system just like we can say well maybe mr embury wasn't the best bomb maker because he before the fact so i mean another example is a drunk driver gets behind the wheel of the car crosses the l line and is driving in the wrong direction at ninety miles an hour i think we all agree that that's a crime that creates a substantial risk of death or bodily injury and if the defense gets up and says you know what there was no one else on the road at the time the defendant was really lucky i don't think that changes the analysis because risk isn't something we think about after the fact when we have all of the information and we have the benefit of and twenty hindsight so what matters here is that we have a defendant who put a very real bomb not a hoax bomb a bomb made with a some t v which we saw exploded which the experts even in those quantities even degraded testified could kill someone to place that outside a police station to put it in a public plaza when it didn't detonate and i think it's it's hard not to come to the conclusion that that crime created a substantial risk of injury tour not to work perceived government conduct and congress knows how to criminalize improper motives that are based on mistaken perceived facts for example that you can look at the hate crime statute or the hate crimes guideline and i would also point out there is no cases where the terrorism guidelines been applied based on non government conduct and to the extent that the guideline is ambiguous the court to construe it in a manner that is more favorable to mr and fairly and also say the district court didn't actually find that mr and sperry committed the offense out of any anti government ideology so this court should make this about finding on appeal and just as a general matter it's really hard to define what is or isn't terrorism in the government points to some examples of things that seem like maybe they should be terrorism but might not fall under the guidelines and given that this is a hard line to draw the court should defer to how congress has defined terrorism especially because the consequences of finding that this mee and fifty five to five fifteen in the morning and he pled guilty under the property element of the statute and then on a substantial risk guideline the quantity of the dangerous substance matters it's not enough just to stay at therefore there was a substantial risk of death and also the district court didn't find that or didn't apply this guideline because of the danger to st responders and that's another finding that this court shouldn't make for the st time on appeal let me ask you this is good looking at the terrorist statute that says it's calculated to influence or affect the conduct of government by intimidation or corpsmen or to retaliate against government conduct what about the st part of that the influence or fat the conduct of government by intimidation or coercion you don't need government conduct fair do you  but the district court didn't apply that prong she did restate the whole statutory language when she applied the guideline that it was specifically based on the retaliation part of the statute