place to court for the government mr bryant believes the district court made three critical errors when it came to his sentencing he had little to scale through an open plea but he finds the district court made a reversible error in three of its findings first finding that mr bryant conducted what the court believed constituted attempted murder the second iranians finding was that the victim was rendered unconscious during the act of the kidnapping and the third is that the victim suffered a life threatening bodily injury and i'd like to start with the third element i couldn't find in a circuit court case involving kidnapping and strangulation involving something less than death but i did find a case called the united states first of spinelli two thousand and three decision that talk about what the court should look at in a case were it's claimed the victim suffered threatening by injury a life threatening entry the second circuit held that when discussing the four level one handsome money that was also applied in my client's case in addition to the kidnapping  you look at the commentary and in section one v one point one note one of the united states sentencing guidelines you look at the five you look to the circumstances of the commission of the act but that's not what determines whether or not the victim had received a life threatening bodily injury you look at only what happened to the victim not the circumstances as to what the assailant did and what in this case for example in particular what did   the victim did not testify at the sentencing hearing in this case but the government's expert dr snow the only expert i believe who testified at that sensor hearing stated that  thereafter to my knowledge and dr snow stated that he had not viewed any evidence to indicate that the victim did not have a full recovery in this case so nice does the given a very heavy sentence but when we're looking at the issue of whether or not the victim suffered a life threatening injury or a life threatening but only injury that is very appropriate we know that the victim if  she became unconscious at all my client doesn't believe she did and there was no evidence to indicate that and in fact dr snow who is a very highly qualified and respected frien medical evidence to suggest that the victim was unconscious at any time and even if she wasn't conscious  foresman took her out of the car she was conscious and even though that car had been surrounded by many law enforcement officers out at the site where the case law that would address judge woman's point as to whether as to whether terrorize you can be so terrorized terror are terrorizing can be a life threatening well i believe i did our side of the   that there are two circuits that have considered this question and have unequivocal k unequivocally help that the resulting injury to the victim has the sole determinant in determining what other is from the circuit and i believe judge wommen rendered the circuit case in  out of the circuit injury and when you look to the definition on degree and then they gave a couple examples such as the denial of food or medical care just because you have a couple petite and and one of the i guess it doesn't prove on consciousness or that the person suffered a life threatening injury not to be flippant about this but as i read your cross examination of dr snow i'm it is almost as if you were  doctor sell pointed out to get a past certain number of minutes you're going to have irreversible brain damage with no disrespect but i don't think that's a fair comparison here the victim did not lose consciousness did not sustain any significant bodily injury did not seek medical attention and her time and my client believes that at no time was the victim accosted with any kind of a life threatening injury fortunately for the victim i believe she did lose consciousness but in addition to that actually didn't need medical care she didn't seek medical care at the time at on the day of the crime or thereafter and when you have  very highly regarded corner in forensic pathologist say he saw no evidence that she had suffered on consciousness and therefore a possible life threatening injury  we feel that when the court went from the kidnapping offense at the time of sentencing and then jumped over to the attempted murder section of the guidelines that that was unfair to my client was claire and then on top of that to get to judge loken squished he received a four level one handsome one because of the  supposedly threatening injury and weak at that point we allege that that was double counting hand there is a case ends in spinelli they stated an attempted murder involved in that case where the victim fortunately did not suffer any serious injury it says the attempted murders are by definition life threatening one could subject every attempted were to a four level increase enhanced meant for a life threatening bodily injury regardless of the injuries that were actually suffered by the victim the second circuit court felt that was wrong in fact reversed the can reverse the sentence remanded for reset and soon because that was double counting you look to actually what happened to the victim and now you're aware of our frequent struggle with the double counting concept of the way we resolve i am i fear so there there has to be there has to be complete overlap between the the the elements of the guideline provisions as applied to the defendant before you even have an arguable double counting situation kidnapping and strangulation i didn't say involved kidnapping and strange elation while your stand there in every criminal case virtually is unique we had lots of we had a number of double counting reversals under the mandatory guy and of course same principle has been argued and the advisory and i recall almost always not always rejected so i'm asking you what's an advisory guidelines a circuit case involving any i did on ok we still insist that once you take it out of kidnapping and you allege it was an attempted homicide which i think is a violation in itself but and then on top of that you use a fo one and again why was it never hurts to charge of his attempted homicide or attempted murder well the judge made it made a finding that it was appropriate pursuant to the pre sentence report investigation report that had found that and she agreed and then she thought it was appropriate rather than start with a base offense level under kidnapping she started with a base offense a level under attempted murder and three known well i did but under a different under a different situation i alleged i talked about elaine versus united states the u s versus booker and then a printed versus new jersey and that goes to when you switch from the kidnapping base offense level to the to the attempted murder right and i don't believe that was it's like that but but but that doesn't have to go to jury well right what what my her findings was that all of a sudden he's found to have committed attempted murder without pleading guilty to it he didn't plead guilty to attempted murder in a way that is finding him guilty even though he didn't have a jury trial pursuit if his court counsel addressed the last point first he talked about one charge conduct in violation of his constitutional rights but the constitutional rights of the defendant are not twelve we've got twelve years of the newly involved a mob hit and there's a result determinative argument here where if there isn't blood and guts and gore that and it's if it's not a physical energy injury that that's manifesting itself outwardly it cannot equate to substantial risk of death that was not the case here but what was the case is that we had internal injuries that did manifest themselves in a slight degree albeit but those were very serious injuries internally she consistent with judge erickson your your comments on the life threatening injury of being strangled she was strangled to a consciousness the she had several her eyes rolled back in the head she had ruptured caps capillaries and according to dr snell because of the loss of consciousness she had a lack of oxygen to the brain now and dr snell's testimony he considered numerous exhibits exhibits ten through twenty showed the physical manifestations of of the injuries this that were sustained by the victim in pages one seventeen through one eighteen he talked about the prep the pressure build up in the capillaries which caused those capillaries to rupture there's no hypocrisy i mean there's no oxygen to the brain the next step in that is a loss of consciousness now all of those things were present here and the substantial risk of death at page one thirty seven of the sensing transcript show that a loss of consciousness equates a substantial risk of death under the the sentencing guidelines under section one point one b one point one now curiously in the commentary cited as an example a kidnapping example is a lack of food and maltreatment to a degree that would equate to a life threatening injury well i'd submit that the lack of oxygen is similarly a life threatening bodily injury that was found by the district court and appropriately so the facts supporting this is that the potentiality or was it the actuality of the harm that this person suffered she lost consciousness which is supported the defendant's own admissions in a phone call a recorded phone call to his mother he said that he saw her eyes rolled back in the back of her head dr snell with those facts supported a finding of loss of was a result determinative case out of the second circuit we had a basically a mob hit on on a woman who was shot but the injuries that she sustained were not to the degree physical injuries that she sustained were not to the degree that would that would merit the four level enhanced however the despite the court of appeals remanded for additional findings on judge woman i think your question the non physical nature of her injuries whether that would support the four levels but there were physical injuries she was shot fortunately for her when she was shot the bullet ricocheted off her back and she spent very little time in medical care now aside from the i don't know what the district court level judge i don't know she did sustain physical injury whether it was substantial or life threatening the presenter or recommended for low in spinelli oh here oh yes absolutely and  preserve the air why it why is that why don't we need to consider whether this was a two level i think the testimony on the record supports a life threatening injury or you do it but i what we we mean at agree with you we may we may agree that there was physical injury and wonder whether it qualified for for a while and we think that bridge is at present i think on the standard of review is clear and i think the district court had we're talking about a substantial attempted murder and of course the threatening is the life threatening injury that allows for the for loop of the double counting sustained by the victim in that case undercuts the double counting argument made in this case it clearly demonstrates that you could apply that four levels even though there's a life threatening event that doesn't necessarily mean you have a life threatening injury here we have guidelines to the facts now we have these separate and distinct facts that support the enhancements when you have the attempted murder which i think at the district court level his petition and statement a factual conduct of the defendant where he he strangles are doing consciousness renders are unconscious him his his observations of the victim of her eyes rolling back in her head and and those things and while those of course have some overlap there are overlaps with these lists they're not completely overlapped and there is no double counting argument and and all and all say at the sentencing hearing while just about everything was objected to there was no legal objection that the district court was engaging in double counting when considering the four level enhan i'll go back quickly your honor that the case that was cited out of the eighth circuit that was dealing with the first issue raised by the opponent and that was cited in spinelli was the datsun case of the eighth circuit it's true that that was a case in the eighth circuit that was remanded for additional findings about physical injury but it was because the record was devoid of any facts supporting the enhancement the quote unquote evidence that the district court relied on in that case was merely and only the pre sentence report there was nothing offered it that is definitely not the case here we had multiple witnesses testifying about the degree of injury and the the consistent assault the constant assault the reckless endangerment and the facts that gave rise to this case in the first place you are they have it address any other questions that the court may may have for me just because the victim was injured in this case does not mean she suffered a life threatening bodily injury that is defined as an injury a substantial risk of death loss of substantial impairment of function of a bodily member organ or member or a mental faculty that was likely to be permanent there was no evidence of the government produced at the sentencing hearing that shows that the victim in this case unfortunately did not suffer a life threatening bodily injury dr snow stated that he had not viewed any evidence to indicate that miss woods did not have an immediate and full recovery if she was unconscious at all and in his opinion  you know if my client had applied pressure to the neck area at most it was only for a few seconds because she had an immediate and full recovery and is not a life threatening bodily injury and  are the district court you know it was certainly an all or none type of an argument made by me that no aggravating factor should know what an upper level unhandsome it should have been made under this