thank you may it please the court good morning my name is shelby on her wall i'm from the federal public defender's office and i represent mr evans in this matter i'd like to reserve two minutes for rebuttal with the court's permission  are ok thank you the district court in this case procedurally erred in applying the guidelines for aggravated assault to mr evans case and thereby and hansing his offense level by five points as the court is aware mr evans was convicted in the underlying case for being a felon in possession of a firearm the district court in this case nonetheless applied the guidelines for aggravated assault and the issue is whether when mr evan discharged his weapon in the in the events that led to his arrest he was exercising his right to self defense and therefore could not have been have committed the offense of assault so i think  the evidence only has to be a preponderance right the evidence has to be by a preponderance but importantly it's the government's burden to disprove self defense by a preponderance so it looked at the video and the video shows that he jumps out of the car with the answer but is running pretty quickly away from him and he shoots the person in the back so why isn't it reasonable for the district court to determine by a preponderance regardless of what the government has that that was self defense fer a couple of reasons your honor the first is that we actually we believe that when you look at the video very closely it is not the case that mr evans discharges his weapon at someone who is in the process of running away a close review of the video shows that mr evans has been shot five times he is emerging from the car and raising his weapon as the person that he shoots at we call him there accomplice in our briefs as that person remains on the scene is looking towards mr evans as an and in fact is approaching closer to him  behind one of the cars that was in the area mr evans then emerges from the car and starts to raise his weapon and it's in reaction to that that the accomplice the person at whom mr evans shoots turns around and starts to run so we believe that the court's finding that mr evans was sort of shooting at someone who was in the process of fleeing the scene was actually clear air and even if it is for one second while i call you through the question of the preponderance of the assigns the burden of proof it seemed like he didn't assign it to the defendant it also seems like it wasn't clear that he assigned it to the government it kind of left it in ecuador's what does that do to your case if anything we i agree with your honor that it does not appear that the guy that the district court properly placed the burden with the government as it should and the significance of that is that our position is that the undisputed facts that are patrolled in the video a stablish that south to that mr evans was exercising self defense even if this court disagrees i think what is clear from both sides briefing is there are certainly things that are left open by the video questions that are not answered or even certain parts of the video that are left open to interpretation because the burden lies with the government those questions had to be answered in our favor and if they didn't if the government failed to proffer any evidence to illuminate some of those questions then we deserve the benefit of the court's ruling because it was their burden to disprove self defense in the record is problematic because of the misallocation if you will of the burden of proof i'm sorry so your honor is asking what in the record is is problematic meaning what are the think what what things are sort of if i could ask a clarifying question is your honor asking what things sort of could have been been clarified with and with where that he could have been interpreted one way or another and therefore they have to be interpreted in your favor what are the things that you're pointing so under california law self defense the exercise of self defense depends on what a reasonable person in the defendant's situation would have believed knowing what the defendant knew and in the situation the defendant was in there are a lot of things about what the defendant knew that we're just not sure of based on the video the video is is taken from the perspective of the street mr evans is in a car sort of a double parked car  what his state was sort of what level what what what level of trauma he'd experienced as as he was being shot that's one thing that that is sort of left unclear by the video the person and his running away pretty fast it was halfway down the block respect we actually disagree with that notion that that person who mr evans shot was down the block at the point which he shot again i think that the video actually shows that he was actually very much still in the vicinity of the car and looking towards mr matter for self defense purposes i think if he was he was his back was turned and he was running away at the point i think it is significant because we don't know what words were exchanged between them and if we're looking at at the perspective of mr evans at the time that he made the decision to shoot towards this individual if those men had exchanged words that said just the words have been that would have made a difference for example if the accomplice had said to mr evans i and my friend who's standing at the curb alternately did shoot at mr evans we're going to make sure that you know that we shoot you dead and that with you know self defense if the person then ran away as fast as he could i think that it would be significant because again th possession situation is that california self defense really make a difference in this case i don't disagree with your honor's point that judge white if the court re mandate judge i can't say that judge white would necessarily a hand down a different sentence that being said it is still incumbent upon the district court to arrive at the correct guidelines calculation and subsequent of your time yes i would like to reserve two minutes i can i can finish  answering the court's question or i can have a seat i do think it makes a difference because because if mr evans was validly exercising self defense as we believe that he was at the point at which he discharged the good morning your honor susan gray on behalf of the united states the government presented sufficient evidence to negate that mr evans claims of self defense in the district court did not clearly or when it found evidence demonstrated that he was no longer in imminent danger when he fired at the back of the fleeing suspect and thus the necessity or the reasonable grounds necessary for the use of force had ceased the evidence in terms of whether he had the affirmative defense or not i don't think he did your honor for a couple of reasons and that is because at each excerpt of record thirty one and thirty thirty two the court first said normally to speak into defense a claim of self defense and then it would swing back to the government as he said i'm all in as your honor said he was looking at the total judge smith said the the court was looking at the totality of the evidence here and what he had was a situation where he accepted the defendant's evidence in the light most favorable to the defendant would certainly with woods which would certainly suggest the government was  required to carry its burden but i would point out that i think at this point the part the parties could could can disagree perhaps could disagree about the burden they could disagree about the facts but that's not why we're here at this point the court has looked at that videotape multiple times and the only issue is whether the district court factual findings after reviewing that that tape were clearly is erroneous and under the deferential standard review for a clear  one has to do as a requirement just for his defendants and meet other family obligations unconstitutionally vague no your honor we don't believe that it is the standard conditions are presumed to be reasonable and i believe that the morgan case though which i cited in my twenty eight j l j letter and i want to make clear that we recognize it is an unpublished case you know about the seventh record capital yes your honor and i think that there's there's a distinction here between capice on these three standard conditions in caps capice is is as i understand it was the court was complaining that the diff that this is different first capice in the sense that the judge here was not sort of wholesale handing out standard supervised release conditions it's important to musician contacts judge white had been dealing with this defendant right for eight years and he'd been trying as wording in the standard condition because apparently recognized that what the seventh circuit said was a problem so however upset judge white may be with mr evans the fact is that you know so family responsibilities in this sense is pretty vague you know the same kind of an issue with work regularly at a lawful occupation unless excused by the probation officer and so on what if he can't get a job he's a convicted felon what what what what felon particular person of color is going to have difficulty maybe is that unconstitutionally vague thompson says it is so i got three a minimum of three of these conditions that at least to my mind are  unconstitutionally beg the seven circuits as all of them are unconstitutional the sentencing commission i believe in all of these has changed its wording what are we to do with that and to be more specific on that what caps or the fact that the sentencing commission and subsequently changed invalidates the fact that at the time they were imposed they were legal under this or can suppress evidence so that even if this court finds that it was error it wasn't plain error and they were presumed reasonable they were fundamental fairness if you can't understand what the obligation is how can that be fair well in this particular instance i think they're absolutely clear to mr evans and because for the last eight years he's operat under and i want to point out to the court as it is i'm sure the court is aware these conditions were imposed in two thousand and eight no objection they were reimposed during two separate supervised revocation hearings and here's why we know that he understands  because when he's in at sentencing on this the underlying offense he uses the fact that he's involved with his children he uses the fact that i've had employment as a mitigation factor now the government's position is if you are these are clear these factors are clear enough that you can argue to the court on your own not just defense counsel that i look i'm i'm meeting my obligations to support my family to i want to be part of their lives and i've been getting work i respect that but what i'm struggling with this as a court we have at least three possibly four issue conditions that whatever they may have been in the past are certainly now in question the sentencing commission has clearly view them as being vague because they've changed the wording are you suggesting is the government suggesting that we should just say no harm no foul we're just going to let this be or do you agree that the government stipulate or that we need to say for the ninth circuit's purposes it's also big no because i think the court has i think the court answered those questions in morgan and  found that these conditions were vague and that they were also were reasonably related to the goals of supervised release so we have asserted that so yes your honor if the court were to rule in that way we would have it there would be a circuit spit because morgan just recently address evidence and show that he had violated that specific provision i have the court has questions about the gang condition i would like to address them in the last minute available to me but i if if there are no questions on that i  t what is the evidence in the record that evans was a member of the downbelow gang or any unit your honor the government doesn't have to show that he was a member of a gang is sufficient for this clause to be reasonable and also  because the court mean there's no evidence in the record that he was a member i'm sorry your honor and let me answer your question i apologize if the evidence in the p s r i believe it's at page four is that he had been identified by the same cisco police department as an affiliate of the down below or up the hill gang and then his own attorney it mid at sentencing that he was associated with him he grew up with the area he and people in the area believe he was a member of the gang or that it because  with known gangs but any gang and and in fact there's a reason i think this is the underlying offense she demonstrates the need for this condition because as his attorney said people when he went down into another to the baby district and recognized him and that's a quote from the record then bad things happened and so what the court was doing with this particular condition is the same thing that the court tried to do in watson and that was the court said in watson if you go back to these haunts if you continue or association whether you're in a member of a gang or you're just associating with them you're right back into that life it's official if the government just shows that someone grew up in an area where there's a gang it's sufficient to meet the government's burden to how this stay away from gang condition imposed your honor just showing someone grew up in the area i think we have around again no your honor i think we have far more than that here we have the p s r but we also have his own admission his attorney submission that he was viewed as as you know people believed he was this he was in a gang because he associated with but if you take that it's also true that they said that he wasn't a member of the gang exactly your honor but you're picking and choosing believing something that was said but not believing other things that were so i think they can't they dispute that but the government certainly this and cisco's police department believes that he's an affiliate the evidence was certainly suggest that he continued to associate with in the gang area so i want to just i that my time and i just want to say suggest to the court that this was a if anything less important condition the court in post because it was aimed at preventing his future as you know involvement in exactly the type of situation that you have of the government doesn't penalty imposed and under our system someone has to know what he or she is doing wrong in order to be criminally charged correct karen about farley it ended this circus precedence the government would have to prove that it was a knowing violation that he knew it was a gang member he knew he wasn't supposed to be associating with them and so it would be our burden to prove that there's a lot we could talk about  hear from your opponent in rebuttal thank you your  district court's allocation of burden of proof lead to a different result your honor it would a change in the in the allocation of proof we believe would lead to a different guidelines calculation the five point enhanced meant for aggravated assault would no longer apply now the destroying or just giving you the conclusion why what is it about the evidence that would lead to a different conclusion because we believe that if the burden of proof was properly imposed on the government that the necessary conclusion would be that mr record didn't articulate that he was placing the government the burden on the government as he should and i would have an obligation to do that to articulate the burden of proof is on the government self defense issue i think he has an obligation to to demonstrate either through an explicit statement or something about the way that he applies applies a lot of the evidence that he's properly placing the burden and that's what i don't think happened here both through any explicit articulation but also through his reasoning and i would point the court to when judge white in the record announces his ruling he notes that part of what he the basis for his ruling is his finding that mr evans could have gone into his car and driven away earlier th he had and again under california law the way that self defense applies in california law a defendant does not have a duty to to retreat and here again i believe that if if the burden was properly placed judge white could not