clifford young the question in this case is whether the district court erred in applying section three c one point two of the sentencing guidelines which calls for an increase in tents where the defendant created a substantial risk of death or serious bodily injury while fleeing from the offense now in the ordinary cases when this guideline applies it's because the defendant led police on a high speed chase through traffic and recklessly endangered the motoring public waffly that didn't happen here instead the government's primary argument is that the guideline should apply because the defendant virtually threatened to shoot himself and to shoot the police while fleeing from the offense now obviously threatening to sue also went over a spike strap could have had a blow out could have gone off the side of the road going to kill ten people he went over a spike strip however the definition of who are carefully know the definition of reckless endangerment requires that the defendant be aware of the risk and there was no evidence the district court made no findings th defendant was aware that the police had deployed spike strips and there's persuasive decisions from the fifth and the ninth circuit that says you can't assume that the defendant is aware of police tactics to capture him when he's in the is not enough to satisfy the reckless endangerment and usually those cases though are people who are on foot no the court has said that it's actually got a case that holds that the mere fact that the primarily is that there was no showing that he was aware of them and you can't assume knowledge of police tactics but there's also the additional problem that spike strips don't in fact pose a risk of a blowout like you're talking about that's just not the way that they work well you said that in your in your brief is was there any evidence presented in the in the in the public record that spike's strips are not dangerous there's not and that's another reason why the government  lose it's the government's burden to prove the substantial risk and no the government didn't present any evidence about how the spike strips works and that's why it loses well it was actually asking about your representing your factual representation in  think that ok i think that those are legislative facts and not that you look at the facts and that the court can take judicial notice of that well if if if it's a legislative fag and they could cut both ways can it in other words if if it's a legislative fact we can judicially notice that spike strips are not baiters there is no logical reason that we can at judicially notice that spike strips are dangerous particularly when there are cases applying reckless and danger  notice what spike strips do however the court can't judicially notice what mr young was aware of so that's that's the core problem with the spike strips issue is you can't assume knowledge of police tactics and the government i pointed that out my opening not ask the court to determine whether the facts found by the district court supported the enhancement as a matter of law and that's what this court has done in all mapped manner of different guidelines cases in vulnerable victims that those facts meet the test for the reckless endangerment and here and we all knew so when you can see he repeated it just now that you are not questioning any of the district judge's findings of fact that would include the finding on volume three forty seven where the district judge specifically found that the deployment of spike strips put at risk the general public as well as others you're accepting you're not questioning that finding i think that that is if it's a if what justice bacharach just spoke of is a fact then we are contesting and the district court's decision would be clearly erroneous but because there was no evidence in the record if you didn't if you didn't is for a hearing you don't have you think there's nothing to contest i do because it's the government's burden you show you that it's it's a legal issue but if it's not a legal issue and you did not contest that finding that findings solid no because we did object to the reckless endangerment he huish for hearing it's not my burden to it's the government's burden if there's a contested issue in what report you can ask you have to ask for a hearing what we have to do is to object to the enhancement when we object to the enhancement it becomes incumbent on the government to prove that there were no findings there were there were no facts in the  there were other bystanders that there were other cars present and so we objected to the p s r then it became incumbent on the government to prove the facts another reason is that is it and this slow chase we'll call it occurred on an interstate i think that it was ninety on i ninety yeah there was act that's a fact undisputed that's a fact that's undisputed  there's and there are several reasons why we can't just in the absence of any evidence we can't just assume that there were other cars around one of them is that defense counsel who had seen all the discovery in this matter represented to the court that there was nobody else around the prosecution when he was arguing for how would he know that how what how would he know that he would have reviewed the discovery and th record i can tell you what they said it's not in the record you can write but what i can say is in the record is that defense counsel represented to the court that there was no one there the prosecutor then had a chance to make his argument for it and never disputed that there was nobody else there also this is not some residential or commercial area this is a highway in wyoming where you were where did this began began in the city of all of the areas are technically within the territorial jurisdiction of gillette but none of it so far as the record reveals none of it occurred in a residential area they talk about he was a nationally spotted in a parking lot two blocks away from the girlfriend's house all the parking lots two blocks away from the girlfriend's house are along the highway and also we don't know exactly when the chase started all we know is that at least part of it occurred on the i ninety maybe all of it occurred but as far we just there's nothing in the record to suggest that it occurred through a residential or commercial well why should we consider the four and a half hour standoff in our alice's under three she one point two well that goes back to my argument that a furball threat is not enough we had more than a verbal through it i mean he had his gun there he they said everybody knew it the dispatcher and he tied up the whole area before and a half hours well the problem is that there's way of everybody around to put cones around them the problem is that there's no evidence that he even handled the gun much less brandis it for all the for all the record shows the gun may have stayed in the glove box the whole time well let's say you're right let's state in the glove box of the whole time and let's say hypothetically that we can't take  verbal threat against the officers as evidence that the officers were under threat wouldn't the verbal threat particularly growing this four and a half hour standoff create the danger that the officers would shoot at him absolutely absolutely and if they if there was a threat that they would shoot at enough wasn't there a reasonable apprehension that somebody else for example another officer might get accidentally get shot no i don't think so because there have to be other bystanders that are around the defender's other officers then roam around there's nothing in the record to show where their station so they there's nothing in the record to suggest that the officers would be shooting in the direction of other officers and that distinguishes one of the cases that i talk about in the brief the service station case there were other bystanders who were in the immediate vicinity of the defendant who was engaged in the standoff we don't have anything like that here the government put on no evidence and the district court made no findings about whether any officers were stationed made please the court my name is jason connor amasis united states attorney out of the land or branch office up in wyoming you are in the united states is not arguing that every threat creates a substantial risk of death or serious bodily injury what the government is arguing is that the threats in this case did do so here we have the defendant he's armed suicidal felon threatening to shoot the police and himself during a chase and a subsequent four hour stand up this fits the dictionary definition of the substantial risk of death or serious bodily injury first this case did not occur in a vacuum the defendant's actions and his deeds that they occurred in real time and in real life on the street it created a danger to the police the public as well as the defendant even though that doesn't count on the enhancement here here's what we have your honor the defendant was suicidal he was armed with a forty five caliber pistol and he was headed to kill himself in front of his girlfriend the teacher alas the police intercept him two blocks from the girlfriend's house they try to stop and he won't the chase is on now it's not a high speed chase granted it's a medium speed to slow speed chase but it's a chase he's not stopping he's been told to stop it's not stop now the exact duration of the chase is unknown could be forty one minutes could be thirty but it was long enough that the police were able to coordinate and put up spike strips so it took a little while additionally we don't know the exact route of this chase but we know he was seen in the city of gillette he was as the defendant points out he was two miles from his girlfriend's house on the interstate so we went somewhere maybe whether he went back and forth on the interstate or through town we don't know the exact route but we do know is that during the pursuit the defendant got on his phone while he was driving called the police talked to corporal johnson he said hey get these guys off my tail or i'm going to kill myself if you guys try to do anything i'll shoot you i have hollow point bullets and i know you were bullet point bullet proof vest and i'm a good shot so these are the facts this is not just a verbal threat this is not a defendant sitting on his couch making tough talk about what he's going to do to the police to the district court making the findings that threats that those threats during the slope speech created reckless endangerment and the district court did a basically what the district court did is that the totality of facts and circumstances that this defendant failed to stop during this time he had a gun he was making threats himself and others and that he would be excusing spike strip four and a half hour standoff threatening everybody and so that was essentially the generic finding by the district court now granted it is not a specific finding judge kept all that did not go through and make it two pages litany of all the things and i don't blame him because it's common sense but the defendant when he's driving on the freeway interstate i mean granted it's wyoming it's not downtown denver but he's driving through the city of gillette on the freeway threatening to shoot the police with a forty five caliber pistol and ensuing gunfight on the interstate puts everybody at risk the other police officers we don't need to show them how bad a shots they are how good a shots they're there's ricochets this court is held in other courts of held that's when somebody drops a firearm it may go off so if somebody drops merely dropping a firearm and it might go off and hit somebody then certainly threatening to shoot somebody causing the police to shoot back but in the dropping of the weapon cases there's actually been a dropping of the weapon right here here ammo or the ammunition out right not the gun that was loaded in this case the defendant finally dropped the his magazine out right after the end of the four and a half hour stand if you drop the magazine out of the and the cases that we have about throwing a weapon out that is the gun itself not just the magazine but in this case your honor the facts were that he did not drop the magazine out an essential make firearm safer what the officers hope to exactly your honor when you're on the interstate you're doing forty to sixty miles an hour and with regard to the spike strips first of all to the knowledge this court has said in all the course of said the river the recklessness element is knowledge of a reasonable person not a reasonable criminal so a reasonable person would think or should know that after about half an hour forty minutes police chasing you down they're going to stop this somehow whether it's a pit maneuver or spike strips it's not a shock when all the sudden on the freeway you hear a but them home and your tires start to lose air again the defendant still didn't stop he only stopped when the tire spikes took their intended purpose they took effect it was two miles past th that is correct are so in this case i would jump around a little bit and i apologize but looking to the standard review the united states would say it's clear and that is because the defendant's argument is not accepting the district court's facts in the case is written by this court the standard is clear error and you give reasonable inferences to the facts in the light most favorable the ruling of the district court well that's what we here have here we have a commonsense situation we have facts the have it reasonable inference there is a defendant who is armed driving on the interstate threatening to shoot police and himself the first one is by threatening to shoot yourself while you're driving on the interstate creates a huge threat to the public the motoring public and the police following if you shoot yourself or you're driving use in the car joy riding down the interstate you have a tesla and exactly as your honor the defendant makes a point of well there's no evidence that the defendant said he was actually going to shoot himself while he was driving that's true but it's a reasonable inference this defendant was going to shoot himself in front of his girlfriend to teach her a lesson he's intercepted by police he's driving he picks up his cell phone he calls the police and says hey get off my tail i'll shoot myself and i'll shoot these police then he gets on the phone and calls his best buddy the one who started all this thank goodness and called the police and said it turned him in so the defendant driving on the freeway calls the police calls his best friend and chastise him for calling the police so it's reasonable to infer that he's just threatening to shoot himself he has a gun he's driving he may just do it while he's driving that creates a substantial rest of the motoring public he could have it's true he could have pulled over he could have joe back and killed himself in front of the girlfriend too but that's how that's a danger and i think this court can take judicial notice that driverless car on the interstate whether it's forty sixty is a danger to the public next the threatening to shoot the police officers this is not just a verbal threat he was armed and dangerous with a deadly weapon in his car he threatened to shoot police on the defendant's quite lucky in my view that he didn't get a four level bump for committing another felony offense during the commission of this offense and that is threatening to use a drawn deadly weapon in violation  mixed six two five zero two eight three under the wilding case law the weapon doesn't need to be in your hand it doesn't need to be drawn it just has to be available ready for use it has to be as part of the threat and i discovered all this in t morass but in this case we clearly have that the defendant had the firearm in the car he threatened to shoot the police officers that's threatening to use it drawn deadly weapon next the public was put at risk the defendant the started in the city of gillette whether it's on the interstate or through the town it doesn't matter if the gun fight ensues on the interstate the traverse is through the city of jalalabad not only are those other folks on the interstate both lanes east and west bound put at risk by stray bullets from a gunfight but so are those people who are just off the interstate this the interstate runs right through town so fine maybe it's not a residential area but the people at mcdonald's who are going to work in going to get their coffee they just have to suffer getting shot at because it's not a residential area that seems silly everybody around us put it rescued his his argument as i understand it is that the district court's findings  insufficient to support the enhanced and i don't question whether joe's schedule made anything findings along the lines of what you're talking about joint whether there's any bystanders or whether there's any fast food restaurants in the vicinity yes your honor judge cowbell did not make that specific finding i would argue answer that two ways first judge did not need to be that specific it's a reasonable inference that an interstate to the city of to let people are put at risk by stray bullets in a gunfight this court has said as much in the kirkyard case in the puerto case when this court said look you don't have to show who is standing on the street corner who is out driving that the conduct of the defendant just needs to be substantial create a substantial risk of death or serious bodily injury we don't have to identify all those out on the street or there were ten people driving or five or two additionally with regard to mcdonalds and where it was i'm relying on the map provided by the defendant talking about the challenge of the government saying quote that the chase went through town and i'll admit the chief problem it did go through town i don't know where but his map which you points out this court can take judicial knowledge of shows where it started joe's where the a mcdonald's within rifle range or pistol range but i think judge scab dolls findings are there common sense those are the dictionary definition of reasonable inference that a gunfight ensues on an interstate running through a city whether it's wyoming or not people are put at risk additionally other officers are placed at risk they could be shot ricocheting bullets bouncing off the car bullets don't always go where they're intended and once they hit the intended target they may go elsewhere i mention before that spike strips they create a risk in this situation we have an armed suicidal defendant fleeing failing to stop who knows what he's going to do  tenant is arguing here that he had no knowledge that the police were going to put down the spike strips and so he's saying we can't blame the defendant for what the police are doing your honor and there are cases that say and i believe it's i can't remember the case but it was immigration officials chasing the jamaican guy out the window and they tackled him and broke their thumb that is correct that's instinctive first this is not instinctive flight thirty minute chase the standard is a reasonable person not a reasonable criminal i have no doubt that this defendant in his state his state suicidal angry at his girlfriend calling the police tell me to shoot them shoot him sel chastising his friend he probably didn't put two and two together and think the police were stopping him looking at the p s r he was arrogant enough right that he was getting away with it but a reasonable person which is the standard would think golly gee after half an hour being chased by the cops they're going to stop me they're going to shoot me they're in a crash into me are they going to lay out some spike strips so i don't think a defendant or the reasonable person's knowledge i don't think they have to know the exact method or mode how the police are going to stop and they just need to know the police are going to stop them the fourth argument i would make is that the four and a half hour standoff did create a substantial risk of death or serious bodily injury because the guidelines provide it's the act of resisting it's to be taken into account the beginning the middle the end sure there was no quote fleeing he was stopped he wasn't going anywhere but he's not in cuffs either the only reason the police didn't walk up there and grab him by the was because he had a gun and he was threatening to shoot them four hours later they finally talked him into it in that intervening four hours on the interstate and all around that there's a threat to everybody in and suing gun fight and that's a substantial risk of death or serious bodily injury edition on are looking at the cases from this court this court has often said that the actual act need not create so the the act of dropping the gun in the brown case the judge kelly you authored when that defendant was chasing running from police he drops the firearm by the waterhole the school kid say hey mr officer there's the gun and this court said the risk is the danger is not just dropping the gun it's those little kids might pick it up in other cases the courts have said if you throw the gun out and it might go up there was the hampton case from this court that was reversed on other grounds pre book or case but in that case the guy was running crashed his bicycle trying to break into a house has a gun police are behind him he just throws the gun into the guy trying to keep him out and he said well there's no risk there i was given him the gun hack and this court logically said no way you have a gun in your hand you're trying to break into a house it might go off and when the cops see you pull that gun from your waistband is just backtrack said the defendant pulled trying to break into a house pulls a pistol out of his waistband the police might shoot him and then everyone's arrest so in of all those circumstances and all those cases where people drive crazy too fast for conditions swerving bobbing weaving if those count as reckless endangerment during flight than most certainly a suicidal armed defendant threatening to shoot police while he's on the interstate qualifies as well my final point would be is we talked about cases where the spike strips were accepted in the will funk judge briscoe was a part of and that case the passenger enhancement was upheld for that passenger in that case the bike strips were used and in that case the reckless endangerment was merely throwing papers out the window and driving a little crazy and that was the passenger in connally it was the passenger so if a passenger can be held liable for the crazy driving of the defendant because it's foreseeable in that kind of a case then certainly an armed suicidal felon running from the police for thirty minutes and threatening to shoot them counts  is what the guideline requires is a substantial risk and this court has said that substantial risk means high probability what the government is doing here is just piling inference upon inference upon inference in a way that can amount to a high probability so yes there was a risk that the police may have shot at mr young but what the government is saying is well there was a risk that the police might have shot at mr young and if they had shot at mr young the bullets this court should not affirm for that reason if there are no other questions i'll i do have one in it pertains to the standard now you're arguing that the final score is i understand the findings are insufficient  for the enhancement now typically when someone challenges the sufficiency of findings the matter is in substance whether or not the explanation for the judicial determination is sufficient and so i don't read your argument to being that the findings are insufficient in that sense in other words that in another case or even in this case the judge scabbed all needed to make a create to make a more elaborate explanation for why was invoking the enhancement and if if that is so that's part one of my question and if the answer to that is that i'm right in your interpretation of what you're arguing in which are not arguing i'm wondering how we can apply do novo review because the explanation was was better than most so you're not challenging the sufficiency of the so you seem to be saying is that i'm challenging the sufficient of the findings because the judge didn't go point by point by point and address every one of my arguments about these individual components of recess no i'm not challenging the elaborateness of the explanation what i'm challenging is that the facts set forth in the p s are and the facts found by the district court so you can look at all of the facts that are set forth in the p s r regardless of whether the judge sa and that the entire universe of undisputed facts in this case don't meet the legal standard and from what you just said then then we can also consider the evidence in the p s r in the light most favorable to the government to sufficient as a matter of lot to show that the enhancement applies ok thank you thank you both for your arguments this case is submitted