[00:00:00] Speaker 04:
I'll be mindful of the clock, but I'd like to reserve two minutes for rebuttal, please.

[00:00:03] Speaker 02:
OK, keep an eye on the clock.

[00:00:04] Speaker 02:
We'll try to help you.

[00:00:05] Speaker 04:
Will do, Your Honor.

[00:00:08] Speaker 04:
Close enough for government work.

[00:00:11] Speaker 04:
That is the le motif that weaves its way through each of the three issues, each of the three sentencing issues now before this court.

[00:00:18] Speaker 04:
Close enough.

[00:00:20] Speaker 04:
for reckless endangerment when there's cars in the path, but no car is identified that actually is impacted by the flight of my client during the brief.

[00:00:28] Speaker 02:
Although we're actually impacted, but do you agree that the district judge reviewed the actual video and, in his opinion, the actions of your client endangered people?

[00:00:43] Speaker 02:
That's a direct observation, not just a generalization.

[00:00:47] Speaker 02:
What's the matter with that?

[00:00:48] Speaker 04:
Your Honor, I do agree that Mr. Judge Tiger did review the video.

[00:00:53] Speaker 04:
And I do agree that he observed that there were cars on the road.

[00:00:57] Speaker 04:
I disagree that he identified any car that was actually impacted as the guideline requires.

[00:01:02] Speaker 02:
Does he actually have to have an accident to have endangerment enhancement?

[00:01:07] Speaker 04:
No, Your Honor.

[00:01:08] Speaker 04:
Under the guideline, under the plain language of the guideline,

[00:01:11] Speaker 04:
there must be another person, a specific person, for whom the action caused the risk of injury or death.

[00:01:17] Speaker 04:
And there was no such person in this case.

[00:01:19] Speaker 03:
I mean, but we've all looked at the video.

[00:01:23] Speaker 03:
For example, there's a car at 212 in the video, right?

[00:01:28] Speaker 04:
Your Honor, there are three cars, I believe, that are at issue in this case.

[00:01:31] Speaker 04:
There's a car at the first intersection where there's a U-turn taken.

[00:01:34] Speaker 04:
You can see a car coming, the headlights of a car coming.

[00:01:38] Speaker 04:
There's a gray car, as my client

[00:01:41] Speaker 04:
drives down the road away from that U-turn.

[00:01:43] Speaker 04:
And then there's a third car at the stoplight where the crash took place.

[00:01:48] Speaker 04:
None of those three cars, the government has failed in its burden to prove that any of those three cars were impacted by my client's flight.

[00:01:56] Speaker 03:
How fast was your client going?

[00:01:58] Speaker 04:
At that time, Your Honor, he was going well above the speed limit.

[00:02:02] Speaker 04:
I don't think it's in the record how far he was going during the 25 seconds that he was... No, how fast was he going?

[00:02:07] Speaker 03:
Excuse me, how... I don't believe it is in the record how fast he was going during the 25... At every second, but we can see that there were certainly many instances with cars on the road where your client was going very fast, right?

[00:02:20] Speaker 04:
That is a correct fact.

[00:02:21] Speaker 04:
There were cars on the road, and my client was going quickly.

[00:02:24] Speaker 04:
He was going, I would concede, above the speed limit for that surface street.

[00:02:28] Speaker 04:
What I do not concede, and I think the government has failed in its burden, is to prove that any of those three vehicles were affected by that flight.

[00:02:35] Speaker 02:
What do you mean affected, counsel?

[00:02:37] Speaker 02:
Do they have to scream?

[00:02:38] Speaker 02:
Do they have to back up?

[00:02:40] Speaker 02:
What do they have to do?

[00:02:41] Speaker 02:
I mean, if you're in these three vehicles, people are sitting in the car, they see someone coming gently toward the direction at a very high rate of speed with the police in back of them.

[00:02:51] Speaker 02:
Isn't it normal that they would be apprehensive, concerned that they might be impacted by your client veering to the right or the left?

[00:03:00] Speaker 04:
Yes, that is absolutely true.

[00:03:01] Speaker 02:
What's the matter with that?

[00:03:02] Speaker 04:
That is absolutely true, and that is not the facts of this case.

[00:03:06] Speaker 04:
And none of the three vehicles in my client come behind.

[00:03:10] Speaker 02:
The only car that we... Well, you're saying they didn't actually end up doing that, but you don't know what they thought.

[00:03:15] Speaker 02:
I guess what I'm troubled with, you seem to be suggesting

[00:03:18] Speaker 02:
that in order to have an enhancement here, you have to have the occupants of the three vehicles in question come and testify to say, oh, I was terrified.

[00:03:27] Speaker 02:
I don't think that's what the guidelines provide, is it?

[00:03:30] Speaker 04:
Absolutely not, Your Honor.

[00:03:31] Speaker 04:
I think if the government had met its burden and shown that one of the cars had a slam in its brake as it came into the intersection due to my client's U-turn, that would be sufficient.

[00:03:40] Speaker 04:
There were two officers who could have testified who could have submitted declarations who did not.

[00:03:45] Speaker 04:
My client submitted a declaration at ER 13, and he

[00:03:48] Speaker 04:
He reported that no vehicle was affected.

[00:03:51] Speaker 02:
That's a self-interested kind of a thing.

[00:03:53] Speaker 02:
That's not what we look at, is it, in this type of evaluation?

[00:03:57] Speaker 04:
Oh, absolutely, your honor.

[00:03:58] Speaker 04:
It's the only evidence in the record, that and the video.

[00:04:00] Speaker 03:
But counsel, the guideline provides, if the defendant recklessly created a substantial risk of death or serious bodily injury to another person, to go to Judge Smith's point,

[00:04:17] Speaker 03:
That doesn't require injury to another person, the death of another person.

[00:04:24] Speaker 03:
It requires by his actions, his acting recklessly and creating a substantial risk.

[00:04:34] Speaker 03:
I mean, from my review of the video, I just don't see that the judge clearly erred in his findings.

[00:04:41] Speaker 04:
Well, Your Honor, I believe that I respectfully disagree.

[00:04:45] Speaker 04:
And I'll use the example of the third vehicle as an example.

[00:04:48] Speaker 04:
The third vehicle was stopped at a stoplight when the policeman came upon the car that was crashed by my client.

[00:04:56] Speaker 04:
We have no idea where that vehicle was as my client went through that intersection and crashed.

[00:05:01] Speaker 04:
It could have been well down that road, far, far away from any impact or any consequences of my client's actions.

[00:05:08] Speaker 04:
And Your Honor, I would report that I would

[00:05:11] Speaker 04:
view that that did not cause reckless endangerment of that car.

[00:05:14] Speaker 02:
Well, again, as the district judge who made the evaluation here, you've got to show some clear error here.

[00:05:19] Speaker 02:
And he looked at the video.

[00:05:21] Speaker 02:
He saw where these cars were, and he made a judgment that given the rate of speed that your client was traveling at and where these folks were located, that the

[00:05:33] Speaker 02:
enhancement was appropriate.

[00:05:35] Speaker 02:
Under the case law and under the reading of the actual guideline that my colleague has given you here, what's wrong with that?

[00:05:43] Speaker 04:
Your Honor, I think it was wrong because none of those three vehicles were actually affected.

[00:05:47] Speaker 04:
How do you know that?

[00:05:49] Speaker 04:
From the video.

[00:05:50] Speaker 02:
You mean they have to be hit?

[00:05:51] Speaker 04:
No.

[00:05:51] Speaker 02:
Is that what you're saying?

[00:05:52] Speaker 04:
No.

[00:05:53] Speaker 04:
From the video, from the uncontroverted declaration of my client.

[00:05:57] Speaker 04:
And it's not my client's burden.

[00:05:59] Speaker 04:
It's the government's burden.

[00:06:00] Speaker 04:
And they failed.

[00:06:01] Speaker 03:
Didn't the judge say he found your client not credible?

[00:06:05] Speaker 04:
He did, for no apparent reason.

[00:06:08] Speaker 01:
But this is clear error review.

[00:06:10] Speaker 01:
I think you say in your brief that you don't challenge any of the factual conclusions of the district court in your appeal.

[00:06:16] Speaker 01:
But that seems to be exactly what you're doing.

[00:06:18] Speaker 01:
And whatever happened below, we're reviewing the district court's factual findings, are we not?

[00:06:24] Speaker 04:
I think, Your Honor, because that provides an interesting segue to why the district court erred.

[00:06:28] Speaker 04:
He erred because those

[00:06:30] Speaker 04:
findings, as it were, were sounded in his decision that it was not necessary to identify another person.

[00:06:36] Speaker 04:
He made that clear.

[00:06:37] Speaker 01:
Okay.

[00:06:37] Speaker 01:
So you make this point based on the text.

[00:06:43] Speaker 01:
Is your claim that there wasn't another person in these moving cars?

[00:06:48] Speaker 04:
No, Your Honor.

[00:06:48] Speaker 04:
My claim is that the district court erred when he found that another person need not be

[00:06:54] Speaker 04:
a specific person need not be identified, that just driving recklessly in an urban neighborhood is enough.

[00:07:00] Speaker 04:
And then by identifying, he didn't identify a car.

[00:07:03] Speaker 04:
The government conceded that he didn't identify a vehicle.

[00:07:07] Speaker 04:
The government said at dash cam footage at 221, it is unclear what specific car the district court referred to.

[00:07:14] Speaker 04:
That is not what this guideline requires.

[00:07:17] Speaker 04:
There were serious consequences.

[00:07:19] Speaker 04:
There's eight to 13 months difference in this guideline.

[00:07:22] Speaker 02:
So your position, I gather, is because your client, of course, who is totally self-interested here and who the judge found not credible, because he said it was different, the judge is bound by that because you don't have any people in the three cars testifying to the contrary?

[00:07:40] Speaker 04:
No, Your Honor.

[00:07:42] Speaker 04:
My position is when my client submitted that declaration,

[00:07:45] Speaker 04:
The court had no basis to find him not credible.

[00:07:49] Speaker 04:
He didn't testify.

[00:07:49] Speaker 04:
He had never... What about the video?

[00:07:52] Speaker 04:
Your Honor, none of the three vehicles on the vehicle were actually impacted by my client's flight.

[00:07:57] Speaker 04:
And there were two officers... In what sense?

[00:07:59] Speaker 02:
You said they didn't have to have a crash.

[00:08:02] Speaker 02:
You don't know one way or another how they felt, whether they were terrified when they saw your client careening towards them, right?

[00:08:09] Speaker 04:
It did not create a substantial risk of death to any of those three vehicles, Your Honor.

[00:08:13] Speaker 02:
And I know that I have- Why would you want to save any of your time entirely up here?

[00:08:16] Speaker 03:
Would you mind if I ask a question on another issue?

[00:08:19] Speaker 02:
No, of course.

[00:08:19] Speaker 03:
So I had a question for you on the Jason issue.

[00:08:23] Speaker 03:
Yes, Your Honor.

[00:08:24] Speaker 03:
So I want to make sure I clearly understand part of your argument.

[00:08:30] Speaker 03:
There's no question that you objected to the JSON data at sentencing.

[00:08:37] Speaker 03:
And you said either don't consider it or conduct an evidentiary hearing first, or have the Sentencing Commission provide additional information.

[00:08:46] Speaker 03:
Is that a fair characterization?

[00:08:47] Speaker 03:
It is, Your Honor.

[00:08:48] Speaker 03:
So this is my question.

[00:08:50] Speaker 03:
Is it your position

[00:08:52] Speaker 03:
that in every case where that we should rule in such a way that in every case where that was the scenario, the judge is forbidden to consider the Jason data unless they held an evidentiary hearing along the lines that you suggested that their two choices are conduct an evidentiary hearing or can't rely at all on any objective to Jason data no matter what.

[00:09:20] Speaker 03:
No, Your Honor, it is a much more .

[00:09:22] Speaker 03:
.

[00:09:23] Speaker 03:
.

[00:09:23] Speaker 03:
What makes your challenge narrower than the way I've just phrased it?

[00:09:27] Speaker 04:
Your Honor, first I had shown there were specific issues with this data, most specifically the exclusion of all custodial sentences.

[00:09:35] Speaker 03:
Right, but that is something that occurs with every aspect of the JSON data, right?

[00:09:42] Speaker 03:
Yes.

[00:09:44] Speaker 03:
So someone making that objection would be essentially be able to make that any time the district judge was considering any JSON data because that's always a characteristic, right?

[00:09:56] Speaker 03:
Correct.

[00:09:57] Speaker 03:
Okay.

[00:09:58] Speaker 03:
Judge Smith, I would ask you to- Thank you.

[00:10:02] Speaker 02:
I don't want to eat your rebuttal.

[00:10:03] Speaker 02:
Thank you, I appreciate it.

[00:10:04] Speaker 02:
He really does, but we'll give you some more time.

[00:10:06] Speaker 02:
Thank you.

[00:10:07] Speaker 02:
All right.

[00:10:07] Speaker 02:
Let's hear from the government.

[00:10:14] Speaker 00:
Good morning, Your Honors, and may it please the Court.

[00:10:16] Speaker 00:
Simon de Carvalho for the United States.

[00:10:18] Speaker 00:
The record in this case makes plain that the district court correctly applied the sentencing guidelines, understood its discretion to impose a sentence below the guidelines, and considered and reasonably rejected each of Mr. Brewster's three arguments en route to imposing within guidelines 46-month sentence that was substantively reasonable.

[00:10:34] Speaker 02:
Counsel, let me ask you this.

[00:10:36] Speaker 02:
At least as I read it, the defendant here is essentially asking the court

[00:10:42] Speaker 02:
To make a determination based on the generalized damage Do we really need to get to that here in light of the facts of this case?

[00:10:51] Speaker 02:
What the judge saw in the videos and so on it can be just related to these this incident.

[00:10:56] Speaker 02:
Is that correct?

[00:10:57] Speaker 00:
That's exactly right.

[00:10:58] Speaker 00:
Our primary submission is that the district court made exactly the factual finding that Mr. Brewster says is required under 3C 1.2.

[00:11:06] Speaker 00:
He says that a district court is required to identify specific individuals who are placed in apprehension of death or serious bodily injury.

[00:11:15] Speaker 00:
The district court, in this case, watched the dashcam video live in court.

[00:11:18] Speaker 00:
That's ER 48 to 49.

[00:11:21] Speaker 00:
And then after watching the video, made a finding at 51 to 52.

[00:11:25] Speaker 00:
that there were numerous drivers on the road during the course of Mr. Brewster's flight, that he was driving out of control and that he came close enough to those individuals that the enhancement is warranted.

[00:11:34] Speaker 03:
So to follow up on Judge Smith's question, the government's position is the dispute over the meaning of this particular guideline, we could assume without deciding that the defendant's is correct and just look at the record and say the judge made this exact finding even if the defendant is correct as to what the guideline requires.

[00:12:00] Speaker 03:
That's exactly right.

[00:12:01] Speaker 01:
Which car?

[00:12:03] Speaker 01:
I think that's one problem in terms of these findings, is we're trying to determine which of these cars is enough.

[00:12:09] Speaker 01:
Is it sufficient just to say generally, or did the district court have to identify at least a car?

[00:12:17] Speaker 00:
Well, I think the district court did identify multiple cars.

[00:12:20] Speaker 00:
It said numerous drivers.

[00:12:21] Speaker 00:
I think this court's task is to review the evidence that the district court reviewed, which are Mr. Brewster's affidavit and the dash cam video, and then to determine whether the factual finding that there were numerous drivers impacted by Mr. Brewster's conduct during the flight was clearly erroneous.

[00:12:39] Speaker 00:
I think I would point to two cars.

[00:12:41] Speaker 00:
First is the car at 157, which is

[00:12:46] Speaker 00:
the car that's oncoming as Mr. Brewster makes the U-turn, you can clearly see at 151 in the video, you can clearly see that the car stops as Mr. Brewster pulls the U-turn by it.

[00:12:59] Speaker 00:
That car, had it been distracted, might not have stopped, might have caused an accident.

[00:13:03] Speaker 00:
I think this court's cases are clear that things of that nature cause sufficient risk.

[00:13:08] Speaker 01:
Mr. DiCavario, we've seen the cars.

[00:13:12] Speaker 01:
I think we think that the district court's seen the cars.

[00:13:14] Speaker 01:
Do we have to have findings that identify the specific cars that the district court has seen?

[00:13:21] Speaker 00:
Again, I think the question is really from the totality of the record.

[00:13:24] Speaker 00:
Are you able to determine that the district court found specific vehicles?

[00:13:28] Speaker 00:
Mr. Kaler pointed out, the district court mentioned this car at 221, which may have been, I think in our understanding was perhaps just a slip of the tongue.

[00:13:39] Speaker 00:
The 212 is where the car is at the intersection.

[00:13:42] Speaker 00:
Again, 151 is the car at the U-turn.

[00:13:44] Speaker 03:
There's no question there's a car at 212.

[00:13:46] Speaker 03:
There's no question there isn't a car at 221, yes.

[00:13:49] Speaker 03:
That's right.

[00:13:50] Speaker 00:
But I don't think that's material because, again, this court can review the video, see with its own eyes, and understand what the district court was finding.

[00:14:00] Speaker 02:
And based on the government's understanding of the guideline, in this case where the district judge viewed the evidence, saw the cars starting, stopping, turning,

[00:14:14] Speaker 02:
That's enough.

[00:14:15] Speaker 02:
And the other side has to show that that's clear error, right?

[00:14:18] Speaker 00:
That's right.

[00:14:19] Speaker 02:
And I gather the government takes the position they have not shown that.

[00:14:22] Speaker 00:
I'm not even sure they've attempted to show that.

[00:14:24] Speaker 00:
But yes, that's our position.

[00:14:25] Speaker 00:
They have not shown that.

[00:14:27] Speaker 03:
But that is also something we could assume without deciding.

[00:14:30] Speaker 03:
We could assume that they have raised the clear error issue in their briefs.

[00:14:35] Speaker 03:
And even if they have, we could, as a hypothetical matter, decide that there is no clear error.

[00:14:40] Speaker 00:
We would encourage you to find that the factual finding here that people were endangered was not clearly erroneous.

[00:14:46] Speaker 00:
Yes.

[00:14:48] Speaker 00:
I can turn to the other issues if the court would like.

[00:14:52] Speaker 00:
So I'll go to the Jason question that Judge Bennett asked about.

[00:14:56] Speaker 00:
Mr. Brewster's objections to the Jason data went, as the district court here recognized,

[00:15:03] Speaker 00:
to its sort of probative value and the weight that should be applied to it, not its underlying reliability.

[00:15:09] Speaker 00:
Mr. Kaler has pointed out a series of methodological issues that he wishes were different in the JSON analysis.

[00:15:17] Speaker 00:
But the Disher Court is fully capable to, and in fact in this case did, consider those methodological issues in assigning weight to the JSON value, JSON data.

[00:15:29] Speaker 00:
None of those show that, none of those

[00:15:32] Speaker 00:
objections carry Mr. Brewster's burden to show that this data is inherently unreliable.

[00:15:37] Speaker 03:
That may be true, counsel.

[00:15:39] Speaker 03:
It is odd, though, that the Sentencing Commission has decided in coming up with these statistics not to count, not to factor into the numbers someone who doesn't get a custodial sentence.

[00:15:54] Speaker 03:
I mean, isn't that a little odd?

[00:15:56] Speaker 00:
I think it's a reasonable choice for the commission to have made.

[00:15:59] Speaker 00:
You might imagine a district court judge in deciding what punishment to impose, sort of making a binary decision whether a probation only sentence or custodial sentence is warranted.

[00:16:10] Speaker 00:
Then under 3553A6, you might imagine that the relevant question as a similarly situated defendants would be to only look at those with custodial sentences.

[00:16:18] Speaker 00:
To get to the point more directly,

[00:16:22] Speaker 00:
Mr. Kaler and Mr. Brewster were fully able to run the numbers the way they wanted to in this case.

[00:16:27] Speaker 00:
The PSR, paragraph 104 to 107 lays out the JSON data here.

[00:16:33] Speaker 03:
They can run the numbers.

[00:16:35] Speaker 03:
Anybody can run the numbers.

[00:16:37] Speaker 03:
Anybody can run the numbers.

[00:16:39] Speaker 03:
Here on this record, this question was raised and the district court said, I'm taking into account the putative flaws identified by the defendant in relying on the JSON data.

[00:16:52] Speaker 00:
That's right.

[00:16:53] Speaker 00:
But I don't think, again, Mr. Brewster is raising a constitutional claim that this data is so inherently unreliable that it violates his due process right for the district court to have considered this data.

[00:17:05] Speaker 00:
I don't take him to be arguing that the district court didn't adequately explain his reasons or anything like that.

[00:17:12] Speaker 00:
And again, just to briefly touch on that point, there were 490 custodial sentences in the Jason data here.

[00:17:18] Speaker 00:
There were five non-custodial sentences.

[00:17:20] Speaker 00:
That's reported in the PSR.

[00:17:22] Speaker 00:
The average, if you factor in those five non-custodial sentences at zero value, goes from 45 to 44.55.

[00:17:29] Speaker 00:
It's a pretty trivial difference in this case.

[00:17:32] Speaker 00:
In this case?

[00:17:33] Speaker 00:
In this case.

[00:17:34] Speaker 01:
Is there any suggestion that courts are using the JSON data to determine the terms of non-custodial sentences?

[00:17:41] Speaker 00:
I'm not aware that they are.

[00:17:42] Speaker 00:
I don't think the JSON data would even report out if there were only non-custodial sentences, so no.

[00:17:51] Speaker 02:
I want to be sure I understand your position correctly.

[00:17:54] Speaker 02:
As far as the government's concerned, the judge disclosed he wasn't in any way bound by Jason data.

[00:18:01] Speaker 02:
He just said he had looked at him.

[00:18:03] Speaker 02:
He heard the objections from Mr. Brewster, said he would take that into account.

[00:18:10] Speaker 02:
If I recall correctly, he specifically said he didn't rely on the Jason data in making the sentence.

[00:18:17] Speaker 02:
Is that correct?

[00:18:18] Speaker 00:
Well, the judge said that he, at ER 63, that he was going to or would not be performing the 3553 analysis without considering the JSON data.

[00:18:29] Speaker 00:
That's why we haven't made a harmless error argument.

[00:18:32] Speaker 00:
But I do agree with Your Honor.

[00:18:33] Speaker 00:
that the district judge didn't impose this sentence for the sole reason that Jason said 45.

[00:18:39] Speaker 03:
If I'm recalling correctly, and correct me if I'm wrong, I believe the district court said if he was doing something wrong here, he wanted the Ninth Circuit to tell him.

[00:18:49] Speaker 03:
He did say that.

[00:18:52] Speaker 00:
Yeah, but we do not think the district judge was doing anything wrong by considering this data.

[00:18:57] Speaker 00:
This court has a long line of cases, the Marin Cuevas line that we cite in our brief, where district judges rely upon government data from various sources.

[00:19:07] Speaker 00:
And basically, the thrust of the due process line of cases, the heartland of those cases, is where there's some inherently unreliable testimony by a co-defendant or a co-conspirator, inculpatory testimony.

[00:19:22] Speaker 00:
The data here has no reason to be biased against Mr. Brewster.

[00:19:26] Speaker 00:
The Sentencing Commission is a reliable narrator.

[00:19:29] Speaker 02:
Let me ask you, the clock seems to have disappeared here due.

[00:19:34] Speaker 02:
What's our number here?

[00:19:38] Speaker 02:
Sorry, I just need to, wait, there's just nothing there.

[00:19:43] Speaker 02:
Just give us a second, okay?

[00:19:50] Speaker 02:
How much time have we got for this gentleman?

[00:19:53] Speaker 02:
40 seconds.

[00:19:55] Speaker 02:
OK, go ahead.

[00:19:57] Speaker 00:
All right.

[00:19:58] Speaker 00:
If there's nothing further on that one, I'll just briefly touch on the third issue, the downward departure issue.

[00:20:04] Speaker 00:
As my friend said below, the district court correctly characterized his request, which was that the court

[00:20:10] Speaker 00:
impose a below-guidelines sentence on the basis that his flight from police in the totality of the circumstances here was essentially involuntary.

[00:20:19] Speaker 00:
The district court considered that argument, understood it, rejected it on the merits, and because it understood its discretion to go below the guidelines, this court cannot review the denial of that departure as such.

[00:20:32] Speaker 00:
It can only review the substantive reasonableness of the overall sentence.

[00:20:35] Speaker 03:
Having your friend specifically said, I think the court correctly characterized it.

[00:20:41] Speaker 03:
That's right.

[00:20:43] Speaker 02:
So, I think we're out of time.

[00:20:46] Speaker 02:
So, unless either of my colleagues have additional questions, we thank the government.

[00:20:50] Speaker 02:
Thank you.

[00:20:51] Speaker 02:
What, what do we, have you got, maybe we can, you can just, you got the clock there?

[00:20:56] Speaker 02:
Okay, so let's do this.

[00:20:57] Speaker 02:
We're going to give you two minutes.

[00:20:59] Speaker 02:
Very generous, I might add.

[00:21:00] Speaker 02:
Very, very generous.

[00:21:01] Speaker 02:
I appreciate you, Your Honor.

[00:21:02] Speaker 02:
Thank you.

[00:21:02] Speaker 02:
If you'll just kind of flag when it's like 30 seconds left, you don't need to stand or just kind of raise your hand so we'll know and then wave it so he can see it too, okay?

[00:21:11] Speaker 02:
If you've got a clock there, can you see a clock?

[00:21:14] Speaker 02:
No, Your Honor.

[00:21:14] Speaker 02:
OK, I can't either.

[00:21:16] Speaker 04:
I will be cognizant of the time.

[00:21:18] Speaker 04:
All right, please.

[00:21:19] Speaker 04:
I'd like to address three questions that the panel requested.

[00:21:22] Speaker 04:
First, must the district court identify a specific vehicle?

[00:21:25] Speaker 04:
Yes.

[00:21:26] Speaker 04:
Did it?

[00:21:26] Speaker 04:
No.

[00:21:27] Speaker 04:
And because it failed to do so, and that was sounded in its decision that there need no be a specific person, that's its legal finding, it erred.

[00:21:37] Speaker 02:
And is that clear error?

[00:21:39] Speaker 04:
Your honor, I don't think it needs to get to clear error, because the district court found that it did not need to find that any specific person was threatened, which is legal.

[00:21:48] Speaker 02:
A case that would suggest that that would be clear error?

[00:21:51] Speaker 04:
No.

[00:21:52] Speaker 02:
I don't think so, because it's a factual finding, really.

[00:21:56] Speaker 04:
It's a factual finding sounded in legal error.

[00:21:59] Speaker 04:
Your honor, you asked if the district court said it would make a different decision not relying on JSIN.

[00:22:04] Speaker 04:
At ER 68, the district court could not have been more clear that it was expressly and specifically relying on JSIN data.

[00:22:12] Speaker 04:
Indeed, it found 46 months, one month above the average.

[00:22:15] Speaker 04:
So this case is perfectly teed up.

[00:22:18] Speaker 04:
It heavily relied on JSIN.

[00:22:20] Speaker 04:
And finally, Judge Bennett, to your question, my remedy sought in this case is very limited.

[00:22:25] Speaker 04:
At ER 68, I asked for the sentencing data.

[00:22:28] Speaker 04:
Perhaps there would have been no hearing because the data would have revealed there were no problems.

[00:22:32] Speaker 04:
The due process error was not in the JSIN data.

[00:22:35] Speaker 04:
The due process error was in the denial of the defendant's right to test that data in a way that no other evidentiary issue in the federal courts enjoy that type of protection.

[00:22:47] Speaker 04:
And so we would ask for a limited remand to allow us to have that data analyzed.

[00:22:52] Speaker 04:
I think I should address those questions unless the court has further questions.

[00:22:56] Speaker 02:
I think not.

[00:22:57] Speaker 02:
Thanks both of you for your argument.

[00:22:58] Speaker 02:
We appreciate it.

[00:22:59] Speaker 02:
We're going to take just a quick break