[00:00:01] Speaker 02:
We'll go to the next case on the calendar.

[00:00:04] Speaker 02:
It is 23-969, United States versus Chamberlain.

[00:00:39] Speaker 05:
Good morning and may it please the court.

[00:00:41] Speaker 05:
Hunter Haney with the Office of the Federal Public Defender for Richard Chamberlain.

[00:00:46] Speaker 05:
I'd like to reserve three minutes for rebuttal and I'll watch my clock.

[00:00:50] Speaker 05:
This appeal concerns three discrete sentencing guidelines issues.

[00:00:54] Speaker 05:
I'd like to pick up where the last case left off with the hate crime enhancement while it's fresh in everyone's mind before turning to the aggravated assault and if time permits the obstruction issue unless the court prefers otherwise.

[00:01:06] Speaker 05:
I don't plan to rehash the points my colleague in the last argument already made about the hate crime enhancements motive requirement, which we fully join unless the court has questions.

[00:01:15] Speaker 05:
But I do want to highlight two reasons why Chamberlain should prevail, even if the court determines that animus isn't required under the enhancement, contrary to the position the government took below in this particular case.

[00:01:27] Speaker 05:
So there are two narrower grounds under which the court can resolve the case.

[00:01:31] Speaker 05:
First, it is uncontested that the district court shifted the burden to Chamberlain of disproving the hate crime motivation enhancement.

[00:01:38] Speaker 02:
But regardless of the burden, I think that the court in this case made a finding that this wasn't motivated by misogyny.

[00:01:44] Speaker 05:
Correct.

[00:01:45] Speaker 02:
Is that the second thing you were going to say?

[00:01:47] Speaker 05:
Yes, that is the second thing I was going to get to.

[00:01:49] Speaker 02:
What's your next argument?

[00:01:51] Speaker 05:
As to the hate crime enhancement?

[00:01:52] Speaker 05:
Oh, sorry.

[00:01:54] Speaker 05:
Go on.

[00:01:55] Speaker 05:
Yes, absolutely, Your Honor.

[00:01:57] Speaker 05:
So on the aggravated assault point, the district court further aired by selecting the aggravated assault guideline for Chamberlain's Face Act misdemeanor.

[00:02:06] Speaker 05:
A good portion of this argument has been conceded, and I think it's important to understand exactly what the court still needs to resolve, just to give a little bit of context as to how this guideline was, we got to this point.

[00:02:19] Speaker 05:
So to determine a counts offense guideline, section 1B1.2 directs us to the statutory index.

[00:02:26] Speaker 05:
Under the index, section 2H1.1 is the applicable guideline for a face act misdemeanor.

[00:02:34] Speaker 05:
2H1.1 then directs courts to apply the offense level from the offense guideline applicable to any underlying offense or an offense level of 10 if the offense involved a use or a threatened use of force, whichever is greater.

[00:02:50] Speaker 05:
And then in implying the 18 level aggravated assault guideline here, the district court at the government's urging applied the definition of aggravated assault under application note one, which defines aggravated assault as a felonious assault that involved A, a dangerous weapon with the intent to cause bodily injury, or C, an intent to commit another felony.

[00:03:12] Speaker 02:
Counsel, you spent a lot of time arguing that the situation we have here doesn't really fit

[00:03:20] Speaker 02:
as to aggravated assault.

[00:03:23] Speaker 02:
Correct, Your Honor.

[00:03:24] Speaker 02:
How does it fit as to simple assault when your client, I think, undisputably fired his weapon?

[00:03:31] Speaker 05:
It fits more naturally under the assault guideline.

[00:03:37] Speaker 02:
How serious conduct under the simple assault involves, I think, threatened use of a weapon.

[00:03:44] Speaker 02:
Isn't that right?

[00:03:44] Speaker 05:
Yeah, I'm sorry.

[00:03:46] Speaker 05:
I think I'm misunderstanding.

[00:03:47] Speaker 02:
Is it the most serious conduct under the simple assault, the threatened use of a weapon?

[00:03:53] Speaker 05:
Looking only to the specific offense characteristic, yes.

[00:03:57] Speaker 05:
I believe that's what your honor is referencing.

[00:04:00] Speaker 05:
Is that really a big problem for your argument?

[00:04:01] Speaker 05:
No, it's not.

[00:04:04] Speaker 05:
And I think under authorities, we've set forth in our briefing

[00:04:08] Speaker 05:
It's common, and courts have recognized, that offense guidelines are not going to naturally exactly map on to every permutation.

[00:04:16] Speaker 02:
My point is just that that's true of both aggravated assault and simple assault.

[00:04:20] Speaker 02:
And you're pointing out, I think, the problems with the aggravated assault analysis, but not embracing or refuting the problems with the simple assault analysis.

[00:04:27] Speaker 02:
And that's what I'm inviting you to do.

[00:04:29] Speaker 05:
Yeah, so I think absolutely.

[00:04:31] Speaker 05:
I want to get into the Kaiser argument, if that's all right.

[00:04:35] Speaker 05:
So at a bare minimum here, we think that under Kaiser and Castillo, the guidelines text here unambiguously establishes that aggravated assault requires an intent to injure

[00:04:48] Speaker 05:
when a dangerous weapon is used.

[00:04:49] Speaker 05:
And in any event, application note one is at least a reasonable interpretation of that guideline.

[00:04:55] Speaker 05:
So this is actually aligned with the position that the DC Circuit recently adopted with regard to application note one's intent to commit another felony clause, as we pointed out in our 28-J letter filed last week.

[00:05:10] Speaker 05:
It's consistent with the government's position in that case and other cases.

[00:05:15] Speaker 05:
And it's the right one, really.

[00:05:16] Speaker 05:
And we think that it does more naturally map on to the simple assault guideline if it maps on anything.

[00:05:23] Speaker 05:
But it actually, the 10 here is what does apply, which is the threatened use of force or the use of force.

[00:05:29] Speaker 02:
Use of force?

[00:05:31] Speaker 05:
Correct, Your Honor.

[00:05:33] Speaker 05:
That is under 2H1.1.

[00:05:34] Speaker 02:
How does it constitute a threatened use of force?

[00:05:38] Speaker 05:
Because this was a shooting toward a building that was, as the government is conceding and most reckless, the court, I believe, found implied malice in this case, which is not sufficient to meet the standard for aggravated assault.

[00:05:58] Speaker 02:
They've abandoned that argument.

[00:05:59] Speaker 05:
Yes.

[00:06:00] Speaker 05:
Absolutely.

[00:06:01] Speaker 02:
One of the episodes that I think is in the record is shooting at a window that happened to be replaced by plexiglass, but there was a worker standing behind it, a clinic manager standing behind that window.

[00:06:12] Speaker 05:
Right.

[00:06:13] Speaker 05:
At most, that shows recklessness is the point fundamentally that we're making.

[00:06:19] Speaker 05:
And it was a use of force, I think more naturally than a threatened use of force, absolutely.

[00:06:26] Speaker 05:
I would agree with that.

[00:06:27] Speaker 05:
I apologize, Your Honor, taking so long to get to that.

[00:06:33] Speaker 02:
There's another episode that I think is described as shooting and narrowly missing somebody who is outside the building.

[00:06:39] Speaker 02:
Do I remember that incorrectly?

[00:06:40] Speaker 05:
That's correct.

[00:06:41] Speaker 05:
There was a support companion sitting behind some banners as Chamberlain.

[00:06:45] Speaker 02:
Not just shooting at a building, there was a person there.

[00:06:47] Speaker 02:
What's your argument as to that episode?

[00:06:49] Speaker 05:
So there's no indication that Chamberlain, in fact the district court expressly found he was not aiming at anyone.

[00:06:54] Speaker 05:
That's at ER 141 to 42 and that finding isn't challenged and rightfully so because as I mentioned there were opaque poster boards in front of that person.

[00:07:03] Speaker 05:
There are photos of that in the record at ER 3, I believe it's at

[00:07:08] Speaker 05:
I'm sorry, er285.

[00:07:11] Speaker 06:
You could see the first group of people and I'm just shooting indiscriminately into the group of people.

[00:07:15] Speaker 06:
You could say I'm not aiming at anyone because I'm not aiming at any particular person, but I am shooting into a group of people.

[00:07:22] Speaker 06:
Yes.

[00:07:23] Speaker 06:
So that would seem to be New York.

[00:07:27] Speaker 06:
Why is that not?

[00:07:30] Speaker 06:
the type of conduct that would count here.

[00:07:35] Speaker 05:
That is a use of force under 2H1.1.

[00:07:38] Speaker 05:
That's exactly what we're arguing why the 10 would apply here rather than the 18 that was in effect.

[00:07:45] Speaker 05:
It was a major difference in this case, ultimately.

[00:07:49] Speaker 02:
Excuse me, your answer to Judge Van Dyke's question is what?

[00:07:55] Speaker 02:
If the person we're shooting, this is a hypothetical, shooting into a crowd of people, but not aiming for any one person, your position is that would be a simple assault?

[00:08:03] Speaker 05:
That is a reckless use of force, yes.

[00:08:07] Speaker 05:
That would be a simple assault at best.

[00:08:08] Speaker 05:
It is best captured by 2A 2.3.

[00:08:13] Speaker 05:
In that case, the 10 would apply.

[00:08:15] Speaker 00:
In that situation,

[00:08:18] Speaker 00:
Could the judge make some kind of finding that would raise it above a reckless use?

[00:08:25] Speaker 05:
Yes, Your Honor, if the government wanted to seek a- What kind of finding is required?

[00:08:28] Speaker 05:
It could seek under, I'm sorry, I believe that it's 5K2.6, an upward departure for a reckless discharge of a weapon, applying the upward departure standard if there were exceptional circumstances, danger posed to civilians.

[00:08:43] Speaker 06:
It just seems like, you know, I guess, it seems to me like I think a reckless discharge of weapon is just shooting a gun randomly in a way that is dangerous and endangering.

[00:08:52] Speaker 06:
But shooting into a crowd of people, intentionally shooting into a crowd of people, but not targeting any individual person, just seems worse.

[00:09:00] Speaker 06:
I don't know.

[00:09:01] Speaker 06:
Intuitively worse.

[00:09:01] Speaker 06:
Like you actually are akin to shooting at a person.

[00:09:06] Speaker 05:
And I think the departure would be available in that circumstance.

[00:09:08] Speaker 05:
That's not what occurred here, obviously.

[00:09:10] Speaker 05:
We just had one individual.

[00:09:11] Speaker 06:
The reason I use that hypothetical is, I mean, when you're shooting at a building like this,

[00:09:15] Speaker 06:
You're shooting at windows.

[00:09:16] Speaker 06:
You're shooting on where people are standing on the porch.

[00:09:19] Speaker 06:
It's really not that different.

[00:09:21] Speaker 06:
It's not something shooting into a crowd of people.

[00:09:24] Speaker 06:
It's just a more loosely packed crowd.

[00:09:27] Speaker 05:
I think with a crowd of people, you're more likely to see that that crowd of people that a single person sitting behind some opaque poster boards.

[00:09:33] Speaker 05:
And I think it's really important to emphasize here that section 113, this court has most recently in its decision in Dac Quoc Do, a decision filed in our reply brief, that the assault statute 113,

[00:09:50] Speaker 05:
is a comprehensive statute that Congress enacted.

[00:09:53] Speaker 05:
It's been around since the 1980s.

[00:09:55] Speaker 05:
And this court has consistently interpreted conduct, including in that very case, that involves shooting toward a car where civilians were inside as covered only by

[00:10:07] Speaker 05:
Only it would be, I believe it's A5, 113A5, which is the equivalent of the simple assault.

[00:10:15] Speaker 05:
It may ultimately not be the best policy.

[00:10:19] Speaker 05:
It may not be the policy that Your Honors prefer, but I think that is ultimately a policy dispute that would need to be taken up with Congress.

[00:10:28] Speaker 05:
That's how the guideline has been interpreted as to reckless shootings as occurred here.

[00:10:34] Speaker 02:
Council, do you want to speak to the second enhancement, the obstruction of justice enhancement?

[00:10:39] Speaker 05:
Yes.

[00:10:40] Speaker 05:
So the court also aired an applying 3C1.1's obstruction enhancement based on unsworn offhand remarks that Chamberlain made to police following the federal arrest.

[00:10:51] Speaker 02:
Under 3C1.1, for statements to- Forgive me for interrupting, but to focus you, you did just say offhand remarks, and we've got the transcript.

[00:10:59] Speaker 02:
How much of your argument depends upon this being an offhand remark?

[00:11:02] Speaker 05:
It depends on the prong of the analysis that we're discussing, Your Honor.

[00:11:06] Speaker 05:
There are multiple requirements for false statements to law enforcement.

[00:11:09] Speaker 05:
They have to be not only false, but willful material and have a significant obstructive effect.

[00:11:15] Speaker 02:
Right.

[00:11:15] Speaker 02:
So which prong is it you're relying upon?

[00:11:17] Speaker 02:
You think these were not material?

[00:11:19] Speaker 05:
All of them.

[00:11:20] Speaker 05:
All of the prongs were.

[00:11:21] Speaker 05:
There were very few findings in this case as factually.

[00:11:25] Speaker 05:
The court really just addressed the governments.

[00:11:28] Speaker 02:
I think we're not communicating very well, sorry.

[00:11:32] Speaker 02:
It's one thing for you to tell us that you think that there weren't adequate findings, but I was asking a different.

[00:11:38] Speaker 02:
I understand.

[00:11:39] Speaker 05:
Trying to get to that.

[00:11:41] Speaker 05:
Yeah, we're disputing all of the prongs because there was just insufficient evidence of willfulness, materiality, and significant obstructive effect.

[00:11:50] Speaker 05:
And I think going back to your honor's first question, the offhand nature of these remarks

[00:11:55] Speaker 05:
goes primarily to willfulness.

[00:11:58] Speaker 05:
And in that case, as this court has explained, for a statement to be willfully obstructive, the speaker has to be consciously acting with the purpose of obstructing justice.

[00:12:07] Speaker 05:
And that did not occur here.

[00:12:10] Speaker 04:
Why not?

[00:12:11] Speaker 05:
Because the court expressly found that Chamberlain attempted to give up his weapons and follow through with his legal obligations at all times at ER 28 to 29.

[00:12:21] Speaker 05:
His, these informal post-arrest remarks that were made one time immediately after arrest again.

[00:12:27] Speaker 02:
Informal, I'm sorry, informal what?

[00:12:29] Speaker 05:
Remarks that he made to police.

[00:12:30] Speaker 02:
What did you say, something-esque remarks?

[00:12:31] Speaker 02:
I couldn't, I just couldn't hear you.

[00:12:32] Speaker 05:
Offhand, I said, I believe.

[00:12:34] Speaker 05:
Post-arresting.

[00:12:34] Speaker 05:
Post arrest, excuse me, which the guideline that the commentary recognizes as a particularly sort of suspect sort of type of statement to make an obstruction finding on because it involves the often the assertion of constitutional rights.

[00:12:48] Speaker 05:
These remarks, even if they're deemed false by the court, they could not supersede ultimately his demonstrated

[00:12:54] Speaker 05:
pattern of complying with what the justice system had asked of him following the incidents in this case.

[00:13:00] Speaker 05:
So willfulness is not made out.

[00:13:03] Speaker 05:
We also think that there is no materiality shown in this case.

[00:13:07] Speaker 05:
A material statement is one that, if believed, would tend to influence or affect the issue under determination.

[00:13:14] Speaker 05:
And these, again, informal offhand remarks.

[00:13:17] Speaker 06:
How does materiality work?

[00:13:18] Speaker 06:
Because that seems to me to be

[00:13:21] Speaker 06:
it doesn't seem to have affected much here, these statements, even if we assume, for the sake of argument, that these statements were, you know, he was trying to fib a little bit and mislead him.

[00:13:31] Speaker 06:
It doesn't seem to have done much.

[00:13:32] Speaker 06:
But so, is materiality from the standpoint of what he was expecting

[00:13:38] Speaker 06:
The statements to accomplish or smitten.

[00:13:41] Speaker 06:
I'm sorry.

[00:13:41] Speaker 06:
I'm taking them, but but or is materiality An actual like did it actually affect anything?

[00:13:48] Speaker 06:
How do we how do we how do we analyze material?

[00:13:52] Speaker 05:
Your honor?

[00:13:52] Speaker 05:
I see that I've exceeded my time if I may answer the question

[00:13:55] Speaker 05:
So it's a question of if the statements are believed, do they tend to influence or affect the issue that's under determination?

[00:14:05] Speaker 06:
The reason it's framed that way is because if the law enforcement didn't believe them, it still could be attempting to it.

[00:14:11] Speaker 06:
It still could be obstructing.

[00:14:13] Speaker 06:
It still could be bit as obstruction because he was attempting to do it.

[00:14:19] Speaker 06:
And if they'd been believed, it may have worked.

[00:14:21] Speaker 05:
I think so.

[00:14:22] Speaker 05:
I think so.

[00:14:22] Speaker 05:
But we ultimately hear what we have is statements that played no role in the charging decision.

[00:14:28] Speaker 06:
They're, again, after— Because the gun he got charged for was the one that they found in his car.

[00:14:36] Speaker 06:
Is that the one that was actually the basis for the—

[00:14:39] Speaker 06:
This was a plea, if I'm right.

[00:14:42] Speaker 06:
Yes.

[00:14:43] Speaker 06:
The actual charge was based on the gun that was found in his car, none of these guns?

[00:14:48] Speaker 05:
I believe so, Your Honor.

[00:14:49] Speaker 05:
We can ask the government about that.

[00:14:51] Speaker 05:
Yes.

[00:14:51] Speaker 02:
Are you familiar with our Lofton decision?

[00:14:54] Speaker 05:
Our Lofton?

[00:14:54] Speaker 02:
Lofton?

[00:14:55] Speaker 05:
Yes, I believe that was a predecessor case to Taylor, the case that Your Honor was on.

[00:15:02] Speaker 02:
Wire fraud case?

[00:15:03] Speaker 02:
Wire fraud case?

[00:15:04] Speaker 02:
I'm not familiar with the facts.

[00:15:05] Speaker 02:
Continue to commit wire fraud from his cell, I'm going to paraphrase.

[00:15:08] Speaker 02:
But just going back to Judge Van Dyke's question about what is required by way of obstruction on the back end.

[00:15:17] Speaker 02:
In that case, we found there was obstruction, continuing obstruction, because the defendant continued to engage in his wire fraud from his jail cell, and that required revising a PSR.

[00:15:28] Speaker 02:
It didn't take much.

[00:15:30] Speaker 05:
Yes, absolutely, but here you have nothing like continuing conduct.

[00:15:33] Speaker 05:
You have a single set of remarks.

[00:15:35] Speaker 02:
If we agree with you, should we remand for findings?

[00:15:39] Speaker 05:
At the very least, Your Honor, we're asking that Your Honors affirmatively find that the enhancement does not apply, but in the alternative, we do think that the lack of findings here as to several of these elements warrants at least vacatur of the enhancement.

[00:15:52] Speaker 02:
Thank you for my pet.

[00:15:53] Speaker 02:
Don't run away quite yet.

[00:15:54] Speaker 02:
Judge Toshima, do you have other questions, Judge Van Dyke?

[00:15:56] Speaker 02:
All right.

[00:15:57] Speaker 02:
Counsel, when you come back, we'll put a couple minutes on the clock for you.

[00:16:00] Speaker 02:
We took a lot of your time.

[00:16:01] Speaker 05:
Thank you, Your Honor.

[00:16:02] Speaker 02:
Not at all.

[00:16:14] Speaker 01:
May it please the court, Ilana Artson, on behalf of the United States.

[00:16:17] Speaker 01:
Let me start with the hate crime enhancement.

[00:16:20] Speaker 01:
As my colleague Mr. Alden argued in the prior case, the language of this provision in the guidelines only requires intentional selection of the victim because of the protected characteristic.

[00:16:34] Speaker 01:
It does not require animus toward that protected characteristic.

[00:16:39] Speaker 01:
Now, we agree that the district court here found that there was no animus.

[00:16:44] Speaker 02:
However, that wasn't about misogyny.

[00:16:46] Speaker 02:
It wasn't motivated by misogyny.

[00:16:49] Speaker 01:
But the district court did not clearly air or abuse its discretion here because it did make a specific finding of selection at 1ER19.

[00:17:00] Speaker 01:
It said that women were the focus of the crime.

[00:17:04] Speaker 02:
But he said more than that.

[00:17:06] Speaker 02:
He said the brunt of the crime was going to fall upon women.

[00:17:10] Speaker 01:
And we agree that that is not the correct standard.

[00:17:13] Speaker 01:
But he also found that women were the focus of the crime, that they were targeted.

[00:17:18] Speaker 01:
And that was supported by the defendant's admissions in his plea agreement at ER 131, that he targeted patients obtaining abortions.

[00:17:26] Speaker 01:
And those were, as the district court reasoned, necessarily women.

[00:17:30] Speaker 01:
Now, the legal standard that we think should govern here is the one that the Supreme Court announced, but for causation in Bostock.

[00:17:38] Speaker 01:
That was a Title VII case where the Supreme Court said because of sex in Title VII means but for causation.

[00:17:49] Speaker 01:
We change that one factor, and if changing the sex would change the result, that is the but for cause.

[00:17:57] Speaker 06:
So to go back to the question you probably heard me ask about rape, then it seems to me your position would have to be that if somebody, there was somebody who was raping, a male who was raping females,

[00:18:08] Speaker 01:
That David and was choosing females because he wanted females not males did That would be subject to a hate crimes motivation It would not because the guidelines have an application note that specifically includes Excludes sexual offenses from this enhancement because that factor is already taken into account and

[00:18:32] Speaker 01:
in the sexual offense guidelines.

[00:18:35] Speaker 06:
So the logic of it would work, but you're saying that it's like a carve-out.

[00:18:40] Speaker 01:
Yes, there's a specific carve-out.

[00:18:42] Speaker 01:
I believe it's in application note 1 to 3A1.1 saying don't apply to any sexual offense because that's already taken account in the guidelines.

[00:18:54] Speaker 06:
So your argument makes this enhancement about, in some ways makes this enhancement almost like a disparate impact versus sort of analysis as opposed to a, what we kind of think of as a hate crime, I guess.

[00:19:13] Speaker 06:
And there's definitely language in the legislative history and in the commentary about

[00:19:21] Speaker 06:
I'm being concerned, you know, and even the even the word motivation and the title right like it there that you tend to think of it like I'm going after somebody because I want to hurt them because of this characteristic.

[00:19:31] Speaker 06:
You're not—your framing of it completely goes away from that to where is this—regardless of your motivation, is this particular person's M.O.

[00:19:42] Speaker 06:
having a—is it impacting this particular class of people?

[00:19:46] Speaker 06:
And it just—it seems a little different than what I think—at least I've always thought of hate crime in some of this language that was in the—

[00:19:56] Speaker 01:
So I understand your honest concern, but I think we have to go back to the statute, to section 280002 of the Violent Crime Control and Law Enforcement Act of 1994, where Congress directed the Sentencing Commission to create this enhancement.

[00:20:17] Speaker 01:
And part one says,

[00:20:19] Speaker 01:
that hate crime means a crime in which the defendant intentionally selects a victim, or in the case of a property, crime of property, because of the actual or perceived race, color, religion, et cetera.

[00:20:33] Speaker 01:
And then in section B, Congress directs that a sentencing enhancement be promulgated for those hate crimes.

[00:20:41] Speaker 01:
So the definition of hate crime that Congress considered here is exactly the same one that is in this guideline provision.

[00:20:49] Speaker 01:
It's that same language of discriminatory selection, not discriminatory animus.

[00:20:55] Speaker 02:
Right, which is why I pushed back in the earlier argument about whether there needs to be a finding of animus.

[00:21:00] Speaker 02:
It seems to me that what we have here is something that bakes in animus.

[00:21:05] Speaker 02:
Go back to the example, if you will, if I shoot someone of a different race, it's a horrible crime, it's not a hate crime.

[00:21:15] Speaker 02:
If I shoot someone because they're of a different race, that's a hate crime.

[00:21:19] Speaker 02:
So it seems to me that the animus, to the extent it's required in the way that you're meaning, is baked into this because of.

[00:21:25] Speaker 02:
That is the motivating factor for the selection.

[00:21:29] Speaker 03:
Exactly.

[00:21:29] Speaker 03:
Why do we have that here?

[00:21:31] Speaker 03:
Why do we have that here?

[00:21:32] Speaker 01:
We have that here for the same reason that Bostock explained.

[00:21:37] Speaker 01:
In Bostock, the Supreme Court explained that.

[00:21:39] Speaker 02:
I understand what Bostock said about court causation counsel, but this record tells me that what the district court had in front of him was a person who was violently opposed, well, actually violently, vehemently opposed to abortion.

[00:21:52] Speaker 02:
He said that over and over again.

[00:21:53] Speaker 02:
He had his personal story about that.

[00:21:55] Speaker 02:
The judge found this wasn't about misogyny,

[00:21:59] Speaker 02:
He did say this was going to disproportionately impact women, right?

[00:22:03] Speaker 02:
That was an attribute that was going to—in fact, he said it's like an employment case.

[00:22:07] Speaker 02:
And from that, I understood—but please correct me if you read it differently—I thought that what the judge was getting at was indeed, as Judge Van Dyke indicated, a disparate impact analysis.

[00:22:19] Speaker 01:
And there was some reference to that, but the court also said if he targeted and he admitted that he targeted patients who were obtaining abortion services and those were necessarily women.

[00:22:32] Speaker 01:
In other words, a patient obtaining abortion services is inextricably intertwined with being a woman.

[00:22:39] Speaker 01:
And that's exactly what the Supreme Court discussed in Bostock.

[00:22:42] Speaker 01:
It said you cannot fire a

[00:22:47] Speaker 01:
transgender or homosexual employee without discriminating because of sex.

[00:22:54] Speaker 02:
Those traits are- The Supreme Court has also said in Bray that you can't equate hatred of opposition to abortion with hatred of women.

[00:23:02] Speaker 01:
I agree, and that's why if animus is required, we agree that's not found here.

[00:23:07] Speaker 01:
That was an animus case.

[00:23:08] Speaker 01:
Bray was an animus case where the Supreme Court said you can't equate animus against abortion to animus against women because people can have animus against abortion for other reasons.

[00:23:19] Speaker 02:
But this is a discriminatory- People go to this clinic who are not women.

[00:23:24] Speaker 02:
We have that in our record as well.

[00:23:26] Speaker 01:
Correct.

[00:23:27] Speaker 01:
And if that's all the defendant had admitted in his plea agreement, then we would have a problem.

[00:23:31] Speaker 01:
But he admitted in his plea agreement that he was specifically targeting patients seeking abortion.

[00:23:37] Speaker 01:
And those are only women.

[00:23:39] Speaker 01:
And that's why this case is like Bostock.

[00:23:43] Speaker 01:
It's the but for cause, because if you change that one factor,

[00:23:48] Speaker 01:
If the patients were men, they wouldn't be victimized because only women can get abortions.

[00:23:54] Speaker 01:
The two are inextricably intertwined in exactly the same way they were in Vostok, and that's why- Okay.

[00:23:59] Speaker 02:
So you're relying on the plea agreement admission.

[00:24:01] Speaker 02:
That's what you want me to look for, for the support.

[00:24:04] Speaker 01:
Both the plea agreement and the finding that at 1ER19, that women were the focus of the crime.

[00:24:10] Speaker 01:
Okay.

[00:24:12] Speaker 01:
If there are no other questions on the hate crime, I'll turn to the aggravated assault guideline.

[00:24:18] Speaker 01:
And as Your Honor pointed out, the question is, is this an aggravated assault or a simple assault?

[00:24:23] Speaker 01:
When you look at the text and structure of the guidelines, the government submits that the conduct here, and we are only looking at the conduct here, not all assault with a deadly weapon.

[00:24:34] Speaker 01:
We're looking at assault with a dangerous weapon where the weapon was discharged.

[00:24:38] Speaker 01:
That conduct unambiguously constitutes aggravated assault, not minor assault, for two interrelated reasons.

[00:24:48] Speaker 01:
First of all, when you look at the statutory index, you see that there are a number of assault provisions that are assigned both 2A 2.2 and 2A 2.3.

[00:25:00] Speaker 01:
Those are offenses like 111 assault against a federal official, 112 assault against a foreign official, 351E assault against a member of Congress, 1751 assault against presidential staff.

[00:25:13] Speaker 01:
All of those have a basic offense.

[00:25:16] Speaker 01:
And they have an aggravated offense where a dangerous weapon is used or bodily injury results.

[00:25:24] Speaker 01:
And it is clear that the aggravated assault guideline is supposed to apply to that aggravated form of the offense, even though an intent to injure is not required.

[00:25:35] Speaker 01:
And that's why we believe that the gloss in application note one, that only assault with a deadly or dangerous weapon where there's an intent to injure,

[00:25:46] Speaker 01:
That gloss about intent to injure does not apply because the guideline itself, when you look at the structure and text, makes clear that this conduct is covered by aggravated assault.

[00:26:00] Speaker 01:
And the second reason

[00:26:03] Speaker 01:
When you look at the structure and offense is one that Your Honor alluded to earlier, which is the specific offense characteristics.

[00:26:10] Speaker 01:
Those are part of the text and structure of the guidelines.

[00:26:13] Speaker 01:
And if we look at threatened use of a weapon, that can occur in both aggravated and minor assault.

[00:26:19] Speaker 01:
But discharging, actually discharging a firearm or a dangerous weapon, there's only an enhancement in aggravated assault.

[00:26:28] Speaker 01:
And that means that an aggravated assault

[00:26:31] Speaker 01:
unambiguously includes assault with a deadly weapon where that weapon is discharged.

[00:26:37] Speaker 01:
Again, we're not talking about all assaults with a deadly weapon.

[00:26:41] Speaker 01:
And I would also point out that this was not a reckless assault.

[00:26:45] Speaker 01:
The only recklessness finding that the district court made was with respect to injury.

[00:26:50] Speaker 01:
The assault itself, the firing of the gun, that was intentional.

[00:26:54] Speaker 01:
This was an intentional assault, but the court found that the defendant was reckless with respect to the risk of injury.

[00:27:01] Speaker 02:
We're talking about count two.

[00:27:03] Speaker 02:
I just want to make sure.

[00:27:06] Speaker 02:
What's the fact pattern for the crime of conviction?

[00:27:09] Speaker 01:
So the aggravated assault guideline can apply based on relevant conduct, unlike the so.

[00:27:16] Speaker 02:
But if you could answer the question, it'd be helpful to me.

[00:27:20] Speaker 01:
So the count of conviction was the May 7th.

[00:27:24] Speaker 01:
That was the date on which he was arrested.

[00:27:27] Speaker 01:
He sprayed fire at windows, doors.

[00:27:32] Speaker 01:
That's not the specific date on which the manager was standing at the window.

[00:27:37] Speaker 02:
Was there anybody outside on that day?

[00:27:40] Speaker 01:
Um, the record does not reflect that there was anybody specifically outside on that day.

[00:27:46] Speaker 01:
But as I said, the aggravated assault guideline applies based on relevant conduct and the relevant conduct would include all 11 incidents, including the day that he almost hit somebody on the porch and the day that the manager was window struck.

[00:27:59] Speaker 02:
I mentioned those two incidents because those are the two that I have in my notes.

[00:28:01] Speaker 02:
Those are the two that were, I think, discussed in the briefing.

[00:28:05] Speaker 02:
Um, are there other incidents among those 11 that we should be considering?

[00:28:08] Speaker 01:
Well, the record also shows that before the plexiglass was replaced, those windows were all shattered by the first three incidents.

[00:28:19] Speaker 01:
Now, I don't know that the record necessarily reflects that a person was standing at the window at that exact time.

[00:28:25] Speaker 01:
OK.

[00:28:27] Speaker 02:
I've taken, again, taken up quite a lot of your time.

[00:28:30] Speaker 02:
But did you want to address the obstruction

[00:28:34] Speaker 01:
So the court found at 1ER-28 that the defendant attempted to obstruct the FBI's investigation of firearms by lying and making false statements.

[00:28:45] Speaker 01:
And at 1ER-23, the court identified that statement, that the guns were part of the mother's estate and that he gave a false account of what happened to the guns.

[00:28:53] Speaker 02:
Can I cut to the chase?

[00:28:54] Speaker 02:
Sure.

[00:28:56] Speaker 02:
Hypothetically, if I were to think that he was untruthful or certainly misleading during that transcript that we have, then what about materiality on the back end?

[00:29:05] Speaker 01:
So materiality means if believed was this capable of influencing.

[00:29:10] Speaker 02:
Do we need a finding of materiality?

[00:29:12] Speaker 01:
You do not need an explicit finding.

[00:29:14] Speaker 01:
As we've argued, explicit findings are only required based on trial testimony.

[00:29:19] Speaker 01:
Generally, an enhancement doesn't require specific fact finding.

[00:29:24] Speaker 01:
Dunnigan carved out that special requirement based on trial testimony because of concerns about not impinging upon the defense right to testify.

[00:29:34] Speaker 01:
So we don't think a specific finding is required.

[00:29:37] Speaker 01:
The record just needs support it, and here it does, because the defendant was asked both general and specific questions during this interview, and he was specifically asked

[00:29:49] Speaker 01:
There are a number of guns registered to you in California.

[00:29:53] Speaker 01:
Four of them we know you sold at the consignment shop.

[00:29:56] Speaker 01:
But we're asking you about the other five that we're still looking for and we haven't located.

[00:30:01] Speaker 01:
And he specifically lied about those, including the one that he had transferred.

[00:30:07] Speaker 01:
So it was by pure happenstance that the neighbor to whom he gave these guns saw publicity and came forward and turned those guns over to the police.

[00:30:19] Speaker 02:
How did he obstruct?

[00:30:20] Speaker 02:
Does the record show us that this actually obstructed?

[00:30:23] Speaker 01:
I would submit there's actual obstruction because there was a delay in finding the firearms that the neighbor had.

[00:30:29] Speaker 01:
And some of the firearms have never been found at all of those firearms that he was asked about that are registered to him.

[00:30:36] Speaker 01:
So I would submit there's actual obstruction, but certainly materiality.

[00:30:41] Speaker 06:
Some of the firearms.

[00:30:43] Speaker 06:
That part, he moved out of state between the time he registered those firearms.

[00:30:48] Speaker 06:
Is that right?

[00:30:49] Speaker 06:
And then he moved it.

[00:30:50] Speaker 06:
He was in Arizona or something like that for part of the time?

[00:30:53] Speaker 01:
I don't recall that, Your Honor.

[00:30:55] Speaker 06:
I thought his offense, his felony was actually in Arizona, maybe, I thought.

[00:31:00] Speaker 01:
That's true.

[00:31:01] Speaker 01:
That's true.

[00:31:02] Speaker 01:
He acquired the fire.

[00:31:04] Speaker 06:
Because, you know, if you if you purchase firearm here in California and you have to register, right, but then you move to a state where you to sell a firearm, you don't.

[00:31:12] Speaker 06:
You don't actually have to do anything.

[00:31:15] Speaker 06:
A private, like in Arizona, he could have sold those firearms or gotten rid of them in Arizona, because he said that at some point that he had gotten rid of some of the firearms.

[00:31:23] Speaker 06:
I don't know how we could draw the inference that for any of the firearms that aren't accounted for, that he necessarily still has them somewhere or something like that.

[00:31:30] Speaker 06:
He said he got rid of them, so he could have gotten rid of them if he was out of the state.

[00:31:37] Speaker 06:
He could have done that legally.

[00:31:39] Speaker 06:
but we know that he didn't get rid of them that he gave them to his neighbor we do but not you're you're going off of that list that you know you're off and you're saying well some of them he gave the neighbor but we don't know about other ones but and those are all ones that the reason you even know bottom is because they originally registered years ago in california but now

[00:31:59] Speaker 06:
But now he no longer has them, and he says he has them, but all I'm getting is I think that there may be a lawful way for him to have no longer had them.

[00:32:07] Speaker 06:
In other words, there wouldn't have to be a record of the fact that he had sold them if he sold them somewhere other than in California.

[00:32:14] Speaker 06:
And so I don't know that we can draw the inference from that, that the fact that some of these guns are unaccounted for necessarily means that he was

[00:32:23] Speaker 06:
lying or anything.

[00:32:25] Speaker 01:
I understand your point and granting that point he was also asked at the end of the interview but if you are a felon you can't possess firearms and he said I don't have any firearms.

[00:32:37] Speaker 01:
That was a lie.

[00:32:39] Speaker 01:
He gave eight firearms to his neighbor.

[00:32:41] Speaker 06:
Well it's a lie if he understood.

[00:32:44] Speaker 06:
He's not a lawyer right so he may think that by giving them to his neighbor he doesn't possess the firearms anymore.

[00:32:50] Speaker 01:
That wasn't the finding that the district court made, and the district court's finding was not clearly erroneous.

[00:32:56] Speaker 02:
We've taken you well over your time, but I just want to follow up on something you said a minute ago.

[00:32:59] Speaker 02:
You said there was, when I asked about the obstructive conduct, where was the actual obstruction or delay, and you said there was delay in learning about the other firearms that he had given to the neighbor.

[00:33:08] Speaker 02:
I'm looking for that in the record.

[00:33:09] Speaker 02:
I've been looking for that in the record.

[00:33:10] Speaker 02:
I don't see it.

[00:33:11] Speaker 02:
I don't know what caused the neighbor to come forward.

[00:33:15] Speaker 01:
What the government represented was that the neighbor came forward because he saw publicity about the federal charges.

[00:33:22] Speaker 01:
And after that, he came forward.

[00:33:26] Speaker 02:
Okay.

[00:33:27] Speaker 02:
Yes.

[00:33:27] Speaker 02:
But what the record shows is that he's indicted federally, right?

[00:33:30] Speaker 02:
The FBI person, agent, interviewed him, I think proximate, although that's a little hard to nail down as well.

[00:33:36] Speaker 02:
But assuming that he was interviewed very promptly.

[00:33:39] Speaker 02:
And then the next bullet point in the timeline is that the neighbor came forward in response to publicity.

[00:33:44] Speaker 02:
So how did the statements he made, if I accept that they are, if I find them to have been false or misleading, how did that delay the neighbor from coming forward?

[00:33:54] Speaker 01:
Well, it delayed the government from learning about this until the happenstance of the neighbor coming forward.

[00:34:02] Speaker 01:
That would be the instruction.

[00:34:04] Speaker 02:
So if he had been truthful, is that what you mean?

[00:34:06] Speaker 02:
If he had been truthful in the conversation, they would have known about it.

[00:34:08] Speaker 02:
And in fact, they didn't know about it until the neighbor came forward.

[00:34:12] Speaker 02:
Exactly.

[00:34:14] Speaker 02:
I'll be brief, Your Honors.

[00:34:27] Speaker 05:
Regarding the hate crime enhancement,

[00:34:29] Speaker 05:
But for causation is not an issue in this appeal.

[00:34:32] Speaker 05:
Bostock did nothing to undermine the Supreme Court's clear holding in Bray, which basically says that opposition to abortion cannot be equated with opposition to women.

[00:34:43] Speaker 05:
That is a narrow issue under which the court could resolve this case.

[00:34:51] Speaker 05:
I want to just quickly address the hypothetical about the sex offense too.

[00:34:57] Speaker 05:
We think that the government's interpretation would yield.

[00:35:00] Speaker 05:
totally absurd results.

[00:35:03] Speaker 05:
It would basically permit the enhancement to apply to a doctor stealing the identity of disabled Medicare patients, smuggling an unlawful alien, a pastor who takes advantage of their position to solicit donations from their congregation to bribe an official, thus selecting victims because of religion.

[00:35:23] Speaker 05:
It is very troubling, especially for an enhancement of this nature that requires a reasonable doubt showing that

[00:35:29] Speaker 05:
the breadth under which the government is interpreting the provision.

[00:35:35] Speaker 05:
So, regarding the assault, the aggravated assault issue, the statutory index does cleanly resolve this issue, but not in the way that the government is claiming that it does.

[00:35:47] Speaker 05:
A3 under 113, the only provision that is in the statutory index for that is 2A2.2.

[00:35:57] Speaker 05:
That is the intent to injure with the dangerous weapon.

[00:36:01] Speaker 05:
And for A5 convictions, the only provision is 2A2.3.

[00:36:06] Speaker 05:
That, under the logic of the DC Circuit's decision and sergeant from last week, resolved this issue.

[00:36:16] Speaker 05:
The guidelines have been interpreted the same way since the 1980s with regard to this issue.

[00:36:21] Speaker 05:
The government's attempt to shoehorn in a different interpretation through the specific offense characteristic cannot be supported.

[00:36:29] Speaker 05:
under the statutory index as well as this court's decision in Daia, which has where the court held that otherwise using a dangerous weapon requires an intent to injure.

[00:36:42] Speaker 05:
So under

[00:36:43] Speaker 05:
under basically even the government's methodology, the enhancement cannot be applied to Mr. Chamberlain's conduct.

[00:36:51] Speaker 02:
Thank you for your argument.

[00:36:52] Speaker 02:
Thank you both.

[00:36:52] Speaker 05:
Thank you.

[00:36:53] Speaker 02:
For your argument.

[00:36:54] Speaker 02:
No further questions?

[00:36:55] Speaker 02:
Did I jump the gun?

[00:36:56] Speaker 02:
OK, guys, look, there are no further questions.

[00:36:58] Speaker 02:
Thank you, Your Honors.

[00:36:59] Speaker 02:
Thank you.

[00:37:00] Speaker 02:
We'll take that under advisement.