[00:00:00] Speaker 01: Good morning. [00:00:00] Speaker 01: I'm John Rhodes from Missoula office of the federal defenders. [00:00:04] Speaker 01: I represent Derek Trumbull closer to the microphone Is this better your honor, yes, right much better. [00:00:12] Speaker 01: Thank you, sir. [00:00:13] Speaker 01: Good morning, your honors I'm John Rhodes from the Missoula office of the federal defenders of Montana. [00:00:18] Speaker 01: I represent Derek Trumbull I would like to reserve two minutes for a rebuttal I [00:00:23] Speaker 01: To interpret a guideline, the court must look at the text, the structure, the history, and purpose of the guideline. [00:00:31] Speaker 01: Here, the critical term that the court is interpreting is large capacity magazine. [00:00:37] Speaker 01: The focus is on large. [00:00:40] Speaker 01: We know what dictionaries told us as we brief that large is a relative term. [00:00:47] Speaker 01: It means excessive, relatively, a greater capacity, extensive. [00:00:54] Speaker 01: Here, the industry standard for handguns in America is far more than 15 rounds. [00:01:03] Speaker 01: What do you base that on? [00:01:04] Speaker 01: We cited articles from 2022, well one article that said nine of the ten most popular handguns in America sold in 2022 can have a magazine capacity in excess of 15 rounds. [00:01:20] Speaker 04: So I want to ask you about that because you cited a blog called the Firearm Blog's list of best-selling handguns on gunbroker.com for 2020. [00:01:29] Speaker 04: So we looked at all the firearms on there. [00:01:32] Speaker 04: And you can correct me if I'm wrong about this, but according to the list I have here, there's only one firearm on there that has a standard round of more than 15. [00:01:42] Speaker 04: There are many of the weapons on here have standard capacity of 6, 12, 7, 10. [00:01:50] Speaker 04: Very few of them actually exceed 15. [00:01:53] Speaker 01: So when you say standard capacity, it may come with that, but it can attach. [00:01:59] Speaker 01: It can take a greater rounds. [00:02:02] Speaker 04: Like a Colt 1911, which is the standard handgun for [00:02:08] Speaker 04: More than 100 years now. [00:02:09] Speaker 04: Yes. [00:02:09] Speaker 04: Very rare for that handgun to have more than 15 rounds, correct? [00:02:13] Speaker 01: Yes, but we're dealing with the 21st century gun market and 21st century gun ownership in America. [00:02:21] Speaker 01: And here it was a Glock 17, which this court in the Duncan opinion recognized as one of the most popular handguns in America. [00:02:29] Speaker 04: But there are many other handguns, you would agree, that do not normally have a 16 plus magazine, correct? [00:02:36] Speaker 01: Well, it's the capacity. [00:02:39] Speaker 01: It's not the magazine that is sold with the gun. [00:02:44] Speaker 01: It's large magazine capacity. [00:02:47] Speaker 01: And so the guns that your honor referenced have the capacity for greater than 15 rounds. [00:02:55] Speaker 03: Let me ask you a question in a different way. [00:02:57] Speaker 03: Because, of course, large is a comparative term. [00:03:01] Speaker 03: Would it be unreasonable to think that a salesman [00:03:07] Speaker 03: presenting this Glock would say to the customer or a proposter, this has got a large capacity. [00:03:15] Speaker 01: I don't believe a salesman would say that. [00:03:17] Speaker 03: Why would not the salesman say that? [00:03:19] Speaker 03: Because it seems to me it's a large capacity. [00:03:21] Speaker 01: I think it would just be standard. [00:03:23] Speaker 01: It's the norm. [00:03:24] Speaker 03: A Glock 17 is a... But no, I'm asking a slightly different question. [00:03:28] Speaker 03: Conceding for the moment that it's standard, why wouldn't the salesman say this is the standard capacity and it's very large? [00:03:35] Speaker 03: Have a look. [00:03:35] Speaker 03: Look how many bullets you can [00:03:37] Speaker 01: And that's our point that the standard capacity is greater than 15 rounds. [00:03:42] Speaker 03: No, I understand that's exactly your point. [00:03:45] Speaker 03: But my point is in the standard usage of the word large, one might say large even though the norm is large. [00:03:58] Speaker 01: That's our point, is that the norm cannot be large, the standard cannot be large. [00:04:04] Speaker 03: I understand that's your point. [00:04:05] Speaker 03: I've got a slightly different point, and that is that it does not seem to be an unusual use of the term large to say, you know, the standard capacity of these things is pretty large. [00:04:15] Speaker 01: And that gets to the structural problem with this guideline. [00:04:19] Speaker 01: If the commission wanted to do that, perhaps for the reasons you just articulated, that's something that should have been done in the guideline itself. [00:04:28] Speaker 01: Instead, the commission, following the lapse of the assault weapons ban, [00:04:33] Speaker 01: It didn't do any empirical investigation. [00:04:37] Speaker 01: It had no reasoned explanation. [00:04:40] Speaker 01: It didn't use any fair and considered judgment that it articulated. [00:04:45] Speaker 01: Instead, it just said greater than 15 magazine capacity is large. [00:04:51] Speaker 01: And if the commission wants to do that, that's something that should be in the guideline itself for the structural separation of powers reasons that are recognized and reaffirmed in Kaiser. [00:05:05] Speaker 01: And then this court, at the end of its Castillo opinion, had a whole section about the threat to separation of powers when a regulatory agency is interpreting its regulation [00:05:18] Speaker 01: by putting something into its interpretation category that's not reviewed by Congress. [00:05:25] Speaker 01: And that's the fundamental problem here. [00:05:28] Speaker 01: The point you're making, Your Honor, perhaps there is some ambiguity in large. [00:05:34] Speaker 01: And I think that's the point you're making by the sales pitch. [00:05:38] Speaker 02: But it would... What is the ambiguity? [00:05:40] Speaker 02: Ambiguity supposes two meanings. [00:05:43] Speaker 02: Large is a relative term, you said. [00:05:45] Speaker 02: Yes. [00:05:48] Speaker 02: Is it ambiguous? [00:05:50] Speaker 02: What's the other meaning that it's ambiguous? [00:05:53] Speaker 01: That's where you get to the line drawing, since we're dealing with a numeric situation. [00:05:59] Speaker 01: And that's where the other Court of Appeals, the DC Circuit, the Seventh Circuit has said a regulatory agency cannot use a numeric interpretation to draw a line. [00:06:10] Speaker 01: That's a legislative function. [00:06:12] Speaker 01: That's something the legislature can do. [00:06:15] Speaker 01: And then, of course, if the citizens don't like it, we have the democratic process to change it. [00:06:19] Speaker 03: Here's another way of thinking about the definition of large. [00:06:23] Speaker 03: Large in comparison to the purpose for which you might want to use it. [00:06:28] Speaker 03: So when people are using this, do they typically use all 15 or do they just shoot two or three times? [00:06:35] Speaker 03: So it may be large in comparison to how often they would use the total capacity. [00:06:41] Speaker 03: So in other words, I think there are a fair number of meanings of large that are different from the meaning that you're proposing. [00:06:47] Speaker 03: I understand your argument. [00:06:48] Speaker 03: It's a good one. [00:06:49] Speaker 03: But it seems to me that large can mean other things. [00:06:51] Speaker 01: That's exactly what the Commission concluded following the assault weapons ban when Congress directed the Commission to investigate, study the use of semi-automatic firearms, which is what we're talking about with these handguns, relative to crimes of violence and drug traffic offenses. [00:07:11] Speaker 01: And what the Commission concluded, and this is briefed, [00:07:14] Speaker 01: is that it depends on the circumstances. [00:07:17] Speaker 03: It depends on how the gun was deployed. [00:07:29] Speaker 01: That's the problem with this commentary is there was no investigation that we know of. [00:07:37] Speaker 01: Nothing's documented. [00:07:39] Speaker 01: There's no explanation, no empiricism, no fair and considered judgment. [00:07:44] Speaker 01: It's just a number that appears to be pulled out of thin air, which is exactly what a regulatory agency can't do because it's basically coming the legislature. [00:07:55] Speaker 01: And what the commission should do, which is what it did following the court's opinion in Castillo, is move this commentary into the guideline itself, and then it's subject to congressional review, at least theoretically or structurally subject, because the commission promulgates guidelines in April or May, and they take effect by November 1st. [00:08:18] Speaker 03: I was on the panel in Castillo. [00:08:19] Speaker 03: This is a very different case from Castillo. [00:08:21] Speaker 03: They basically added a new offense. [00:08:24] Speaker 01: Well, and that's our point. [00:08:25] Speaker 01: They have created law in the commentary. [00:08:28] Speaker 03: Yeah, but Castillo is such a different case. [00:08:32] Speaker 03: It was not just giving some different definition or some elaboration on the word that's already there. [00:08:38] Speaker 03: They just invented a new offense and put it in the footnotes. [00:08:41] Speaker 01: And the main point of Castillo's relevance here is the last section of Castillo's talking about the threat to the separation of powers. [00:08:49] Speaker 03: I understand that, but if we're talking about the case itself, that was a very different case. [00:08:54] Speaker 04: I'll give you rebuttal time. [00:08:55] Speaker 04: This is a three-way, but this is kind of more than a three-way. [00:08:58] Speaker 04: If I may ask, what relief are you seeking in this case? [00:09:04] Speaker 01: We're asking that the court invalidate the commentary. [00:09:08] Speaker 01: Right. [00:09:08] Speaker 04: But that's not relief. [00:09:11] Speaker 04: What relief are you seeking? [00:09:12] Speaker 01: Then send it back to the district court for re-sentencing. [00:09:15] Speaker 04: OK. [00:09:16] Speaker 04: And so what would you be asking to re-sentencing? [00:09:18] Speaker 01: So this goes to the court's order. [00:09:21] Speaker 01: And I represent my client. [00:09:24] Speaker 01: He wanted to pursue the appeal. [00:09:26] Speaker 01: He's in state prison. [00:09:27] Speaker 01: So what I would be asking for is a reduced term of supervised release. [00:09:31] Speaker 04: OK. [00:09:33] Speaker 04: Let me start there. [00:09:34] Speaker 04: So at sentencing, the big push of the district court was, don't incarcerate this guy. [00:09:41] Speaker 04: Give him supervised release, because that's what he needs. [00:09:44] Speaker 04: ER 36, I think you said, supervised release can be a more effective criminal justice tool in terms of fulfilling the 3553A factors. [00:09:52] Speaker 04: In his letter to the court, which is in the PSR, he talks about the need for counseling. [00:09:56] Speaker 04: In the sentencing memo, we talk about the need for treatment. [00:10:01] Speaker 04: If this to go back to the district court, and no one ever asked for less than three years supervised release, correct? [00:10:08] Speaker 04: Correct. [00:10:09] Speaker 04: Okay. [00:10:10] Speaker 04: So wouldn't it be an unreasonable sentence on remand for Judge Christensen in light of all of that and your client's record of seven convictions and multiple violations of state supervised release to give him less than three years? [00:10:23] Speaker 04: Wouldn't we just be reversing that decision if you actually got the relief you wanted? [00:10:27] Speaker 01: There's a new fact, Your Honor. [00:10:29] Speaker 01: Since then, my client's been sent to the Montana State Prison under a new sentence. [00:10:35] Speaker 01: So I don't know his exact parole eligibility date. [00:10:39] Speaker 01: I know he was denied parole at his first hearing. [00:10:42] Speaker 01: But if he was paroled, say, at the next hearing, then he would have that parole supervision term in the community. [00:10:49] Speaker 01: So that would answer the court's concerns regarding providing him the social services that he undoubtedly needs. [00:10:57] Speaker 04: Fair enough. [00:10:58] Speaker 04: All right, we'll go ahead and give you two minutes for rebuttal. [00:10:59] Speaker 04: Thank you, your honor. [00:11:09] Speaker 00: Good morning. [00:11:10] Speaker 00: May it please the court, Carla Painter on behalf of the United States for the District of Montana. [00:11:16] Speaker 00: It is undisputed that Trumbull was a felon in possession of a firearm and that he had four magazines capable of holding 16 or more rounds of ammunition on himself or in his vehicle. [00:11:28] Speaker 00: These facts subjected Trumbull to an increase in his base offense level under the definition supplied by the Sentencing Commission. [00:11:36] Speaker 00: Accordingly, there's only two questions before the court today. [00:11:39] Speaker 00: The first is, is the term large capacity magazine ambiguous? [00:11:43] Speaker 00: And the second is, is the definition provided by the Sentencing Commission reasonable? [00:11:49] Speaker 00: And the definition of ambiguity, as we know from Kaiser, is that it's susceptible to more than one reasonable interpretation. [00:11:55] Speaker 02: What are the two meanings of large? [00:11:59] Speaker 00: Your Honor, it doesn't have to be two, but acceptable. [00:12:03] Speaker 02: Maybe give us five meanings of large. [00:12:06] Speaker 00: And Your Honor, I think that some of the definitions provided by the state legislators, certainly what Congress determined to be large capacity. [00:12:15] Speaker 02: Is there any single definition of large which is numeric? [00:12:22] Speaker 00: There is. [00:12:22] Speaker 00: Where? [00:12:23] Speaker 00: The assault weapons ban referenced in our brief where Congress said large capacity means capable of accepting more than 10 rounds. [00:12:31] Speaker 00: We've cited that the state legislatures. [00:12:33] Speaker 02: Is that applicable to this case? [00:12:35] Speaker 00: I think the court can consider common sense and its determination of what is large capacity. [00:12:42] Speaker 00: You also look at firearms. [00:12:43] Speaker 02: Common sense is sometimes the last refuge of the unprepared. [00:12:47] Speaker 00: If you're speaking to empirical evidence, Your Honor, I would like to draw the Court's attention to Amendment 531. [00:12:53] Speaker 00: Now, Mr. Trumbull cited this in his opening brief, and he actually laid out the language on pages 15 and 16 in a footnote. [00:13:03] Speaker 00: Mr. Trumbull focused on language pertaining to semiotic, [00:13:07] Speaker 00: semi-automatic firearms and indicated that those fall within the heartland. [00:13:11] Speaker 00: However, in that same paragraph, the commission went on to explain that dangerousness depended on the caliber of the weapon and magazine capacity. [00:13:21] Speaker 00: And there, the commission actually stated some semi-automatic firearms can have cartridges containing from 14 to 18 rounds in their magazine. [00:13:32] Speaker 00: Now, just so the court is aware, that language [00:13:36] Speaker 00: I'd submit implicates their substantive expertise. [00:13:40] Speaker 00: But more importantly, that was the reason for the amendment for the policy statements from back in 1997, where the commission said large capacity, they actually term that high capacity, means more than 10 rounds. [00:13:55] Speaker 00: So we have some reasoning going into this decision. [00:13:57] Speaker 00: Now we're dealing with a definition that's significantly more narrow. [00:14:02] Speaker 00: Judge Owens, as you pointed out, not every case involves this type of magazine. [00:14:08] Speaker 00: And in fact, this is the first time in my career as a federal prosecutor where I've had multiple for. [00:14:13] Speaker 00: And in my experience at sentencing, as I noted at the district court below, this is not an everyday occurrence that a defendant has a large capacity magazine. [00:14:23] Speaker 00: I think conservatively estimating, I would say, between 15% and 20% of these cases involve these large capacity magazines. [00:14:30] Speaker 00: So we know the term large capacity magazine is ambiguous. [00:14:35] Speaker 03: So the question then turns to... I don't know if it's ambiguous so much as it's... I understand... I know you're trying to fit it into the jurisprudence of ambiguous. [00:14:47] Speaker 03: I would say that it may be capacious and large can mean a range. [00:14:52] Speaker 03: So where within that range are we talking about? [00:14:55] Speaker 00: That's where we go to the the reasonableness of that interpretation and that's why we cited the the state Legislators that have looked at this very issue. [00:15:04] Speaker 00: How do we define large capacity magazine now? [00:15:07] Speaker 00: It doesn't matter that every state has not decided to prohibit large capacity magazines But those that had a reason to define that term have stated it falls anywhere from more than 10 and [00:15:18] Speaker 00: more than 15, more than 17. [00:15:21] Speaker 00: And the vast majority of those states said it's more than 10. [00:15:24] Speaker 00: Indeed, Congress told us that with the assault weapons ban. [00:15:27] Speaker 00: There were two to three states that said it's more than 15. [00:15:30] Speaker 00: There was only one state that said it's more than 17. [00:15:33] Speaker 00: So I think that falls within the zone of ambiguity as Kaiser told us to look to. [00:15:38] Speaker 00: So because it falls within some reasonable definition of large capacity magazine, [00:15:43] Speaker 00: We decide whether or not that should be entitled to deference. [00:15:47] Speaker 00: And you'll notice in Trumbull's brief, he doesn't really engage in the three Kaiser factors that should inform that decision. [00:15:54] Speaker 00: He does concede the first one that pertains to official duties. [00:15:58] Speaker 00: The second factor is whether or not it implicates the commission's substantive expertise and this factor is actually asking does this [00:16:14] Speaker 00: Job fall within this particular agency the Sentencing Commission and here I think there's no question that that's the case We've laid out the statutory framework allowing for the Sentencing Commission what they're supposed to do what they are charged with doing is Determine what are some of these factors that increase the dangerousness of a person's conduct and giving the Sentencing Court the ability to enhance a [00:16:39] Speaker 00: sentencing exposure for that. [00:16:41] Speaker 00: So no matter how you choose to define large capacity magazine, there can be no question that a firearm in the hands of a prohibited person, in this case Mr. Trumbull was a felon, that has the ability to shoot many rounds quickly without reloading [00:16:57] Speaker 00: is a dangerous and aggravating circumstance. [00:17:00] Speaker 00: So we know that this falls within the bailiwick of the Sentencing Commission. [00:17:05] Speaker 00: Now the court can determine whether or not to depart or vary from that guideline range, but the Sentencing Commission is tasked with giving us that range. [00:17:14] Speaker 00: The third element is fair and considered judgment and in Kaiser the court spent a lot of time talking about what that was not. [00:17:22] Speaker 00: That was essentially coming up with an explanation or interpretation after the fact, not giving any of the parties fair warning or fair notice. [00:17:31] Speaker 00: We know that's not the case here because it was actually [00:17:36] Speaker 00: Amendment 691 that altered the language from more than 10 to more than 15. [00:17:43] Speaker 00: Amendment 691, as I walked the court through in my brief, changed everything. [00:17:48] Speaker 00: The base offense levels, the policy statements, and it specifically referred to the definition of large capacity magazine. [00:17:56] Speaker 00: It referenced the assault weapon ban, so we know that was on the commission's mind. [00:18:00] Speaker 00: when they decided to increase large capacity magazine to more than 15. [00:18:07] Speaker 00: But I also want to point out that all three of these things, the guideline language change, the policy statements, and the commentary, that was subject to Congress congressional approval. [00:18:18] Speaker 00: Now it's not required to be, but here it was. [00:18:21] Speaker 00: And that's important because Kaiser tells us that when an interpretation is provided contemporaneously with the actual language of the guidelines, [00:18:30] Speaker 00: the case for agency deference is stronger. [00:18:32] Speaker 00: Here we know that's exactly what happened. [00:18:34] Speaker 00: The commission changed the language from high capacity to large capacity. [00:18:38] Speaker 00: It pointed us to the definition that says this is what large capacity means, and it updated the policy statement. [00:18:45] Speaker 00: One final note I want to make regarding the policy statement versus the base offense level. [00:18:49] Speaker 00: Mr. Trumbull has noted that under the policy statement, the court has discretion to depart upwards or downwards. [00:18:56] Speaker 00: The reason for that is because in those instances we're talking about an individual that has used one of these firearms in either a crime of violence or a controlled substance offense. [00:19:07] Speaker 00: Now that is different from a person such as Trumbull who was never supposed to have a firearm in the first place. [00:19:14] Speaker 00: He was prohibited from owning or possessing any firearm. [00:19:17] Speaker 00: So there, obviously, the commission decided that warrants an automatic increased base offense level. [00:19:23] Speaker 00: But certainly, courts should always consider it, especially when they're sentencing for crimes of violence and controlled substance offenses. [00:19:30] Speaker 04: And so, counsel, the notes of the commentary in this case did go through notice and comment, correct? [00:19:34] Speaker 00: They did, Your Honor. [00:19:35] Speaker 04: So this case is really about whether it should be on one page of the book or a different page of the book. [00:19:41] Speaker 04: Of this book. [00:19:41] Speaker 04: I mean, of this book, right? [00:19:42] Speaker 04: It's just a matter of where it's going to appear in the book. [00:19:46] Speaker 00: Exactly, Your Honor. [00:19:46] Speaker 00: And the fact that it's mentioned in three different places and the application note is specifically addressed in that process, I think there's no question here that the agency should be entitled to deference. [00:19:58] Speaker 04: And then my other question for you is, this is the big question, which I don't think we're going to answer in this case. [00:20:03] Speaker 04: But after Booker and after Beckles, why does any of this matter? [00:20:11] Speaker 00: Well, the guidelines are a starting point. [00:20:14] Speaker 00: And it's not lost on me that I advocated for this base offense level to apply. [00:20:18] Speaker 00: And of course, the district court varied down and imposed a shorter sentence. [00:20:22] Speaker 00: But I think it does matter because it gives a frame of reference. [00:20:25] Speaker 00: And the guidelines, I think, do guide courts to a certain extent. [00:20:30] Speaker 00: But you are correct that, pre-booker, I think this would have been more important as far as addressing what a judge can or should do. [00:20:39] Speaker 04: I looked at the sentencing transcript and I didn't see Judge Christensen ever say, well, the reason why I'm going to give you this sentence is because this was a large capacity magazine. [00:20:49] Speaker 04: Did I miss something there? [00:20:50] Speaker 00: No, Your Honor. [00:20:51] Speaker 00: And you're correct. [00:20:52] Speaker 00: I know Judge Christensen is quite thorough in going through the factors. [00:20:56] Speaker 00: But I think he addressed that when he decided, you know, this is a large capacity magazine. [00:21:04] Speaker 00: And that factored into his equation. [00:21:06] Speaker 00: But I think certainly the other circumstances here, the amount of ammunition, the types of magazines, should have gone into that decision. [00:21:17] Speaker 04: All right. [00:21:18] Speaker 04: Thank you, counsel. [00:21:18] Speaker 00: Thank you, Your Honors. [00:21:23] Speaker 01: Thank you, Your Honors. [00:21:24] Speaker 01: First, it's a myth that this commentary was reviewed by Congress. [00:21:30] Speaker 01: That's not required in the enabling legislation. [00:21:33] Speaker 01: It's only the guidelines. [00:21:35] Speaker 01: That point was made very clearly in Castillo. [00:21:38] Speaker 01: So I don't think that's a factual or procedural basis for the court to adjudicate this issue. [00:21:44] Speaker 01: Second, with respect to the numeric, bright-line rule that the commission just made up, the assault weapons ban expired. [00:21:54] Speaker 01: It expired over 20 years ago, or 20 years ago, and the government referenced the vast majority of states. [00:22:01] Speaker 01: It's 14 states that it briefed. [00:22:03] Speaker 01: that have a magazine limit in terms of legality. [00:22:09] Speaker 01: 14 states and no federal law is not the vast majority of states. [00:22:16] Speaker 01: With respect to Amendment 531, that was the amendment that was directed as part of the assault weapons ban, where Congress said sentencing commissions studied the use of semi-automatic firearms relative to crimes of violence and drug trafficking offenses. [00:22:34] Speaker 01: And the commission focused on how the gun was used. [00:22:38] Speaker 01: In the reason for amendment, it talks about armed robberies at close range, drive-by shootings. [00:22:45] Speaker 01: Here, the gun wasn't arguably used at all. [00:22:49] Speaker 01: Mr. Trumbull was passed out in his vehicle for three hours in a hotel parking lot with the vehicle running when there was a welfare call and a welfare check. [00:23:01] Speaker 01: So the gun wasn't used in the sense in any way. [00:23:06] Speaker 01: So that's something that's not part of the analysis. [00:23:10] Speaker 01: Finally, with respect to the zone of ambiguity, that's our point. [00:23:15] Speaker 01: When industry norms, industry standards are more than 15 rounds, [00:23:22] Speaker 01: It's outside of the zone of ambiguity and unreasonable to have her lower threshold than, for instance, here, the Glock 17, which, again, this court recognized as one of the most popular handguns in America. [00:23:35] Speaker 01: So for those reasons, Your Honor, we're requesting that the court vacate Mr. Trumbull's sentence and remand for re-sentencing. [00:23:42] Speaker 04: All right. [00:23:43] Speaker 04: Thank you, counsel. [00:23:43] Speaker 04: Thank you both for your briefing and argument. [00:23:45] Speaker 04: This matter is submitted.