[00:00:00] Speaker 04:
The last case that's on for oral argument is the United States of America versus Michelle Rodriguez, 24-593.

[00:00:11] Speaker 04:
And each side has 10 minutes.

[00:00:14] Speaker 04:
Okay.

[00:00:16] Speaker 04:
Let me just get to your case here.

[00:00:18] Speaker 04:
I'm going to move on my iPad here.

[00:00:25] Speaker 04:
Okay.

[00:00:25] Speaker 04:
Good morning.

[00:00:26] Speaker 02:
Good morning, Your Honors.

[00:00:27] Speaker 02:
Catherine Young from the Federal Public Defender's Office for the appellant Michelle Rodriguez.

[00:00:33] Speaker 02:
I'd like to reserve about three minutes of my time and I'll try to watch the clock.

[00:00:38] Speaker 02:
So Ms.

[00:00:38] Speaker 02:
Rodriguez was convicted of knowingly and with intent to defraud possessing at least 15 unauthorized access devices.

[00:00:46] Speaker 02:
She was stopped in a car.

[00:00:47] Speaker 02:
There was a backpack and a white plastic bag.

[00:00:50] Speaker 02:
with about 140 pieces of mail matter, including approximately 33 pieces of open mail, checks, credit cards, and relevant here, two legitimate and unaltered California driver's licenses.

[00:01:03] Speaker 02:
She challenges the fact that the district court imposed a sentencing enhancement under 2B1.1B11, which applies where the offense involved the possession of an authentication feature.

[00:01:15] Speaker 02:
Here it was the hologram on the driver's licenses.

[00:01:19] Speaker 02:
The authentication feature had a significant impact on her sentence.

[00:01:23] Speaker 02:
It raised the low end of her guidelines range from 12 months to 24 months, thus doubling her sentencing guidelines range.

[00:01:30] Speaker 02:
Thus, the enhancement had as much weight in the sentencing calculus as the offense itself.

[00:01:34] Speaker 04:
Well, you're a federal defender, so you deal with sentencing all the time.

[00:01:39] Speaker 04:
And I think the word involve comes up a lot, okay?

[00:01:44] Speaker 04:
So why doesn't

[00:01:46] Speaker 04:
We just look at the word involved.

[00:01:48] Speaker 04:
Doesn't that do the necessary work here?

[00:01:51] Speaker 04:
If the mens rea for the underlying offense is proven, all the district court must find is that the possession or use of the driver's license was involved in the underlying offense.

[00:02:01] Speaker 04:
Why should that require a separate intent component?

[00:02:05] Speaker 02:
Well, I think that question is answered by the Supreme Court's case in Dubin, which we analyzed in the briefs.

[00:02:11] Speaker 02:
The government tells us that relates is the same as involves.

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They're synonyms.

[00:02:16] Speaker 02:
And Dubin extensively analyzed the concept of what relates to in an enhancement.

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And I think all of this analysis is very helpful here.

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In Dubin, as here, the government argued that the enhancement applied across the board automatically.

[00:02:30] Speaker 02:
No further analysis was required.

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All that had to be was the possession.

[00:02:35] Speaker 02:
Here, the Supreme Court said it rejected the government's near limitless interpretation.

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It says, while words like in relation to are in isolation indeterminate, the statutory context taken as a whole points to a narrower reading.

[00:02:52] Speaker 02:
And it said in relation to is context sensitive.

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And remember that the government tells us in relation to is the same as involves.

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It's context sensitive.

[00:03:01] Speaker 04:
So, but is your argument that the intent element from the underlying offense transfers to the sentencing enhancement?

[00:03:08] Speaker 02:
We're arguing that at least there has to be knowing.

[00:03:11] Speaker 02:
We're also arguing that there should be intent to use, but one or the other.

[00:03:15] Speaker 04:
So, in taking that argument, what's your best case that supports it?

[00:03:18] Speaker 03:
Well, I think the Dubin case is the best.

[00:03:20] Speaker 04:
Okay, that's your best case?

[00:03:21] Speaker 03:
So, with respect to the second part of the question that Judge Callahan's asking, trying to sort of ingest in the mens rea requirement into

[00:03:30] Speaker 03:
into this sentencing guideline, how do you square your position with Lavender and Gonzalez that very clearly indicate that we treat sentencing guidelines different than the criminal statutes we don't assume or presume the signed terror requirement is imputed?

[00:03:49] Speaker 02:
In Gonzalez and Lavender, the cases are very different because first of all, those don't require the offense involved, the authentication feature.

[00:03:57] Speaker 02:
In those enhancements, it just says, for example, in Gonzales, it was a firearm was stolen.

[00:04:05] Speaker 02:
And nevertheless, the Gonzales Court, and that issue was revisited.

[00:04:10] Speaker 02:
That's Gonzales, I think it's from 2001.

[00:04:12] Speaker 02:
The issue was revisited and pre-empt Pinto by this court in 2019.

[00:04:16] Speaker 02:
And the court revisited the same analysis, saying even though

[00:04:20] Speaker 02:
The feature itself, the enhancement itself, does not require mens rea.

[00:04:25] Speaker 02:
And even though there's a note in the guidelines saying that no mens rea is required, they don't need to know that the firearm is stolen.

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We're still going to look to see whether this is constitutionally acceptable.

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And the Preen Pinto Court in 2019 looked at this and said, there's a statutory reason.

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First of all, it's clear from the statute and the guidelines in the notes that knowledge is not required.

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But we also think that there's a reason why this is an exception to the general rule of requirement of mens rea, because we're going to place the onus on the defendant possessing a stolen firearm to inquire into the genesis of

[00:05:04] Speaker 02:
of the firearm.

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So that's why that's very different.

[00:05:08] Speaker 02:
In Lavender, you have a case which also I think supports this because there the issue is, did the defendant know that he had a screwdriver?

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Did he know that the screwdriver was a dangerous weapon, which he was enhanced for?

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And he used the weapon by jabbing into the guard's back to force the guard to move along.

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So there's no real dispute that he knew that he was using it as a weapon.

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But nonetheless, the court said, we're going to look at, if we apply this to his co-defendants, we're going to look and see, did they reasonably expect that a screwdriver is going to be used in the offense?

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And based on that,

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they allowed it to be applied.

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So even in these cases where there's no mens rea, where there's not, here we've got the offense involved.

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So we have language that we have to interpret somehow.

[00:05:55] Speaker 02:
In those enhancements, there's nothing, just a simple state, the firearm was stolen.

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Nonetheless, the courts engage in whether that's acceptable and what level of knowledge is acceptable in order to impose an enhancement.

[00:06:08] Speaker 02:
And let me go on, unless there's any further questions on those issues, let me go on to Dubin, because I think Dubin is very important in its emphasis that here's a word that's very context sensitive.

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It could be expansive or narrow, and what we have to do is look at the context of the word.

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the word.

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We have to look at the statutory scheme.

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And that's what Dubin did.

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And Dubin also emphasized this is an enhancement.

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An enhancement has to distinguish aggravating conduct for which heightened punishment is sought versus non-aggravating conduct.

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And all of those principles that are espoused in Dubin apply here.

[00:06:43] Speaker 02:
Because here, if we look at the statutory scheme, which is discussed

[00:06:47] Speaker 02:
in the briefs and I'll just briefly analyze it.

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We're going back to the Safe ID Act.

[00:06:52] Speaker 02:
They never intended to address the mere position of an authentication feature.

[00:06:57] Speaker 02:
It was all to do with counterfeiting and altering authentication features.

[00:07:02] Speaker 04:
So if let's just, I'm just saying this hypothetically because we haven't conferenced on it, but let's just think, I think that you can resolve this by looking at the word involve and that we don't have to do the mens rea analysis that you're talking about.

[00:07:17] Speaker 04:
It seems pretty clear to me that the license was involved in the whole part of it.

[00:07:22] Speaker 04:
So if I go to that simplistic approach, hypothetically, then does your client lose?

[00:07:31] Speaker 02:
If the only thing that has to do is that it's there, it's in the mail, and even if she didn't know it was there, it's still there, then the authentication feature could be applied.

[00:07:42] Speaker 02:
But we're arguing that more is required.

[00:07:45] Speaker 04:
Do you want to save the balance of your time?

[00:07:48] Speaker 02:
Yes, I will.

[00:07:48] Speaker 04:
Thank you.

[00:07:59] Speaker 04:
Good morning.

[00:08:01] Speaker 01:
Good morning, Your Honors.

[00:08:02] Speaker 01:
May it please the court, Saria Bahadur, on behalf of the United States.

[00:08:06] Speaker 01:
On its face, this authentication feature guideline enhancement does not import any extra elements beyond possession or beyond any elements of the underlying offense.

[00:08:17] Speaker 01:
And I'll start on Dubin, the Dubin test, the Crux test.

[00:08:21] Speaker 01:
The defense has essentially proposed three different tests in this appeal, all of which are atextual.

[00:08:27] Speaker 01:
So starting with the crux test, which came up first in reply, Dubin obviously involved 1028 big A, which is a standalone statute that imposes criminal liability, a two-year mandatory minimum.

[00:08:39] Speaker 01:
The phrase in that statute was in relation to.

[00:08:43] Speaker 01:
The guideline enhancement does not have those exact words.

[00:08:47] Speaker 01:
The guideline enhancement has, as Judge Callahan pointed out, involved and involved.

[00:08:52] Speaker 04:
That happens a lot.

[00:08:53] Speaker 04:
There's a lot of that in there, right?

[00:08:55] Speaker 01:
Sure.

[00:08:55] Speaker 01:
Exactly.

[00:08:55] Speaker 01:
I think within all of Chapter 2B1.1, many of the enhancements, including one not challenged here, the offense involved.

[00:09:02] Speaker 04:
The U.A.

[00:09:03] Speaker 04:
saves then.

[00:09:04] Speaker 04:
federal defenders deal with involved all the time?

[00:09:06] Speaker 01:
We do and as do district courts and so involved in Smith, a Supreme Court case which is talked about in Dubin, actually did analyze that phrase involved in and that's in our brief and it does say that it's supposed to be an expansive term and it can mean relate to and relate to is context specific and it's connecting offense and it's connecting possession.

[00:09:29] Speaker 04:
But the guidelines don't

[00:09:30] Speaker 04:
Define involved right they don't but they do and so let me just look at Miriam Webster here, okay, and as and says Miriam Weisberg defines involved as quote having a part in something Unquote can you explain how the possession of the driver's license in this case had a part in the underlying offense sure so in the underlying offense the defendant was charged with the possession of 15 or more unauthorized access devices and

[00:09:57] Speaker 01:
One of those unauthorized access devices within the indictment was that Capital One bank card, which was assigned to victim VK, and the defendant had the driver's license of victim VK.

[00:10:10] Speaker 01:
Two, it's in her plea agreement, right?

[00:10:13] Speaker 01:
So she agreed not just to the underlying offense of conviction, but she also agreed, which is obviously related if you're agreeing to it, that she possessed not just these driver's licenses, but a host of other mail matter, a ledger with names, et cetera.

[00:10:29] Speaker 01:
She also led the officers.

[00:10:31] Speaker 01:
On the day of the offense, she confessed to the crime.

[00:10:34] Speaker 01:
This is in the sentencing position.

[00:10:36] Speaker 01:
multiple times, and rightfully so because they were asking for a lenient sentence based on her acceptance of responsibility.

[00:10:42] Speaker 04:
Let me ask you this.

[00:10:43] Speaker 04:
Is it possible for the driver's licenses at issue in this case to be involved in the underlying offense if Ms.

[00:10:52] Speaker 04:
Rodriguez didn't know the driver's licenses were amongst the items in the stolen mail?

[00:10:57] Speaker 01:
Yes, so how because of the meaning of the word offense offense is not just offensive conviction It's also relevant conduct relevant conduct is further defined in the guidelines as all acts or omissions Taken during the commission of offense which we would submit that the driver's license is part of the commission of the offense in preparation for the offense or to avoid detection of the offense relevant conduct is also defined as part of the common

[00:11:22] Speaker 01:
I think part course of scheme course and scheme which allows for the grouping rules to be triggered in this case and So based on the word relevant conduct which is baked into the meaning of offensive conviction This defendant could be held responsible for possessing items that fall within the enhancements, and that's why a crux Neither of the driver's licenses that issue matched any of the names on the credit cards and

[00:11:48] Speaker 04:
Can those driver's licenses be involved in the underlying offense, even though it would be impossible for them to have been used with any of the credit cards?

[00:11:58] Speaker 01:
I think so, yes.

[00:12:00] Speaker 01:
And that goes exactly to the language of the guideline enhancement, as well as the language of the word offense and relevant conduct.

[00:12:06] Speaker 01:
But Congress made a choice to punish possession within this guideline enhancement and possession of authentication features specifically.

[00:12:14] Speaker 01:
And authentication features, I mean, it's a narrow group of identification documents, but it's those that are issued by government.

[00:12:21] Speaker 01:
So you're talking passports, right, driver's licenses.

[00:12:24] Speaker 01:
And those are very valuable to identity thieves.

[00:12:27] Speaker 01:
You can create bank accounts.

[00:12:30] Speaker 01:
Use them to, I mean, make fraudulent purchases.

[00:12:32] Speaker 01:
You can also sell them.

[00:12:34] Speaker 01:
Identity thieves want real driver's licenses because that will help them further any additional identity theft crimes.

[00:12:41] Speaker 00:
Let me ask you this, counsel.

[00:12:43] Speaker 00:
I want to give you my own little scenario because I just want to know how expansive this rule is.

[00:12:49] Speaker 00:
What if, let's say, Ms.

[00:12:50] Speaker 00:
Rodriguez was 20 years old and she had a fake ID because she wanted to go to a bar and drink.

[00:12:57] Speaker 00:
And she had that fake ID on her when she was pulled over.

[00:13:00] Speaker 00:
And she admitted to having the mail from other people and stuff.

[00:13:04] Speaker 00:
Does the fact that then you find that fake ID in her wallet or in her purse that same day with everything, does that give rise?

[00:13:11] Speaker 00:
I think that would be more difficult.

[00:13:14] Speaker 01:
And I think that's the work of relevant conduct.

[00:13:16] Speaker 01:
Relevant conduct, if we think of it as a circle,

[00:13:19] Speaker 01:
you have at the core your offensive conviction, and then you have your relevant conduct as your outer bounds.

[00:13:24] Speaker 01:
And the further we get outside of relevant conduct, whether she's actually possessing that fake ID in connection with her offense because she went out to a bar the night before, I think would be a harder row for the government to toe.

[00:13:35] Speaker 01:
I think that's the saying.

[00:13:37] Speaker 01:
And that would be essentially laid bare at a sentencing hearing.

[00:13:40] Speaker 01:
And that's why this is not the enhancement becomes the enhanced, because a district court can evaluate

[00:13:46] Speaker 01:
How far outside the bounds of relevant conduct are we really?

[00:13:49] Speaker 01:
And that's what district courts do every day.

[00:13:52] Speaker 01:
So we would submit that in that particular case, say we made that argument and the defense made their argument, it would really come down to, can we, the government, based on a preponderance of the evidence, really show that this is relevant conduct?

[00:14:03] Speaker 01:
And I do think that would be a more difficult case.

[00:14:05] Speaker 04:
Thank you.

[00:14:05] Speaker 04:
Is there anything, since apparently this word comes up regularly, is there any reason to publish on this case?

[00:14:15] Speaker 01:
It's up to the court.

[00:14:16] Speaker 01:
I think it could be helpful.

[00:14:18] Speaker 04:
Yes, but what would it say?

[00:14:19] Speaker 01:
I think it would essentially say that you know We would adhere to the plain language of the guidelines of involved can mean as the court pointed out There's multiple deaf dictionary definitions, but in adherence to the plain language of the guidelines It would reiterate the principles in Lavender and pan panto that if there are no unwritten

[00:14:39] Speaker 01:
requirements in a guideline, then we apply and adhere to the plain text of the guideline.

[00:14:43] Speaker 01:
I mean, this guideline comes up, but not that much.

[00:14:46] Speaker 01:
It's actually been on the books for about 20 years, and there's only been two cases published in this space generally, which is the Barogo case and Sardiani, and they're really focused on what constitutes an authentication feature.

[00:14:57] Speaker 01:
So this case could be helpful to explain what is the relationship between offense involved,

[00:15:02] Speaker 01:
Well as the possession, but we do think it is clear based on the meaning of the word offense And I would submit every definition that has been proposed by the defense would read out the word The meaning of the word offense because offense is not just defense of conviction.

[00:15:18] Speaker 01:
It's relevant conduct So all acts or omissions do not sort of require.

[00:15:23] Speaker 04:
What is your

[00:15:25] Speaker 01:
Understanding of what your friend on the other side is asking about the intent element from the underlying offense transferring to the sentencing Enhancement explain that to me So I think she's asking for two different things relating to science her one is she the first test proposed I would call it the elements test that would be the underlying intent that's required for a 1029 a3 conviction intent to defraud

[00:15:51] Speaker 01:
We submit there's no basis for that because, again, you have the language of what offense means, and it doesn't require the elements of the underlying offense, and there's no authority for that proposition.

[00:16:01] Speaker 01:
The other argument that I believe the defense is making is that there should be a knowledge requirement or a fraudulent intent requirement.

[00:16:09] Speaker 01:
I think that would sort of run headlong into the cases that Judge Desai pointed out, which is Lavender.

[00:16:15] Speaker 01:
pre and pinto, which is trying to read in a science requirement, sort of put knowing in front of the word's possession.

[00:16:21] Speaker 01:
So I think those are the two arguments, but again, they would conflict with the meaning of the word offense.

[00:16:27] Speaker 01:
And so we would ask that the court not read in any extra words, not read in any additional elements, and adhere to the plain language of the statute and affirm the district court in this case.

[00:16:39] Speaker 01:
Thank you, Your Honors.

[00:16:40] Speaker 04:
No additional questions.

[00:16:41] Speaker 04:
Thank you.

[00:16:50] Speaker 02:
Just briefly, I think the prosecutor said that Congress made a choice to punish possession of authentication features.

[00:16:56] Speaker 02:
And I just want to make clear that one of the arguments is that in the Safe ID Act and in the conference report, there was never an intent to punish mere possession of authentication features, absent some other aggravating situation.

[00:17:11] Speaker 02:
And here we argue we're not trying to read in something, we're just trying to give meaning and content

[00:17:17] Speaker 02:
to the phrase the offense involved.

[00:17:19] Speaker 02:
And I think it's more than an inadvertent, unintentional, unknowing possession of features that happened to be in a bag of stolen mail that she had.

[00:17:28] Speaker 02:
So unless there's any further questions, we'd ask the court to reverse the announcement.

[00:17:32] Speaker 04:
Thank you both for your helpful argument in this matter.

[00:17:34] Speaker 04:
This will stand submitted.

[00:17:37] Speaker 04:
I believe that I can declare at this point that this court is in recess for the week.

[00:17:43] Speaker 04:
Is that correct?

[00:17:45] Speaker 04:
All right.

[00:17:46] Speaker 04:
Thank you.

[00:18:13] Speaker 02:
This court is in recess for the week.