[00:00:00] Speaker 03:
Last case on calendar for argument is United States versus Cisneros.

[00:01:07] Speaker 00:
Good morning, Your Honor. May it please the court. Sonom Henderson for the appellant, Felix Cisneros, Jr. I plan to reserve two minutes for rebuttal, and I'll watch my clock accordingly.

[00:01:18] Speaker 00:
The four-level enhancement for a bribery offense involving an elected public official or any public official in a high-level decision-making or sensitive position is the only enhancement in the bribery guideline that's based on the rank. of the person being bribed.

[00:01:32] Speaker 04:
That assumes that the modifier modifies both high-level and sensitive position, correct?

[00:01:42] Speaker 04:
Well... I mean, we've got a grammatical problem first, right?

[00:01:46] Speaker 00:
Yes, and I'll get to that, but just to make the point, for someone of high rank, this is the only enhancement that you're getting them on account of their rank.

[00:01:53] Speaker 04:
But the problem is that the Sentencing Commission amended the guideline in 2004...

[00:01:58] Speaker 04:
dropped the increase in levels and then says the reason that we did it was that we wanted to include all law enforcement officers.

[00:02:09] Speaker 00:
Says in the commentary, which we are supposed to disregard unless the language of the text itself is ambiguous.

[00:02:17] Speaker 04:
Right. So we first have to find the ambiguity, which gets me back. to my grammatical question.

[00:02:23] Speaker 00:
Yes, and I'll get there, but I did just want to make the point that this is, if you have a corrupt senator, a corrupt cabinet secretary, this is the enhancement you're going to get them through. This is the only enhancement that's going to apply to someone of a high rank because of their rank.

[00:02:36] Speaker 04:
But you're not disputing that as a sworn federal law enforcement officer for HSI...

[00:02:43] Speaker 04:
he has access to very sensitive information that the general public can't access on the tech system.

[00:02:50] Speaker 00:
It depends what you mean by sensitive.

[00:02:52] Speaker 04:
Well, ongoing investigations, who's the target or subject of an ongoing criminal investigation, that's pretty sensitive stuff.

[00:02:59] Speaker 00:
Well, I would argue that it's not, that that's not what sensitive means within the meaning here.

[00:03:06] Speaker 04:
But wasn't that in part the purpose of the bribe, in order to find out whether the bribe offerer was the subject of any open investigations by HSI?

[00:03:15] Speaker 00:
That was one of the bribes, yes. But, I mean, again, if it was just enough to be the subject of the bribe to be subject to the enhancement, then everybody who was bribed would be subject to the enhancement.

[00:03:25] Speaker 04:
Well, except that law enforcement officers occupy a unique position of trust in our society. We give them powers that we don't – that the rest of us don't get to have.

[00:03:35] Speaker 00:
We do, but they're still everyday powers, and they are not – so I think, Your Honor, this will – We're coming through this sort of, to my mind, backwards. Through the back door. I'd like to talk about why it has to be high level. I'd like to talk about what sensitive means.

[00:03:50] Speaker 04:
Well, let me ask you a question, and maybe you can work it into your answer.

[00:03:53] Speaker 00:
Sure.

[00:03:54] Speaker 04:
As I understood it, the court called for additional briefing on remand to basically consider the text, structure, history, and purpose of Section 2C1.1B3. Is there evidence?

[00:04:11] Speaker 04:
Anything else that you believe the court should have done or had before it in making its ruling on ambiguity and what the legislative history was behind it?

[00:04:21] Speaker 00:
Had before it, I'm not sure. Done, yes, quite a bit.

[00:04:25] Speaker 04:
What more should the court have done?

[00:04:27] Speaker 00:
I'll explain. So Kaiser and Castillo require the court to use the tools of statutory interpretation itself to determine whether there's any ambiguity and then also to determine the zone of ambiguity. They say even two things there. One, even if it's ambiguous in some way, the court still has to use those same tools and identify the contours of the ambiguity, the language they use, zone of ambiguity, or at least establish the outer bounds of permissible interpretation.

[00:04:56] Speaker 04:
And what I'm struggling with is I see labels. I'm trying to figure out what those tools are. I mean, what screwdriver or hammer does the district court have to pick?

[00:05:07] Speaker 00:
Textual analysis, Your Honor, to start with, and structure. And what the court did was none of that. The court said it heard out the parties, said basically I can see arguments on both sides, therefore this must be ambiguous, therefore the commentary applies. Kaiser says you're not allowed to do that. It says very specifically you're not allowed to do that. It says it's not enough to casually remark, as the court did here, that both sides insist the plain regulatory language supports their case, and neither party's position strikes us as unreasonable.

[00:05:36] Speaker 04:
So we're back to my question. What more should the district court have done? What else is out there that the district court failed to consider?

[00:05:45] Speaker 00:
Sure. So the analysis of high level and the analysis of sensitive, as we go through them in our briefs, and I can go through those now if you'd like. In terms of high level, we have this serious qualifier canon. which tells us when there's a straightforward parallel construction, a pre-positive or post-positive modifier normally applies to the entire series.

[00:06:07] Speaker 00:
And here we have a qualifier at the beginning, high level. We have the ultimate category in question, position at the end. We have two options for what positions could be in the middle, decision or sensitive. And so overall I read this as saying a public official in a high-level position that is either decision-making or sensitive.

[00:06:25] Speaker 03:
This fits with... How many...

[00:06:28] Speaker 03:
items are there in a series?

[00:06:30] Speaker 00:
More than one, Your Honor.

[00:06:31] Speaker 03:
Well, I think it's more than two.

[00:06:34] Speaker 03:
That canon applies if there's a series, and if you look at the definition of series, I think it's more than two.

[00:06:42] Speaker 00:
I don't have the definition in front of me. I can tell you in common speech we say things like this all the time.

[00:06:48] Speaker 03:
If I said I want to hire... We're supposed to be using the canons of construction, not common speech. So if that canon of construction applies to a series and we only have a duo, does that really apply?

[00:07:03] Speaker 00:
Again, Your Honor, I still believe a duo can be a series. And if I can just get to the common speech, I think the examples do make sense. If I were to say I want to hire a high-achieving science or math student, no one would think I wanted a high-achieving science student but a D math student. If I were to say I'd like a toasted poppy seed or sesame bagel, Hopefully nobody would hand me a cold sesame bagel. And other examples abound. A small ham or turkey sandwich, a ripe green or red pear, a sunny first floor or second floor apartment.

[00:07:36] Speaker 00:
In all of these, just as you would expect from the series qualifier canon, the initial modifier is applying across the board.

[00:07:45] Speaker 04:
So the answer would be different if the drafter had included an article like A or any.

[00:07:53] Speaker 00:
Exactly, Your Honor. So if the drafter had wanted to break these out and say a high-level decision-making position or a sensitive position, obviously high-level is now bracketed away by the article.

[00:08:08] Speaker 04:
You'd have a different problem.

[00:08:09] Speaker 00:
Right, right. But here I don't have that problem. And, again, I think if we look at that plainly, the enhancement, if high-level applies to sensitive, it can't apply to cis-narrowed, He's not a high-level agent.

[00:08:21] Speaker 02:
What would be a low-level sensitive position?

[00:08:24] Speaker 00:
Sure. A, like a filing clerk in a nuclear department that has some, like, classified information.

[00:08:31] Speaker 04:
How about a juror?

[00:08:34] Speaker 00:
A juror, I mean, to my mind, and this gets to sensitive, you know, I look at the definitions for sensitive, and I see a lot of discussion of national security, policymaking, highly classified.

[00:08:47] Speaker 02:
You find that in dictionary definitions? I find those in dictionary definitions. As a reasonably adept user of the English language, I look at the word sensitive, and it is about as vague and ambiguous as I can imagine.

[00:09:04] Speaker 00:
And I see that there are different meanings. I have sensitive skin, Your Honor. But I see that there are different meanings, and that's where this other canon that, again, I think the district court should have been looking at this, nosiderisosis or the rule against superfluities, those come in as well. And those tell, certainly starting with nosiderisosis, that tells us to look at the words around it. And I think of like the Yates case, which is the Supreme Court case about fish and about whether a fish is a tangible object. Obviously a fish is a tangible object.

[00:09:36] Speaker 00:
But if you put it on a list that starts record, document, or tangible object, the Supreme Court tells us It is not a tangible object within the meaning of that because it's cabined by the other words around it. And it's the same thing here. Even if sensitive could mean something very broad, here it's next to elected officials and high-level decision-making officials, and it is supposed to not be a term that's vastly broader than those.

[00:10:03] Speaker 02:
What do we make of the fact that as part of the amendment, the commission chose to reduce the enhancement from eight levels to four, while also broadening its application?

[00:10:14] Speaker 00:
Well, broadening its application only in the commentary, and I think you make nothing of that fact unless we get to ambiguity. You make nothing of the broadening in the commentary unless you get to ambiguity. In terms of the 8 to 4, I'm running low on time, I want to say this quickly. In terms of the 8 to 4, you get, you know, the only signal you're getting outside of the commentary is that it dropped from 8 to 4, and that may just be that they thought it was too harsh. 4 is still extremely harsh. Here it raised his sentence by 50%. For other people, it would have doubled their sentence depending on where they started and what else was going on in the case.

[00:10:48] Speaker 04:
What if we interpret sensitive position to mean a position involving public trust?

[00:10:57] Speaker 00:
So, again, I think that one problem with that is that it would totally eclipse and render meaningless the other two because every elected official is a position involving public trust. Every high-level decision-making official is a position involving public trust. So then you're running into the rule against surplus fluidity. Excuse me. So I don't think you can interpret it that broadly with these other words here.

[00:11:31] Speaker 03:
Thank you, Counsel. You've exceeded your time. We'll give you a minute.

[00:11:33] Speaker 00:
Thank you.

[00:11:46] Speaker 01:
Good morning, Your Honors. May it please the court. Juan Rodriguez on behalf of the United States.

[00:11:52] Speaker 01:
Defendant was a corrupt Department of Homeland Security federal agent, and he was bribed because of the information he had access to and the power he possessed. In other words, because he held a sensitive position, whether this court agrees with the parties that the term sensitive position is unambiguous or whether the court agrees with the district court that it's ambiguous, that it is ambiguous, the upshot's the same. This court should affirm, because there are no factual disputes, and on these facts, defendant held a sensitive position.

[00:12:27] Speaker 01:
He could get someone who was otherwise inadmissible into the country via his power. He could arrest people. He wielded the power of the state.

[00:12:37] Speaker 02:
He could get somebody into the country to assist in a criminal enterprise, correct?

[00:12:41] Speaker 01:
Correct. Your Honor, and... To the extent that we're going to talk about dictionary definitions and things that affect matters of national security, getting someone who's otherwise inadmissible into the country not knowing or caring why they're coming in, that is a matter of national security.

[00:12:57] Speaker 04:
But he doesn't get to make that decision, does he? He can ask his superiors. I think the decision has to be made by the port director, doesn't it, to parole somebody into the United States?

[00:13:08] Speaker 01:
That is correct, Your Honor. But the fact that he can go to his boss – The assistant special agent in charge, in fact, he did go to his boss and he convinced his boss that this was part of a legitimate operation. He was essentially one person away from being able to parole. And the fact that he was unsuccessful doesn't actually change the analysis.

[00:13:27] Speaker 03:
Now, so may I ask you, did the district court comply with the mandate from this court?

[00:13:33] Speaker 01:
I believe it did, Your Honor.

[00:13:34] Speaker 03:
So the court was mandated to exhaust the traditional tools of statutory interpretation before determining that the guideline was genuinely ambiguous. So where in the record can we look to determine that the district court exhausted the traditional tools of statutory interpretation?

[00:13:54] Speaker 01:
Your Honor, there was briefing, and that's part of the record. There was briefing by both the government.

[00:14:00] Speaker 03:
Where did the district court articulate its application of the traditional tools of statutory interpretation.

[00:14:08] Speaker 01:
The district court did not articulate.

[00:14:10] Speaker 03:
So the district court didn't follow the mandate?

[00:14:12] Speaker 01:
Your Honor, I believe the district court did follow the mandate because it considered the arguments, and the court should have and could have been more verbose, but ultimately it read the papers, it considered oral argument, and then it made the decision. And this court's instruction was to remand so that it could consider with the party's briefing in the first instance whether... It didn't say consider, it said exhaust.

[00:14:34] Speaker 03:
the traditional tools of statutory interpretation. That's correct, Your Honor.

[00:14:38] Speaker 01:
And I would argue that the parties did that through their briefing and the court considered it.

[00:14:42] Speaker 03:
Did the court do that? It wasn't for the parties to do it. It was for the court to do it.

[00:14:46] Speaker 01:
I believe that the fact that the court read and entertained oral argument on this very subject, again, the court could have been more verbose and on the record made that finding. But I believe the court did consider and did comply. In any event, if this court were to disagree with that, this court could in the first instance, do that analysis, should it believe that the term is, in fact, ambiguous.

[00:15:07] Speaker 02:
Well, there's no doubt, is there, that if the commentary is available to the district court, that the defendant easily qualifies for this, right? Agreed. And I'm trying to... There are parts of the sentencing guidelines I haven't applied for quite a while, but...

[00:15:31] Speaker 02:
I don't remember a provision more ambiguous than this one as to high-level decision-making and sensitive.

[00:15:44] Speaker 02:
Maybe you can point me to more ambiguous ones than that.

[00:15:49] Speaker 01:
Candidly, nothing off the top of my head, Your Honor. Again, to the extent that the court does find that the term is ambiguous for the reasons the government articulated.

[00:15:57] Speaker 02:
What do you see, counsel, as the purpose of the?

[00:16:02] Speaker 02:
of the enhancement in the way it's structured here.

[00:16:05] Speaker 01:
Well, I think that the commission made that clear, and the court in Hill found that. And in Hill, it said that the enhancement was modified and that the levels were brought down. The commentary was changed because it intended to encompass within its ambit more law enforcement officers, which is why it removed the word supervisory. It intended to broaden its application to weed out and to punish these public officials. So that is the intent, is to broaden and encompass more.

[00:16:39] Speaker 04:
So let me ask you the same question I asked your opponent.

[00:16:43] Speaker 04:
If we did send it back down, what more is out there that the district court should have considered, or is it simply a matter of the district court would need to do a better job articulating what it was thinking behind its reasoning?

[00:17:00] Speaker 01:
I believe it would be the latter, Your Honor. It would be just being more verbose on the record and explicitly stating that it's following either the defendant's analysis or the government's analysis and stating that after using the, exhausting the candidates of construction and other methods, it finds the term ambiguous.

[00:17:21] Speaker 04:
So it seems from your answer that we could simply look at the record that was before the district court, including the briefs, and the arguments made by the parties in answering the question if we're not satisfied with the adequacy of the court's explanation.

[00:17:40] Speaker 01:
That's exactly right, Your Honor, which is why I opened with whether the court agrees with the parties that it's unambiguous or whether the court ultimately finds that the term is ambiguous. On this record, the court should affirm because there's no factual dispute. It's very clear. what the defendant was bribed for. He had access to text, a sensitive law enforcement database that had covert investigations into individuals. He's a Department of Homeland Security federal agent, and he tried to pull someone into the country.

[00:18:10] Speaker 03:
Are you asking us to do what we directed the district court to do?

[00:18:14] Speaker 01:
To the extent that the court were to find that the term is ambiguous.

[00:18:20] Speaker 03:
But you're asking us to find that it's ambiguous when we directed the district court to do that.

[00:18:27] Speaker 01:
To determine whether, in the first instance, whether it is ambiguous.

[00:18:30] Speaker 04:
Well, he did find it ambiguous, right? But on the record, he found it ambiguous because the arguments made by both parties made some sense to him, and therefore it was hard to choose who was right. Therefore, it must be ambiguous. That's how I read it. Did I misread it?

[00:18:49] Speaker 01:
I think certainly that's a way it could be read.

[00:18:52] Speaker 03:
How else could it be read?

[00:18:55] Speaker 01:
That the court read the briefing, entertained oral argument, and then after hearing that, the court ended up finding... There's no way you can say that the court said it exhausted the traditional rules of statutory construction.

[00:19:08] Speaker 03:
It did not say that at all. That is correct, Your Honor.

[00:19:15] Speaker 01:
Unless the court has any other questions, I'll submit and ask that the court affirm.

[00:19:18] Speaker 03:
Thank you, Counsel.

[00:19:21] Speaker 03:
Let's have a minute for rebuttal.

[00:19:23] Speaker 00:
Thank you, Your Honor. Just a couple quick things. In terms of getting someone into the country illegally, there is a separate enhancement for that at B4, which was applied to Mr. Cisneros already. So it seems unlikely that that's what sensitive means, since that's a two-level enhancement for getting someone into the country.

[00:19:42] Speaker 04:
Well, I mean, that's a big deal to parole somebody in, sort of jump into the head of the line.

[00:19:50] Speaker 00:
I agree, but again, they give a specific two-level enhancement for this at B4.

[00:19:55] Speaker 02:
And so to say that's also... And that applies to the lowest level border guard, right?

[00:20:00] Speaker 00:
Exactly. We don't get into high level with the number four in it.

[00:20:03] Speaker 02:
As opposed to an investigator. Sorry? As opposed to an investigator who has direct access to the director of the port of entry, right?

[00:20:10] Speaker 00:
He has no direct access to the director of the port of entry. He had to ask his boss to ask... someone else who made a recommendation to the Director of the Port of Entry who denied it. I mean, he's a supplicant in this position, and it totally failed, which is an indication of how little... Not quite a supplicant.

[00:20:30] Speaker 04:
That's a great idea. I guess it's a noun.

[00:20:34] Speaker 00:
Sorry, I know I'm out of time. One last point on that. In terms of coming in to commit other crimes, I just refer the Court to the cross-references. which, again, if you're worried that somebody lower level is getting away with big crimes this way, there's a cross-reference section that says that if the purpose of the bribe is to commit some bigger crime, then you get bumped over into the more serious guidelines for those bigger crimes. You steal nuclear secrets, you don't get this. You get a treason.

[00:21:01] Speaker 04:
You don't disagree, though, that when in 2004 they did remove the term supervisory and the scope of the application.

[00:21:13] Speaker 00:
In the commentary.

[00:21:13] Speaker 04:
Yes.

[00:21:14] Speaker 00:
Yes, I agree with that. And to me, that, you know, shows the ad hoc nature of what the – I'm out of time. I'm happy to talk about what's wrong with the commentary.

[00:21:24] Speaker 03:
As long as we're asking questions.

[00:21:26] Speaker 00:
Okay. I'm very happy to talk about what's wrong with the commentary. I mean, the commentary is just very ad hoc. You take the same language, sensitive position – And one time you interpret it as all law enforcement, another you interpret it as supervisory law enforcement. The commission, it's not reasoned, and it has to be reasonable.

[00:21:42] Speaker 02:
If you were on the commission council, how would you write a sensible instruction along these lines?

[00:21:48] Speaker 00:
Of this?

[00:21:49] Speaker 02:
Yes.

[00:21:50] Speaker 00:
Well, I would start by including the notion of high level, which falls entirely out of the commentary. The commentary doesn't say anything about high level. It just talks about direct authority.

[00:21:59] Speaker 02:
And you think that's clear, high level?

[00:22:02] Speaker 00:
I mean, high level... So you could find an ambiguity in high level. You might find some undersecretary of whatever, and is he a mid-level or is he a high level? But you can look at someone like Cisneros who has a million levels of supervision above him, and you can say quite clearly this is not a high-level guy. He's got all these people above him telling him what to do.

[00:22:24] Speaker 04:
But isn't the answer to Judge Hamilton's question that you could solve the problem by just inserting an article in front of sensitive positions?

[00:22:31] Speaker 00:
You could if you meant what the government wants it to mean, that sensitive position is not a high level, then you can insert an article.

[00:22:39] Speaker 04:
I don't understand what the commission could have been considering if they gave examples in the commentary that includes a juror, for example.

[00:22:47] Speaker 00:
But I don't think it – so even if it's ambiguous, as you know, their interpretation still has to be reasonable. I don't know how you reasonably get from the language of this to saying a juror a law enforcement officer, these people doing important things, but everyday things, not high-level things, not on the level of classified policymaking, the kinds of things you think of.

[00:23:10] Speaker 04:
Well, if you're sitting on a criminal case to which your life, liberty, or in the pursuit of happiness depends, you know, that's a pretty sensitive decision to be made, and you are the decision-maker.

[00:23:22] Speaker 00:
It's an important decision, but whether it's sensitive within the meaning of this, whether it's sensitive like does a juror for the days of service become the equivalent of an elected public official or a high-level decision maker.

[00:23:35] Speaker 04:
We don't want offerors bribing juries.

[00:23:38] Speaker 00:
We don't. And any juror is already getting – I mean, this isn't – again, this is an enhancement. This isn't the statute of conviction. Yeah, yeah.

[00:23:45] Speaker 04:
It's an enhancement to receiving the bribe.

[00:23:47] Speaker 00:
Yeah, so he's getting – you know, he's – for taking the bribe, he's already at 14. The amount of money pushes him up further. You know, the For Mr. Cisneros, you think of it this way, he's a – Well, it pushes it up to an 18 if it's below, right? If it's below, right. And so you're getting – well, sorry, that's if you're doing the enhancement. But even without the enhancement, it was my argument, is you're still getting a serious sentence out of this. And so the enhancement is just is there another level of person who, by virtue of their position, because they're a senator, because they're a high-level aide to the Secretary of State, deserves an even higher sentence.

[00:24:25] Speaker 00:
And I'm way over.

[00:24:26] Speaker 03:
Thank you for the indulgence. Thank you to both counsel for your helpful arguments. The case just argued is submitted for decision by the court.