[00:00:03] Speaker 00:
I would ask for three minutes for rebuttal.

[00:00:05] Speaker 03:
Okay, just try and watch the clock.

[00:00:08] Speaker 00:
Thank you.

[00:00:10] Speaker 00:
May it please the court, Doug Beavers for Mr. Mendonca. This case is not about interpreting the child pornography guidelines. It is about whether an unelected agency... can use so-called commentary to change the entire structure of a regulation that was approved by Congress. That regulation is 1B1.3, which unambiguously tells district judges how to evaluate specific offense characteristics all through the guidelines. Under that regulation, it says, unless otherwise specified, base offense level, specific offense characteristics, and cross-references shall be determined on the basis of all acts...

[00:00:52] Speaker 00:
committed that occurred during the commission of the offense or relevant conduct.

[00:01:01] Speaker 00:
After Kaiser, we look only at, in interpreting that, we look only at the text, or first of the text, of 2G 2.2, and it uses the word specific offense characteristics, and it does not specify. The government doesn't even argue that it's specified. It's clearly silent as to whether it's limited to relevant conduct or not.

[00:01:23] Speaker 03:
Well, but if we look at B5 in particular, it says if the defendant engaged in a pattern of activity involving sexual abuse or exploitation, it doesn't say in the course of this particular offense. It just says engaged in without any limitation as to when he might have done that. So just on the face of that isn't – at a minimum, a possible reading of that is that if he ever engaged in such a pattern of activity –

[00:01:52] Speaker 00:
isn't it?

[00:01:54] Speaker 00:
Well, that would, if you look, it's clearly silent as to whether or not it applies to relevant conduct. And 1B1.3 tells you what to do when it's silent. It's a clear and unambiguous instruction. And it's all through the guideline book. The government points out that once in a while, or sometimes in the guidelines, the specific offense characteristic does say the offense conduct, but it's all through the section.

[00:02:25] Speaker 00:
If you look at the section itself, if you look at the guideline, right above it, it describes what it describes. It uses offense characteristics in some sections. If you look at specific offense characteristic three, it says that if the offense involved distribution for pecuniary gain there they've used the word offense. But in B, if the defendant distributed in exchange for any valuable consideration, they don't use the word offense.

[00:02:59] Speaker 01:
But counsel, following up on Judge Miller's question, if you look at the concept of a pattern of activity, doesn't that itself, that phrase, imply a sequence of events over time?

[00:03:15] Speaker 00:
It could imply, it implies some sequence, but that phrase relevant conduct, the definition in 1B1.3 covers a huge amount of time. It covers all acts that are related to that. If someone possesses child pornography under 1B1.3, it's all child pornography, not just the offense of conviction. It's all that's related.

[00:03:44] Speaker 00:
And if you look at the search warrant cases, persons possessing child pornography They possess it for years and years and years. It doesn't get stale. That could be 15 years of activity.

[00:03:58] Speaker 01:
Well, but counsel, unless I'm missing your point, at least with respect to pattern of activity involving sexual abuse or exploitation of a minor, If we're just looking at possession of child pornography, that would not qualify as a pattern because it has to be a pattern involving sexual abuse or exploitation, which is actual abuse, actual exploitation, not simple possession, correct?

[00:04:28] Speaker 00:
Right, but anything related to, in terms of the time period of the child pornography, the pattern...

[00:04:37] Speaker 00:
It clearly, my later argument is clear that the pattern can be satisfied in two days, even maybe twice on the same day. But it has to be some pattern, there has to be some separation, but that is implied by that. And so there is some separation.

[00:04:58] Speaker 00:
description as to how long that could apply, the word itself. But then if you look at the other words in the guideline, they also distributed could theoretically be one moment, one distribution. But in the regular, an ordinary drug case, distribution, it's many, many distributions.

[00:05:17] Speaker 00:
It's not different than pattern. Distribution is a person distributes drugs once and then goes across the street and distributes it again. It's a few minutes later. That's the same thing.

[00:05:27] Speaker 01:
Counsel, if I may just, Turning to the pattern of activity here, doesn't your interpretation render this important add-on a practical nullity? Because what you'd have to have is both possession of child pornography or distribution of child pornography, and essentially simultaneously, perhaps there's a space in between, but basically simultaneously, actual sexual abuse.

[00:05:59] Speaker 00:
Not absolutely simultaneously. It's the guideline for 1B1.3 includes relevant conduct, any conduct which is related or resulted from or happened during the offense of conviction. During the commission of the offense of conviction for possession of child pornography in the normal case, it's over several years. That's, um, it, it is, um, in the normal case, it applies to a long period of time.

[00:06:34] Speaker 00:
And the, the, it is quite reasonable that the enhancement would only apply to, uh, people who are caught with child pornography and then, uh, did something connected to that during that period of time. But it, it's quite likely to be over a period of time. And it, if you look at the, uh, sense of Congress that the government cites, Congress was talking about the belief that possession of child pornography leads to other crimes, and there are many cases where that often happens, and that there are some relationship between some type of sexual conduct and the possession of child pornography.

[00:07:19] Speaker 03:
I wanted to reserve some time.

[00:07:21] Speaker 00:
Thank you.

[00:07:27] Speaker 03:
Mr. Yang.

[00:07:30] Speaker 04:
May it please the court, Roger Yang for the United States. This court should conclude that the plain language of 2G, 2.2B5, the pattern of activity enhancement, does not require that the pattern of activity be related to the offense of conviction, nor does it limit the age of the conduct that can support application of the enhancement.

[00:07:51] Speaker 04:
Therefore, this court should affirm its application to Mr. Mendonca and his sentence.

[00:08:00] Speaker 04:
2G 2.2 does not contain any language saying that it has to be during the offense of conviction.

[00:08:11] Speaker 02:
That's true, but how do you deal with the argument about 1B 1.3?

[00:08:17] Speaker 04:
Certainly, Your Honor. So 1B 1.1 actually. Okay.

[00:08:30] Speaker 04:
states that there are four categories in the sentencing guidelines. There's the base offense level, there's specific offense characteristics, there's cross-references, and then there are special instructions. Congress mandated that this enhancement be added to 2G 2.2, not anywhere else in the offense. So the Sentencing Commission, given that they only have these four categories, sensibly placed it in specific offense characteristics without the complication of saying that all specific offense characteristics must absolutely be related to the offense of conviction.

[00:09:12] Speaker 04:
Then in 1B.1.3, the Sentencing Commission provided the kind of wiggle room, the idea that if a specific offense character specifies that it is going to be outside of relevant conduct in the B1.3 sense, that it will apply.

[00:09:35] Speaker 04:
using at the beginning of 1B, 1.3, unless specified. And this 2G 2.2 B5 specifies specifically that the defendant's past conduct will be considered when assessing a defendant and his sentence.

[00:09:57] Speaker 04:
And it provides the five-point enhancement mandated by Congress.

[00:10:02] Speaker 03:
When you say it provides specifically that you look at past conduct, Are you referring to B-5 itself or something else?

[00:10:10] Speaker 04:
Yes, Your Honor.

[00:10:12] Speaker 04:
If the defendant engaged in a pattern of activity, that is what Congress guided the Sentencing Commission to add to the sentencing guideline.

[00:10:24] Speaker 03:
And what do we do? I mean, so I...

[00:10:27] Speaker 03:
If all we had is that phrase, I think it probably does support your reading, but what about the fact that B5 is one of a list of, I guess, seven things, some of which say that they're about the offense, some of which don't say it, but seem like they really only make sense if they're talking about the offense. So, I mean, the I think the argument on the other side is that the inference should be that this too is just about the offense. So what's your answer to that?

[00:10:59] Speaker 04:
This was the argument advanced by the government throughout its litigation regarding this guideline. And that is that The beginning of the guideline itself says, if the defendant. Every other portion of 2G2.2 says, if the offense involved. So if the underlying offense involved or if something happened during the course of the offense. This 2G2.2 focuses on the defendant, the defendant as a person.

[00:11:35] Speaker 04:
Every other sentencing guideline that enhances sentences based on the defendant's prior convictions, prior conduct, all concentrate on the defendant as a person, which furthers the sentencing purpose of 3553A of concentrating on the specific defendant before you.

[00:12:00] Speaker 04:
Even in the cases that accepted this placement theory that is in Chapman and Seurat and Debus, noted that the government's reading of the guideline, if read in isolation, could have this specific interpretation. So, in other words, the plain language of the statute could support the government's interpretation. And then the 1996 amendment made that crystal clear.

[00:12:33] Speaker 01:
Mr. Yang, to what extent does the government's position rise or fall on the panel determining whether the provision is ambiguous?

[00:12:44] Speaker 04:
The government believes that even if this court were to find the guideline genuinely ambiguous, the 1996 amendment, as well as the case law interpreting and harmonizing the guideline with 1B.1.3 since then, all point that this is a reasonable interpretation and then Also, the Sensing Commission should be given deference with regard to that interpretation.

[00:13:14] Speaker 01:
Let me perhaps restate it. So it's pretty clear if we were to determine that the provision is ambiguous that the government wins here because under Kaiser we would defer to the commentary, correct? Yes. My question really is driving at what if we – to what extent is the government claiming that its position – is grounded in an unambiguous interpretation of the provision in the government's favor.

[00:13:46] Speaker 04:
Because the plain language of the statute does not tie the defendant's past conduct to the offense of conviction. And then logically, under the structure of the guidelines, the government has available to it if there was sexual abuse or exploitation of minors to charge those offenses.

[00:14:12] Speaker 04:
2G 2.1 was promulgated in 1987. 3.1 and 3.2 were promulgated in 1987 as well. And so the government had available to it all sorts of ways to hold people responsible for sexual abuse and exploitation as a portion of the offense.

[00:14:37] Speaker 04:
But Congress's intent in placing this in the child pornography trafficking and possession guideline was intended to punish those with hands-on and exploitation conduct in their past who then got caught with only child pornography.

[00:14:56] Speaker 03:
And just to be clear, this guideline does not apply to production offenses? There's a separate guideline for that? 2G 2.1, yes.

[00:15:05] Speaker 04:
And this guideline also works in harmony with 4B1.5, which was promulgated later, because 4B1.5 requires a hands-on or exploitation offense to apply, and it specifically excludes trafficking and possession of child pornography offenses.

[00:15:28] Speaker 01:
Mr. Yang, can I just... return to the phrase unless otherwise specified in 1B1.3.

[00:15:38] Speaker 01:
Is there anything that would guide the panel on whether that phrase requires express or can also include an implicit expression by the Commission?

[00:15:54] Speaker 04:
The cases interpreting these texts and structure of the guidelines with 1B.1.3 have tried to harmonize this by saying if the guidelines language concentrates on a factor such as the defendant or the characteristics of the defendant or the defendant's past conduct, that those are to be harmonized together and read together to specify essentially under the unless specified clause that the sentencing judge should concentrate on these characteristics and these past conduct rather than conduct related to the offense.

[00:16:40] Speaker 04:
And so part of the statutory construction is to try to harmonize everything and all the cases that have since Chapman and the 1996 amendment, have all stated that in order to harmonize this, you have to basically read it.

[00:17:00] Speaker 02:
The argument on the other side on harmonizing the provisions is, 1B.1.3 says unless otherwise specified, and in Chapter 2 it doesn't specify. It has no temporal specification.

[00:17:16] Speaker 02:
Right. And so the argument on the other side would be the way to harmonize it is to say that under 1B.1.3 it has to occur during the commission of the offense. So what's your response?

[00:17:28] Speaker 04:
I see that my time is about to expire. Let me answer the question. Thank you.

[00:17:34] Speaker 04:
The government's response is that it does specify. The guideline itself states the defendant had engaged in this prior conduct. That is specific enough to focus the district court on the defendant's characteristic, which is the past conduct, rather than something in the course of conduct during the offense, which applies to all the other portions of 2G 2.5 or 2.2.

[00:18:05] Speaker 04:
Thank you.

[00:18:08] Speaker 03:
Thank you, Mr. Yang.

[00:18:10] Speaker 03:
Mr. Beaver's rebuttal.

[00:18:12] Speaker 00:
Yes. I think the clearest way to figure out what otherwise specified means is to look at the rest of the guideline book, particularly 2K2.1, the gun guidelines, where Part C specifically limits the characteristic to guns cited in the offense of conviction as to the cross-referenced whereas 1B.1.3 would allow it to any relevant conduct, whether it was cited or not.

[00:18:44] Speaker 00:
That gun guideline also says that if you possessed a firearm, the offensive conviction, the type of gun, is limited to any relevant conduct, whereas the prior conviction is expressly outside of relevant conduct and previous to it.

[00:19:07] Speaker 00:
I think the only, I think with your question as to whether the word pattern could implies in some way is a specifically is a otherwise specified it's, it's not clear enough. And I think if you look at the second argument where the government is arguing that the pattern applies to, to, uh, sex crimes committed within maybe an hour or two apart, that's the type.

[00:19:40] Speaker 00:
If he had child pornography back at that time, this would have clearly applied. It's, um, And that's one way that it could be. If they don't like it, they can move it to Section 4B1.5, which applies to the child pornography production.

[00:19:58] Speaker 00:
The congressionally approved guideline that applies to prior offense conduct, 4B1.5, they chose not to put it in there. So it's fairly easy to fix, as they did with the intent...

[00:20:15] Speaker 00:
the intended loss guideline that was addressed in IAFA, where Congress just moved it. It's not that difficult to move. But I think the big issue is agency deference and whether just using the word pattern or just using the word, whether that implies that the agency then can decide how long it that it can incorporate 30 years past. That's a big decision. Part two shows how big and difficult it is for judges to resolve cases that are outside of relevant conduct 30 years before.

[00:20:53] Speaker 00:
That's difficult. And it should be an issue that should be decided by Congress as to whether or not they tell judges that they have to do that kind of thing in basically every case. Thank you.

[00:21:09] Speaker 03:
Thank you very much. We thank both counsel for their helpful arguments, and the case is submitted.