[00:00:06] Speaker 04:
Good morning.

[00:00:07] Speaker 04:
Welcome to the Ninth Circuit.

[00:00:09] Speaker 04:
Thank you all for coming.

[00:00:10] Speaker 04:
We have a couple cases submitted on the briefs today.

[00:00:13] Speaker 04:
Jimenez Martinez versus Bondi, 24-3313 is submitted.

[00:00:19] Speaker 04:
Sanchez Pimentel versus Bondi, 24-6825 is submitted.

[00:00:24] Speaker 04:
And we'll hear the other cases in the order in which they appear on the calendar.

[00:00:27] Speaker 04:
The first is United States versus Butler, 24-4332.

[00:00:31] Speaker 04:
Each side will have 10 minutes.

[00:00:35] Speaker 01:
Thank you, Your Honor.

[00:00:37] Speaker 01:
Good morning, may it please the court.

[00:00:39] Speaker 01:
I'm Daniel Kaplan.

[00:00:41] Speaker 01:
I'm appearing for the appellant, Andrew Lee Butler.

[00:00:44] Speaker 01:
I will watch the clock, try to save about two minutes from my rebuttal.

[00:00:49] Speaker 01:
The lead issue in this appeal deals with guideline 2G1.3B3, the computer use enhancement, which applies when a computer is used to entice, etc., the minor to engage in prohibited sexual activity.

[00:01:06] Speaker 01:
In the guidelines addendum that set out the reason for amendment, the commission explained that the commentary to this guideline which purported to define the term minor to include an adult undercover agent who pretends to be a minor, the purpose of that commentary addition was to expand, their word expand, the definition of minor to cover undercover agents

[00:01:34] Speaker 01:
in light of the increasing use of undercover sting investigations of the type that was employed in this case.

[00:01:41] Speaker 01:
In other words, the commission itself, the horse's mouth, so to speak, said this was a use of a commentary, not the guideline, but the commentary to the guideline to expand the definition of a guideline for a policy reason.

[00:01:56] Speaker 01:
Not to clarify, not to explain, but to enact a policy related to sting investigations.

[00:02:02] Speaker 04:
So we don't look at the commentary at all if we think the guideline itself is clear, right?

[00:02:07] Speaker 01:
Exactly.

[00:02:07] Speaker 04:
And why wouldn't the minor have to refer to the minor that's in the underlying crime, which here is an undercover agent?

[00:02:15] Speaker 01:
Well, because the plain meaning of the minor excludes an adult.

[00:02:20] Speaker 01:
And in this case, there was no minor.

[00:02:23] Speaker 01:
The minor didn't exist.

[00:02:25] Speaker 02:
Your client was convicted of attempt.

[00:02:28] Speaker 02:
And why doesn't that change things here?

[00:02:31] Speaker 02:
Your client was clearly attempting to entice a minor.

[00:02:35] Speaker 01:
Yes, your honor, but the guy.

[00:02:37] Speaker 02:
It's a mistake of fact on the part on the part of your client that the agent was not a minor, but he certainly was going to make every effort every effort to entice this minor.

[00:02:48] Speaker 01:
That's consistent with the jury's verdict, certainly.

[00:02:51] Speaker 01:
But we're not talking about the application of the statute here.

[00:02:54] Speaker 01:
We are not challenging the application of the statute.

[00:02:57] Speaker 01:
We are challenging the application of this guidelines enhancement.

[00:03:01] Speaker 02:
Yeah, but why do we even need the guideline if your client was convicted of attempting to entice a minor?

[00:03:07] Speaker 01:
Because this guideline was used to enhance the applicable range under the sentencing guidelines and led to an increase in his sentence.

[00:03:14] Speaker 02:
Right, but why would we even have to look at the commentary?

[00:03:18] Speaker 01:
Well, because the guideline, using the term the minor, is imposing a requirement not on guilt of the crime, again, to stress that, not on guilt of the crime, but on the application of this enhancement.

[00:03:31] Speaker 01:
You don't even get to the application of this guideline until you have guilt of the underlying crime.

[00:03:36] Speaker 01:
So when we haven't challenged that, we understand there's case law that states that this type of sting investigation qualifies guilt under the statute.

[00:03:44] Speaker 01:
But in cases like Simon, the Anbank Supreme Court opinion in Simon, which is cited in the briefs, the argument was made that, well, if this underlying statute applies, then the guideline must apply too.

[00:03:55] Speaker 01:
And the Anbank court said, no, that's not how our interpretation of guidelines work.

[00:04:01] Speaker 01:
We interpret the guideline on its own merits, on its own language.

[00:04:05] Speaker 01:
So again, having been convicted of this and getting to the stage of sentencing and deciding the fine points of how the guideline ranges to be set,

[00:04:13] Speaker 01:
the court looks to the language of that guideline.

[00:04:17] Speaker 01:
And there are a number of cases in this court which state that when the commission does what the commission again expressly stated it was doing here, which was expanding the scope of a guideline for policy reasons, it is acting unlawfully.

[00:04:33] Speaker 01:
And one prominent case of course is Castillo,

[00:04:37] Speaker 01:
in which the commission added a commentary which expanded a guideline to apply to in co-eight versions of a certain offense.

[00:04:46] Speaker 01:
And in Castillo, the court said, you can't expand the scope of a definition of a guideline in the commentary.

[00:04:54] Speaker 01:
And there are very important constitutional reasons for that.

[00:04:57] Speaker 01:
The balance of powers among the branches of government requires that certain constraints upon the commission's powers must be observed.

[00:05:07] Speaker 01:
Guidelines themselves are statutorily required to be submitted to Congress for six months for Congress to accept or reject and that they go through the notice and comment rulemaking procedure.

[00:05:19] Speaker 04:
I'm a little confused how you're using Castillo because Castillo thought that as I read it that the guideline was clear.

[00:05:26] Speaker 04:
It wasn't really that there was a problem with the commentary as I understood it, but just so much that the commentary was irrelevant because they thought the guideline was unambiguously different.

[00:05:36] Speaker 01:
And the same is true here.

[00:05:38] Speaker 01:
In this case, the guideline refers to the use of a computer to entice the minor.

[00:05:42] Speaker 01:
The minor, the term minor, has a clear meaning.

[00:05:47] Speaker 04:
Okay, so that's a different argument.

[00:05:48] Speaker 04:
I mean, we may or may not agree with you, but you could come in and just say, you came in and started talking about the commentary.

[00:05:54] Speaker 04:
If the guideline is clear that you win, we are still not talking about the commentary, right?

[00:06:01] Speaker 01:
I talked about the commentary because the commentary shows the commission acknowledging a fact about the guideline itself.

[00:06:07] Speaker 01:
Another thing this court said in Castillo is when the commission uses a commentary to purport to expand the guideline, the commission is thereby telegraphing its understanding that the guideline on its own language doesn't cover that.

[00:06:22] Speaker 01:
So in other words, in Castillo.

[00:06:23] Speaker 04:
Well, here is it that, I don't know if it's really analogous though, here it seems like

[00:06:29] Speaker 04:
what I thought the commentary was doing was expanding on the commentary.

[00:06:32] Speaker 04:
Like it wasn't exactly, we had one interpretation of the guideline.

[00:06:35] Speaker 04:
Then they say, we think our interpretation is too narrow.

[00:06:37] Speaker 04:
We're going to give you a broader interpretation, but they never, I mean, it's sort of a truth of the matter or what, what kind of, what is the law kind of question about whether the guideline meant that all along.

[00:06:48] Speaker 04:
But it's more the commentary just correcting itself, right?

[00:06:52] Speaker 01:
Well, I wouldn't interpret it that way.

[00:06:54] Speaker 01:
I think what the commentary purports to do is to expand the scope of the term, the minor, beyond its plain language.

[00:07:00] Speaker 01:
And of course, the plain language is the default interpretation of the guideline itself.

[00:07:06] Speaker 01:
And the Supreme Court in Kaiser, which this court applied to guidelines in Castillo, said if the language of, in this case, a guideline, is clear on its plain language, that's the law and that's the end of the story, period.

[00:07:20] Speaker 01:
The commentary can't come in and broaden that.

[00:07:22] Speaker 01:
can't lawfully do that.

[00:07:24] Speaker 04:
And here the commentary, sorry, if the guideline is not clear, why wouldn't we just look at the current commentary to help us interpret it?

[00:07:33] Speaker 01:
If the guideline was ambiguous under the analysis of Kaiser, Castillo, et cetera, then it could be valid to try to clarify that with a commentary.

[00:07:44] Speaker 01:
And if that were what happened here, then my side of this argument would be in some trouble, but that's not what happened here.

[00:07:50] Speaker 01:
The commission itself said they weren't clarifying the meaning of minor, they were expanding it.

[00:07:56] Speaker 02:
Why doesn't this argument also apply to the statute?

[00:07:58] Speaker 02:
Why aren't you here arguing that your client can't be convicted of enticing a minor?

[00:08:05] Speaker 01:
Well, this court has put that

[00:08:07] Speaker 01:
issue aside, and guidelines are subject to a many separate different legal principles.

[00:08:13] Speaker 02:
Yeah, but I don't really understand.

[00:08:14] Speaker 02:
If your client is convicted, then what does he get sent?

[00:08:17] Speaker 02:
What's the end game?

[00:08:18] Speaker 02:
If you prevail, we knock out the guideline?

[00:08:22] Speaker 01:
The sentence would be vacated, and it would be presumably remanded for re-sentencing without the application of that enhancement.

[00:08:30] Speaker 01:
I would like to save my time for a bottle.

[00:08:33] Speaker 01:
Thank you.

[00:08:41] Speaker 03:
May it please the court.

[00:08:42] Speaker 03:
Good morning, your honors.

[00:08:42] Speaker 03:
My name is William Voight.

[00:08:43] Speaker 03:
I'm an AUSA from here in Phoenix on behalf of the United States.

[00:08:47] Speaker 03:
The district court did not err in applying the computer use enhancements to Butler's conviction for attempting to entice Sadie, a fictional minor, into a legal sexual activity.

[00:08:58] Speaker 03:
Butler's burden to reverse the district court is to show not that there's a reasonable argument here, but the opposite, that the language is so unambiguous you can't even look at commentary that for over 20 years

[00:09:09] Speaker 03:
has made clear that it does apply in this context.

[00:09:12] Speaker 03:
We don't think he shoulders that burden.

[00:09:14] Speaker 03:
We think you can affirm just on the plain language.

[00:09:16] Speaker 04:
But I think today, I mean, I think he's making two arguments.

[00:09:19] Speaker 04:
One argument is it's so clear that it just doesn't mean an undercover agent who's an adult.

[00:09:23] Speaker 04:
But his other argument is

[00:09:25] Speaker 04:
It's not clear, so we have to look at the commentary and part of looking at the commentary is looking at the history of the commentary and seeing this expansion.

[00:09:32] Speaker 04:
So do you have a case that tells us we shouldn't do that?

[00:09:36] Speaker 03:
Well, I think the first step is definitely look at the language of the guideline.

[00:09:40] Speaker 03:
Is it unambiguous?

[00:09:41] Speaker 03:
If it's unambiguous,

[00:09:43] Speaker 03:
in the government's favor, then you affirm.

[00:09:45] Speaker 03:
If it's unambiguous in the defendant's favor, then you reverse.

[00:09:48] Speaker 03:
If you see reasonable arguments on both sides such that's ambiguous, then you look at the commentary.

[00:09:53] Speaker 03:
And the commentary clearly says a minor includes a fictional minor that is being portrayed by law enforcement.

[00:09:59] Speaker 04:
So if you get to the commentary, the government... But there is also this history of the commentary that...

[00:10:04] Speaker 04:
used to be narrower talks about expanding for policy reasons and then or for whatever you may have different argument about what the reason was but was narrower and then expanded so do you have a case that tells us we don't look at the history of the commentary.

[00:10:17] Speaker 03:
I think you can look at the history.

[00:10:19] Speaker 03:
I think Justice Kagan and Kaiser said that when you're looking at the guideline, you look at text, context, history, purpose.

[00:10:26] Speaker 03:
It's a fulsome analysis for purposes of step one.

[00:10:30] Speaker 03:
Just to address my colleague's note about that expands, that expands does not say it's expanding the guideline.

[00:10:36] Speaker 03:
It says it's expanding the definition in the commentary.

[00:10:39] Speaker 03:
And that just begs the question, is it expanding the definition to change the guideline, or is it expanding the definition to clarify it?

[00:10:46] Speaker 03:
I think if the commission were looking at a landscape where courts hadn't been applying the guideline in this context, it would be a stronger argument that it's relevant.

[00:10:56] Speaker 03:
But the Morrell case applies it in the context of attempt before that.

[00:11:00] Speaker 03:
The commission said that it was doing this because practitioners were confused.

[00:11:04] Speaker 03:
And that's the reason why you would clarify something.

[00:11:10] Speaker 02:
Is there any evidence that, or can you cite a case that precedes the commentary that indicated that there was confusion or that sentencing guidelines were not being applied to fictitious minors, to attempts to entice fictitious minors?

[00:11:26] Speaker 03:
The only case I found, which is not directly on point, but is the Morrell case from the 11th Circuit, which was in a case about whether or not it applied in the context of attempt.

[00:11:35] Speaker 03:
And my colleague's response to that is it was really more about whether that was direct contact or indirect contact.

[00:11:40] Speaker 03:
But I think it applied in the context of an attempt case, which is what we're talking about here.

[00:11:45] Speaker 03:
And that's what I would say.

[00:11:46] Speaker 03:
The only case that I'm aware of pre that commentary is one that's consistent with the government's position in the commentary that was later adopted.

[00:11:54] Speaker 02:
Because I don't see any reference in the commentary to cases or, you know, that would indicate there was confusion or conflicts between district courts or circuit courts over whether it applied to an attempt to entice a fictitious minor.

[00:12:07] Speaker 03:
That's right.

[00:12:08] Speaker 03:
I think there was reference at one point in the history of the guidelines, not legislative history, but to that there were some calls to the commission's line expressing questions about it.

[00:12:18] Speaker 03:
And this was, of course, part of a broader process of enacting the Sexual Predators Act, which directed the commission to create the computer use enhancement, which is what it had did.

[00:12:29] Speaker 03:
And as it said in some of the

[00:12:31] Speaker 03:
material, legislative materials that we cited from the commission, it was this multi-year process of refining and looking at it.

[00:12:38] Speaker 03:
So I think that's what was really going on here.

[00:12:41] Speaker 03:
I would note that the Sexual Predators Act is relevant because if the guideline doesn't reach this conduct, it's not consistent with what Congress told the commission to do.

[00:12:50] Speaker 03:
The Sexual Predators Act, Section 503, directed the commission to create an enhancement for the defendant, used a computer

[00:12:56] Speaker 03:
with the intent to persuade, induce, entice, et cetera.

[00:13:00] Speaker 03:
It's focusing on the defendant's intent, which is why it applies in the context of attempt cases.

[00:13:07] Speaker 04:
I do want to... Can I go back to your answer about how it was the commentary just expanding on the commentary?

[00:13:14] Speaker 04:
Don't we think of the commentary as telling us what the guideline means?

[00:13:17] Speaker 04:
So it's like at one point we had a meaning of the guideline and then we get another one.

[00:13:21] Speaker 04:
And is that the truth of what the guideline means?

[00:13:23] Speaker 04:
I mean, what is the commentary supposed to be telling us?

[00:13:27] Speaker 03:
I think the goal of the commentary is to clarify what the guideline means.

[00:13:30] Speaker 03:
And I think that

[00:13:31] Speaker 03:
But things in the commentary are expanded or contracted to be sure that people are sometimes to resolve circuit splits, sometimes just to try to head off circuit splits.

[00:13:41] Speaker 03:
So I think that's why the commentary said it expanded the definition in the commentary.

[00:13:46] Speaker 03:
But I do not read from that, and I don't think it's reasonable to conclude from that, that it was changing the guideline itself.

[00:13:52] Speaker 03:
If they wanted to change the guideline itself, they would have changed the guideline.

[00:13:55] Speaker 03:
They didn't.

[00:13:56] Speaker 03:
They left it as it was.

[00:13:58] Speaker 04:
But I do want to... But they're changing how we're supposed to interpret the guideline.

[00:14:02] Speaker 03:
Well, I would say that they were clarifying the way that the guideline that's the way I read that is that they are clarifying what the guideline says in order to avoid unnecessary litigation, which is their statutory directive from Congress.

[00:14:14] Speaker 03:
I want to take my colleagues.

[00:14:16] Speaker 03:
Sort of frontline argument head on, however, which is that if you look at the word minor in isolation.

[00:14:21] Speaker 03:
That means only a real live person who's under the age of 18 which The government would respectfully disagree with there's nothing about a fictitious minor and we cited many cases in many contexts.

[00:14:35] Speaker 03:
in which the guidelines refer to a minor and it includes a fictional minor like Sadie.

[00:14:41] Speaker 03:
I don't think if the defendant was not thought of as communicating or attempting to entice a minor, not only would the guideline not apply, but the statute wouldn't apply.

[00:14:51] Speaker 03:
If he was attempting to entice an adult, he wouldn't have committed a crime.

[00:14:55] Speaker 03:
I do think, as Judge Bybee talked about, you should look at your case in Meek, which is the

[00:15:00] Speaker 03:
case in which this court rejected a virtually identical argument about the statute.

[00:15:04] Speaker 03:
I agree with my colleague that that doesn't control the guideline, but it substantially informs it.

[00:15:09] Speaker 00:
I understand the defendant was arrested at the airport.

[00:15:14] Speaker 03:
Yes, your honor.

[00:15:15] Speaker 00:
But change the facts a bit.

[00:15:17] Speaker 00:
And he actually goes to a prearranged motel room and the door opens and it's adult male.

[00:15:24] Speaker 00:
And he says, wait a minute, I thought I was dealing with a 13 year old girl.

[00:15:29] Speaker 00:
Would the enhancement apply?

[00:15:30] Speaker 03:
I think so.

[00:15:32] Speaker 03:
I think that the enhancement will apply based on his use of the computer.

[00:15:35] Speaker 03:
So presumably in the background, he would have used a computer to set this up.

[00:15:40] Speaker 03:
But if you have the fact that established the computer use and he is engaging in the enticement, which preceded going into that room with the intent to entice the minor, then yes, I think it would apply in those circumstances.

[00:15:53] Speaker 00:
What's the government's position on the supervised release conditions?

[00:15:58] Speaker 03:
We don't believe it's plain error.

[00:16:00] Speaker 03:
We do believe that the defendant has waived this or invited any error by relying on them in order to get a lower sentence and only challenging them later and refusing the district court's specific directive to make a specific argument, which I don't know what the district court is supposed to do.

[00:16:15] Speaker 03:
But if that waiver doesn't apply, then with the exception of condition 16, we don't believe there's plain error.

[00:16:23] Speaker 03:
There's no case that on any of the many arguments he makes that establishes that it's error, and that's the high standard he would have to meet for those.

[00:16:31] Speaker 00:
So the defendant couldn't go to a football game?

[00:16:35] Speaker 03:
If you're referring to condition 16, which is where children are likely to be, we concede that that is inconsistent with the court's decision in Guerrero.

[00:16:44] Speaker 00:
Couldn't have a cell phone.

[00:16:46] Speaker 03:
I don't know if he could have a cell phone.

[00:16:49] Speaker 03:
I think that the question of whether or not the cell phone has software installed on it that would prevent it from, say, accessing child sex abuse material.

[00:17:01] Speaker 03:
He could probably have a burner phone, which wouldn't be able to access that material.

[00:17:05] Speaker 03:
So it would depend on the nature of the cell phone.

[00:17:08] Speaker 03:
But I did just want to make, if I may return briefly to the first argument, I do want to make the point that in Meek, this court used the language that you see in the guideline to talk about a fictional minor.

[00:17:21] Speaker 03:
In that particular case, the defendant was communicating with an undercover law enforcement officer, they had arranged to meet up at a local school, and this court said,

[00:17:30] Speaker 03:
the defendant traveled to meet the minor at a local school was something that marked his conduct as criminal.

[00:17:35] Speaker 04:
Sorry, can I go back to the supervised release?

[00:17:37] Speaker 04:
Yes, you're on.

[00:17:39] Speaker 04:
My understanding, I'm not sure if I have the case off the top of my head, I think it's called Henderson, is that the Supreme Court has said you can have plain error for the first time in the first appeal.

[00:17:47] Speaker 04:
You don't actually need a case that already said it.

[00:17:49] Speaker 04:
So it seems like your argument was

[00:17:52] Speaker 04:
We don't have a case that tells us these are totally improper unconstitutional conditions in the in the computer use conditions.

[00:18:02] Speaker 04:
But what if the I mean I think your opponent is saying, but there's no case that ever said this is okay and this is unconstitutional so.

[00:18:08] Speaker 04:
Can you respond to that first and then I'd follow up?

[00:18:11] Speaker 03:
That's a fair refinement of an overbroad statement that I made.

[00:18:15] Speaker 03:
If it is so clear from underlying principles that something is illegal or a violation of the law, you can have plain error on those circumstances, but that's a very high burden to be able to surmount.

[00:18:26] Speaker 03:
And I think in this context, when you look, dig into each of the

[00:18:29] Speaker 03:
arguments he makes, there isn't a case that clearly says it's improper to have this.

[00:18:34] Speaker 03:
I mean, even for like full bans on internet access with the exception of pre-approval by the probation, I see my time has expired.

[00:18:45] Speaker 04:
I'd like to ask though, so it seems like the cases I could find that were otherwise complete bans were all but with the approval of a probation officer.

[00:18:53] Speaker 04:
So if we thought that that

[00:18:56] Speaker 04:
additional point was needed to say what the approval of a probation officer would be in the same situation as 16 where we should be sending that back to clarify.

[00:19:03] Speaker 03:
The condition 17 in this case.

[00:19:07] Speaker 04:
17, the one with the minors that you've conceded.

[00:19:10] Speaker 03:
Right.

[00:19:11] Speaker 03:
Well, condition 16 does need to be fixed for the likely to be rather than primarily used by.

[00:19:18] Speaker 03:
But condition 17, which is the pre-approval requirement says

[00:19:21] Speaker 03:
You must not access the Internet except for reasons approved and advanced by the probation officer.

[00:19:25] Speaker 03:
So the conditions here are all 14.

[00:19:28] Speaker 04:
It's very confusing whether that 14 is a bigger ban, I think.

[00:19:32] Speaker 03:
I think what 14 does is it it says you can't possess or use particular devices that could access child sex abuse material.

[00:19:39] Speaker 03:
But even 14 says if Internet access is approved by the probation officer,

[00:19:43] Speaker 03:
And then it goes on to explain.

[00:19:45] Speaker 04:
Well, if that's your reading, so is there any problem with us asking the district court to just clarify that if we think 14 could be read as being a broader ban that doesn't even allow approval with the probation officer?

[00:19:56] Speaker 03:
I think the government's view is that that still wouldn't reach the level of plain error.

[00:19:59] Speaker 03:
I think that to be plain error, it would have to be clear that there's something illegal there rather than a potential ambiguity.

[00:20:04] Speaker 04:
But I mean, if you're relying on an interpretation

[00:20:07] Speaker 04:
that allows probation officer approval as your way out of it being illegal, why wouldn't we just clarify that?

[00:20:13] Speaker 04:
Is there any problem with clarifying?

[00:20:16] Speaker 03:
I don't think that there's a problem with clarifying, but I don't think it's by an error and that's why the government's position is it should be affirmed.

[00:20:25] Speaker 04:
No further questions.

[00:20:26] Speaker 04:
We have you over your time.

[00:20:27] Speaker 03:
Thank you.

[00:20:33] Speaker 01:
The expansion took place at the level of the commentary, but as you pointed out, Judge Freeland, it went directly to the guideline itself.

[00:20:40] Speaker 01:
So the expansion was of the guideline, even though it took place at the level of commentary, it expanded the scope of the guideline.

[00:20:47] Speaker 01:
The Morrell case, the issue we're talking about was not raised and not decided in the Morrell case.

[00:20:53] Speaker 01:
It's not pertinent here.

[00:20:55] Speaker 01:
The reference to this language having been a response to a congressional directive is something that Mr. Boyd has stressed.

[00:21:02] Speaker 01:
I would point to this court's Karelia opinion, which is in the briefs.

[00:21:06] Speaker 01:
Footnote seven, the government argues we should ignore these concerns, similar concerns.

[00:21:10] Speaker 01:
Because the commission was only responding to a congressional directive, the court says we're not creating an exception to the requirements of Stinson based on there being a congressional directive.

[00:21:21] Speaker 01:
If the commission wants to make substantive policy amendments to a guideline, as it did here, it cannot do it in the commentary.

[00:21:28] Speaker 01:
It must do it in the guideline itself, regardless of whether it was responding to a congressional directive.

[00:21:33] Speaker 01:
So if Congress says do X, commission does X, they have to do it in the guideline, not in the commentary.

[00:21:40] Speaker 01:
As far as the concern about, is this a two part, is two arguments or one?

[00:21:45] Speaker 01:
I may have muddled it, but it's one argument.

[00:21:49] Speaker 01:
The argument is the plain language of the unambiguous language of the guideline says the minor, there is no minor, that guideline does not apply.

[00:21:58] Speaker 01:
And the fact that the commission tried to substantively change that in the commentary, as happened in Castillo,

[00:22:05] Speaker 01:
This court said that telling that shows the commission did not think the guideline itself covered statute also uses the word minor right.

[00:22:13] Speaker 01:
Let's take a look at the statute your honor.

[00:22:17] Speaker 01:
So 2422 it says per individual who has not attained the age of 18 years.

[00:22:23] Speaker 02:
and then there's a tenth language.

[00:22:25] Speaker 02:
That may be even plainer.

[00:22:27] Speaker 02:
This is a statute that has the definition.

[00:22:29] Speaker 02:
That would be a minor, but it actually says a person who hasn't attained the age of 18.

[00:22:36] Speaker 02:
We don't have anybody here who attained the age of 18.

[00:22:39] Speaker 02:
Why wouldn't we interpret the guideline to be consistent with the statute under which your client was convicted and to which you do not challenge the conviction?

[00:22:49] Speaker 01:
cases that I'm referring to, Castillo, Kareliuk, et cetera, they draw important distinctions between statutes and guidelines because guidelines are creatures of the Sentencing Commission, which is a unique body within the federal government.

[00:23:03] Speaker 01:
It's subject to constraints on its authorities and the way it can enact substantive policy changes has to take place through the guidelines themselves with congressional approval.

[00:23:12] Speaker 01:
These are not principles that apply to a statute, which comes directly from the mouth of Congress.

[00:23:17] Speaker 01:
And because this court has addressed the issue that you're positing and decided that, what we're discussing today is an open question about the effect of this guideline in a case of this nature with no actual minor.

[00:23:30] Speaker 04:
If we disagree with you about the enhancement issue, but we think some of the supervised release conditions need to be corrected, would the remand be only on the supervised release?

[00:23:44] Speaker 01:
I think the answer would be yes.

[00:23:48] Speaker 01:
The only hesitation I have is that it's potentially the changing the supervised release could end up having a spillover effect on the sentence underlying sentence.

[00:24:02] Speaker 01:
However, this is not to release term but release specific release conditions.

[00:24:08] Speaker 01:
So it probably that wouldn't be necessary.

[00:24:12] Speaker 04:
Thank you.

[00:24:13] Speaker 04:
Thank you both sides for the helpful arguments.

[00:24:14] Speaker 04:
This case is submitted.