[00:00:00] Speaker 01:
Thank you, counsel.

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

[00:00:01] Speaker 01:
I appreciate it.

[00:00:01] Speaker 01:
I thank counsel on both sides for your very helpful arguments in this case.

[00:00:05] Speaker 01:
And the case just argued will be submitted.

[00:00:21] Speaker 01:
And we'll proceed to hear argument in the next case on calendar for argument this morning, which is 24-3406, United States versus Dante Jamal McClellan.

[00:00:34] Speaker 01:
And we will hear first from Mr. Holland.

[00:00:40] Speaker 01:
You may proceed when you're ready.

[00:00:44] Speaker 01:
Thank you, Your Honors.

[00:00:45] Speaker 03:
Brooks Holland.

[00:00:49] Speaker 03:
Thank you, Your Honors.

[00:00:50] Speaker 03:
Brooks Holland appearing for Dante McClellan, who is present to join the argument in the courtroom with me.

[00:00:57] Speaker 03:
May I reserve two minutes of time for rebuttal, Your Honors?

[00:01:03] Speaker 03:
Thank you.

[00:01:04] Speaker 03:
Your Honors, this case arises out of a fraud trial that was related to the Paycheck Protection Program during the pandemic.

[00:01:13] Speaker 03:
The procedural history of this appeal is a little atypical.

[00:01:18] Speaker 03:
Case in front of the court now is an opening brief that I'm arguing for predecessor counsel who had filed the opening brief.

[00:01:25] Speaker 03:
Subsequent to the opening brief when I was appointed, I sought to file a supplemental brief and excerpts.

[00:01:32] Speaker 03:
That motion was denied and we're here still on the opening brief.

[00:01:36] Speaker 03:
I was able to file a reply brief in response to the government's answering brief.

[00:01:41] Speaker 03:
The issue in front of the court is a sentencing issue that has been percolating in the courts and resulted in some... We have a precedent

[00:01:48] Speaker 01:
that resolves this issue?

[00:01:49] Speaker 01:
I mean, we have a case that looks at it in the plain error context, but is there a decision that resolves this one way or the other?

[00:01:57] Speaker 03:
I think there is this interesting jurisprudential context because we have a lot of decisions, but I would say we do not have a controlling precedent in the Ninth Circuit on this particular guidelines interpretation that's before the court.

[00:02:10] Speaker 03:
We have two unpunished, unpunished, unpublished, apologies, panel decisions

[00:02:17] Speaker 03:
addressing the issue, both ruling in the government's favor and concluding that the advisory note here, 3A, permitting for consideration of intended loss as well as actual loss, is a controlling interpretation of the guidelines provision at issue here.

[00:02:35] Speaker 03:
But in the most recent panel decision, in the Kuralia case, we have a persuasive dissent by Judge Bumate, who takes the position that we're arguing in this matter.

[00:02:43] Speaker 03:
We also have a presidential circuit split

[00:02:47] Speaker 03:
in other circuits in the bank's case from the Third Circuit ruling in our favor that this application note should not be a controlling interpretation and should not extend the concept of loss to intended loss, only actual loss in the theories for proving actual loss.

[00:03:05] Speaker 03:
But we have the Fourth Circuit and the Sixth Circuit ruling in favor of the government's position.

[00:03:10] Speaker 03:
But in the Fourth Circuit case, we have, again, a persuasive dissent taking the position that the application note

[00:03:15] Speaker 03:
should control so long story short your honor I think that we have a lot of jurisprudence on this question but we do not have controlling precedent at least in the ninth circuit.

[00:03:24] Speaker 01:
What's your response to the government's argument that the standard of review here should be plain error and that therefore you're then governed squarely by the Hackett case?

[00:03:39] Speaker 03:
Would offer two responses one would be on the record that in fact this error is Preserved defense counsel at the sentencing hearing hearing explicitly in the pre-sentence memorandum filed on behalf of mr. McClellan objected to the consideration of intended loss and I excerpted a

[00:03:58] Speaker 03:
the precise language.

[00:04:00] Speaker 01:
It's kind of a peculiar document because he definitely argues that here's the actual loss and then this piece is intended and you should not include the intended loss.

[00:04:12] Speaker 01:
But then has a paragraph after that that quotes the note and then doesn't say how those two things go together.

[00:04:22] Speaker 01:
It's kind of hard to know what to make of that.

[00:04:26] Speaker 03:
I understand your point, Your Honor, and that's, I think, the point that the government was emphasizing in their answering brief.

[00:04:31] Speaker 03:
But as I addressed in my reply brief,

[00:04:33] Speaker 03:
I think the best interpretation of the argument Council made was that Council argued in the alternative and led with the argument that intended loss should not be considered and only actual loss should be considered, which would have reduced the guidelines level by two levels in the total calculation.

[00:04:50] Speaker 03:
Or in the alternative, Your Honor, if you do consider intended loss, here's how you should calculate it.

[00:04:56] Speaker 03:
And Council offered a particular factual position from the record about how to calculate

[00:05:01] Speaker 04:
Intended loss I would when he when he argued that intended loss was not permitted did he argue that it was legally?

[00:05:09] Speaker 03:
impermissible or for some other reason shouldn't have been considered Council did not cite the authorities that were considering as part of the appeal here and made more of a Blanket argument that intended laws should not be considered, but we would we would offer that that argument is

[00:05:26] Speaker 03:
put the issue in front of the district court, squarely enough, and the district court in the sentencing hearing repeatedly made the record that she would consider it intended loss even though counsel had objected to preserve it for appeal.

[00:05:39] Speaker 03:
Go ahead.

[00:05:39] Speaker 02:
And didn't counsel only object to two of the three loans under the intended loss analysis, which suggests it was just more of a factual dispute rather than

[00:05:48] Speaker 02:
broader legal challenge to intended loss?

[00:05:50] Speaker 03:
That's correct in terms of counsel's position on the factual disputes, but we would still maintain that the fairest reading of that record was that was an argument in the alternative on the facts if the court would consider intended loss.

[00:06:04] Speaker 01:
So was the defense statement in how it lined up between actual loss and intended loss, it was loans that were funded and loans that were submitted and not funded?

[00:06:16] Speaker 01:
Is that the line that was drawn?

[00:06:19] Speaker 03:
Correct.

[00:06:19] Speaker 01:
Okay.

[00:06:20] Speaker 03:
Correct.

[00:06:21] Speaker 03:
Essentially, the completed offense and then some attempted offenses that were not... That didn't actually produce any loss because they got stopped?

[00:06:30] Speaker 03:
Correct.

[00:06:30] Speaker 03:
But it was a difference of more than $200,000 that resulted in a two-level enhancement under the loss guidelines.

[00:06:37] Speaker 03:
So a significant difference in the total calculation.

[00:06:41] Speaker 01:
I guess one of the questions that I have, I mean, the whole issue that's been going around is whether or not the application note is a fair reading of the text of the guideline.

[00:06:56] Speaker 01:
But I wonder, and I'm thinking in terms of Judge Berzon's dissent in Hackett,

[00:07:03] Speaker 01:
whether or not this is a situation where maybe the note doesn't matter because she pointed out that there is an intersection between the relevant conduct rule in 1B1.3 and the loss rule because 1B1.3 says that in calculating the defense level, it shall be determined on the basis of all harm

[00:07:30] Speaker 01:
that resulted from the acts and omissions specified in subsections A1 and A2 above and all harm that was the object of such acts and omissions.

[00:07:42] Speaker 01:
So that would suggest, you know, she was drawing a distinction between things that were just sort of planned, what you intended to do, and things that you actually took affirmative steps

[00:07:54] Speaker 01:
to accomplish an object.

[00:07:55] Speaker 01:
So why isn't this just covered by the relevant conduct rule plus the loss rule and the relevant conduct rule, which is in the guidelines, is not a note, puts the gloss on this and says that this counts as loss for purposes of the rule?

[00:08:12] Speaker 01:
Why wouldn't that be correct?

[00:08:14] Speaker 03:
Thank you, Your Honor.

[00:08:15] Speaker 03:
I think we'd need to look at two components together.

[00:08:19] Speaker 03:
First, in the relevant conduct rule,

[00:08:22] Speaker 03:
We need to remember that the relevant conduct provision begins with the clause unless otherwise specified in the particular guideline provision.

[00:08:30] Speaker 03:
So we always need to turn to the particular guideline provision to see what the language of that provision in the guideline itself that's gone through the rulemaking process, not necessarily the interpretive application notes,

[00:08:44] Speaker 03:
gives us something that is outside of the provision your honor mentioned about the objects of the actor's conduct.

[00:08:53] Speaker 03:
And I would connect that provision to the Castillo case from this court that I think is very important in guiding to the outcome that we're arguing.

[00:09:03] Speaker 03:
In Castillo, the court considered a similar issue there,

[00:09:06] Speaker 03:
the provision related to offense level for someone who was convicted of a controlled substances offense.

[00:09:13] Speaker 03:
And the application note that existed at that time defined a controlled substance offense to include incoherent theories for that offense, including conspiracy.

[00:09:23] Speaker 03:
Mr. Castillo had been convicted of conspiracy to commit a controlled substance offense, but not the substantive offense itself.

[00:09:30] Speaker 03:
And in Castillo, the court

[00:09:32] Speaker 03:
worked through all of these very similar issues and concluded that the incohate theory of conspiracy to commit a controlled substance offense expanded the definition of controlled substance offense that existed in the guidelines at that time beyond what had been adopted through the rulemaking process itself and therefore did not satisfy the Kaiser test as the court applied it.

[00:10:01] Speaker 03:
And the court there was looking at somebody who, being convicted of a conspiracy, had the object to commit a controlled substance offense.

[00:10:10] Speaker 03:
That's the core element of a conspiracy offense is for people to partner or agree with the object to commit a substantive offense.

[00:10:18] Speaker 03:
And if he was convicted of it, it means that they took the necessary steps for a jury to find this partnership and agreement beyond a reasonable doubt with that object, and the court still concluded

[00:10:28] Speaker 03:
that the application note should not apply because it expanded or extended the definition of controlled substance offense beyond what had been adopted in the actual legislative rulemaking process.

[00:10:41] Speaker 03:
I would note in Castillo also on the standard of review, the court was addressing a similar issue of an unpreserved objection to this particular guideline issue, and the court found

[00:10:53] Speaker 03:
that it would not matter even under plain error review, but noted the petitioner's argument that because this was a pure question of law, even if it was not adequately preserved, it still should be subject to de novo review.

[00:11:06] Speaker 03:
And I wanted to add that alternative argument on the standard review.

[00:11:09] Speaker 01:
All right.

[00:11:09] Speaker 01:
Thank you, counsel.

[00:11:10] Speaker 01:
We asked you a lot of questions, so I'm going to give you your two minutes on rebuttal that you had requested.

[00:11:14] Speaker 01:
But we'll hear now from the government.

[00:11:25] Speaker 00:
Good morning, your honors, and may it please the court.

[00:11:27] Speaker 00:
Lauren Watts Stanyer for the United States.

[00:11:30] Speaker 00:
I'm going to start where the court started with my colleague on the other side, which is the standard of review.

[00:11:35] Speaker 00:
The standard of review here is for plain error because the legal challenge to the guidelines commentary was not raised to the district court below.

[00:11:45] Speaker 00:
Now, Judge Collins, I think you got it exactly right, which is the two paragraphs in the defense sentencing memorandum, which is the only place

[00:11:54] Speaker 00:
where defense objects to the loss calculation here, those two paragraphs at ER 96 and 97 need to be read together.

[00:12:04] Speaker 00:
The first paragraph states the objection, and the second paragraph states the ground for the objection.

[00:12:09] Speaker 00:
The ground for the objection is plainly factual.

[00:12:14] Speaker 00:
In that second paragraph, the defense acknowledges that loss is defined as the greater of actual or intended loss,

[00:12:23] Speaker 00:
and cites the guidelines commentary.

[00:12:25] Speaker 01:
But there's no way to read that as drawing a line.

[00:12:34] Speaker 01:
It's obvious that the distinction being drawn between the loans that were funded and the loans that were not is that one was the actual loss and one was

[00:12:44] Speaker 01:
Intended laws and it says don't do the unfunded loan So it's don't do the intended it more looks like I really thinks this should be the argument But I'm admitting that the note is against me.

[00:12:56] Speaker 01:
That's that's a fair way to read it It's almost like a but CF that I'm this is what I want, but this application note is a But I don't see how it's a factual distinction within the application note

[00:13:10] Speaker 00:
Short two points on that your honor first is from the record I and your honor had a an exchange with my colleague on the other side about which of the loans constituted the loss amount that defense was advocating and I think it was actually just the three funded loans so five hundred thousand ninety four dollars

[00:13:31] Speaker 00:
The idle loan was not at all discussed in defense's sentencing memorandum.

[00:13:36] Speaker 00:
And the objection to intended loss was just the two later loans that were not funded.

[00:13:42] Speaker 00:
So those are the two loans in the winter of 2021.

[00:13:46] Speaker 00:
That's about $218,000.

[00:13:50] Speaker 00:
So the PSR at paragraph 16 says the intended loss should be

[00:13:56] Speaker 00:
the EIDL plus the two unfunded loans.

[00:14:00] Speaker 00:
So that's about $240,000, and please don't check my math on that, Your Honor.

[00:14:05] Speaker 00:
So it really is that the defense did not object to the entire intended loss that the PSR had identified, which again bolsters the argument or bolsters the notion.

[00:14:17] Speaker 01:
The other problem you have is that in reaching the conclusion that plain error applied,

[00:14:25] Speaker 01:
Hackett, you know, makes the point, which would apply here, that Hackett did not argue that intended loss was a legally improper measure of loss, whether under Kaiser or otherwise.

[00:14:37] Speaker 01:
It's not explicitly made here.

[00:14:39] Speaker 01:
But then the court said, nor did Hackett clearly advocate for a loss calculation based on the actual losses of the victims as opposed to a loss amount based on the actual market price at the time of the sale

[00:14:54] Speaker 01:
The opposite is true here, so he clearly advocated for a loss calculation based on the actual loss, so hack it is distinguishable.

[00:15:06] Speaker 00:
Well again, he didn't advocate for a loss calculation that excluded all of the intended loss that the PAs are.

[00:15:13] Speaker 00:
PSR had identified.

[00:15:14] Speaker 00:
How is that true?

[00:15:15] Speaker 01:
He said, calculate my base offense level based only on these funded loans.

[00:15:22] Speaker 01:
That excludes all the intended loss.

[00:15:24] Speaker 01:
Those are all actual losses.

[00:15:26] Speaker 00:
And I think, Your Honor, I acknowledge that part of Hackett, and certainly that part of Hackett brings... That's why I don't see how it's a factual issue.

[00:15:35] Speaker 01:
very clearly staked out the position, my offense level should be limited to actual losses, these were the funded loans, and then cites the note that goes the other way.

[00:15:47] Speaker 01:
I mean, it would have been nice to have another sentence to tie it all together, but I think it's a fair reading that

[00:15:57] Speaker 01:
He wanted this rule, but was acknowledging it was in tension with the application.

[00:16:01] Speaker 01:
No, maybe that's enough to preserve this issue.

[00:16:05] Speaker 00:
I don't think so, Your Honor.

[00:16:06] Speaker 00:
When you look at the entire record, remember, we had a three and a half hour long sentencing hearing in front of a very careful district judge who gave Mr. McClellan's counsel every opportunity to expand on any objections that he had made to the PSR, and that includes the loss amount.

[00:16:23] Speaker 00:
So at ER 39,

[00:16:26] Speaker 00:
41 the district judge pronounces her finding on loss and then asks are there any additional objections under the contemporaneous objection rule rule 51 it's incumbent upon the person preserving the objection to state the objection and the grounds for that objection and we think it was just insufficient here given the entire record the district court would have had to be clairvoyant to understand that Mr.. McClellan was raising a legal challenge or advocating that

[00:16:55] Speaker 00:
Intended loss was legally unavailable suppose we Just hypothetically we don't agree with you on that so then you're now at the merits of the issue and Tell me why you think you you should prevail sure we went in two ways your honor And I understand the court did not talk about the retroactivity issue with my colleague on the other side but that issue was really one of the most seamless way to resolve this case and

[00:17:23] Speaker 00:
because Amendment 827 is plainly clarifying to the guidelines.

[00:17:29] Speaker 00:
The key case is United States versus Morgan, and this amendment falls solidly in within that Morgan line of cases.

[00:17:37] Speaker 01:
Did the amendment take effect that shifted this into the guideline?

[00:17:41] Speaker 00:
November 1st, 2024.

[00:17:44] Speaker 00:
This sentencing was at the end of May 2024.

[00:17:46] Speaker 00:
At that point, the commission had already published the intention and published that on May 3rd, 2024, the intention to move this.

[00:17:55] Speaker 01:
But wasn't there, I mean, counsel is saying there's basically a circuit split on the question under the old guidelines that were operative at the time of the offense, correct?

[00:18:05] Speaker 00:
Yes, Your Honor.

[00:18:06] Speaker 01:
And how could it be clarifying?

[00:18:08] Speaker 01:
I mean, some courts say it's one, some say it's the other.

[00:18:11] Speaker 01:
And the Sentencing Commission has the authority to change the guideline and pick one side or the other.

[00:18:17] Speaker 01:
But we can't just label that clarifying and suddenly get around ex post facto issues, can we?

[00:18:23] Speaker 00:
Well, that was precisely the issue in United States versus Morgan.

[00:18:26] Speaker 00:
And Morgan held that actually the most important factor that this court looks to in determining whether a guidelines change is clarifying.

[00:18:35] Speaker 00:
Whether it resolves a circuit split in Morgan that change resolved a circuit split as to whether loss included interest and other types of Sort of ancillary things here We resolved a circuit split as to whether loss included intended loss just like in Morgan That clarification means that this was a clarifying amendment that applies as to the ex post facto issue your honor

[00:19:00] Speaker 00:
If it's clarifying, there's no ex post facto problem.

[00:19:04] Speaker 01:
The line between clarifying and amending means suppose you're in a circuit where the circuit is held that it doesn't apply and then the commission clarifies and changes it.

[00:19:17] Speaker 01:
Does that then get applied and overrules the prior circuit law and now the defendant's law basically changes from the time the defendant committed the crime?

[00:19:28] Speaker 00:
Well, that was actually exactly the issue in Morgan.

[00:19:30] Speaker 00:
The clarifying amendment in Morgan overruled Ninth Circuit law.

[00:19:35] Speaker 00:
So that was directly before the court.

[00:19:36] Speaker 00:
And the court said, you know, it doesn't matter.

[00:19:38] Speaker 00:
The whole point of the commission clarifying this circuit split, clarifying the meaning of this word,

[00:19:45] Speaker 00:
to harmonize circuit precedent and so even if it overrules circuit precedent that still can be clarifying as to the line sort of the goalposts the two cases cited in our briefs really set those goalposts there's Atkins on one side the commission lopped off a part of the relevant guideline and that was not clarifying and then there's Morgan on the other side where the commission defined a word

[00:20:11] Speaker 00:
in commentary, and that was clarifying.

[00:20:14] Speaker 00:
I see I'm running out of time.

[00:20:15] Speaker 00:
May I briefly address Kaiser?

[00:20:18] Speaker 00:
Yes.

[00:20:18] Speaker 00:
Okay, great, because we also went on Kaiser.

[00:20:21] Speaker 01:
So as the court observed, the relevant... What's your response to the question I asked opposing counsel, which is maybe we don't even need to reach the Kaiser or Kaiser issue because maybe this is a situation where the intersection of the relevant conduct rule will be 1.3,

[00:20:41] Speaker 01:
and the loss rule here intersect without any need to rely on the commentary.

[00:20:47] Speaker 01:
What's your response to that?

[00:20:48] Speaker 00:
I think the court is absolutely right, that the relevant conduct guideline in 1B1.3, that is the guideline that says we have to look at all the harm that was intended by the conduct.

[00:21:00] Speaker 01:
And so putting it... It's not quite that, because otherwise Judge Berzum wouldn't have dissented.

[00:21:05] Speaker 01:
I mean, she was acknowledging the fact that there would be situations

[00:21:11] Speaker 01:
where you had actual acts or omissions that were committed that had an object.

[00:21:22] Speaker 01:
And so that's a little bit different from just intended in a broader sense.

[00:21:27] Speaker 01:
But here, these loan

[00:21:29] Speaker 01:
applications that got the two level were submitted.

[00:21:32] Speaker 01:
Absolutely.

[00:21:33] Speaker 01:
And the object of those was to get a identifiable sum of money.

[00:21:38] Speaker 01:
So that was my question is whether that is the object of the acts and omissions and that and the relevant conduct tells us that that has to be plugged into the loss.

[00:21:51] Speaker 00:
Yes, that is absolutely correct, Your Honor.

[00:21:53] Speaker 00:
This is a lot different from the situation in Hackett that Judge Berzon talked about in her dissent.

[00:21:58] Speaker 00:
Here we have loan applications, as you said, that were submitted with the intent of getting an extra $200,000.

[00:22:07] Speaker 00:
The only thing that stood in the way of that was the diligence of the victim banks.

[00:22:12] Speaker 00:
So but for that diligence in detecting the fraud, Mr. McClellan would have got that extra $200,000.

[00:22:20] Speaker 00:
And that's why having that $200,000 in addition to the money he actually did get makes so much sense here and is the appropriate result.

[00:22:30] Speaker 00:
I see I'm out of time.

[00:22:31] Speaker 00:
I'm happy to continue.

[00:22:31] Speaker 02:
If I can ask one question, do you have any insight on how many additional pre-827 amendment intended loss cases there are?

[00:22:41] Speaker 02:
Because this is the probably third case, at least I've heard, involving this intended loss after the announcement of the amendment.

[00:22:49] Speaker 02:
We never publish opinion because we think, look, this issue is going to be moot, but it just keeps on coming.

[00:22:56] Speaker 00:
Yes, I know, Your Honor, that you've been on a couple of these panels.

[00:22:58] Speaker 00:
I don't have a good answer for that.

[00:23:01] Speaker 00:
I know I asked around in my unit.

[00:23:03] Speaker 00:
We do these fraud cases, and we couldn't think of one.

[00:23:07] Speaker 00:
Mr. McClellan's case has been slow in getting to argument because of some of the issues that Mr. Holland brought up with the procedural history.

[00:23:15] Speaker 00:
So I would expect this is the tale, but I can't give a good answer on that.

[00:23:21] Speaker 01:
Thank you very much.

[00:23:22] Speaker 01:
We'll hear about it.

[00:23:28] Speaker 03:
Thank you.

[00:23:28] Speaker 03:
And I wanted to address my colleague from the government's argument about retroactivity of the Amendment 827.

[00:23:36] Speaker 03:
And I wanted to offer a competing interpretation of how to think of that amendment in evaluating the issue before us about how to interpret the loss rule with

[00:23:49] Speaker 03:
application note 3A at the time, which is that it shows that the interpretation in application note 3A at the time really was more of a policy judgment from the commission in the form of an interpretive note, but it really was not an interpretive note in the sense of revealing the meaning of loss in the primary rule that had worked through

[00:24:11] Speaker 03:
the rulemaking process of the United States Sentencing Guidelines.

[00:24:15] Speaker 03:
Instead, this was almost to presage what the Commission was thinking the appropriate rule should be.

[00:24:20] Speaker 03:
And that appropriate rule, in the Commission's mind, as a policymaking body, surfaced in Amendment 827.

[00:24:27] Speaker 03:
This was not the Commission retroactively suggesting.

[00:24:30] Speaker 01:
The point is that if there really is a Kaiser problem,

[00:24:35] Speaker 01:
and the application note just says something that is contrary to and has no basis in the text, that it can't be clarifying.

[00:24:45] Speaker 03:
Correct.

[00:24:45] Speaker 03:
It is amended through the policy-based rulemaking process.

[00:24:49] Speaker 03:
And this court's decision in Castillo very thoughtfully worked through the separation of powers issues, working from Mistretta to the role that Kaiser plays in the interpretation of the guidelines and counseling

[00:25:02] Speaker 03:
Court should be restrained in reflexively deferring to application notes under the development of this jurisprudence to ensure the proper role of the Sentencing Commission in its interpretive role, but also in its policy-making role and The amendment 827 has to be put then in a larger context we have many amendments to the loss rule pending right now that very well could take effect at the end of

[00:25:26] Speaker 03:
this calendar year in 2026 that also significantly would affect the calculation of loss.

[00:25:32] Speaker 03:
Even in this case, if the government's position is correct under the new amendments, my client actually would have a two level lower loss guidelines offense level because of these new amendments.

[00:25:44] Speaker 03:
And we're not here arguing that those ones also should be retroactive because we're standing here in the spring and these amendments are pending.

[00:25:51] Speaker 03:
for comment and consideration.

[00:25:54] Speaker 03:
So I wanted to ask the court to see Amendment 827 instead as further evidence that the application note at the time was more of a policy expression rather than a sound interpretation consistent with the rulemaking process.

[00:26:07] Speaker 01:
All right.

[00:26:07] Speaker 01:
Thank you, counsel.

[00:26:08] Speaker 01:
The case just argued to be submitted, and we thank counsel on both