[00:00:00] Speaker 01:
The next case for argument on our last case today is United States versus Aragon, DACA 23-2135.

[00:00:08] Speaker 01:
Council.

[00:00:09] Speaker 01:
May it please the court.

[00:00:18] Speaker 04:
Justine Fox Young for Appellant, Arthur Aragon.

[00:00:24] Speaker 04:
Good morning, Your Honors.

[00:00:25] Speaker 04:
On April 11th, 2022, Arthur Aragon used a Molotov cocktail in connection with a misdemeanor, a misdemeanor under New Mexico law.

[00:00:35] Speaker 04:
He pled guilty to possession of a dangerous weapon without registration, without a plea agreement.

[00:00:41] Speaker 04:
There was no factual basis.

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Probation recommended a four-level enhancement under 2K2.1B6B.

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At sentencing, the government

[00:00:53] Speaker 04:
did not put on evidence to show by preponderance that Mr. Aragon had intended to commit a felony, that he had committed a second felony under the guideline.

[00:01:06] Speaker 04:
I'd like to go right to the Eaton case, because I think that is guidance for the court here.

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This court firmly held that the mere fact that a destructive device has the potential to facilitate a felony does not exempt the application of the guideline.

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At that time, it was numbered differently.

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But critically in this case, the court must recognize, nor does

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The mere fact that a destructive device has the potential to facilitate a felony required that the guideline be imposed, that the enhancement under the guideline be imposed.

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That is what happened in the district court in this case.

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Now, probation argued, or probation included a recommendation that the court find that Mr. Aragon had committed attempted negligent arson.

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The court found that that wasn't the case.

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He had committed willful conduct.

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And under New Mexico law, as we briefed, there wasn't a basis for negligent arson.

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The court found he did not commit another felony.

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And so it went to the catch-all in the guideline, the catch-all being use or possession of a dangerous weapon with the potential to cause another felony offense.

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And the court essentially found that a Molotov cocktail has special features.

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that mean that any time somebody launches one, throws one, places one, they can cause a fire.

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And so that takes this case back to what I pointed to in Eaton.

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District court essentially found that the guideline must be imposed.

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So it said the same.

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The government did put on some evidence, some witness testimony, clearly

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The court could have heard evidence hearsay statements from the defendant and had those contribute to the sentence to show that he did intend to felony.

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But the court didn't hear that evidence.

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The hearsay statements that the court heard were statements like from the neighbor, Mr. Aragon just told us he was messing with us.

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He said you were good guys and he wasn't trying to do anything.

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The court heard evidence about,

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Mr. Aragon's prior course of conduct, that this had been an ongoing issue with the neighbors, and that he had placed 10 to 12, the testimony was he placed 10 to 12 Molotov cocktails in their yard over a period of six months, none of which had caused a fire.

[00:03:46] Speaker 04:
And so that evidence that the court had certainly couldn't contribute to a finding that Mr. Aragon intended

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felony-level arson, which under New Mexico law is $500 in damage or more.

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The court saw photographs from the scene, and this court has those as exhibits one to four.

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They show some charring on a low pony wall that is separated from the residence.

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The court didn't even hear evidence to identify which of those marks came from this device.

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The court heard testimony from an ETF agent, the government's

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reported expert who said, I've responded to hundreds upon hundreds of scenes where Molotov cocktails have been used.

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And his testimony was that maybe eight of them actually started the conflagration.

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That is actually very difficult to effectively deploy Molotov cocktail and start a fire.

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And so in the main, that is essentially the evidence that the court heard

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And based upon that information, found, ruled that, and this is a direct quote from the district court, there is no reason to throw a Molotov cocktail other than to start a fire.

[00:05:08] Speaker 04:
The government argues in briefing that that ruling, implicit in that ruling, is a finding that Arthur Aragon intended fell in the arson.

[00:05:18] Speaker 04:
But there was no finding.

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There was no finding anywhere

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Throughout the sentencing hearing, at the end of the sentencing hearing, when the court expounded on the 3553 factors and completed the sentence, the court actually contradicted itself, and this is at appendix 176, and said that the weapon was utilized in an attempted arson.

[00:05:50] Speaker 04:
That wasn't his finding.

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after the evidentiary hearing on the enhancement.

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That wasn't the court's finding.

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And so, Your Honors, I believe this is a Genova review, and we've briefed this.

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It's a mixed question of law and fact, but the wrong standard was applied here.

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I don't know how the district court can take a case where you're looking at the catch-all

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under this guideline and apply a higher standard than you would to a case where there is actually a second felony committed.

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And there are a number of those cases cited in the briefing.

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So if he had a better arm, if he could throw it a little bit further, would that make a difference?

[00:06:40] Speaker 04:
Well, I think the court has to consider that.

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I mean, if he had thrown it in a park a mile from a structure,

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Would that satisfy the guideline and require the imposition of the enhancement?

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No, but suppose it was your house.

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You got into your backyard.

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Would that?

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Certainly, if there had been some evidence of that judge, if there had been a hearsay statement, I was aiming for the window.

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There was testimony that he had previously broken the windows and done other damage.

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I was aiming for the window.

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I wanted to burn the house down.

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Anything that the court could point to.

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And that is what this court has required in other cases.

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If you look at Fennell, which we briefed, it's not enough to have, in that case there was unsworn testimony put on by an officer about a second assault that was committed.

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This court said that's not enough.

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Here there wasn't even unsworn testimony.

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There really was nothing to support the imposition of the enhancement.

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And I think Eaton is clearly distinguishable.

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Now in Eaton,

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The facts are very instructive.

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The defendant in that case was dealing with an undercover agent.

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He's in a motorcycle gang.

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He is able to acquire bombs.

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There was extensive discussion, which the court heard, about the use of those bombs, the intent to blow up a car, the intent to commit homicide.

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The defendant testified in that case that he knew that's how they were going to be used.

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Well, of course, the conduct is

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is stopped, it's cut off by an intervening force, he's arrested, and so it didn't happen.

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But those are the sort of cases where this court looks at the catch-all.

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The conduct is not completed, necessarily, but there is a clear, firm intent.

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The Ninth Circuit case that the government cited in its response talks about the firm intent elucidated in all these cases.

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Not the case here.

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Mr. Erickon, again, no factual basis, no admission whatsoever that he intended to cause damage, and there was no damage.

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It was agreed upon by the parties that there was no damage whatsoever.

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Multiple witnesses, the resident of the home, the owner of the home, the landlord testified there was no damage.

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The government could have put on evidence to say, you know,

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This stuff a wall needs to be replaced, and it would cost more than $500, and this is a felony.

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But it didn't.

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And so this court then cannot find that where clearly you have nothing more than misdemeanor liability, as is the case in Fennell, the individual who had been charged with a misdemeanor assault, that we're going to speculate about some amorphous activity that could have happened under other conditions, where there is not one modicum of evidence about

[00:09:38] Speaker 04:
Mr. Aragon's intent to do so would be tantamount to increasing the base offense level just because of the nature of the weapon.

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This is a Molotov cocktail case.

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And so in every case where one is launched, we're going to say that felony arson was attempted or was intended.

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That is not how this court has proceeded.

[00:10:02] Speaker 04:
That's why we have enhancements.

[00:10:05] Speaker 01:
Your understanding is the district court was talking more about willful arson as opposed to negligent arson.

[00:10:12] Speaker 04:
The district court early on in the hearing disposed of the argument that this was a negligent arson because of the willful conduct and because of the peculiar aspects of New Mexico law that require it to occur in a certain location and we briefed that.

[00:10:30] Speaker 01:
Your Honor, additionally... But isn't his theory, the district court's theory, really negligence?

[00:10:35] Speaker 01:
Which is to say, you throw one of these things that could have burned something down.

[00:10:41] Speaker 04:
He does seem to be... The district court seems to be preoccupied with the possibility, the potentiality of something happening that didn't happen.

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Why else would you throw a Molotov cocktail?

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And that is what the court said.

[00:10:59] Speaker 04:
The problem with that is you're making a comment about the inherent nature of the weapon and not about the defendant's intent, which is what the law requires.

[00:11:10] Speaker 04:
That is the standard.

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You have to have some evidence by a preponderance that because the felony didn't occur, and that was stipulated.

[00:11:20] Speaker 04:
Well, I don't think it was stipulated.

[00:11:22] Speaker 04:
The government did argue that there was an attempted felony.

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But because the felony did not occur, you have to have something to tie, you have to have a nexus to tie the defendant to this potential felony.

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And there just wasn't anything there.

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There was a lengthy hearing.

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The government could have put on this evidence and didn't.

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And so now this court finds itself in the position of looking at a very serious enhancement, a four-level enhancement reserved for the most egregious conduct that you see in the context of an organizer leader case, where you have somebody

[00:11:55] Speaker 04:
You know, under 3B1.1, you have somebody who's managing five people in criminal conduct.

[00:12:01] Speaker 04:
Those are the kinds of cases where we apply four-level enhancements.

[00:12:04] Speaker 04:
This one is not.

[00:12:05] Speaker 01:
You just used the term that I kind of have, in my own mind, have faulted the district court for, which is potential felony.

[00:12:12] Speaker 01:
Doesn't that screw up the analysis?

[00:12:15] Speaker 01:
When you look at the guideline commentary, that word potential is there.

[00:12:21] Speaker 01:
But it's not potential felony.

[00:12:22] Speaker 01:
It's potential of facilitating another felony offense.

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In other words, you have to have something.

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You have to have a felony offense.

[00:12:29] Speaker 04:
Note 14, that's exactly what it says.

[00:12:31] Speaker 01:
For instance, if you're driving in a stolen car and you have a firearm, there is case law that says the firearm had the potential of facilitating your stolen automobile offense because you might defend your automobile.

[00:12:44] Speaker 01:
But there's an offense that you can put in your hand or see.

[00:12:48] Speaker 01:
And when you say potential felony, now we're getting more into the district courts realm.

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You never know.

[00:12:53] Speaker 01:
It might have caught fire to the bench, which led to the fire on the patio furniture, which led to the buildings burning down.

[00:13:05] Speaker 01:
So that's a potential felony.

[00:13:07] Speaker 01:
That's a wrong analysis to me.

[00:13:09] Speaker 01:
But you tell me.

[00:13:11] Speaker 04:
Your Honor, I agree.

[00:13:12] Speaker 04:
I don't mean to adopt this false graph.

[00:13:14] Speaker 04:
I don't mean to adopt the district court's reasoning there.

[00:13:17] Speaker 04:
The court is right.

[00:13:18] Speaker 04:
Your Honor's right.

[00:13:20] Speaker 04:
The language from note 14 requires the potential of facilitating another felony offense.

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And when you look at the way that this court has reasoned in the other cases, like Fennell, you have to actually have something concrete.

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Here, we have a concrete offense, and it's a misdemeanor.

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There was no damage.

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You can't, by any twist of the tongue, change that to make the statement that he was going to commit a felony.

[00:13:48] Speaker 04:
It was a misdemeanor, and there was no evidence to the contrary.

[00:13:51] Speaker 04:
Unless the court has further questions, I'll reserve the balance of my time.

[00:13:55] Speaker 01:
What would the standard be to determine whether there was a willful arson here for the guidelines purposes, just a preponderance?

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

[00:14:09] Speaker 01:
A preponderance finding that you would be found guilty beyond a reasonable doubt, or just a preponderance finding, have to make a call in five seconds, was or wasn't it?

[00:14:19] Speaker 04:
I think it's a preponderance finding that you'd be guilty beyond a reasonable doubt, but I don't have a cite for you, Your Honor.

[00:14:26] Speaker 01:
Thank you.

[00:14:35] Speaker 03:
May it please the Court, James Braun on behalf of the United States.

[00:14:39] Speaker 03:
I think it would be one standard, Your Honor, that a preponderance of the evidence that you committed the crime, not a preponderance of the evidence that beyond a reasonable doubt you committed the crime, the separate felony.

[00:14:50] Speaker 01:
Well, can you commit the crime other than beyond a reasonable doubt?

[00:14:53] Speaker 03:
If you've been charged with it and you're going to be convicted, then you would have to be beyond a reasonable doubt.

[00:14:58] Speaker 03:
But for sentencing purposes, I think the district court would find by a preponderance of the evidence that the crime is committed.

[00:15:04] Speaker 01:
Very well.

[00:15:05] Speaker 03:
Thank you.

[00:15:06] Speaker 03:
start at the beginning.

[00:15:08] Speaker 03:
Section 2K 2.1 B6B has two prongs.

[00:15:12] Speaker 03:
And in his brief, the defendant is focused solely on the first prong of that enhancement, whereas the district court's finding was clearly grounded in the second prong.

[00:15:24] Speaker 03:
And under that prong, the court was not required to find that a separate felony was committed.

[00:15:30] Speaker 03:
Instead,

[00:15:33] Speaker 01:
That prom applies to... Can you read the language you're talking about on first and second prom?

[00:15:38] Speaker 00:
Could you raise up your microphone a little bit?

[00:15:41] Speaker 01:
Yes, your honor.

[00:15:45] Speaker 03:
So the guideline reads that the four-level enhancement applies if the defendant used or possessed any firearm or ammunition in connection with another felony offense.

[00:15:58] Speaker 01:
OK, so that's the first prong.

[00:16:00] Speaker 03:
The second prong is, or possessed or transferred any firearm or ammunition with knowledge, intent, or reason to believe that it would be used or possessed in connection with another felony offense.

[00:16:10] Speaker 03:
That second prong is the one that was at Pleiades where the undercover agent obtained the pipe bombs from the defendant and had said what he was going to use it for.

[00:16:23] Speaker 03:
There wasn't an actual separate crime committed.

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It was going to be committed.

[00:16:29] Speaker 03:
And that's essentially what we have here.

[00:16:30] Speaker 03:
The district court found that his possession of the Molotov cocktail had the potential to result in felony arson.

[00:16:44] Speaker 01:
You have lost me.

[00:16:45] Speaker 01:
I follow you entirely on Eaton and Reason to Believe because the undercover agent is saying, here's what I'm going to do with this pipe bomb and blow this person up with this one and so forth.

[00:16:56] Speaker 01:
And so there was Reason to Believe.

[00:16:58] Speaker 01:
But here we have, we don't have an undercover agent, we have one guy with a lot of gasoline and rags and bottles.

[00:17:05] Speaker 01:
Why did he have reason to believe that it would be used or possessed in connection with another felony offense unless he threw it next to the house?

[00:17:12] Speaker 03:
Because that's what his intent was and that's essentially... So he's a bad throw.

[00:17:16] Speaker 01:
How many of these had he thrown?

[00:17:17] Speaker 01:
10 to 12?

[00:17:18] Speaker 01:
I believe it was 10 to 15.

[00:17:20] Speaker 01:
And they were all in the backyard and none of them burned the structure?

[00:17:24] Speaker 01:
Right, but the testimony was that he was getting better and better as he was doing... He was getting better and better at making Molotov cocktails.

[00:17:32] Speaker 01:
He's not going to burn his arm off next time.

[00:17:34] Speaker 01:
Less likely.

[00:17:36] Speaker 01:
But I don't think the testimony is every throw was just six inches closer to the house.

[00:17:41] Speaker 01:
Why in ten more throws is he going to be close enough to actually burn the house down?

[00:17:45] Speaker 03:
I think a reasonable interpretation of the better and better is that he was getting better and better at making effective Molotov cocktails.

[00:17:50] Speaker 03:
Just like a baker with a recipe

[00:17:54] Speaker 03:
makes it over and over again and perfects the recipe, that that's essentially what the defendant was doing here.

[00:18:00] Speaker 03:
He was perfecting his Molotov cocktail recipe so that it would be more effective.

[00:18:03] Speaker 01:
And more effective to terrorize, to disrupt, to intimidate.

[00:18:09] Speaker 01:
But if you want to burn a house down, you throw it next to the house, don't you?

[00:18:13] Speaker 03:
Not necessarily, not next to a stucco house.

[00:18:16] Speaker 03:
Here there was a tree, and the video showed that the

[00:18:20] Speaker 03:
Molotov cocktail hit the tree.

[00:18:22] Speaker 03:
If you hit that tree on fire, that would likely burn down the whole property.

[00:18:26] Speaker 03:
And that's what the victims testified that they believed his intent was.

[00:18:30] Speaker 03:
Both victims said that they believed he was going to burn the house down.

[00:18:35] Speaker 03:
And based on that testimony,

[00:18:37] Speaker 03:
It's not clearly erroneous for the court to find that that's what his intent was, that when he threw that, his intent was to cause a fire.

[00:18:43] Speaker 03:
Now, he had not been effective at it so far, but he kept trying.

[00:18:47] Speaker 01:
Well, obviously it's going to cause a fire.

[00:18:49] Speaker 01:
There's going to be at least a flash.

[00:18:51] Speaker 01:
The gasoline is going to burn.

[00:18:53] Speaker 01:
But to say cause a fire and then transport that over to burn the house down, that's a big jump.

[00:19:01] Speaker 03:
I don't think it's a big jump when you're talking about, well, first of all, what his intent was.

[00:19:07] Speaker 03:
Perhaps he hadn't been effective at it so far, but that's clearly what he was trying to do.

[00:19:10] Speaker 03:
It certainly wasn't clearly erroneous for the district court to find that's what he was trying to do.

[00:19:15] Speaker 03:
Based on that evidence of consistent and escalating conduct, he wasn't giving up.

[00:19:21] Speaker 03:
And as the witness testified, he was getting better.

[00:19:24] Speaker 03:
I don't think we can discount that testimony.

[00:19:26] Speaker 01:
He was having a great time over there and yelling at the neighbors and banging on their doors.

[00:19:32] Speaker 01:
What's better than you throw a Molotov cocktail in their backyard to really get them upset and scared?

[00:19:37] Speaker 01:
But as far as burning down a structure, you wouldn't throw it far from the house.

[00:19:43] Speaker 01:
You'd throw it near to the house.

[00:19:44] Speaker 01:
And the whole tree thing, that's you and me talking.

[00:19:48] Speaker 01:
That's not the district court, based from the record that I read.

[00:19:51] Speaker 03:
The district court wasn't that specific about how it would happen.

[00:19:54] Speaker 03:
That it would catch the tree on fire.

[00:19:56] Speaker 03:
The tree would basically cause a bonfire that would catch to the house.

[00:20:00] Speaker 03:
But that's implicit in the court's finding that the only reason to throw this is to start a fire, meaning felony arson, not just any fire, not just a flash.

[00:20:09] Speaker 02:
Well, that's your argument point.

[00:20:10] Speaker 02:
A moment ago, you said the district court made a finding that was his intent.

[00:20:14] Speaker 02:
But isn't that the problem here is we don't have that finding.

[00:20:17] Speaker 02:
All we have is to try to start a fire.

[00:20:21] Speaker 02:
And you're trying to take a lot from that language in terms of what the findings were specific to the felony offenses that have to be

[00:20:31] Speaker 02:
there's a potential to commit to trigger this enhancement.

[00:20:34] Speaker 02:
Am I misreading the record and the argument here to say that we have to extract from these few words?

[00:20:42] Speaker 02:
There's no other reason to throw Molotov cocktail other than to try and start a fire.

[00:20:46] Speaker 02:
And that's it that we have to try to extract out the elements to a felony offense.

[00:20:52] Speaker 03:
And then the following line.

[00:20:54] Speaker 03:
So I find there was a potential to give rise to felony arson.

[00:21:00] Speaker 03:
It was not a specific finding up.

[00:21:02] Speaker 03:
I find his intent was to start a fire.

[00:21:05] Speaker 03:
It's implicit in that finding that why else would you, the only reason to throw that is to start a fire.

[00:21:10] Speaker 03:
And that shows implicitly, that shows a finding of his intent to start a fire when he threw it.

[00:21:16] Speaker 02:
Yeah, but starting a fire is only the first element of arson under New Mexico law.

[00:21:21] Speaker 02:
And so that's why I'm struggling with trying to figure out how can we look at an absence of findings

[00:21:29] Speaker 02:
to confirm that the district court here, or an absence of an articulation of findings, for us to review this to say yes.

[00:21:39] Speaker 02:
The court said, well, it had the potential to commit arson, but doesn't do any analysis, particularly given these kind of odd facts of the multiple throwings, that we conclude that the specific elements of arson were met, particularly when, as Judge Phillips pointed out, I mean, there was a lot of times these were being thrown over in the backyard,

[00:21:57] Speaker 02:
There's just really no way to conclude the intent was to burn down the house or an occupied structure.

[00:22:04] Speaker 03:
But I think the two statements of the district court have to be read together.

[00:22:08] Speaker 03:
That there's no other reason to throw the Molotov cocktail other than to start a fire.

[00:22:13] Speaker 03:
And so it had the potential to give rise to felony arson.

[00:22:17] Speaker 01:
Wait, wait, wait.

[00:22:18] Speaker 01:
I'm tracking along with the statute.

[00:22:20] Speaker 01:
And you were doing good.

[00:22:21] Speaker 01:
But it says, with the purpose of destroying or damaging

[00:22:25] Speaker 01:
and then a building, an occupied structure, so forth.

[00:22:27] Speaker 01:
So what needs to be shown is with the purpose of.

[00:22:33] Speaker 03:
Well, when you're dealing with potential crimes or would-be crimes under that second prong, the district court is not required to go element by element with that, with the other crime.

[00:22:43] Speaker 03:
Because under the Second Circuit case of Dodge, which is cited in the government's brief, it says that the enhancement does not require knowledge of the specific offense committed.

[00:22:53] Speaker 03:
And even underneath,

[00:22:54] Speaker 03:
The court never looked at the homicide statute that he would have been committing, the undercover agent, or the blowing up the car statute that the undercover agent would have been committing.

[00:23:05] Speaker 01:
Those are obvious.

[00:23:06] Speaker 01:
Those are obvious.

[00:23:07] Speaker 03:
And what the court found here is it would have been felony arson.

[00:23:12] Speaker 01:
Well, I don't think that you can escape the words with the purpose of.

[00:23:16] Speaker 01:
I think if you want to have another felony that is either

[00:23:20] Speaker 01:
facilitated or has the potential to facilitate, you need another felony.

[00:23:26] Speaker 01:
And you can't say, well, I'll take this felony without this element.

[00:23:30] Speaker 01:
Here's the felony.

[00:23:31] Speaker 01:
And if you track through and you say, OK, we've got enough evidence to sustain the district court on each of these elements, I say, great.

[00:23:40] Speaker 01:
But I'm hung up on what the purpose of it.

[00:23:42] Speaker 01:
That's where I need help.

[00:23:44] Speaker 03:
Wait.

[00:23:45] Speaker 03:
There needs to be a finding that the defendant intended

[00:23:50] Speaker 03:
use the device in connection with another felony offense.

[00:23:53] Speaker 03:
It just has to be another felony offense.

[00:23:55] Speaker 03:
The defendant doesn't necessarily need to know the specific statutory site and the elements to it.

[00:24:00] Speaker 01:
I didn't say that.

[00:24:02] Speaker 01:
I didn't say the defendant has to know that.

[00:24:06] Speaker 03:
And I don't think, under the case law, the district court needs to find it either.

[00:24:09] Speaker 03:
Because as I said, under Eaton, the court never analyzed the specific elements of specific statutes.

[00:24:15] Speaker 03:
It was just felonious conduct.

[00:24:16] Speaker 03:
And here, the district court didn't just say,

[00:24:19] Speaker 03:
generic arson.

[00:24:20] Speaker 03:
It said felony arson.

[00:24:21] Speaker 03:
So implicit in that is whether it's $500 or $2,500, it's felony arson.

[00:24:27] Speaker 01:
I meant to have a little diversion from Judge Federico and instead I took over his line of questioning.

[00:24:31] Speaker 01:
So please continue, Judge Federico.

[00:24:33] Speaker 02:
Well, I just wanted to actually maybe refocus on a different part of the language, which is in the commentary, the 14th application note.

[00:24:42] Speaker 02:
How much potential is required?

[00:24:47] Speaker 02:
If the commentator says, well, it has the potential to commit another felony offense, but how much potential?

[00:24:53] Speaker 03:
Well, they would make it easier.

[00:24:56] Speaker 03:
I believe that's the language the court used in Marufo in defining potential.

[00:25:01] Speaker 03:
But what really matters is what the defendant's intent was, and that the defendant intended to use it in connection with another felony offense, and that in doing so, it had the potential meaning that it would make it easier to commit that other felony offense

[00:25:15] Speaker 03:
And that can apply in different circumstances.

[00:25:17] Speaker 03:
So if you have a bank robber who carries a gun during the bank robbery, that gun has the potential to facilitate the bank robbery, even if it's never used or pulled out.

[00:25:29] Speaker 03:
If things go south, it makes it easier to commit the crime.

[00:25:36] Speaker 03:
But it also applies to would-be crimes, to potential crimes.

[00:25:41] Speaker 03:
And that's where it comes down to what was the defendant's intent.

[00:25:45] Speaker 03:
Does the defendant intend to use the device in connection with the other potential offense?

[00:25:54] Speaker 03:
And potential meaning that it hasn't happened, that it's a would-be crime.

[00:26:03] Speaker 03:
And as far as you're going to judge Philip's comment about potential felony being the wrong analysis,

[00:26:11] Speaker 03:
That is the analysis, or at least the statement that the court used in the Martinez case, the 11th Circuit case from 2020 that the government cited in its brief, where the court said, the clear language of the guideline and its commentary tells us that section 2K2.1 B6B applies to, quote, would-be and, quote, potential felonies.

[00:26:33] Speaker 03:
And so maybe he's using that language loosely, but I think

[00:26:39] Speaker 03:
The general idea is that it applies to felonies that haven't been committed yet, like we had here, where the defendant's intending to commit a felony when he possesses the destructive device.

[00:26:54] Speaker 03:
And if the police had executed a search warrant at the defendant's residence based on his prior conduct and found a Molotov cocktail, and the defendant admitted, yes, I was going to throw that over the fence, try and hit the tree, try and light their house on fire,

[00:27:09] Speaker 03:
I think the enhancement would clearly apply in that situation because he's possessing it with the intent that it would be used to facilitate that felony offense of starting the house on fire.

[00:27:19] Speaker 03:
Here, the defendant actually used the Molotov cocktail.

[00:27:26] Speaker 03:
It doesn't make sense that the defendant would not be subject to the enhancement in a case where he actually shows his intent by using it.

[00:27:34] Speaker 03:
Whereas if he simply possessed it without having used it, then it would have lied.

[00:27:39] Speaker 01:
Well, I agree with you.

[00:27:40] Speaker 01:
The defendant's knowledge of the law doesn't matter.

[00:27:42] Speaker 01:
But let's assume the defendant was in law school and knew the difference between a misdemeanor and a felony arson and thought, I don't want to get a felony.

[00:27:51] Speaker 01:
And so just threw it where he threw it, thinking that's a misdemeanor.

[00:27:54] Speaker 01:
Aha, they won't get four levels on me.

[00:27:57] Speaker 01:
You wouldn't say then that that's a felony, would you?

[00:28:00] Speaker 03:
No, no.

[00:28:01] Speaker 03:
And that would be, going back to the hypothetical, if the defendant is found with a Molotov cocktail and he says, yes, I'm just messing around with them.

[00:28:08] Speaker 03:
I had this.

[00:28:09] Speaker 03:
I was going to throw it over onto a rock wall where I knew it wouldn't cause any damage just to scare them or mess with them.

[00:28:16] Speaker 01:
Well, isn't that the evidence in this case?

[00:28:18] Speaker 01:
You don't have, as opposing counsel said, a statement from him saying, oh, I just wanted to get it in the window.

[00:28:25] Speaker 01:
I'm going to burn that house down yet, or something like that.

[00:28:28] Speaker 01:
What you have is hard facts, which is he's logged 10 to 12, 13 of these into the backyard.

[00:28:34] Speaker 01:
And you have a burn line, a burn on a fence that's far from the house, that's near a tree apparently.

[00:28:41] Speaker 01:
How burnable that is, I don't know.

[00:28:44] Speaker 01:
We can't determine something like that.

[00:28:46] Speaker 01:
But based on what we know, and lacking some sort of a comment or a statement from the defendant, how is that enough?

[00:28:56] Speaker 03:
Well, when dealing with intent, we're often lacking a statement.

[00:28:59] Speaker 03:
And courts often have to look at circumstantial evidence of juries to determine intent.

[00:29:03] Speaker 01:
And that's what I'm doing when I say 13 of them lobbed and none of them near the house.

[00:29:08] Speaker 03:
Right.

[00:29:08] Speaker 03:
And that's what the district court did here.

[00:29:09] Speaker 03:
And this court provides or gives substantial deference to the district court's application of the facts to the guidelines.

[00:29:17] Speaker 03:
And this ultimate question of what was his intent is a factual finding that's reviewed for clear error.

[00:29:23] Speaker 03:
And it's not clearly erroneous on these facts to conclude that the defendant intended to commit a felony.

[00:29:28] Speaker 03:
Because even though he's throwing 10 to 13 or 10 to 15 without success, he keeps doing it.

[00:29:34] Speaker 03:
And there's testimony that he keeps getting better.

[00:29:36] Speaker 03:
So he's trying, I see I'm out of time.

[00:29:39] Speaker 03:
Please, please.

[00:29:40] Speaker 03:
He's trying to get better.

[00:29:42] Speaker 03:
He's trying to perfect his recipe, so to speak.

[00:29:46] Speaker 03:
And the witnesses also testified that their impression was he intended to set the house on fire.

[00:29:54] Speaker 03:
right to take that testimony and find that implicitly, again, not an explicit finding of intent, but implicitly that when he threw that, the intent would have been to start a fire, to commit felony arson.

[00:30:05] Speaker 03:
Thank you.

[00:30:05] Speaker 03:
Very well.

[00:30:05] Speaker 01:
Thank you.

[00:30:16] Speaker 04:
Your Honors, the government admits that the district court was not specific in its findings.

[00:30:21] Speaker 04:
There were none.

[00:30:22] Speaker 04:
with regard to Sir Aragon's intent.

[00:30:24] Speaker 04:
And this court cannot defer to those findings with respect to this enhancement.

[00:30:29] Speaker 04:
That is essentially the problem.

[00:30:30] Speaker 04:
It was treated like a strict liability enhancement.

[00:30:33] Speaker 04:
Under this logic, you will see cases.

[00:30:36] Speaker 04:
You could see cases with courts saying, the defendant possessed a gun and shot it.

[00:30:41] Speaker 04:
There's no reason to do that other than to kill somebody.

[00:30:44] Speaker 04:
The defendant had a bomb and could have thrown it.

[00:30:48] Speaker 04:
No reason to do that other than to explode a car.

[00:30:52] Speaker 04:
To Judge Federico's question, the Fennell case provides the holding that the court must have evidence with an addition of reliability to show that there was felonious intent.

[00:31:10] Speaker 04:
In a case where you're talking about potentialities and there was an intervening cause, there has to have been felonious intent, intent to commit a felony and reliable evidence of that for the court to consider

[00:31:22] Speaker 04:
in making such a finding.

[00:31:24] Speaker 04:
And so I ask the court to vacate and remand the case.

[00:31:28] Speaker 04:
Thank you.

[00:31:29] Speaker 01:
All right.

[00:31:29] Speaker 01:
Thank you, counsel, for your arguments.

[00:31:31] Speaker 01:
The case is submitted.

[00:31:32] Speaker 01:
Counsel are excused.

[00:31:33] Speaker 01:
And the court stands in recess.

[00:31:36] Speaker 01:
Until further call.