[00:00:01] Speaker 04: The third case for this morning is 23-1400, United States versus Ford. [00:00:09] Speaker 04: Would counsel for appellant make your appearance and proceed? [00:00:17] Speaker 03: Thank you and good morning again. [00:00:18] Speaker 03: May it please the court, Mr. Mahon. [00:00:21] Speaker 03: My name is Gail Johnson and I represent Kill You Ford in this appeal from his resentencing. [00:00:27] Speaker 03: We're here today on de novo review [00:00:30] Speaker 03: of a narrow, but nonetheless very important issue of statutory interpretation, whether the district court at resentencing was required to impose a 25-year mandatory minimum sentence on Mr. Ford under 18 USC 35, Section 35, 59, F2. [00:00:54] Speaker 03: So this court's precedents, in particular Navajo Nation and Duncan, teach that [00:01:00] Speaker 03: Of course, one of our most basic canons of statutory construction is to avoid surplusage, and that the court should be especially unwilling to treat some statutory language as surplusage when that term occupies a pivotal place in the statutory construct. [00:01:17] Speaker 03: And that's what we have here, because the language that essentially becomes redundant is the crime of violence language, if the crime of violence is kidnapping. [00:01:28] Speaker 03: Well, under the government's theory, [00:01:29] Speaker 03: Kidnapping is ipso facto crime of violence, then that language is the crime of violence phrase becomes surplus. [00:01:37] Speaker 03: And this court should avoid such construction. [00:01:44] Speaker 03: And the fact that that language occupies a pivotal place in the statutory scheme is clear from the title of that subsection, which is mandatory minimum terms of imprisonment for violent crimes against children. [00:01:57] Speaker 04: Under your argument, are you [00:02:00] Speaker 04: asserting that there could be some kidnappings that would be subject to a mandatory minimum with certain specific findings of fact made, or are you asserting that all kidnappings would be essentially constitutionally infirm in light of post-Demaya determination? [00:02:26] Speaker 04: In other words, [00:02:27] Speaker 04: Is the concern that there were not specific findings that would have cabined this kidnapping in a way that would allow this kidnapping to be subject to a mandatory minimum? [00:02:42] Speaker 04: Or are you saying that kidnapping itself, essentially post amaya, needs to be written out of the statute because there could not be a kidnapping that would be constitutionally firm? [00:02:58] Speaker 03: Yes. [00:02:59] Speaker 03: I'm saying this, and I fear that the briefs were not clear enough, so I very much appreciate it. [00:03:06] Speaker 03: I struggled with that, and therefore I'm trying to clarify now. [00:03:09] Speaker 03: I appreciate the question. [00:03:10] Speaker 03: So when we are engaged in statutory construction, I think that is, at its base, at its core, an exercise in discerning congressional intent. [00:03:21] Speaker 03: And I think the timeline is important here, because Congress adopted this 25-year mandatory minimum [00:03:27] Speaker 03: in 2006. [00:03:28] Speaker 03: That long predates the decision in the US Supreme Court's decision in Johnson in 2015, which addressed, of course, the residual clause in the ACCA and held it was unconstitutionally vague. [00:03:43] Speaker 03: That long predates the US Supreme Court's decision in Sessions versus De Maia, which specifically addressed this residual clause in 16b. [00:03:52] Speaker 03: So Your Honor, the way I would phrase it is, [00:03:54] Speaker 03: When we're thinking at the time Congress adopted it, they could have thought that there were going to be kidnappings, some that were crimes of violence, some that weren't. [00:04:03] Speaker 03: Under today's law, with the benefit of this US Supreme Court jurisprudence from 2015, 2018, et cetera, we now know that the residual clause in 18 U.S.C. [00:04:15] Speaker 03: Section 16B is unconstitutionally void for vagueness, and we know that the categorical [00:04:22] Speaker 03: approach applies and that the elements clause doesn't apply here as well because of the in vaguely. [00:04:27] Speaker 03: So yes, I think it's sort of check to Congress. [00:04:32] Speaker 03: Congress can come back and rewrite the crime of violence statute. [00:04:36] Speaker 03: I do not believe it has done so. [00:04:38] Speaker 03: But that is certainly their option. [00:04:39] Speaker 03: And they can bring this back in that way. [00:04:41] Speaker 00: Excuse me, there is a workaround on it that's different from what ordinarily occurs. [00:04:48] Speaker 00: Ordinarily, you look at some past conviction. [00:04:51] Speaker 00: that is done and closed and the current judge has no say in the matter at all. [00:04:57] Speaker 00: And all the judge can do is look at the record of some past conviction. [00:05:02] Speaker 00: There, we say that we are not going to let you look at, you're going to have to look at a categorical approach to see if that prior conviction was an element of force or not. [00:05:16] Speaker 00: Because you can't go back and do anything about it. [00:05:18] Speaker 00: But Judge Holmes, Judge Holmes' question to you [00:05:21] Speaker 00: was saying, what if everything is in the capsule of a current case where the trial judge does have something to do to say about it? [00:05:31] Speaker 00: Why couldn't the trial judge think to himself, I've got two options here on a conviction, I mean, on a kidnapping. [00:05:39] Speaker 00: If I get a finding from the jury that an element of force, one of those iterations of force, is found by the jury, I can go 30 years. [00:05:51] Speaker 00: If I get an iteration from the jury that it was invigiling, I can only go 25. [00:05:57] Speaker 00: I have that option without changing these statutes at all. [00:06:01] Speaker 00: So I can simply ask a special interrogatory of the jury. [00:06:04] Speaker 00: What of the various criteria for kidnapping in this statute, which ones are you relying upon to find guilt, if you find guilt? [00:06:14] Speaker 00: And then you just ask. [00:06:15] Speaker 00: If they found invigiling, you can only go 25. [00:06:18] Speaker 00: If they find something other than invigiling, [00:06:21] Speaker 00: You can go 30. [00:06:22] Speaker 00: But you don't have that option in the normal situation we've struggled with, with DeMai and all of those where we're trying to say, what happened on a far distant case that we can't change jury instructions or anything else? [00:06:34] Speaker 00: We're stuck. [00:06:35] Speaker 00: We have to use a modified categorical or a categorical approach. [00:06:39] Speaker 00: Here, we can fix it. [00:06:42] Speaker 00: Obviously, the better fix is eventually to go back to the Congress and say, why don't you just take the word and biggling out of this? [00:06:49] Speaker 03: So we have a few responses to that. [00:06:51] Speaker 03: The first is, Your Honor, while you're absolutely correct, that in Johnson and DeMaia, what was at issue there were prior convictions. [00:07:01] Speaker 03: We then have the 2019 decision in Davis versus United States from the US Supreme Court, which I believe is the first time that the court has then applied that categorical elemental approach to a current conviction, namely, in that case, 924C3. [00:07:17] Speaker 03: And I believe it's for that reason, the government has not disputed here that the regular categorical approach applies. [00:07:25] Speaker 00: Just tell me that case. [00:07:27] Speaker 00: I mean, it's one I'm familiar with, but I'm just drawing a blank on what you said. [00:07:30] Speaker 03: Davis versus United States? [00:07:32] Speaker 03: Yeah. [00:07:36] Speaker 03: OK. [00:07:38] Speaker 03: And then, of course, even if that were theoretically possible, we don't have such a special interrogatory here. [00:07:48] Speaker 04: I don't really understand this surplusage argument. [00:07:52] Speaker 04: I mean, this statute, it seems to me could be naturally read to specify various mandatory minimums for things that Congress presumed to be crimes of violence. [00:08:08] Speaker 04: And when I first started getting into this case, [00:08:13] Speaker 04: It seemed like the most natural reading in the world to me to say that what Congress was saying, OK, we're going to provide mandatory minimums for crimes of violence against children. [00:08:23] Speaker 04: If it's a crime of violence of murder, this. [00:08:25] Speaker 04: If it's a crime of violence of kidnapping, this. [00:08:28] Speaker 04: Well, implicit in that is that what it's doing is telling you for this particular crime of violence, this is what the penalty is. [00:08:38] Speaker 04: So Congress is telling you that it's already identified these as being crimes of violence, [00:08:43] Speaker 04: There's no surplusage in it just saying, if this particular crime of violence is that issue, this is mandatory minimum penalty. [00:08:52] Speaker 04: Tell me, I mean, it just seems like that was a logical way to read it. [00:08:56] Speaker 04: I mean, that the thing says mandatory minimum terms of imprisonment for violent crimes against children. [00:09:02] Speaker 04: In the heading, violent crimes against children, okay, now let's talk about particular violent crimes against children and tell you what the mandatory minimum is for those particular crimes of violence against children. [00:09:15] Speaker 04: Okay, when we get to kidnapping, here's a crime of violence against children, here's the penalty. [00:09:22] Speaker 04: Logically structured, [00:09:23] Speaker 04: It makes all the sense in the world to me. [00:09:25] Speaker 04: There's no surplus there. [00:09:26] Speaker 04: It's an identification issue. [00:09:28] Speaker 04: It's telling you as it relates to this particular crime of violence, this is what the penalty is. [00:09:33] Speaker 04: Tell me why that doesn't make sense. [00:09:38] Speaker 03: Your honor, because all the court needed, I'm sorry, all that Congress needed to do if it wanted to enumerate kidnapping as a crime of violence was to say, [00:09:48] Speaker 03: if the conviction is kidnapping, then 25 years. [00:09:51] Speaker 04: Artful drafting is not an answer. [00:09:55] Speaker 04: Congress has written a lot of crappy statutes. [00:09:57] Speaker 04: That doesn't get you anywhere. [00:09:58] Speaker 04: So the fact that Congress has decided to write in an artful statute doesn't mean that this could not be a reasonable reading, a plausible reading of this and not absurd reading of this statutory text. [00:10:15] Speaker 04: Why is that wrong? [00:10:16] Speaker 03: It's a surplusage reading. [00:10:18] Speaker 03: The phrase crime of violence in that section is surplusage, because if you were to accept the government's argument, that is ipso facto baked into kidnapping. [00:10:31] Speaker 03: And that's why argument is correct. [00:10:33] Speaker 04: What we're doing is identifying the particular crime of violence that we're talking about. [00:10:38] Speaker 04: And we're saying, if it's this kind of crime of violence, kidnapping, this is what you do. [00:10:43] Speaker 04: If it's this crime of violence, murder, this is what you do. [00:10:47] Speaker 04: But the inference being that they are crimes of violence, we're just telling you what the penalty is for them. [00:10:54] Speaker 03: So in paragraph F, it has to be a crime of violence first before you get to subsection two. [00:10:59] Speaker 03: So first it has to be a crime of violence. [00:11:01] Speaker 03: And then we say, if that crime of violence is kidnapping. [00:11:04] Speaker 03: If they were saying all kidnapping is crimes and violence, they would just say, if kidnapping, then 25 years. [00:11:10] Speaker 04: That's not what they said. [00:11:11] Speaker 04: Well, Congress, it may well be the ideal way to write the statute. [00:11:16] Speaker 04: That doesn't answer the question. [00:11:17] Speaker 04: So tell me, what is the operative test here? [00:11:20] Speaker 04: Because it seems to me, as I understand it, if you can come up with a natural logical reading of this that is not absurd, then you lose. [00:11:29] Speaker 04: What legal principle do you have that tells me that's wrong? [00:11:32] Speaker 04: Because when I read it, [00:11:33] Speaker 04: There is nothing absurd about the structuring of this, such that it is in fact an identification of the particular crime of violence that is at issue. [00:11:43] Speaker 04: Actually, it's clearer to me to write it that way, because you're not just saying one murder, two kidnapping. [00:11:50] Speaker 04: You're saying if it is this kind of crime of violence, this is what it is. [00:11:54] Speaker 04: So, my question to you is, what would be the legal test that would say that what I have just articulated as being what was the most natural reading to me, what would be the legal test to say that we could not follow that principle? [00:12:09] Speaker 03: Well, the legal test for surpluses generally comes from Navajo Nation. [00:12:13] Speaker 03: And the issue is that you must read a statute so that no part will be inoperative or superfluous. [00:12:19] Speaker 03: Each phrase must have distinct meaning. [00:12:21] Speaker 04: And what I'm saying is I don't view that as surpluses at all. [00:12:23] Speaker 04: I mean, and therefore my question to you is what would be the guardrail that would say that if my natural reading of that is actually that helps me understand the statute and so it's not [00:12:34] Speaker 04: You know, it is not, how far, what is the distinction between surplusage and additional words? [00:12:40] Speaker 04: If I have additional words to help the reader understand the clarity of the statute, is that surplusage? [00:12:49] Speaker 03: Well, if the words are, or the phrase does not have its own distinct meaning and is inoperative or superfluous, then that is surplusage under our precedence. [00:12:58] Speaker 03: And so again, here, it has to be a crime of violence first. [00:13:03] Speaker 03: And then it has to be a crime of violence plus kidnapping. [00:13:06] Speaker 03: It has to be the intersection of those two. [00:13:08] Speaker 03: Nowhere does it say crimes of violence include kidnapping. [00:13:12] Speaker 03: That's not what the statute says. [00:13:13] Speaker 03: It's different from the ACCA. [00:13:14] Speaker 03: If you look at the enumeration in the ACCA as a comparator, I think that is useful. [00:13:21] Speaker 03: Specifically, 18 USC section 924C2, and that [00:13:31] Speaker 03: context, the Congress said the term violent felony means any crime punishable by imprisonment for a term exceeding one year. [00:13:39] Speaker 03: that is burglary, arson, or extortion. [00:13:41] Speaker 03: That's how Congress enumerates offenses. [00:13:44] Speaker 03: That's different than what they did here. [00:13:45] Speaker 03: And here, the phrase crime and violence in subsection F2 becomes superfluous. [00:13:51] Speaker 04: And is there any canon that would suggest that these two statutory provisions would have to be written along the same lines? [00:14:02] Speaker 04: I mean, did they come out around the same time? [00:14:05] Speaker 04: Is there some reason to believe that Congress had to adhere to the same [00:14:08] Speaker 04: principles of statutory construction and writing one as opposed to the other. [00:14:11] Speaker 04: I'm trying to play your argument, and your argument would mean that there is some inference that I should draw from the fact that Congress did it this way in 924C. [00:14:21] Speaker 04: Well, there is no necessary correlation that Congress had to do it the same way when it did another statute unless [00:14:29] Speaker 04: There's something about the circumstances of the drafting that would give rise to that inference. [00:14:35] Speaker 04: So my question to you is, are you aware of anything about the circumstances of the drafting of these two statutes that would lead me to conclude they have to be drafted? [00:14:43] Speaker 04: They should be, or it would be natural to read them as being drafted in the same way. [00:14:48] Speaker 03: I'm not making that argument, Your Honor. [00:14:50] Speaker 03: What I am simply pointing the court to the ACCA for is as an illustration of how Congress knows how to enumerate offenses. [00:14:59] Speaker 03: If I may say my remaining minute and a half for rebuttal, thank you. [00:15:11] Speaker 01: Sure. [00:15:12] Speaker 01: Morning, Your Honors, and may it please the Court, Rajiv Mohan for the United States. [00:15:16] Speaker 01: The District Court correctly applied the 25-year mandatory minimum here because Section 3559F2 enumerates kidnapping as a crime of violence for purposes of that provision. [00:15:28] Speaker 01: to impose the sentence, if the crime of violence is kidnapping, is to say that kidnapping is a crime of violence. [00:15:34] Speaker 00: Let me interrupt you there. [00:15:37] Speaker 00: And perhaps you're the one I should have been questioning on this, because you're on the other side of that argument. [00:15:46] Speaker 00: If we go to 3559, it does not say, if the crime of violence is kidnapping, do such and such. [00:15:56] Speaker 00: It says, [00:15:57] Speaker 00: if the crime of violence is kidnapping per ren as defined in 1201. [00:16:03] Speaker 00: Not just any kidnapping, but kidnapping is defined in 1201. [00:16:09] Speaker 00: So you go to 1201 and it says, kidnapping, whoever seizes, confines, invigils, decoys, kidnaps, and so forth is that. [00:16:21] Speaker 00: So what that is saying is it's not just all crimes of kidnapping, it's only crimes of violence [00:16:27] Speaker 00: which are defined in 1201 to include invigiling. [00:16:31] Speaker 00: And invigiling, we know, is not necessarily requiring force. [00:16:38] Speaker 00: And so it seems to me that we cannot say just on this case that this defendant, by being convicted of kidnapping, was convicted necessarily of a crime of violence. [00:16:54] Speaker 00: And I'm suggesting that [00:16:56] Speaker 00: If a court really wants to give 30 years, the court can work around that by saying, look, let's not do the jury. [00:17:02] Speaker 00: You tell me on 1201 which of those criteria you're going to rely on. [00:17:07] Speaker 00: But we can't tell it in this case because you didn't do that. [00:17:09] Speaker 00: And so in this case, we have got an unavoidable possibility that this jury found kidnapping because of invigiling. [00:17:20] Speaker 00: That would not meet the current Supreme Court definition of violence. [00:17:25] Speaker 00: And therefore, that does not meet the test for a 30-year requirement. [00:17:30] Speaker 00: Now, I'd like to know where that, I'm not talking about history, I'm not talking about anything else about the statute or what Congress was thinking or not thinking, just address that analysis of defining kidnapping by 1201, which contains the word invigiling, and tell me why we should say that invigiling, a nonviolent factor, [00:17:54] Speaker 00: is not a possibility upon which this defendant was convicted. [00:17:59] Speaker 01: And I'm not saying that you should say that. [00:18:02] Speaker 01: I agree with you that if we were limited to the elements clause, kidnapping would not satisfy the elements clause because it can be committed by inveigling. [00:18:13] Speaker 00: My point is that in the section- We can't be relying on the catch-all clause. [00:18:21] Speaker 00: Correct. [00:18:23] Speaker 00: And it's not an enumerated clause, because if it were simply said enumerated, it would just say kidnapping. [00:18:36] Speaker 00: But the enumeration here wasn't just kidnapping. [00:18:40] Speaker 00: It's a special kind of kidnapping defined by 1201. [00:18:46] Speaker 00: You and I, I mean, I think I agree that we can't say it's an element. [00:18:51] Speaker 00: We can't say it's residual. [00:18:55] Speaker 00: But I don't think we can say that it is an enumerated clause, since the enumeration refers to 1201. [00:19:03] Speaker 00: And 1201 has the word invigiling in it. [00:19:07] Speaker 01: Well, let me put it this way. [00:19:09] Speaker 01: I think that Congress supplemented the Elements Clause with Section 3559 F2. [00:19:15] Speaker 01: And I do read it as an enumeration. [00:19:17] Speaker 01: So when Congress imposed the sentence, quote, if the crime of violence is kidnapping as defined in Section 1201, I think it intended for that sentence to apply to all kidnappings as defined in Section 1201, whether or not the- All kidnappings except the kind of kidnapping defined in 1201, which uses the word invigiling. [00:19:38] Speaker 01: To me, that's not the most natural reading of the statute. [00:19:40] Speaker 01: To me, when Congress says kidnapping, as defined in section 1201, warrants this sentence, it meant what it said. [00:19:47] Speaker 01: And all kidnappings under section 1201 qualify for the mandatory minimum sentence if the victim is a minor. [00:19:54] Speaker 04: I thought I just heard you say that invigiling was not a crime of violence. [00:20:02] Speaker 01: Kidnapping does not satisfy the elements clause. [00:20:05] Speaker 01: I agree with that. [00:20:07] Speaker 00: If the definition of crime of violence and biggling can be done without violence, you agree with that? [00:20:14] Speaker 01: I would. [00:20:17] Speaker 01: So my point is that Congress supplemented the Elements Clause. [00:20:20] Speaker 01: And let me maybe put it this way and pick up on a point you made, Chief Judge Holmes, earlier that I think when Congress passed the statute in 2006, the residual clause was still valid. [00:20:31] Speaker 01: I think Congress probably presumed at that point that kidnapping [00:20:35] Speaker 01: satisfied the definition in section 16 under the residual clause, which is how kidnapping had typically been sustained as a crime of violence pre-Demaya. [00:20:46] Speaker 01: But I think that Congress enacted that presumption into federal law with the text of 3559 F2. [00:20:52] Speaker 01: And I think at that point, it became irrelevant whether that assumption later proved unfounded as it turned out to be given the vagueness of the residual clause, because Congress [00:21:05] Speaker 01: specifically stated its intent for kidnapping to be treated as a crime of violence for purposes of this mandatory minimum sentence? [00:21:14] Speaker 04: Well, by supplement the Elements Clause, now I understand you to mean that what you're saying is even though invading would not satisfy the Elements Clause, Congress, as a matter of dictate, would say that any kidnapping under 1201 is a crime of violence. [00:21:31] Speaker 04: Is that what you're saying? [00:21:32] Speaker 01: for purposes of the mandatory minimum. [00:21:34] Speaker 01: We are not saying that kidnapping is now a crime of violence for purposes of Section 924C or any other provision. [00:21:42] Speaker 01: But I think in this specific context where Congress has dealt with this issue, it is treated as a crime of violence for Section. [00:21:49] Speaker 00: Except that if they had wanted to say, we are declaring in 3559 F2 that kidnapping is a crime of violence, [00:22:01] Speaker 00: They could have said that. [00:22:02] Speaker 00: They would have said that. [00:22:03] Speaker 00: But they didn't say, if the crime of violence is kidnapping, then do this. [00:22:08] Speaker 00: They said, if the crime of violence is kidnapping, as defined in section 1201, not just kidnapping. [00:22:17] Speaker 00: So we are just forced back into the definition of 1201 for kidnapping. [00:22:23] Speaker 04: Yeah, two questions that come out of that. [00:22:28] Speaker 04: If I understand you correctly, then you're saying that as it relates to this subsection two, in effect, Congress is taking some provision that otherwise would not carry the crime of violence moniker, and you're saying that Congress could, for purposes of this particular provision, and say, the car is red here, you know, everywhere else the car is green, but here you got to tell me the car is red. [00:22:51] Speaker 04: Well, that, you know, that doesn't sort of, [00:22:55] Speaker 04: hit the smell test very well. [00:22:56] Speaker 04: I mean, that one would understand that to be the case. [00:22:59] Speaker 04: So what do we do with that, one, and two, perhaps a more basic question, is everybody seems to be marching to the tune of the drummer that section 16's definition has been, in some sense, effectively or tacitly incorporated into this statute. [00:23:17] Speaker 04: What is the foundation for that? [00:23:20] Speaker 04: I mean, what allows one to make the implication that somehow or other would be [00:23:24] Speaker 04: Section 16 provision, definition of crime or violence applies here. [00:23:29] Speaker 01: Sure. [00:23:29] Speaker 01: Let me take those in turn. [00:23:32] Speaker 04: I thought you were going to take the easy one first. [00:23:35] Speaker 04: The first one, I think, is more difficult. [00:23:37] Speaker 01: Sure. [00:23:38] Speaker 01: I suppose the short answer is that I think it's within Congress's authority to define the red car as green. [00:23:44] Speaker 01: But I don't think what Congress did here was that extreme, precisely because [00:23:49] Speaker 01: when Congress passed Section 3559F2, kidnapping was a crime of violence under the residual clause. [00:23:57] Speaker 01: Indeed, that was why the defendants here were charged with 924C conviction. [00:24:02] Speaker 01: So it's not as though Congress were calling wire fraud a crime of violence. [00:24:07] Speaker 01: It was calling something that at the time was considered a crime of violence a crime of violence. [00:24:12] Speaker 01: So I think that enumeration was both within Congress's authority and a plausible [00:24:18] Speaker 01: determination by Congress. [00:24:21] Speaker 01: The second point, I assume that the general definition applies simply because section 16 appears in the general provisions of the United States Code. [00:24:33] Speaker 01: And let me maybe use an example that I think illustrates that point and why the phrase crime of violence isn't surplusage in section 3559f as a whole. [00:24:45] Speaker 01: Because if you look at subsection [00:24:46] Speaker 01: F3, it applies a 10-year mandatory minimum if the crime of violence results in serious bodily injury or if a dangerous weapon was used during and in relation to the crime of violence. [00:24:58] Speaker 01: And because there are no specific enumerations in that statute, I think the court would look to the general definition in section 16. [00:25:08] Speaker 01: An offense would have to satisfy the elements clause in order to qualify for that 10-year mandatory minimum. [00:25:17] Speaker 01: My point with respect to section F2 is that it adds to that general definition in section 16. [00:25:23] Speaker 01: So I think both statutes come into play here, if that makes sense. [00:25:28] Speaker 04: Let me back up and understand your sort of historical argument. [00:25:31] Speaker 04: You're saying that at the time that Congress enacted F2, it thought that was the perception that all kidnappings under 1201 [00:25:43] Speaker 04: would be subject to the residual clause as being crimes of violence or not? [00:25:47] Speaker 01: That's my understanding. [00:25:49] Speaker 01: And I think this court in Mr. Ford's direct appeal did not deal with this precise issue. [00:25:53] Speaker 01: But Mr. Ford argued that the crime of violence determination should be sent to a jury. [00:25:58] Speaker 01: And in the course of rejecting that argument, this court had held in Mr. Ford's direct appeal that as a matter of law, it's a legal question, kidnapping is a crime of violence as a matter of law for purposes of Section 924C. [00:26:11] Speaker 01: But obviously, that was. [00:26:12] Speaker 01: pre-Demaya. [00:26:14] Speaker 01: And when Demaya came down, the government consented to vacate her of the defendant's 924C convictions on the theory that those convictions could only, first of all, those convictions were sustained based on kidnapping was the predicate crime of violence. [00:26:31] Speaker 01: And after Demaya came down, the government agreed that the 924C convictions could no longer be sustained because kidnapping [00:26:41] Speaker 01: could only be sustained under the residual clause, and the residual clause was invalid. [00:26:45] Speaker 04: Okay, so the argument would be that at the time that Congress did this provision, F2, it believed that all kidnappings as defined in 1201 could conceivably be crimes of violence because of the residual clause. [00:26:59] Speaker 04: Now that we don't have that residual clause, [00:27:02] Speaker 04: then the question becomes essentially can we presume, can we read the statute to say the red card, green card thing that I talked about, right? [00:27:13] Speaker 04: That even if provisions under 1201 that would not be crimes of violence under the current law, nevertheless Congress has spoken to them as being crimes of violence. [00:27:25] Speaker 04: Do I understand you correctly? [00:27:26] Speaker 01: I think that's right. [00:27:27] Speaker 01: And I further don't think there's anything in the statute to suggest that Congress's imposition of the penalty was somehow contingent on future interpretations of the validity of the residual clause or the elements clause or anything like that. [00:27:41] Speaker 01: I think this might be a different case if Congress said if kidnapping is a crime of violence. [00:27:47] Speaker 01: But I think it said something very different in saying if the crime of violence is kidnapping. [00:27:52] Speaker 04: Why can't an elegant way to view this statute be the one that Judge Ebell alluded to, which is simply to say that in the current form, [00:28:04] Speaker 04: not every crime of violence under 1201 is a, well, not every provision, form of kidnapping, means of kidnapping under 1201 is a crime of violence. [00:28:17] Speaker 04: And so in the jury instructions, you would enumerate, do one way or the other, list out the ones that aren't crimes of violence and say, if it's any of these, [00:28:28] Speaker 04: you indicate on the verdict form to that effect or do one way or the other to sort out the offenses in 1201 that are crimes of violence from the offenses that are not. [00:28:40] Speaker 04: And then with that verdict form, the judge can decide whether the mandatory minimum applies or not. [00:28:47] Speaker 04: Why isn't that a way to read the statute that avoids the red car, green car phenomenon, which strikes me as being a little odd. [00:28:56] Speaker 01: Sure. [00:28:57] Speaker 01: And I guess two responses. [00:28:58] Speaker 01: First would be, I think, by Congress's reference to 1201, it didn't intend it to bring it back just to certain subsections. [00:29:05] Speaker 01: But directly to your point, at least based on this court's unpublished decision in Hopper, which dealt with kidnapping under the Elements Clause for purposes of Section 924C, [00:29:17] Speaker 01: I don't think the statute here would necessarily be divisible in the way you describe, in which case, you know, these are simply alternative means and we would still be under the regular categorical approach as compared to the modified categorical approach, and that would not solve the problem if that makes sense. [00:29:37] Speaker 01: My reading of the courts. [00:29:39] Speaker 04: I think it does make sense, but with that same principle, that categorical principle as it relates to elements and means, would that apply when we're talking about mandatory minimums? [00:29:49] Speaker 04: Well, I guess it would, because of Elaine, that it would still matter that the jury would have to find, right? [00:29:57] Speaker 01: I think so. [00:29:57] Speaker 01: All right. [00:29:59] Speaker 01: And I see my time is almost out, unless there are any other questions. [00:30:02] Speaker 02: I have a question. [00:30:03] Speaker 02: Yes. [00:30:03] Speaker 02: Doesn't your position [00:30:06] Speaker 02: 3559 F2 make an entire statutory provision rendered ineffectual like 1201? [00:30:19] Speaker 01: Sorry, I'm not sure I quite. [00:30:21] Speaker 02: Doesn't your position on F2 render completely ineffectual statutory provision under 1201? [00:30:32] Speaker 01: The 20-year mandatory amendment 1201? [00:30:35] Speaker 01: I think so, but I also think that that was Congress's intent in just by way of statutory history. [00:30:42] Speaker 01: Congress imposed the 20-year mandatory minimum in 1201-G in 2003, and just three years later, it enacted the 25-year mandatory minimum. [00:30:52] Speaker 01: And I think that that demonstrates a fairly clear purpose to enhance the penalties [00:30:57] Speaker 01: for kidnappings of minors. [00:30:59] Speaker 01: So while it is true that it would render that provision ineffectual, I still think that's the best reading of Congress's intent here. [00:31:07] Speaker 02: Is there any indication in the legislative history of F2 that it was doing what you say it was doing? [00:31:17] Speaker 01: I would sort of just point to the overall purpose of the statute of 3559F, which enhanced penalties for kidnappings [00:31:26] Speaker 01: for crimes of violence against minors generally. [00:31:29] Speaker 01: The title in the public law, and this is public law 109-248, section 202, was assured punishment for violent crimes against children. [00:31:40] Speaker 01: I believe the purpose section in that public law talked about enhanced penalties. [00:31:47] Speaker 01: And so that would be where we draw that purpose, the enhancement of penalties. [00:31:51] Speaker 01: Talks about the what penalty? [00:31:52] Speaker 01: The enhancement of penalties. [00:31:58] Speaker 04: Okay, thank you, Council. [00:32:15] Speaker 03: If I may briefly begin, I do want to, I would be remiss if I didn't correct the math here or the numbers. [00:32:21] Speaker 03: So the statutory mandatory minimum that we're talking about is 25 years, not 30. [00:32:25] Speaker 03: So the difference here is between a 25-year mandatory minimum [00:32:28] Speaker 03: And 20, correct? [00:32:29] Speaker 00: We all know that. [00:32:30] Speaker 00: If I said 30, I said 20. [00:32:31] Speaker 00: OK, sorry. [00:32:36] Speaker 03: So again, fundamentally, our position is when you look at F and you look at 2, what F said, this is all about crimes of violence against children. [00:32:45] Speaker 03: It has to first be a crime of violence. [00:32:47] Speaker 03: And then it says, if that crime of violence is kidnapping. [00:32:50] Speaker 03: If all kidnappings were crimes of violence, as the government says, you wouldn't need to say crime of violence again in paragraph 2. [00:32:58] Speaker 03: And finally, I would just close by noting that the government has not disputed that if the court finds this error in the statutory interpretation, the error is not harmless on this record, and reversal for resentencing on all counts should occur. [00:33:13] Speaker 03: Thank you very much. [00:33:15] Speaker 04: All right. [00:33:15] Speaker 04: Thank you, counsel. [00:33:16] Speaker 04: The case is submitted. [00:33:17] Speaker 04: Thank you for your fine arguments.