[00:00:04] Speaker 03:
Next case this morning is United States versus Manzano, 23-6073.

[00:00:14] Speaker 03:
Counsel for Appellant, if you'd make your appearance and then proceed.

[00:00:25] Speaker 02:
Thank you, Your Honor.

[00:00:26] Speaker 02:
May it please the Court.

[00:00:27] Speaker 02:
Kyle Wackenheim, Assistant Federal Public Defender, on behalf of the Appellant, Julian Manzano.

[00:00:34] Speaker 02:
Oklahoma's second degree murder statute does not categorically qualify as a crime of violence under the guidelines for two independent reasons.

[00:00:44] Speaker 02:
First, section 701.8 of Title 21 contains a felony murder provision that in practice does not require an underlying dangerous felony.

[00:00:56] Speaker 02:
Second, Oklahoma's murder scheme includes unborn children as victims of the offense

[00:01:03] Speaker 02:
Again, taking it outside the scope of generic murder.

[00:01:08] Speaker 03:
As to the second, did you raise that before the district court?

[00:01:13] Speaker 02:
Your Honor, I'm not prepared to concede that it's review for plain error, though I think the Molloyed case makes it a difficult argument for me to make.

[00:01:24] Speaker 03:
Well, did you make an argument for plain error above here?

[00:01:28] Speaker 02:
In the reply brief.

[00:01:29] Speaker 03:
In the reply brief.

[00:01:30] Speaker 03:
Yes, Your Honor.

[00:01:31] Speaker 03:
So you're not conceding that it has not been preserved, but you did, I just didn't immediately recall.

[00:01:38] Speaker 02:
Sure.

[00:01:38] Speaker 03:
You did not, but you did argue plain error in the reply brief.

[00:01:41] Speaker 02:
Yes, Your Honor.

[00:01:43] Speaker 02:
All right.

[00:01:43] Speaker 02:
And part of the reason why in the reply brief we first contested whether or not it was not properly raised was the basis of

[00:01:53] Speaker 02:
The argument with respect to unborn children derives from the Adams decision.

[00:01:57] Speaker 02:
And the Adams decision was very much top center of the district court's analysis of whether or not Oklahoma's second degree of murder statute qualified.

[00:02:07] Speaker 03:
Now, admittedly- Yeah, but you did cite Adams for an entirely different thing, right?

[00:02:10] Speaker 03:
I mean, if I go back and look at the transcript, there's no reference to Adams having anything to do with unborn children.

[00:02:16] Speaker 02:
I cannot dispute that, Your Honor.

[00:02:17] Speaker 02:
You're correct.

[00:02:19] Speaker 02:
But turning to the-

[00:02:23] Speaker 02:
I don't know if the court prefers to go to that argument first or to the first.

[00:02:27] Speaker 02:
I think either argument is sufficient for reversal.

[00:02:33] Speaker 02:
The first question is, what is the actual federal comparator?

[00:02:36] Speaker 02:
What is generic murder?

[00:02:37] Speaker 02:
I think this court has been fairly clear, albeit in a different context, in the Castro-Gomez case, importing the Third Circuit's definition from Marrero.

[00:02:47] Speaker 02:
I think the government also agrees.

[00:02:50] Speaker 02:
that that is an appropriate definition and I think it meets the requirements of determining a generic definition.

[00:02:57] Speaker 02:
It relies on federal and state statutes, the Model Penal Code, dictionaries and treatises.

[00:03:02] Speaker 02:
And relevant to the discussion today is generic murder under that definition is defined as causing the death of another person either intentionally during the commission of a dangerous felony

[00:03:14] Speaker 02:
or through conduct evincing recklessness, depraved indifference to serious dangers posed to human life.

[00:03:21] Speaker 02:
What's relevant for Appellant's argument here is the necessity of an underlying dangerous felony.

[00:03:29] Speaker 02:
And that's clear from the sources used to arrive at the generic definition.

[00:03:34] Speaker 02:
And admittedly, Murero didn't hinge its analysis on what the felony murder provision was.

[00:03:39] Speaker 02:
But the model penal code, section 210.2,

[00:03:44] Speaker 02:
Its concept of felony murder limits it to robbery, rape, or deviant sexual intercourse by force or threat of force, arson, burglary, kidnapping, or felonious escape.

[00:03:55] Speaker 02:
Black's Law Dictionary is similar.

[00:03:57] Speaker 02:
It defines felony murder as murder occurring during the commission of a dangerous felony, and it enumerates rape, kidnapping, robbery, burglary, and arson.

[00:04:09] Speaker 02:
And importantly, the government's not argued

[00:04:11] Speaker 02:
that the generic definition is broader than dangerous felony.

[00:04:17] Speaker 02:
Now, what I think appellant needs to contend with and what I think we can win is whether or not Oklahoma second degree murder permits the underlying felony to be a non-dangerous.

[00:04:31] Speaker 02:
And that seems to be the crux of the argument.

[00:04:34] Speaker 02:
And admittedly, there is some language from a 1978 Oklahoma Court of Criminal Appeals opinion.

[00:04:39] Speaker 02:
That's the Wade decision.

[00:04:42] Speaker 02:
where the court purports to limit the underlying felony to felonies that are inherently or potentially dangerous to human life, inherently dangerous as determined by the elements of the offense, or potentially dangerous in light of the facts and circumstances surrounding both the felony and the homicide.

[00:05:02] Speaker 02:
If that were the case, then

[00:05:05] Speaker 02:
It would be a much more difficult argument to make that Oklahoma's felony murder statute for second degree is broader.

[00:05:14] Speaker 02:
But there are published decisions from the Oklahoma Court of Criminal Appeals who is not known for publishing a tremendous amount of opinions.

[00:05:23] Speaker 02:
And in those opinions, and they're included in our briefing, there are three examples at least that show

[00:05:29] Speaker 02:
that second degree felony murder can be committed with a non-dangerous felony.

[00:05:34] Speaker 02:
The Wade case, for example, even though the death seemed to have occurred from the bullet fired from the defendant's gun, he was convicted of felony murder and the underlying felony being possession of a loaded pistol in an alcohol establishment.

[00:05:52] Speaker 02:
That in itself, I think, is outside the scope of felony murder under the generic definition.

[00:05:58] Speaker 02:
Mulaski v. State.

[00:06:00] Speaker 02:
This is a 2004 decision.

[00:06:03] Speaker 02:
The predicate felony that served to convict the defendant of second degree murder was furnishing alcohol to a minor.

[00:06:13] Speaker 02:
The opinion in that case talked about Wade.

[00:06:18] Speaker 02:
But the analysis, I don't want to be too critical, but I just want to simply state

[00:06:25] Speaker 02:
that it doesn't square with the generic definition of dangerous felony when in practice furnishing alcohol to a minor can serve as the predicate felony.

[00:06:34] Speaker 02:
And if the court is interested in a more cogent criticism of that case, there is a Boston University Law Review article at 91 BU Law Review 403 with the relevant discussion at 476.

[00:06:49] Speaker 02:
And there's also a number of other cases after 1978 in which

[00:06:55] Speaker 02:
felony DUI can serve as the predicate felony.

[00:06:58] Speaker 02:
Again, this is outside the scope of generic felony murder.

[00:07:09] Speaker 02:
Second, independent reason why I believe that Oklahoma's second degree murder statute is outside the scope of- Could I ask, just as a jurisprudential matter then, what should we do

[00:07:24] Speaker 03:
with this language in Wade.

[00:07:28] Speaker 03:
And would it be your contention?

[00:07:32] Speaker 03:
I'm not trying to put words in your mouth, but would it be your contention in Sticta?

[00:07:36] Speaker 03:
What's your view?

[00:07:38] Speaker 03:
And I noted, I think in your reply brief, that you also referenced the fact that the or potentially dangerous

[00:07:45] Speaker 03:
in light of the facts and circumstances surrounding the felony and homicide was not included in part of the government's argument.

[00:07:51] Speaker 03:
So two questions.

[00:07:53] Speaker 03:
What do we do with Wade?

[00:07:55] Speaker 03:
What do we make of that language in the context of this case?

[00:08:00] Speaker 03:
Second question is, what is the significance of that omitted language in your argument?

[00:08:08] Speaker 02:
Taking the second first, it allows

[00:08:10] Speaker 02:
the trial court to independently determine whether or not the underlying felony is dangerous.

[00:08:15] Speaker 02:
And there's a lot of discussion about nexus.

[00:08:17] Speaker 02:
And that Law Review article discusses, it seems to be the result that if there's a felony and there's a death, and if they're somewhat connected, that that's sufficient.

[00:08:28] Speaker 02:
And I think that the broader language of that quote shows that it takes it outside the scope of what has been understood thus far to be felony murder.

[00:08:37] Speaker 02:
Taking the first question,

[00:08:39] Speaker 02:
which is, what should this court do in light of Wade and subsequent?

[00:08:45] Speaker 02:
I was struggling to determine how to answer that.

[00:08:48] Speaker 02:
And I apologize for not recalling the name of the case, but in all of these modified categorical approach cases, there's this test where you have to show that this is actually a realistic thing that could happen under the statute.

[00:09:01] Speaker 02:
And I apologize for not knowing what the name of that is.

[00:09:04] Speaker 02:
This is sort of the inverse, which is,

[00:09:06] Speaker 02:
Oklahoma has proclaimed in 1978 what the law is supposed to be.

[00:09:10] Speaker 02:
They've put it into their Oklahoma court uniform jury instructions.

[00:09:16] Speaker 02:
But we know in practice that it's different.

[00:09:18] Speaker 02:
We know that people in Oklahoma are convicted of second degree murder with a predicate felony that does not match categorically.

[00:09:27] Speaker 02:
And I think

[00:09:28] Speaker 02:
that what the court can simply do is what is done ordinarily in the categorical approach.

[00:09:33] Speaker 02:
You identify what is the least culpable conduct.

[00:09:37] Speaker 02:
And that's the Winlow case and a host of other cases.

[00:09:41] Speaker 02:
And line that up with the federal comparator.

[00:09:43] Speaker 02:
And if they're a mismatch, which we submit they are in light of these published decisions, then

[00:09:50] Speaker 02:
It is not a qualified offense.

[00:09:52] Speaker 03:
So creating a realistic possibility that, in fact, there would be prosecutions and convictions outside of the scope of what would be generic murder?

[00:10:02] Speaker 02:
Correct.

[00:10:02] Speaker 03:
OK.

[00:10:06] Speaker 02:
I think if the court, like I indicated earlier, if the court agrees on the first issue, it need not engage substantively in the second issue.

[00:10:15] Speaker 02:
Should it be reviewed for plain error?

[00:10:18] Speaker 02:
Again, this is that Oklahoma's murder statute includes unborn children, whereas we submit the generic murder definition does not include unborn.

[00:10:32] Speaker 02:
The four prongs, I think the third and fourth prong would be pretty well established if there was a guideline error.

[00:10:38] Speaker 02:
Happy to discuss that more, but I think the more meatier issue here is one, whether it's error, and two, if it's plain.

[00:10:45] Speaker 02:
I think whether it's plain error,

[00:10:47] Speaker 02:
is a more difficult argument in light of.

[00:10:53] Speaker 02:
But the best case that I have for that is Adams, and specifically footnote seven, which essentially puts within the 10th Circuit judges on notice that, quote, if a first degree murder statute were to outlaw both the killing of a fetus and an individual born alive, the guidelines might not consider the offense a crime of violence, close quote.

[00:11:17] Speaker 03:
that Adams went on to say was not dealing with the specific issue that you're raising here, right?

[00:11:22] Speaker 02:
Correct.

[00:11:23] Speaker 02:
And is it dicta if it was used to address the specific argument that the government made to show the absurdity of the approach that was advocated for in Adams?

[00:11:34] Speaker 02:
Potentially.

[00:11:34] Speaker 02:
But I would say that there need not be a strict controlling decision.

[00:11:42] Speaker 02:
But again, if the court disagrees on that, I think

[00:11:45] Speaker 02:
This issue of whether or not generic murder includes unborn children, that might be left to a better day.

[00:11:53] Speaker 02:
But I still believe that on the first prong of plain error that we can establish that.

[00:12:00] Speaker 02:
It's pretty well established at the Model Penal Code that historically state statutes and certainly federal statutory murder does not include unborn children.

[00:12:09] Speaker 02:
The government has done an able job

[00:12:13] Speaker 02:
demonstrating that there have been recent changes in some jurisdiction providing criminal liability for criminal acts against the unborn.

[00:12:21] Speaker 02:
That's true.

[00:12:23] Speaker 02:
However, I think the distinction that I'd like to make here is that 11 of those states, they create wholly separate criminal offenses.

[00:12:33] Speaker 02:
This is similar to the discussion about whether or not 1841, which is the federal

[00:12:40] Speaker 02:
Dictionary Act?

[00:12:42] Speaker 02:
Related to that, right.

[00:12:44] Speaker 02:
Sort of the response to it's a wholly separate offense.

[00:12:47] Speaker 02:
And our position is that the creation of a separate offense does not in itself change the understanding of what murder is.

[00:12:55] Speaker 02:
This is not defining murder.

[00:12:57] Speaker 02:
This is defining a separate offense.

[00:12:59] Speaker 02:
And although admittedly, there are 17 states, by my count, that do specifically change the definition of murder.

[00:13:08] Speaker 02:
So I think that 17 states do support the government's argument.

[00:13:12] Speaker 02:
However, that's not generally a consensus.

[00:13:16] Speaker 02:
And briefly, I would also mention that Black's law dictionary has a separate offense for the killing of an unborn child, and that's feticide.

[00:13:24] Speaker 02:
And there is a Ninth Circuit case, the Gomez-Fernandez.

[00:13:27] Speaker 02:
That's the case that engaged on the criticism of, well, not the criticism, but illustrating that 1841 was a separate offense.

[00:13:35] Speaker 02:
That case also agreed that generic murder did not include unborn children, though I do have to admit the precise argument that the government is raising here was not raised in that Gomez-Fernandez case.

[00:13:50] Speaker 02:
For all those reasons, I think particularly on our first issue that Oklahoma's felony murder statute takes it outside the scope,

[00:13:58] Speaker 02:
Divisibility has not been an issue.

[00:14:01] Speaker 02:
I know I raised that in the opening brief.

[00:14:03] Speaker 02:
The government did not engage on that.

[00:14:04] Speaker 02:
I don't think we need to.

[00:14:05] Speaker 02:
I think it's indivisible, and it categorically fails to qualify.

[00:14:09] Speaker 02:
I'd like to reserve the rest room.

[00:14:22] Speaker 01:
May I please support Stephen Kreger on behalf of the United States?

[00:14:26] Speaker 01:
The district court properly concluded that Oklahoma's second re-murder statute is a crime of violence under the guidelines because it qualifies as generic murder.

[00:14:37] Speaker 01:
As Mr. Manzano's counsel pointed out, he raises two arguments.

[00:14:42] Speaker 01:
Beginning with the first argument, I think it's important to note for the court that the argument that he has raised in oral argument and the argument that he raised in his reply brief

[00:14:53] Speaker 01:
is substantially different than the argument he raised both in the district court in his opening brief.

[00:14:59] Speaker 01:
In the district court in his opening brief, Mr. Manzano's argument was that, essentially based on the text, Oklahoma law can cover any felony.

[00:15:08] Speaker 01:
In response, the government pointed out Wade, where the Court of Criminal Appeals judicially restricted what qualified as a predicate felony under Oklahoma law.

[00:15:22] Speaker 01:
As a result,

[00:15:24] Speaker 01:
The arguments that were raised in the opening brief are completely dispensed with under Wade.

[00:15:30] Speaker 01:
The arguments that he's made subsequently in reply at an oral argument under this court's decision in the United States to be left there are Wade.

[00:15:38] Speaker 03:
And why are they Wade?

[00:15:39] Speaker 03:
All the defendant is doing is responding to your argument.

[00:15:42] Speaker 03:
You said Wade limited the scope of this statute to dangerous felonies, and he's saying, no, it didn't.

[00:15:49] Speaker 03:
And here's why it didn't.

[00:15:51] Speaker 03:
And why is that not an extension of his argument that it covers all felonies?

[00:15:56] Speaker 01:
Your Honor, first of all, Wade specifically says it doesn't cover all felonies, which was the argument that he made.

[00:16:01] Speaker 01:
The reason why, and this is explained in Loeffler, is that... Hold on.

[00:16:05] Speaker 03:
You're saying Wade doesn't.

[00:16:08] Speaker 03:
He says it covers all felonies.

[00:16:10] Speaker 03:
Correct.

[00:16:10] Speaker 03:
Opening brief.

[00:16:11] Speaker 03:
You say, Wade, no, it doesn't cover all felonies.

[00:16:14] Speaker 03:
He says, well, Wade, let me explain why Wade doesn't define the scope of this.

[00:16:22] Speaker 03:
So he is responding directly to your argument.

[00:16:25] Speaker 03:
Why is that Wade?

[00:16:26] Speaker 01:
Because had he argued, rather than Oklahoma law covers all felonies, that there is a distinction between the limited felonies.

[00:16:36] Speaker 01:
Oklahoma's definition of dangerousness in Wade

[00:16:39] Speaker 01:
And the generic definition, the government would have been able to point out things like the fact that in Benderoff, which is a case that Mr. Manzano cited in his opening brief, the Ninth Circuit identified Oklahoma as being restricted to dangerous felonies.

[00:16:54] Speaker 03:
Well, Mr. Craig, you're in prime time now.

[00:16:57] Speaker 03:
And what I'm asking you is why isn't, to use the terms of the defendant, why aren't these real-world published cases in the reply brief, why don't they put aside the question of how Wade defines dangerousness if what we're talking about is inherently dangerous?

[00:17:14] Speaker 03:
These real-world cases that are not inherently dangerous cases in which Oklahoma has prosecuted and convicted defendants of felony murder.

[00:17:23] Speaker 01:
So dangerous felony has never been defined by any court.

[00:17:27] Speaker 01:
The Third Circuit, Moreau, simply said dangerous felony.

[00:17:30] Speaker 01:
Now, there are states that have defined it in the model penal code that's defined it as certain enumerated felonies, but other states have defined it as just dangerous felony.

[00:17:39] Speaker 01:
Some states, like Oklahoma, have limited it to something akin to inherently or potentially dangerous to human life.

[00:17:48] Speaker 01:
There is no gelled definition which

[00:17:52] Speaker 01:
Another argument that would have been made had dangerous felony and Wade been raised in the opening brief that the government could have raised is akin to what this court said in the United States v. Jones, that a specific portion of a generic offense can be defined by state law.

[00:18:13] Speaker 01:
And so just because Oklahoma defines dangerousness perhaps slightly differently than other states define it doesn't mean that it's not a dangerous felony.

[00:18:21] Speaker 01:
That being said,

[00:18:23] Speaker 01:
The specific cases that Mr. Manzano has raised, starting with Wade itself, Oklahoma looked not just at the act of bringing in a firearm, or a simple possession of a firearm where alcohol was sold, it looked at the entirety of what happened during the possession of the firearm where alcohol was served.

[00:18:49] Speaker 01:
It's akin to what this court did in the United States v. Kepler,

[00:18:52] Speaker 01:
and addressing the federal second degree murder statute and addressing DUI felony murders.

[00:18:57] Speaker 01:
This court had long held that, akin to what Oklahoma had said, that any felony that isn't enumerated in 1111A could constitute federal second degree murder.

[00:19:10] Speaker 01:
In Kepler, it explained, specifically in DUI cases, that it still would constitute, in that case, the use, attempted use, or threatened use of physical force

[00:19:20] Speaker 03:
You said, well, we're not talking about residual offenses here.

[00:19:24] Speaker 03:
We're talking about enumerated offenses and what murder means.

[00:19:27] Speaker 03:
It's my understanding that you accepted the Marrero definition for purposes of this case, at least, of what murder is.

[00:19:36] Speaker 01:
And had the delta between Wade and Marrero's citation or statement of dangerous felony been raised?

[00:19:45] Speaker 01:
We might have pushed back.

[00:19:46] Speaker 03:
That ship is sailed, friend.

[00:19:48] Speaker 03:
You accepted that definition.

[00:19:50] Speaker 03:
So I'm asking you, based upon that definition, when you have a prosecution for bringing in alcohol into a dangerous place and whatever those other real world published cases are, would bringing alcohol into a bar, well,

[00:20:06] Speaker 03:
Bringing a gun into a bar which serves alcohol, would that be prosecutable as a felony murder under generic murder in the federal system?

[00:20:23] Speaker 01:
The generic definition of murder and the generic definition to the extent we get there of dangerous felony does not have to hinge on a further application of the categorical approach.

[00:20:34] Speaker 01:
There is nothing that says dangerous felony has to be defined solely by the elements of the offense.

[00:20:41] Speaker 01:
And Oklahoma has said you can... Okay, pause button.

[00:20:45] Speaker 03:
You're saying that, let me be clear, let's use the example of that one case.

[00:20:51] Speaker 03:
There were a number of other cases cited by the defendant, at least a couple others, I think, in their reply brief.

[00:20:58] Speaker 03:
No, I mean in their brief, but let's use the bringing out a gun into an alcohol, into a bar.

[00:21:05] Speaker 03:
Well, as it relates to that example,

[00:21:08] Speaker 03:
Are you or are you not saying that that meets the test for a dangerous felony under federal generic murder?

[00:21:17] Speaker 01:
Under the generic definition of the guidelines, I would say yes, it does.

[00:21:20] Speaker 03:
I'm talking about the generic definition that you accepted of Marrero.

[00:21:24] Speaker 01:
And I would say yes.

[00:21:26] Speaker 01:
Marrero does not say, this is what a dangerous felony is.

[00:21:30] Speaker 01:
Marrero actually did not define the generic definition of murder.

[00:21:36] Speaker 01:
But I'm fairly confident that murder wasn't the primary issue in Murero.

[00:21:41] Speaker 03:
What would you draw on in explaining that bringing a gun into a bar would be a dangerous felony for purposes of generic murder under federal law?

[00:21:50] Speaker 03:
You're right.

[00:21:51] Speaker 03:
Murero doesn't go forward to give us an explication of what dangerous means.

[00:21:56] Speaker 03:
But what are you going to draw upon and explain to me why

[00:22:00] Speaker 03:
generic federal murder would match with bringing a gun into a bar.

[00:22:06] Speaker 01:
What Oklahoma looked at when it affirmed the second degree murder statute were the facts of the case and what resulted by bringing that firearm in to a place where alcohol is consumed.

[00:22:21] Speaker 01:
which lowers the inhibitions, which makes it far more likely that the firearm would be used in a dangerous way, and in fact was used in a dangerous way.

[00:22:29] Speaker 03:
And that is very interesting.

[00:22:30] Speaker 03:
To the point that the defendant made in the reply brief, you did not include that additional language and way that talks about other potential circumstances or that sort of thing, which presumably would leave it up to the trial court, as the defendant says, to determine what else is murder.

[00:22:46] Speaker 03:
And as it relates to that other part of Wade, which says other potentially dangerous in light of the facts and circumstances surrounding the felony, which is what you're talking about now.

[00:23:02] Speaker 03:
Does generic murder encompass that analysis?

[00:23:07] Speaker 03:
I have never seen that.

[00:23:08] Speaker 03:
Does generic federal murder allow a trial court to determine what's dangerous in a case by case basis?

[00:23:14] Speaker 01:
I would submit to the extent that we're talking about in the context of a Rule 29 decision, that yes, a court would have to determine.

[00:23:22] Speaker 03:
We're talking about what the law is.

[00:23:26] Speaker 03:
Would generic federal murder encompass a case-by-case determination of potential dangerousness?

[00:23:34] Speaker 01:
When you're saying generic federal murder, and I'm wanting clarification so I can answer the question,

[00:23:41] Speaker 01:
I take it to mean generic murder as laid out in the guidelines, not federal murder as defined by 18 U.S.C.

[00:23:48] Speaker 01:
section 1111.

[00:23:50] Speaker 03:
Yeah, let's walk through it.

[00:23:51] Speaker 03:
We're talking about a crime of violence.

[00:23:53] Speaker 03:
Correct.

[00:23:54] Speaker 03:
We're talking about that in the guidelines, right?

[00:23:56] Speaker 03:
Correct.

[00:23:56] Speaker 03:
Okay.

[00:23:57] Speaker 03:
And we're talking about the enumerated offense of murder in the guidelines.

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

[00:24:00] Speaker 03:
I'm talking about that enumerated offense, and to the extent that we're talking about felony murder as it relates to that enumerated offense,

[00:24:09] Speaker 03:
Would it be your position that that enumerated offense, the generic version of that, would encompass and allow a court on a case-by-case basis to determine potential dangerousness of the felony for felony murder purposes?

[00:24:25] Speaker 01:
Yes, Your Honor.

[00:24:26] Speaker 01:
There are states besides Oklahoma that have defined murder in that way.

[00:24:31] Speaker 01:
And so our position would be that the generic definition of murder would include both where you look at the elements of the underlying offense and also where you look at the facts of the case.

[00:24:47] Speaker 03:
And one of the reasons, at least from my perspective, you're standing there is because I wanted to hear your response to the reply brief.

[00:24:55] Speaker 03:
And so tell me, please, what is your best case to tell me that federal law, I don't care what state law per se does, what does federal law say about what murder means in the guidelines for purposes of encompassing this case-by-case fact-based determination?

[00:25:11] Speaker 03:
Do you have a case that tells me that that would be encompassed by federal murder in the guidelines?

[00:25:17] Speaker 01:
Well, you're right.

[00:25:20] Speaker 01:
The best case that I would have off the top of my head.

[00:25:22] Speaker 03:
Well, it shouldn't be off the top of your head.

[00:25:24] Speaker 03:
You had time to think about it, and that's what we're here for.

[00:25:29] Speaker 01:
So the federal case that I would point to with regard to the federal generic definition of murder and the guidelines would be the case, and I would have to look in my brief to find the exact name of the case, talks about you determine the generic definition by looking both at federal law and at state law.

[00:25:47] Speaker 01:
And so I would point this court specifically to the cases cited in Professor Lefebvre's treatise on substantive criminal law, volume 2, section 14.5b, footnote 16, which lists a number of cases, as well as Wharton's criminal law, volume 2, section 21, colon 13, footnote 1.

[00:26:09] Speaker 03:
Well, let me put it to you this way.

[00:26:11] Speaker 03:
You shouldn't be doing this off the top of your head because you had time to know what, it's very clear what we're here to talk about.

[00:26:17] Speaker 03:
Two, give us a supplemental authority.

[00:26:20] Speaker 03:
It's not our job to go through and find in that footnote the right case that fits this circumstance.

[00:26:25] Speaker 03:
You give us the best case that you got that tells us that generic murder under the guidelines would encompass a case by case determination of dangerousness in felony murder.

[00:26:37] Speaker 03:
I look forward to reading that case when you submit it.

[00:26:40] Speaker 01:
Yes, Your Honor.

[00:26:43] Speaker 01:
Unless the court has any further questions with regard to the first issue, I'll briefly turn to the second issue.

[00:26:49] Speaker 01:
With regards to the second issue, we would submit its review to a plain error.

[00:26:53] Speaker 01:
This court could simply resolve this on the plainness prong because footnote seven of Adams specifically provides, quote, we need not decide this issue.

[00:27:01] Speaker 01:
And so there would be no plainness.

[00:27:03] Speaker 01:
With regard even to whether or not there's error at all, we point to section 1841 of Title 18 of the United States Code, which expands coverage of the federal murder statute among other crimes to protect unborn children.

[00:27:20] Speaker 01:
This is confirmed by the House report.

[00:27:23] Speaker 01:
It's also confirmed by what this court said in Doe v. Hunter, saying that section 1841

[00:27:29] Speaker 01:
And the laws defining the unborn as victims of homicide under Oklahoma law did the same thing.

[00:27:35] Speaker 01:
Fifteen states had expressly included children, including two of the largest states, as victims of homicide.

[00:27:43] Speaker 01:
That would include Alabama, Arizona, Arkansas, California.

[00:27:46] Speaker 01:
Idaho, Kansas, Maryland, Massachusetts, Mississippi, Missouri, Ohio, Oklahoma, Tennessee, Texas, and Utah.

[00:27:54] Speaker 01:
Ten more states have feudal homicide statutes.

[00:27:57] Speaker 01:
Two additional states have laws similar to Section 1841 in the federal statutes.

[00:28:05] Speaker 01:
And ultimately, we're addressing what is the modern generic definition of murder.

[00:28:11] Speaker 01:
And the modern generic definition of murder has started to encompass and the majority of states have included the protection of unborn children or fetuses as victims of homicide.

[00:28:25] Speaker 00:
I have a question.

[00:28:27] Speaker 00:
Of course.

[00:28:28] Speaker 00:
I've been listening to the arguments and I come down to this question and your response to Chief Judge Holm.

[00:28:36] Speaker 00:
What do we do then with the three cases out of Oklahoma?

[00:28:41] Speaker 00:
in regards to taking a gun into a bar or furnishing alcohol or drugs where there's that kind of death.

[00:28:52] Speaker 00:
What do we do then with those three cases that have been cited to us?

[00:28:56] Speaker 00:
They just ignore them?

[00:28:58] Speaker 00:
Or how do you handle that?

[00:29:04] Speaker 01:
So the first thing I would point out, and I understand the court at least is pushing back on this,

[00:29:11] Speaker 01:
This wasn't addressed.

[00:29:13] Speaker 01:
There was no analysis of these cases, especially in the context of the chair.

[00:29:19] Speaker 00:
We don't need an analysis because I can read it for myself as to what the Oklahoma Court's doing.

[00:29:26] Speaker 01:
The second thing that I would point to would be what this court did with the federal second degree murder statute in Kepler.

[00:29:33] Speaker 01:
and Kepler had explained that, and this might be a response perhaps to Judge Holm's question as well, that the type of felony that was envisioned in the fourth part of the Federal Second Degree Murder Statute

[00:29:53] Speaker 01:
required, I believe it was, a depraved heart under federal law.

[00:29:58] Speaker 01:
And so what this court could do is say Oklahoma has said, in these specific situations, one, it hasn't addressed the outer limits of dangerousness.

[00:30:12] Speaker 01:
And because it hasn't addressed the specific question, it's not terribly relevant.

[00:30:17] Speaker 01:
And that's what this court did in Kepler when it was addressing its own precedent

[00:30:21] Speaker 01:
regarding DUI cases.

[00:30:22] Speaker 01:
And that was one type of case that Mr. Manzano cited in his opening brief in terms of the force prong, and then again in his reply brief.

[00:30:34] Speaker 01:
Thank you, counsel.

[00:30:35] Speaker 01:
I appreciate that.

[00:30:36] Speaker 01:
Thank you very much, your honors.

[00:30:37] Speaker 02:
Unless the court has questions, I have nothing further.

[00:30:47] Speaker 02:
Nothing further.

[00:30:47] Speaker 02:
Thank you.

[00:30:48] Speaker 02:
Case is submitted.

[00:30:49] Speaker 02:
Thank you.