[00:00:00] Speaker 01:
for a balance, please make your appearance and proceed.

[00:00:20] Speaker 03:
Good morning, Your Honor.

[00:00:21] Speaker 03:
I'm Josh Lee from the Colorado Federal Public Defender's Office, and I represent Mr. Tony.

[00:00:27] Speaker 03:
This case should be remanded for re-sentencing because the district court miscalculated the guidelines range.

[00:00:33] Speaker 03:
The court imposed two separate sentencing increases based on Mr. Toney's obstruction of justice when the guidelines only authorized one.

[00:00:42] Speaker 03:
The court first increased the guidelines range for Mr. Toney's manslaughter offense under Section 3C1.1 based on his obstruction of justice.

[00:00:52] Speaker 03:
That was correct.

[00:00:53] Speaker 03:
But the court then further increased Mr. Toney's guidelines range by refusing to group his obstruction convictions with his manslaughter conviction.

[00:01:03] Speaker 03:
That second increase was an error.

[00:01:06] Speaker 03:
Under Section 3D1.2C, a court is required to group offenses when one of them is treated as an adjustment to the other one.

[00:01:18] Speaker 03:
And here, the guidelines treat obstruction of justice as an adjustment to the offense that the defendant sought to prevent authorities from investigating or prosecuting.

[00:01:29] Speaker 04:
Does the obstruction of justice that the court relies on in sentencing have to be a crime that you've been convicted of, or can it be conduct you weren't charged with, or perhaps

[00:01:47] Speaker 04:
conduct you weren't convicted of?

[00:01:50] Speaker 03:
So if there are no obstruction convictions, yes, 3C1.1 can apply based on uncharged conduct.

[00:02:00] Speaker 03:
However, what the district court did here in not grouping the obstruction convictions with the underlying offense is squarely contrary to application note 8 to section 3C1.1.

[00:02:15] Speaker 03:
And what that application note says is if you have a conviction for an obstruction offense and a conviction for the underlying offense, two things happen.

[00:02:27] Speaker 03:
You get a two point increase to the underlying offense and then the obstruction conviction groups with the underlying offense.

[00:02:34] Speaker 03:
So the district court was required to do that.

[00:02:40] Speaker 01:
With respect to application note eight though,

[00:02:42] Speaker 01:
What do you do with the fact that the language is framed singularly?

[00:02:47] Speaker 01:
And your argument is predicated on the notion essentially that there's no distinction between the grouping of obstruction counts, plural, and the grouping of singular obstruction count.

[00:02:59] Speaker 01:
What do you do with that?

[00:03:02] Speaker 03:
So a couple of things.

[00:03:04] Speaker 03:
Application note eight is framed in the singular, but the obstruction counts

[00:03:10] Speaker 03:
are a singular offense for grouping purposes.

[00:03:13] Speaker 03:
And that's because the obstruction offenses group under 3D1.2b.

[00:03:20] Speaker 03:
So however many obstruction counts you have, if they're part of the same scheme, they group and become a single offense for grouping purposes.

[00:03:29] Speaker 01:
Well, that's not how application note five is framed.

[00:03:33] Speaker 01:
That's framed in terms of multiple counts of obstruction

[00:03:37] Speaker 01:
and it treats them as multiple counts of obstruction for purposes of determining which one is grouped with the underlying count.

[00:03:47] Speaker 03:
So two things about application note five.

[00:03:49] Speaker 03:
The example given in application note five is a defendant who commits a robbery and assaults two victims, right?

[00:03:58] Speaker 03:
So in that situation, there really are two instances of an aggravating factor

[00:04:04] Speaker 03:
Because the two assaults against different victims don't group.

[00:04:08] Speaker 03:
They don't become a single offense.

[00:04:10] Speaker 03:
So you have two aggravating factors.

[00:04:12] Speaker 03:
In the case of an obstructive scheme, the guidelines conceptualize an obstructive scheme as one thing.

[00:04:18] Speaker 03:
So you have one occurrence of an aggravating factor.

[00:04:22] Speaker 03:
But then there's another reason why application note five does not help the goal.

[00:04:26] Speaker 02:
Well, before you jump there, refresh my recollection.

[00:04:29] Speaker 02:
Does application note five even use the word counsel?

[00:04:35] Speaker 03:
Um, let's see.

[00:04:37] Speaker 03:
I can tell you for sure.

[00:04:42] Speaker 03:
Uh, so what, yeah, so application note five says that there may be several counts, each one of which could be treated as an aggravating factor to another more serious count.

[00:04:53] Speaker 03:
But a couple of things.

[00:04:57] Speaker 03:
It's talking about plural because it's talking about the, the like main offense and the aggravating offense, right?

[00:05:05] Speaker 03:
But here's another problem with the government's role.

[00:05:08] Speaker 01:
Well, let's stick with your original problem.

[00:05:09] Speaker 01:
I mean, now that you've pulled up the language, and that's the language which I'm talking about, it's phrased in terms of several counts.

[00:05:17] Speaker 01:
Your argument conflates several counts into one group.

[00:05:20] Speaker 01:
That language doesn't talk about one group.

[00:05:22] Speaker 01:
It talks about several counts.

[00:05:24] Speaker 01:
And it tells you what to do when you have several counts.

[00:05:26] Speaker 01:
And what you do when you have several counts is what the court authorized, the Fourth Circuit authorized in Jones, which was you take the most serious count,

[00:05:35] Speaker 01:
and you group that with the underlying offense.

[00:05:39] Speaker 03:
The key problem with the Fourth Circuit's opinion in Jones, and this is really important, is that it does not take into account 3D1.2b.

[00:05:50] Speaker 03:
Application Note 5 is an interpretation of 3D1.2c.

[00:05:55] Speaker 03:
So let's follow this out.

[00:05:57] Speaker 03:
If we say, all right, I don't agree with you on Application Note 5,

[00:06:03] Speaker 03:
only one obstruction count groups with the underlying offense under 3D1.2C.

[00:06:11] Speaker 03:
But the other obstruction offense has to group with that obstruction offense under 3D1.2B.

[00:06:19] Speaker 01:
And the guidelines... Why would it have to do that?

[00:06:21] Speaker 01:
I mean, Jones walked through the analysis of what happens in exactly this situation.

[00:06:28] Speaker 01:
And the guidelines had to be read harmoniously.

[00:06:31] Speaker 01:
And so I don't know why something that's going on in Part B is going to trump what goes on in Part C. Help me.

[00:06:42] Speaker 03:
Yeah.

[00:06:42] Speaker 03:
So in the guidelines application notes, it says if the counts group under any of the grouping provisions, then they group.

[00:06:52] Speaker 03:
So what you're saying is I'm looking at application note five and the obstruction convictions don't group together under subsection C, but they group together under subsection B. And the guidelines commentary says that you can form a single group through the successive application of several of the provisions.

[00:07:11] Speaker 03:
So here's how it goes.

[00:07:14] Speaker 03:
The obstruction convictions group together under subsection B. I don't think the government has made an argument that they don't group together under subsection B.

[00:07:23] Speaker 03:
then at least one of those convictions has to group with the manslaughter under subsection B. But it has to group with the manslaughter while remaining grouped with the other obstruction offense.

[00:07:33] Speaker 03:
So we have a situation where offense A has to group with offense B, and offense B has to group with offense C, and it necessarily follows that offense A also has to group with offense C. And again, the guidelines explicitly contemplate that.

[00:07:50] Speaker 03:
It is in

[00:07:53] Speaker 03:
application note 6 to 3D1.2.

[00:07:58] Speaker 03:
Quote, a single case may result in the application of several of the rules in this section, and thus a group can be formed where a group can be formed through the successive application of several.

[00:08:13] Speaker 03:
So the example in the application note involves two counts that first group together under subsection A.

[00:08:21] Speaker 04:
and then further group with another count under subsection D. And in going back to Jones, my recollection is that nowhere in that case did they even mention 3D1.2B.

[00:08:34] Speaker 04:
Is that correct?

[00:08:37] Speaker 03:
That's right.

[00:08:37] Speaker 03:
And that's the key error in Jones is the failure to account for that.

[00:08:41] Speaker 03:
And Judge Holmes, you talked about reading the guidelines harmoniously.

[00:08:46] Speaker 03:
And I think that this is a

[00:08:48] Speaker 03:
very harmonious reading of the guidelines because the guidelines under subsection B treat an obstructive scheme as one thing, whereas application note five is about offenses that don't group.

[00:09:03] Speaker 03:
So application note five, the example that they give is the defendant commits a robbery, assaults two separate victims, and the assault on two separate victims, that's the paradigmatic case of offenses that

[00:09:17] Speaker 02:
Let me ask you this because you've just used the word harmonious.

[00:09:21] Speaker 02:
And I've been playing with the question of the difficulty, the ambiguity of weaving these things together, which evidently other circuits have had the same problem.

[00:09:33] Speaker 02:
Have you thought about the question of leniency being applied here or that the Sentencing Commission needs to learn how to write in English?

[00:09:44] Speaker 03:
Number one, I do think that the rule of lenity weighs in my favor, but to be honest... Well, but you just told me you were harmonious with the way you read it.

[00:09:56] Speaker 03:
Yeah, I don't think you need to... I think that the tie goes to me under the rule of lenity, but I don't think you need to get there because... But if we thought it was ambiguous, then it would be trumped with the rule of lenity.

[00:10:09] Speaker 04:
But you didn't argue your lenity.

[00:10:11] Speaker 04:
I was kind of surprised by that.

[00:10:13] Speaker 03:
Yeah, I just think that the guidelines are clear.

[00:10:16] Speaker 04:
Well, if we don't think they're clear, can we rely on lenity even though you didn't argue it?

[00:10:22] Speaker 01:
I think you could, yes.

[00:10:24] Speaker 01:
Let me go back to your comment about application note 8.

[00:10:28] Speaker 01:
When I look at the language, it says if the defendant is convicted of both an obstruction offense and the count for the obstruction offense will be grew.

[00:10:37] Speaker 01:
And then it talks about the notion of what you do with that.

[00:10:40] Speaker 01:
Well, the language that's used is offense.

[00:10:42] Speaker 01:
It's not group.

[00:10:43] Speaker 01:
I mean, you know, I'm trying to follow in terms of how one, your phrase implies that every count, every offense is essentially conflated into one.

[00:10:56] Speaker 01:
And the language of that provision does not suggest that that's what's at play at all.

[00:11:02] Speaker 03:
Two responses to that.

[00:11:04] Speaker 03:
First,

[00:11:05] Speaker 03:
in the guidelines introductory comment to chapter three, part D, which the guidelines actually tell you, you need to look to this in deciding how to apply this.

[00:11:16] Speaker 03:
It says, quote, counts that are grouped together are treated as constituting a single offense for purposes of the guidelines.

[00:11:25] Speaker 03:
So it's not me conflating groups and offenses.

[00:11:29] Speaker 03:
It's the guidelines telling us that they are the same thing.

[00:11:32] Speaker 02:
And going back to

[00:11:35] Speaker 02:
the chief's question, the way I read that is that if I had 20 counts, all of the same thing, and I'm convicted that the sentencing commission is not going to let me sentence you to 20 different sentences for the same violence, not the same, but similar violence, you've got to prove those.

[00:12:00] Speaker 02:
Is that right or is that wrong?

[00:12:02] Speaker 03:
That is right.

[00:12:03] Speaker 03:
And what the guidelines tell us is that when you group offenses, so once you group offenses to form a single group, they are treated, let me get this language again, counts that are grouped together are treated as constituting a single offense for purposes of the country.

[00:12:24] Speaker 01:
And where are you reading from?

[00:12:25] Speaker 03:
That is the introductory commentary to chapter three, part D.

[00:12:32] Speaker 03:
Which again, the grouping rules tell us to look to that.

[00:12:35] Speaker 03:
But here's the other thing, Judge Holmes.

[00:12:38] Speaker 02:
Before you get to the back, tell me in your, as far as the two counts, the interference, I forgot exactly the interference, I guess, those two counts to me read the same that he was charged and is guilty of.

[00:13:01] Speaker 02:
So if you don't group them, which one of those two counts is more severe?

[00:13:05] Speaker 03:
Yeah, I think you have to group them.

[00:13:07] Speaker 03:
And this actually goes to what I wanted to say to Judge Holmes again.

[00:13:10] Speaker 03:
So look at application note 8.

[00:13:13] Speaker 03:
And what it says, let's read it the way that you're suggesting maybe it should be read.

[00:13:19] Speaker 03:
Just ignore the rule that a group is a single offense and say, no, no, we can only group one of them under application note 8.

[00:13:26] Speaker 03:
You then have the problem of subsection B that the obstruction offenses have to group together.

[00:13:32] Speaker 03:
So you're forming a group through the successive application of multiple rules.

[00:13:37] Speaker 03:
Under your reading of application note A, one of the obstruction offenses groups with the underlying offense under subsection C. And then you continue forming the group through subsection B where the other obstruction offense has a group with that one.

[00:13:53] Speaker 03:
And that, again, goes back to what

[00:13:55] Speaker 03:
Judge Baldock says.

[00:13:56] Speaker 01:
Well, play that one out.

[00:13:57] Speaker 01:
What is wrong with that?

[00:13:59] Speaker 01:
I mean, if you had a situation in which the most serious offense is one that grouped with the underlying offense, the most serious witness tampering offense, groups with the underlying offense, and then you have the other obstruction, you only have, there are only two, right?

[00:14:16] Speaker 01:
And so there isn't going to be any worry about what happens to the other one.

[00:14:20] Speaker 01:
The other one stands, the other one that is not grouped,

[00:14:23] Speaker 01:
stands alone as a unique group.

[00:14:26] Speaker 01:
You can't do that because it's barred by subsection B. You've already accepted the premise that these are read harmoniously, so why would it be barred?

[00:14:38] Speaker 01:
Application Note 5 says to do, and you're accepting for an assumption that it says to do that.

[00:14:45] Speaker 01:
At least as I understood you, you're working with my assumption.

[00:14:47] Speaker 01:
I'm not saying you can see that.

[00:14:49] Speaker 01:
But if you work with my assumption that as a result of Application Note 5, you're going to group the most serious witness tampering offense of two with the underlying offense, then you have one standing, right?

[00:15:03] Speaker 03:
Two points to this.

[00:15:04] Speaker 03:
The answer is no.

[00:15:06] Speaker 03:
Because Application Note 5,

[00:15:08] Speaker 03:
is only an interpretation of subsection C. The guidelines say you don't have to group under all of the rules, you have to group under any of the rules and then they also say that a single group can be formed with the successive application of multiple rules.

[00:15:25] Speaker 03:
So the most serious obstruction offense

[00:15:27] Speaker 03:
groups with the manslaughter under application note five and subsection C, but then you have to then apply subsection B. The guidelines tell you, you have to successively apply the rules to determine whether a single group is formed.

[00:15:40] Speaker 01:
Subsection B would get you the grouping of the two underlying, the two tampering offenses.

[00:15:48] Speaker 01:
Why would that necessarily, since you're already getting an adjustment by grouping the one witness tampering offense, why would that necessarily require you to, if you're following the logic of what I said, why would that require you to then group these lone witness tampering offense with that group that you had already created?

[00:16:08] Speaker 01:
Because I mean, you've already, this item, this other witness tampering offense would stand alone.

[00:16:16] Speaker 03:
It can't stand alone because subsection B says it must be grouped with the other tampering offense.

[00:16:22] Speaker 03:
So if you say, I want this obstruction offense to stand alone, you can't do it because subsection B says you can't do it.

[00:16:29] Speaker 03:
And so what I'm saying is that, so let's say that the less serious obstruction offense is A, the more serious one is B, and the underlying offense is C. Subsection B says A and B have to go together.

[00:16:43] Speaker 03:
And then subsection C says B and C have to go together.

[00:16:49] Speaker 03:
And when you apply those in their totality, it all has to be included within a single group.

[00:16:54] Speaker 03:
And again, that's what application note six says to do.

[00:16:57] Speaker 04:
And is the question of whether the two A and B, I think you call them, should be grouped, is it even before us here?

[00:17:11] Speaker 03:
No, because the district court said that they group, and the government has not contested that ruling.

[00:17:16] Speaker 03:
So you can just assume that they group, because that was the ruling below, and the government has a chance.

[00:17:22] Speaker 04:
So we would have to essentially ungroup them?

[00:17:26] Speaker 03:
I'm not aware of any principle ever that something ungroups because it doesn't group in a separate section.

[00:17:34] Speaker 03:
The guidelines say, no, no.

[00:17:35] Speaker 03:
It only has to group under one section, not under every section.

[00:17:38] Speaker 01:
Well, this is an issue of law.

[00:17:40] Speaker 01:
We're not bound by what the district court said is the way you go about interpreting the guidelines, are we?

[00:17:46] Speaker 03:
No, I 100% agree with you.

[00:17:48] Speaker 01:
Well, then what the district court did and whatever the government did, this is an issue of law.

[00:17:54] Speaker 01:
We're not bound by that.

[00:17:56] Speaker 03:
I agree.

[00:17:56] Speaker 03:
And under subsection B, it says you group victimless crimes.

[00:18:01] Speaker 03:
if the crimes harmed a closely related social interest, and they involved a common scheme or plan.

[00:18:08] Speaker 03:
And Mr. Toney's obstruction offenses harmed closely related societal interests, as Judge Baldoch said, it's really hard to tell them apart, and they were part of a common scheme or plan to avoid prosecution for the Garcia homicide, and so they have to group under subsection B, and that's just the end of it.

[00:18:26] Speaker 01:
Thank you.

[00:18:34] Speaker 00:
Good morning, Your Honors.

[00:18:35] Speaker 00:
May it please the Court, Tiffany Walters for the United States.

[00:18:38] Speaker 00:
If I may, I'd like to jump straight into Mr. Toney's argument that his obstructive conduct is all one thing, and therefore it must be applied to the obstruction adjustment and cannot degroup or be divided into different counts or uncharged conduct.

[00:18:53] Speaker 02:
Well, now, I don't read it that way, so you convince me how you read it that way.

[00:18:58] Speaker 00:
Well, I think there's two flaws with seeing it that way, to see it as all one thing.

[00:19:02] Speaker 02:
Well, if there's two, then there's a question of ambiguity then, right?

[00:19:06] Speaker 00:
I think there's two flaws, but I don't think that the guidelines themselves are ambiguous.

[00:19:10] Speaker 00:
To directly address the ambiguity question, I would like to point out that... No, you go ahead.

[00:19:14] Speaker 02:
I just wanted to say where you were, because I don't quite read it that way, and you need to convince me why I needed to read it your way.

[00:19:22] Speaker 02:
Understood.

[00:19:24] Speaker 00:
Judge Roedock,

[00:19:25] Speaker 00:
There's two problems, and the first I'd like to point out is that treating it all as one entity, all the obstructive conduct is one thing.

[00:19:32] Speaker 00:
It's problematic because 3D1.2 groups counts, not conduct.

[00:19:37] Speaker 00:
So the uncharged conduct never grouped.

[00:19:38] Speaker 00:
It's not a count, it doesn't apply to the rules under 3D1.2.

[00:19:43] Speaker 00:
But we have three counts.

[00:19:45] Speaker 00:
We have two, well, the manslaughter and two obstruction counts.

[00:19:48] Speaker 00:
So setting aside the issue of uncharged conduct, there's a separate problem, and that's an order of operations problem.

[00:19:55] Speaker 00:
The guidelines set forth the order in which the district court applies the guidelines to create these different offense levels and then the ultimate guideline range.

[00:20:02] Speaker 00:
And so, going back to 1B1.1, which sets forth the order of operations, this is what the guidelines tell the district court to do.

[00:20:10] Speaker 00:
First, determine which guideline is applicable.

[00:20:13] Speaker 00:
Then, the court looks to determine the base offense level and apply any appropriate specific offense characteristics.

[00:20:20] Speaker 00:
The third step

[00:20:21] Speaker 00:
is to apply any adjustments, and 1B1.1 specifically mentions the obstruction adjustment at step three, and then step four, if there are multiple counts, repeat steps one to three for each count, and then reach grouping.

[00:20:35] Speaker 00:
So the problem with saying that the obstruction counts are all one group is that the grouping doesn't occur until after the adjustment for obstruction has been applied.

[00:20:45] Speaker 02:
Well, the obstruction for adjustments is two separate counts.

[00:20:49] Speaker 02:
And I read that to say that if you've got the underlying defense, that's one count, but it's the more severe count.

[00:20:58] Speaker 02:
You take those two, the obstructions, and you group that with the more severe.

[00:21:07] Speaker 02:
So why is that not right?

[00:21:11] Speaker 00:
I think application note five provides the answer to that question, Judge Valdak.

[00:21:16] Speaker 00:
And so there, if we have multiple obstruction counts,

[00:21:20] Speaker 00:
in addition to the underlying count, which is the manslaughter count in this offense.

[00:21:24] Speaker 00:
So the guidelines recognize sometimes there may be several accounts, each of which could be an aggravating factor to another more serious count.

[00:21:30] Speaker 00:
So here either one of those obstruction counts could serve for the obstruction adjustment under 3C1.1.

[00:21:36] Speaker 01:
Let me, I'm sorry, go ahead.

[00:21:38] Speaker 00:
I was gonna say unless they're grouped.

[00:21:40] Speaker 00:
Unless they're grouped.

[00:21:41] Speaker 00:
Unless they're now one count.

[00:21:43] Speaker 00:
Correct, but at the time that you're applying the adjustment, there's no groups yet.

[00:21:48] Speaker 00:
The court's looking at the adjustment, applying the adjustment based on either charge or uncharged obstructive conduct.

[00:21:55] Speaker 00:
Once it reaches an offense level for each individual count, it then proceeds to 3D1.2 and it groups the accounts.

[00:22:02] Speaker 01:
Let me follow your order of operations analysis and then ask a specific question as it relates to application of five.

[00:22:12] Speaker 01:
Okay, under your view of the order of operations,

[00:22:17] Speaker 01:
the obstruction enhancement takes place before there are groups.

[00:22:20] Speaker 01:
Okay, so it takes place.

[00:22:22] Speaker 01:
Then at that juncture, the question is still, what do you do with the remaining obstruction counts as apart from the notion of the enhancement?

[00:22:34] Speaker 01:
And so walk me through what your theory is of what we do with the remaining counts.

[00:22:39] Speaker 01:
Do we, one, view them as being effectively one offense and group,

[00:22:46] Speaker 01:
Or does Application Note 5 have any role to play in terms of how you treat those counts?

[00:22:55] Speaker 00:
I believe Application Note 5 answers that question and I'd like to turn to the specific language of Application Note 5.

[00:23:00] Speaker 01:
Please do and explain to me and respond to the argument that Application Note 5 really does not have any purchase here

[00:23:09] Speaker 01:
per se as it relates to the question of choosing between the two witness tampering counts, because application note five did not involve the grouping of the counts in its example.

[00:23:22] Speaker 00:
Correct.

[00:23:22] Speaker 00:
So it's true that the assault example provided in application note five, those are assault, they're victim-based crimes, they wouldn't group.

[00:23:29] Speaker 00:
That isn't the example, it's just the example.

[00:23:31] Speaker 00:
So for a second, let's step away from the example and actually look at what the text of note five says beyond the example.

[00:23:37] Speaker 04:
Well, I mean, the example is supposed to help us understand what the point of the note is.

[00:23:44] Speaker 04:
And I mean, it is important that they gave an example where it's patently obvious you couldn't group.

[00:23:53] Speaker 00:
Correct, but if the note wanted to say that this only applies where the counts are not otherwise groupable under 3D 1.2, the application note could have said that easily.

[00:24:04] Speaker 00:
So I'd like to turn to the language of the application note itself beyond the example, and that is sometimes there may be several counts, each of which could be treated as an aggravating factor to another more serious count, but the guideline for the more serious count provides an adjustment for only one occurrence of that factor.

[00:24:19] Speaker 00:
We're in this land here because either one of the obstruction counts

[00:24:22] Speaker 00:
could satisfy the obstruction adjustment.

[00:24:26] Speaker 00:
So then it goes on.

[00:24:27] Speaker 00:
In such cases, only the count representing the most serious of those factors is to be grouped with the other count.

[00:24:34] Speaker 02:
That's very specific.

[00:24:35] Speaker 02:
Which is the more serious of the two counts?

[00:24:38] Speaker 02:
They're both the same.

[00:24:40] Speaker 02:
The district court would need to make a factual finding on that.

[00:24:43] Speaker 02:
We're here on a question.

[00:24:45] Speaker 02:
Which of the two is more egregious?

[00:24:50] Speaker 02:
They're exactly the same

[00:24:52] Speaker 00:
In that case, I'm not sure that it would matter which grouped and which didn't because whichever count doesn't group would still get the .5 for the second group.

[00:25:02] Speaker 00:
The guideline calculation would remain the same regardless of which count grouped in this case.

[00:25:06] Speaker 00:
And so it doesn't actually make an effect in this case.

[00:25:11] Speaker 00:
And ultimately, it'd be a factual question.

[00:25:13] Speaker 00:
I mean, I think in the Court in Jones, it looked at the effect for the witness tampering on what harm was inflicted or the conduct that was engaged with each witness.

[00:25:22] Speaker 00:
Both the witnesses, the girlfriend and the nephew in both counts.

[00:25:27] Speaker 00:
And so it's really a question of is it more severe to tamper with their testimony or is it more severe to tamper with the investigation?

[00:25:33] Speaker 04:
Let me turn you back to where you stopped reading.

[00:25:37] Speaker 04:
Because again, it says, for example, if you have a robbery of a credit union on a military base and you assault two employees, one of whom is injured seriously, again,

[00:25:51] Speaker 04:
the example that is being used, you can't group.

[00:25:56] Speaker 04:
They're two separate victims.

[00:25:58] Speaker 04:
One is injured more seriously than the other.

[00:26:01] Speaker 04:
Our case, our facts don't really fit very well into the examples of Note 5.

[00:26:07] Speaker 00:
I think that's fair.

[00:26:08] Speaker 00:
They don't fit directly into the example, but they do fit into the rest of the language of Note 5, and Note 5 is not

[00:26:15] Speaker 00:
specific to the only counts that wouldn't otherwise group.

[00:26:18] Speaker 00:
There's nothing in the language to say that this example is limiting, that it only applies to victim-based counts.

[00:26:25] Speaker 04:
But you also have another guideline that tells us that you should group these two counts, right?

[00:26:33] Speaker 00:
Right, yes.

[00:26:36] Speaker 00:
Granted, we took a different position for the district court, but we're not challenging that on appeal.

[00:26:39] Speaker 00:
So accepting the district court's analysis

[00:26:41] Speaker 00:
The obstruction counts would group, otherwise group under BSS.

[00:26:44] Speaker 04:
Well, the obstruction counts would group.

[00:26:48] Speaker 04:
And once they've grouped, your argument is, you kind of make a counterfactual argument that what the district court could have done was group them and then ungroup them.

[00:27:00] Speaker 04:
That's your argument in the brief, right?

[00:27:05] Speaker 00:
I don't think so.

[00:27:08] Speaker 00:
What the district court did was that it groups the uncharged obstructive conduct here.

[00:27:13] Speaker 04:
As I read your brief, you make two arguments.

[00:27:15] Speaker 04:
One is that what the district court actually did was it looked at the uncharged conduct, which we really haven't focused on this morning.

[00:27:23] Speaker 04:
And you make a different argument, as I read it, that says, and the court could have grouped them and then ungrouped them.

[00:27:31] Speaker 04:
No, that's not an argument you're making.

[00:27:34] Speaker 00:
I think the court can consider them separately under Note 5.

[00:27:37] Speaker 00:
I think the degrouping language is more of appellant's language, and I would agree there's no concept of degrouping, but I don't think we need to reach that because there's no group at the point.

[00:27:45] Speaker 01:
Well, let me follow along then on at least where I thought you were going as it relates to Note 5.

[00:27:50] Speaker 01:
If we do end up grouping one of the witness tampering counts,

[00:27:57] Speaker 01:
What your opposing counsel said is that while the other witness tampering count can't stand alone, just by definition cannot, because of subsection B. So is that right?

[00:28:11] Speaker 01:
I mean, and if that's true, what's the difference between grouping it at the beginning or grouping it later?

[00:28:20] Speaker 00:
I would point the court to note five again, which specifically says when you have the several counts,

[00:28:25] Speaker 00:
only the count representing the most serious harm groups.

[00:28:28] Speaker 00:
I think that's more specific than B. Okay, yeah.

[00:28:31] Speaker 01:
All right, so what you're saying is that, if I understand you correctly, that by virtue of application note five, the sort of general principles reflected in B would not have sway here.

[00:28:44] Speaker 00:
Correct.

[00:28:45] Speaker 00:
That application note five is a more specific note that applies specifically to this situation.

[00:28:50] Speaker 01:
Okay.

[00:28:52] Speaker 01:
Why don't you spend a minute talking about

[00:28:55] Speaker 01:
or less, spend some time talking about harmless error and make clear to me why, even if the district court managed to err in this maze of grouping, that there would be no harm.

[00:29:12] Speaker 00:
So, yes, I'll address that now.

[00:29:15] Speaker 00:
If the court erred by relying on the uncharged conduct, then it's harmless because, alternatively, the district court could have relied on

[00:29:25] Speaker 00:
under note five, on one count of obstruction for the obstruction adjustment, the other count of obstruction would be treated separately.

[00:29:34] Speaker 00:
So in that situation, you'd have two groups, one with the manslaughter and one obstruction, one with the other obstruction.

[00:29:41] Speaker 00:
Regardless of which group, which obstruction count is treated more seriously, the other obstruction count would be assessed .5, and then under the grouping table, it would add one point.

[00:29:53] Speaker 00:
you would still end up with an offense level of 32, which is exactly what the district court calculated in this case.

[00:29:58] Speaker 00:
And so the guideline range is the same.

[00:30:00] Speaker 01:
And that's predicated on the notion that the error is the using of the uncharged conduct.

[00:30:06] Speaker 01:
Correct.

[00:30:08] Speaker 01:
Is there a scenario where even if the error went beyond the use of the uncharged conduct and not doing what the defendant said, in other words, not grouping all of the

[00:30:23] Speaker 01:
the obstruction counts, I guess, as opposed to the uncharged conduct.

[00:30:29] Speaker 01:
District Court errors by grouping the uncharged conduct and it should have grouped all of the obstruction counts.

[00:30:36] Speaker 01:
Under that scenario, if that's the configuration of the error, is it still harmless?

[00:30:43] Speaker 00:
No, we're not raising a harmless error argument in that situation.

[00:30:45] Speaker 00:
So if all of the counts should have grouped into one group, then the offense level would have been 31.

[00:30:50] Speaker 00:
There would have been a different guideline range.

[00:30:52] Speaker 00:
Our harmless error analysis is more limited than that.

[00:30:56] Speaker 02:
Then counsel, along those lines for me, so that I don't miss anything, I would like just a minute to discuss with you about the question of leniency in regards to this.

[00:31:10] Speaker 02:
You all have brought up

[00:31:11] Speaker 02:
really interesting case.

[00:31:14] Speaker 02:
I just wish I still knew how to diagram a sentence, but why wouldn't leniency apply in this case with the ambiguity that I read in regards to it?

[00:31:26] Speaker 00:
Thank you for that question, Judge Baldock.

[00:31:28] Speaker 00:
First, because appellant hasn't raised it in any of the briefing and it's been raised for the first time on appeal, so it's waived.

[00:31:34] Speaker 04:
Well, it's a rule of construction, and I think we have case law that says

[00:31:40] Speaker 04:
you don't waive rules of construction.

[00:31:42] Speaker 04:
I mean, when we go through all our analysis, and at the end, we throw up our hands and say, we don't know, defendant wins.

[00:31:51] Speaker 00:
And even if it's not waived, I think it doesn't apply in this case because the rule of lenity is limited to situations where the ambiguity is grievous, right?

[00:32:00] Speaker 00:
Where there's no direction in which the court should proceed, and here,

[00:32:04] Speaker 00:
We do have application note five that provides direction, and the Fourth Circuit's decision in Jones was able to look at the application notes.

[00:32:10] Speaker 04:
I don't know how Jones helps us because nobody even argued B to Jones.

[00:32:17] Speaker 04:
The Jones court didn't have what we have, which the defendant is coming in and saying, we've got these two conflicting provisions.

[00:32:25] Speaker 04:
All Jones did was apply one section.

[00:32:29] Speaker 00:
I think at that point we look to note five to that second sentence that says only the count representing the most serious of those factors is to be grouped with the other count.

[00:32:37] Speaker 00:
And that provides direction that allows the court to interpret it and avoid application of the role of lenity.

[00:32:46] Speaker 00:
If there's no further questions, we'd ask.

[00:32:49] Speaker 04:
Yes, please.

[00:32:49] Speaker 04:
I actually do have a further question.

[00:32:51] Speaker 04:
What about the

[00:32:54] Speaker 04:
the decision to rely on uncharged conduct.

[00:32:59] Speaker 04:
Let's say you properly group, so you have one obstruction charge, but then the court chooses not to rely on that, but to rely on uncharged conduct.

[00:33:11] Speaker 04:
Can you point us to anything in the guidelines that talk about the use of uncharged conduct in the grouping context?

[00:33:20] Speaker 00:
The guidelines are silent on that question.

[00:33:22] Speaker 00:
I would point the court to the Southern Circuit decision in Chauvin.

[00:33:27] Speaker 00:
And I see that my time has expired.

[00:33:28] Speaker 00:
If there's no further questions, I'd ask the court to affirm.

[00:33:31] Speaker 00:
Thank you.

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

[00:33:35] Speaker 01:
I think that you had adequate time on the other side, and so the case is submitted.

[00:33:40] Speaker 01:
Thank you for a very fine argument.