[00:00:01] Speaker 03:
Good morning, Your Honors.

[00:00:02] Speaker 02:
Just one moment.

[00:00:03] Speaker 02:
Let me call the case.

[00:00:04] Speaker 02:
I was waiting for you.

[00:00:06] Speaker 02:
Oh, I'm sorry.

[00:00:07] Speaker 02:
That's OK.

[00:00:08] Speaker 02:
You're eager, and that's a good thing.

[00:00:09] Speaker 02:
The next case for argument is United States versus Benjohn.

[00:00:13] Speaker 02:
It is Docket 23-8028 Shen.

[00:00:19] Speaker 03:
Good morning, Your Honors.

[00:00:20] Speaker 03:
It may please the court.

[00:00:21] Speaker 03:
My name is Kathleen Shen, and I represent Mr. Stephen Benjohn.

[00:00:25] Speaker 03:
In United States versus Taylor, the Supreme Court held that for purposes of the Elements Clause,

[00:00:30] Speaker 03:
The threatened use of physical force against the person of another means a completed threat that is communicated to another person.

[00:00:37] Speaker 03:
Since Colorado felony menacing criminalizes attempted threats, or even merely threatening conduct that is not communicated to anyone else, it plainly is not a crime of violence under the Elements Clause and Sentencing Guidelines, and Mr. Van John's sentence therefore should be vacated, in this case remanded for re-sentencing under the corrected guidelines range.

[00:00:56] Speaker 03:
So Taylor is well-settled law that stands for the proposition that only a completed or communicated threat of force is covered by the Elements Clause.

[00:01:05] Speaker 03:
An unsuccessful attempt to threaten someone that is not communicated to that person does not qualify as a threatened use of physical force under the Elements Clause, and nor does conduct that just poses a kind of abstract risk or threat to community peace and order, whether known or unknown to anyone at the time.

[00:01:24] Speaker 03:
And so that all comes directly from Taylor.

[00:01:26] Speaker 03:
And as the Summit Circuit has put it, Taylor separates communicative threats, which are active and intended to threaten from merely abstract or atmospheric threats.

[00:01:38] Speaker 03:
And it's also clear that Colorado felony menacing is not limited to a completed communicative threat, but it does criminalize merely attempted threats on threatening conduct.

[00:01:48] Speaker 03:
Notably, it does not require the defendant's conduct even to be known to anyone else at the time,

[00:01:53] Speaker 03:
let alone communicated

[00:02:10] Speaker 03:
By any threat or physical action, the defendant knowingly places or attempts to place another person in fear of imminent serious bodily injury, and he does so using a bodily weapon.

[00:02:20] Speaker 03:
So this language tells us two things.

[00:02:22] Speaker 03:
First, the statute isn't limited to threats, but encompasses abstractly threatening conduct, and also that the placement of others in fear doesn't have to be completed.

[00:02:31] Speaker 03:
It can be attempted.

[00:02:33] Speaker 02:
Well, I don't know about that.

[00:02:37] Speaker 02:
I guess let me back up and say this.

[00:02:39] Speaker 02:
Taylor is an attempted Hobbes Act violation, right?

[00:02:44] Speaker 02:
Sure.

[00:02:44] Speaker 02:
Yes.

[00:02:45] Speaker 02:
And this defendant's crime is not attempted menacing.

[00:02:50] Speaker 02:
It's menacing.

[00:02:52] Speaker 03:
That's right.

[00:02:53] Speaker 02:
Okay.

[00:02:53] Speaker 02:
But the confusion or ambiguity is that the crime of menacing has this word attempts in it.

[00:03:01] Speaker 02:
And one way to read that would be attempts to place another person in fear is, say, the crocodile dundee.

[00:03:09] Speaker 02:
You call that a knife, here's a knife.

[00:03:11] Speaker 02:
In other words, the person pulled a knife and crocodile dundee wasn't a bit scared.

[00:03:15] Speaker 02:
So it attempted to do it, and the threat was communicated.

[00:03:18] Speaker 02:
It just didn't work.

[00:03:20] Speaker 02:
That's one way to read this.

[00:03:22] Speaker 03:
That is a way to read it, but we know that's not the way Colorado courts read it, from people versus Saultre in similar cases where

[00:03:29] Speaker 03:
the courts make clear that the effect on the victim is totally irrelevant, and it doesn't even have to be known to anyone else.

[00:03:36] Speaker 02:
So again, the facts... Well, you said the statute supports it, and I'm just pointing out the text of it doesn't say what you're saying.

[00:03:43] Speaker 02:
I think it's consistent.

[00:03:44] Speaker 02:
I'll go with you on Saltre taking it there, and then I'll ask you, what is the significance of a Colorado Court of Appeals court case as far as what we're called upon to do?

[00:03:56] Speaker 02:
Be different if we're the Colorado Supreme Court, right?

[00:03:59] Speaker 03:
I think that the Colorado Court of Appeals decision is certainly, in this context, it's authoritative because there's no other contrary authority.

[00:04:09] Speaker 03:
This is a case that's been in place, I don't believe, I believe it's a well established case, and I think there's other cases that do emphasize that attempted menacing is, or that menacing, excuse me, not attempted menacing, the offense is menacing,

[00:04:26] Speaker 03:
is solely focused on the conduct of the defendant and the government isn't required to prove any effect on the victim and not even that any other person saw it.

[00:04:35] Speaker 02:
But if it's plain error, and we're talking plain error, right?

[00:04:39] Speaker 02:
Yes.

[00:04:39] Speaker 02:
So, talking plain error, if I read that statute and I say that's a Crocodile Dundee statute, I don't care what the Colorado Court of Appeals says.

[00:04:49] Speaker 02:
I'm waiting for the Colorado Supreme Court because I think they're going to agree with me, then the air is not playing, is it?

[00:04:58] Speaker 03:
Your honor, I believe that the Colorado laws played and I believe that this is the way that the statute has consistently been interpreted by Colorado courts and that people have been prosecuted under the statute for many years.

[00:05:09] Speaker 03:
I think it's significant that Mr. Sultres conviction was upheld because especially we are operating under the categorical approach.

[00:05:18] Speaker 03:
And again,

[00:05:19] Speaker 03:
What the categorical approach requires is that this court determine whether a conviction for this state offense necessarily shows that the defendant engaged in the prohibited conduct of threatening another person.

[00:05:34] Speaker 03:
And so the fact that Saultre exists and shows that the Court of Appeals upheld this conviction and all points to the existence of other such convictions shows at a minimum that the least culpable conduct that's criminalized by this offense includes

[00:05:49] Speaker 03:
attempts to threaten others that do not reach any other person.

[00:05:54] Speaker 02:
Yeah, if Sultre were a Colorado Supreme Court, I would agree with you.

[00:05:58] Speaker 02:
If it were a Colorado State District Court, I'd wonder if it's Colorado Court of Intermediate Appeals.

[00:06:05] Speaker 02:
I'm in doubt.

[00:06:05] Speaker 02:
I don't know.

[00:06:06] Speaker 02:
Do you have a case that says that if indeed it's an intermediate state court, for our purposes on plain error in this sort of a situation, the federal courts will deem that to be plain error?

[00:06:19] Speaker 03:
I don't know the answer to that question off the top of my head, but again, and I'm happy to submit a 28-J letter and do additional research on that point, but I think that the concern underlying your question is answered in large part by the fact that we are applying the categorical approach.

[00:06:35] Speaker 03:
And so again, the question isn't what the typical case would be or what the Colorado Court of Appeals is gonna say.

[00:06:41] Speaker 03:
The question is, looking at Mr. Benjohn's conviction, do we know that this necessarily is a conviction for an offense

[00:06:48] Speaker 02:
that required him to engage in a communicated threat to another person.

[00:07:03] Speaker 02:
of appeals in Colorado than just exactly the opposite.

[00:07:08] Speaker 02:
We know the answer either way.

[00:07:09] Speaker 02:
We just don't know what the Colorado Supreme Court says.

[00:07:12] Speaker 03:
Sure, Your Honor, but the point I'm trying to make is that any possibility that Mr. Benjon or that this conviction could stand for something other than a communicated threat takes this outside of the categorical approach under the threatened use of force.

[00:07:28] Speaker 01:
And so what you're saying is that

[00:07:33] Speaker 01:
You have to expand the hypothetical beyond crocodile dundee.

[00:07:39] Speaker 01:
You have to expand it to the hypothetical, I think was in the briefing, you know, about somebody coming up behind a possible victim with a fake knife and the victim walks away, doesn't even know it was a threat.

[00:07:54] Speaker 01:
That's a hypothetical that needs to be considered under the statute, isn't it?

[00:07:59] Speaker 03:
And that is the hypothetical, I believe, in Saltrank, exactly, which answers the question and makes clear that, at least as the Colorado courts have been interpreting this statute for years, people can be convicted for this offense without communicating a threat to another person.

[00:08:15] Speaker 01:
Hypothetical, much like that.

[00:08:17] Speaker 01:
Without reading anything, just looking at the statute and saying, this then was an attempt that just didn't get completed.

[00:08:25] Speaker 03:
Of course.

[00:08:27] Speaker 03:
I agree with Your Honor.

[00:08:29] Speaker 03:
This statute clearly contemplates an attempt to threaten someone.

[00:08:34] Speaker 03:
I think Taylor very clearly says, if you're just attempting to threaten someone but you don't succeed, then you haven't threatened the use of physical force against another person.

[00:08:44] Speaker 01:
So in that sense, I think it's... Well, it's not just that you don't succeed, but there is no perception by the victim.

[00:08:50] Speaker 03:
Right.

[00:08:50] Speaker 03:
And Taylor, I think, is really clear by communicated, they mean if

[00:08:53] Speaker 03:
your message didn't get to the other person.

[00:08:55] Speaker 03:
If there's been no communication to the person, then there is no threat.

[00:08:59] Speaker 03:
They don't answer this question of does the person have to feel afraid.

[00:09:03] Speaker 03:
But I don't think we need to answer that question here because both the language of the statute and the way the courts in Colorado have... That's too loose though.

[00:09:12] Speaker 02:
You say the Colorado courts have the Colorado courts have, but there's only one Colorado court we really care about, Colorado Supreme Court, right?

[00:09:20] Speaker 03:
I have put a pin in that question and I will do additional research but again I think because the categorical approach has this very absolutist requirement that we look at this conviction and we know absolutely this conviction is for the threat of use of physical force.

[00:09:35] Speaker 03:
I'm not sure that it matters.

[00:09:37] Speaker 03:
Because when you look at this conviction, because the Colorado Courts of Appeals have been interpreting it to permit conviction based on threats that nobody sees,

[00:09:48] Speaker 03:
We don't know that this is categorically the threatened use of violence.

[00:09:52] Speaker 02:
But if you read the statute, the Crocodile Dundee way, it fits under Taylor.

[00:09:57] Speaker 02:
You have a communicated threat.

[00:09:58] Speaker 02:
It just didn't work.

[00:09:59] Speaker 02:
It's not a situation, molecular or categorical example, where you yell across the street, you're going to kill someone right when a loud crack goes by and they don't hear you.

[00:10:08] Speaker 02:
That's good for salt ray.

[00:10:11] Speaker 02:
But that's not good for Crocodile N.D.

[00:10:14] Speaker 02:
And until the Colorado Supreme Court tells us, is this a Crocodile N.D.

[00:10:17] Speaker 02:
statute or is this a loud truck statute, we don't know.

[00:10:22] Speaker 02:
And if we don't know, I'm not sure how it can be plain air pumped, too.

[00:10:27] Speaker 03:
Again, Your Honor, I think with the categorical approach, and the Supreme Court has said that sometimes we look both at what the words of the statute say and how it's been applied.

[00:10:36] Speaker 03:
And it's because, not just because we're concerned with what the State Supreme Court says, it's not merely an abstract thing, though of course the State Supreme Court has clearly answered the question we go with it, but we also look at the cases because we want to know, as a matter of fact, is this conviction necessarily a conviction for communicating a threat to another person?

[00:10:55] Speaker 03:
And because people, in fact, have been convicted for Colorado felony menacing,

[00:11:01] Speaker 03:
for threats that are not communicated to anyone, we know that this is not categorically a crime or violence.

[00:11:09] Speaker 03:
Respectfully, Your Honor, I put a pin in the question about the Colorado Supreme Court because I just don't know the answer to that right now.

[00:11:16] Speaker 03:
But I think if you get beyond that and we find that the error is plain, then it increases its guideline range and we meet our third and fourth prong.

[00:11:27] Speaker 03:
And that's clear from the Supreme Court and 10 circuit cases.

[00:11:29] Speaker 03:
And we would respectfully ask this court to vacate Mr. Van Jones' sentence.

[00:11:34] Speaker 03:
If there's no further questions, I'd like to reserve the remainder of my time.

[00:11:38] Speaker 03:
Thank you.

[00:11:51] Speaker 00:
Good morning, Your Honors.

[00:11:52] Speaker 00:
My name is Jonathan Kaplum, and I represent the United States in this case.

[00:11:56] Speaker 00:
Can everybody hear me okay?

[00:11:58] Speaker 00:
Do I have the microphone set up correctly?

[00:12:03] Speaker 00:
Your honor, I'd like to address Judge Phillips' question at the outset, which is, what is the implication or the importance of Sultry?

[00:12:13] Speaker 00:
And the answer, your honor, and I'll cite a case here, it's Colorado v. Johnson, 487 P.

[00:12:18] Speaker 00:
3rd, 1262.

[00:12:20] Speaker 00:
This is a Colorado Supreme Court case from 2020.

[00:12:25] Speaker 00:
And in that case,

[00:12:26] Speaker 00:
The Colorado Supreme Court acknowledges that there are multiple divisions of the Colorado Courts of Appeals and what matters about that is a decision from one division of the Colorado Court of Appeals binds that division but it does not bind other divisions.

[00:12:44] Speaker 00:
So other divisions may actually come to an alternative conclusion.

[00:12:48] Speaker 00:
They may have the crocodile Dundee, for example, conclusion, and you could wind up with a split of authority in Colorado that would have to be resolved by the Colorado Supreme Court.

[00:13:00] Speaker 01:
But when you consider the categorical approach, you have to consider every possibility of what could have happened.

[00:13:13] Speaker 01:
And isn't the range of possibilities under the statute

[00:13:18] Speaker 01:
broader than just the Crocodile Dundee.

[00:13:21] Speaker 01:
Doesn't it include the one that's included in the Colorado Court of Appeals case?

[00:13:27] Speaker 00:
I will address your question, but before I do may I say one thing, which is respectfully.

[00:13:31] Speaker 00:
Well, I don't know, but just don't forget the question.

[00:13:33] Speaker 00:
OK, you got it.

[00:13:34] Speaker 00:
I won't.

[00:13:35] Speaker 00:
Respectfully, what I'll say is I think we're jumping the gun.

[00:13:38] Speaker 00:
Because there was an objection to Mr. Ben John's PSR, but it wasn't this one.

[00:13:44] Speaker 00:
And his defense attorney.

[00:13:45] Speaker 01:
Well, we know we're here on plain air.

[00:13:47] Speaker 01:
Right.

[00:13:48] Speaker 01:
Oh, OK.

[00:13:49] Speaker 01:
So what's now?

[00:13:49] Speaker 01:
Answer my question.

[00:13:50] Speaker 01:
OK.

[00:13:51] Speaker 00:
So to get the categorical approach, the court would need really an objection.

[00:13:57] Speaker 00:
And there's ARMEA, which is binding 10th Circuit precedent, which said Colorado felony menacing is a crime of violence.

[00:14:05] Speaker 00:
So there's no reason why the district court would have reached that analysis, the categorical approach, which I believe is everybody's favorite exercise to engage in.

[00:14:15] Speaker 00:
There's no reason why they would have reached that.

[00:14:17] Speaker 01:
Answer my question.

[00:14:18] Speaker 01:
Yes.

[00:14:19] Speaker 01:
The question is, looking at the Colorado statute, taking the hypothetical, not the adjudication, but the hypothetical recited by the Colorado Court of Appeals, plugging it into the statute, it broadens the range of possible crimes under the Colorado menacing statute beyond the crocodile Dundee hypothetical, correct?

[00:14:46] Speaker 01:
I'm not certain it does.

[00:14:48] Speaker 01:
Well, then tell me why it doesn't.

[00:14:49] Speaker 01:
Why that hypothetical from the Colorado Court of Appeals would not be chargeable as a crime of menacing in Colorado?

[00:14:58] Speaker 01:
I think Judge Phillips's example is a perfect example.

[00:15:01] Speaker 01:
I'm asking whether you can go beyond that example.

[00:15:05] Speaker 01:
I'm talking about the example in the Colorado Court of Appeals decision.

[00:15:10] Speaker 01:
Why is that not inclusive in the statutory language of attempt?

[00:15:16] Speaker 00:
I suppose maybe it is, Your Honor.

[00:15:18] Speaker 01:
Okay.

[00:15:19] Speaker 00:
I've got a maybe.

[00:15:20] Speaker 00:
Is there any way we go any further?

[00:15:22] Speaker 00:
I am not going to tell them, I'm not going to say here today that perhaps Armijo ultimately is something that's... I'm not talking about Armijo.

[00:15:30] Speaker 01:
I'm talking about a clean slate, taking the hypothetical stated by the Colorado Court of Appeals, plugging it into the statute.

[00:15:40] Speaker 01:
Wouldn't that be chargeable under the Colorado menacing statute?

[00:15:44] Speaker 01:
I got a maybe, now I want to know, is there a yes?

[00:15:48] Speaker 00:
If we accept that Soltry got it right, then yes.

[00:15:53] Speaker 01:
Let me please listen to my hypothetical.

[00:15:58] Speaker 01:
That case was not decided.

[00:16:01] Speaker 01:
Plug in the hypothetical that case used into the statute.

[00:16:08] Speaker 01:
Isn't that hypothetical chargeable?

[00:16:11] Speaker 01:
under the Colorado menacing stance.

[00:16:13] Speaker 01:
Yes, it is.

[00:16:14] Speaker 01:
Thank you.

[00:16:15] Speaker 00:
Okay.

[00:16:15] Speaker 00:
But we never get there, right?

[00:16:18] Speaker 00:
I mean, that is the whole point.

[00:16:19] Speaker 00:
It's plain air.

[00:16:20] Speaker 00:
It's plain air.

[00:16:21] Speaker 00:
So let's go through it briefly for a moment.

[00:16:25] Speaker 02:
Well, let me just ask you this.

[00:16:26] Speaker 02:
If Saltre were Colorado Supreme Court, he'd lose, right?

[00:16:29] Speaker 02:
Absolutely.

[00:16:30] Speaker 02:
Yes.

[00:16:31] Speaker 02:
And Taylor requires communication and Saltre does not require communication.

[00:16:35] Speaker 02:
That's correct.

[00:16:36] Speaker 00:
But it's plain air, right?

[00:16:38] Speaker 00:
So it has to be air and it has to be

[00:16:40] Speaker 00:
clear and obvious, and there was no objection.

[00:16:44] Speaker 01:
Let me ask you this.

[00:16:45] Speaker 01:
Does that mean, to me, your view of error that is plain, that it require a United States Supreme Court decision on the Colorado menacing statute in order to overcome Armijo?

[00:17:03] Speaker 01:
No, it doesn't.

[00:17:05] Speaker 01:
But it needs to be clear and obvious.

[00:17:06] Speaker 01:
So you're not denying Cantu.

[00:17:08] Speaker 01:
Cantu applies.

[00:17:10] Speaker 00:
I am not familiar with that case, Your Honor, so I'm not going to say.

[00:17:14] Speaker 00:
Well, isn't it all over this case?

[00:17:16] Speaker 01:
You don't need a precise precedent.

[00:17:18] Speaker 00:
May I make one point, please?

[00:17:21] Speaker 00:
Which is this.

[00:17:22] Speaker 00:
It has to be clear and obvious, and there was no objection.

[00:17:24] Speaker 00:
So this requires that the district court judge would have to have Suis Fonte said, well, I know about Taylor, and it's about attempted Hobbs Act robbery.

[00:17:36] Speaker 00:
So I don't have an objection, but can we now look at this?

[00:17:40] Speaker 00:
this Colorado case, oh wait, I have binding 10th Circuit precedent that says this is a crime of violence.

[00:17:48] Speaker 00:
Okay, so now let's go and do research at the Colorado Court of Appeals level.

[00:17:53] Speaker 00:
Okay, there's a case which is concerning, but it's not from the Colorado Supreme Court.

[00:17:57] Speaker 00:
Whatever that is, it's not clear and obvious.

[00:18:00] Speaker 00:
It's not clear and obvious, right?

[00:18:02] Speaker 00:
It's not

[00:18:04] Speaker 00:
There was binding 10th Circuit President here.

[00:18:07] Speaker 01:
So you are saying that because there's binding 10th Circuit President, that in order to make this not plain, it would require a U.S.

[00:18:17] Speaker 01:
Supreme Court case on the Colorado menacing statute.

[00:18:23] Speaker 01:
That has got to be what you're saying.

[00:18:26] Speaker 01:
Because Armeo applies.

[00:18:28] Speaker 01:
You're saying Armeo applies.

[00:18:29] Speaker 01:
That's what causes all the problems.

[00:18:31] Speaker 01:
And so the only way, according to you,

[00:18:33] Speaker 01:
that you can get over are me always to have direct precedent on the very same statute from a higher court than the 10th Circuit.

[00:18:41] Speaker 01:
There's only one of them around.

[00:18:43] Speaker 00:
Respectfully, I don't think that's exactly what I'm saying.

[00:18:46] Speaker 00:
What I'm saying is, absent an objection, there really was no reason the district court should have looked and said, I am concerned about the 10th Circuit precedent that binds me.

[00:19:00] Speaker 00:
Because there was no objection.

[00:19:03] Speaker 00:
There's no reason why the court should second-guess it's binding precedent.

[00:19:10] Speaker 00:
That's what I'm really saying.

[00:19:12] Speaker 00:
It's not clear and obvious.

[00:19:13] Speaker 00:
That's the standard.

[00:19:16] Speaker 02:
Hi.

[00:19:18] Speaker 02:
Are the Armijo and other town circuit cases, are they residual clause cases?

[00:19:24] Speaker 00:
So Davis was a residual clause case.

[00:19:30] Speaker 02:
And if you don't know, just say you don't know, and that's good.

[00:19:32] Speaker 00:
I don't know about our MEO, Your Honor.

[00:19:34] Speaker 02:
OK.

[00:19:34] Speaker 02:
But if they're residual clause cases, they're not much help, right?

[00:19:39] Speaker 02:
We're talking elements.

[00:19:40] Speaker 02:
That's correct, Your Honor.

[00:19:42] Speaker 00:
Yeah.

[00:19:46] Speaker 00:
So respectfully, Your Honor, unless there are further questions, I just simply think that there are some compelling arguments to be made about the Colorado statute.

[00:19:59] Speaker 00:
They just weren't raised at the right time.

[00:20:01] Speaker 00:
And it's under the Planner's standard of review.

[00:20:04] Speaker 00:
So I respectfully ask the court affirm Mr. Vinjon's conviction, because it's not clear there was an error.

[00:20:13] Speaker 00:
And even if there was, it wasn't clear and obvious under current law.

[00:20:18] Speaker 00:
Thank you.

[00:20:28] Speaker 01:
Okay, before you start, I have a very straightforward question.

[00:20:31] Speaker 01:
Yes.

[00:20:31] Speaker 01:
Not yes or no, but it's close.

[00:20:34] Speaker 01:
Is Armijo an elements clause case or a residual clause case?

[00:20:40] Speaker 03:
So I have the case here, as I can look it up, but I don't know that answer off the top of my head.

[00:20:45] Speaker 01:
I don't want you to use up all your time.

[00:20:46] Speaker 01:
Do you know?

[00:20:47] Speaker 03:
I don't know.

[00:20:47] Speaker 03:
I do believe one of the prior cases said it was a threatened use of force, but I don't remember for sure off the top of my head.

[00:20:56] Speaker 03:
There's two points I wanted to make.

[00:20:58] Speaker 03:
One is to sort of return to this Colorado Supreme Court issue that I was discussing with Judge Phillips.

[00:21:03] Speaker 03:
And I wanted to just say that, again, the categorical approach, the Supreme Court has said that in some circumstances we are asking whether there's a realistic probability that the statute would be applied to conduct that doesn't satisfy the federal definition.

[00:21:18] Speaker 03:
We don't always have to find cases, right?

[00:21:20] Speaker 03:
If the language of the statute is clear, which I think it is, but Judge Phillips may disagree,

[00:21:25] Speaker 03:
that this offense reaches attempted threats, then of course we don't need to provide a case.

[00:21:31] Speaker 03:
But if we can show a case that shows there is a realistic probability that people are gonna be prosecuted for federal felony, or Colorado felony menacing without actually communicating a threat to another person, that also shows it's overbroad for purposes of the categorical approach.

[00:21:47] Speaker 03:
And I think that's how salt tray is important.

[00:21:50] Speaker 03:
And then second, just to return to the point that

[00:21:52] Speaker 03:
or address the point that the government's counsel was making.

[00:21:57] Speaker 03:
You know, the purpose of the plain error test is not, it's not a grading system for district court judges.

[00:22:02] Speaker 03:
Of course, you know, that's what the Supreme Court says in Henderson and we cite this language in the brief.

[00:22:07] Speaker 03:
And really, one of its purposes is to give the Court of Appeals an opportunity to identify cases where fairness and justice call for a new rule of law to be applied to a case on appeal.

[00:22:18] Speaker 03:
And respectfully, Mr. Vengeance's case is exactly such a case.

[00:22:23] Speaker 03:
It is an opportunity for this court to apply Taylor's new rule.

[00:22:27] Speaker 03:
Fairness and justice require it.

[00:22:29] Speaker 03:
So we would respectfully request that this court vacate his sentence and remand for resentencing.

[00:22:35] Speaker 03:
Thank you.

[00:22:39] Speaker 02:
Thank you, counsel.

[00:22:40] Speaker 02:
Case is submitted.

[00:22:41] Speaker 02:
Counselors excused.

[00:22:43] Speaker 02:
And that concludes our business.

[00:22:45] Speaker 02:
Court is adjourned.