[00:00:01] Speaker 04:
Our next case is United States Justice Cruz, 24-1306.

[00:00:10] Speaker 04:
Counsel, you may proceed.

[00:00:16] Speaker 01:
Good morning, Your Honors.

[00:00:18] Speaker 01:
Amy Senia from the Denver Federal Public Defender's Office on behalf of the appellant, Mr. Jordan Cruz.

[00:00:23] Speaker 01:
May it please the Court.

[00:00:25] Speaker 01:
The District Court committed multiple sentencing errors in this case.

[00:00:29] Speaker 01:
I plan to start with the crime of violence issue, but I'm happy to discuss any other issue that the court has questions about.

[00:00:37] Speaker 01:
The district court here increased Mr. Cruz's base offense level from 14 to 20, ruling he had a prior crime of violence conviction based on a state court judgment that everyone in the courtroom, including the court itself, knew listed the wrong offense.

[00:00:53] Speaker 01:
And the crime that Mr. Cruz actually pleaded guilty to, Colorado assault by drugging,

[00:00:58] Speaker 01:
isn't a federal crime of violence because its least culpable act involves causing only mental harm, not physical harm capable of causing physical injury or physical pain.

[00:01:10] Speaker 01:
This court should reverse and remand for re-sentencing.

[00:01:18] Speaker 01:
So when the district court added six levels to Mr. Cruz's base offense level, that ruling came in two parts.

[00:01:24] Speaker 01:
The first

[00:01:26] Speaker 01:
was that the district court identified the prior fact of conviction by relying exclusively on the state court judgment that everyone agreed listed the wrong offense because it believed it had no legal authority to consider any other documents.

[00:01:40] Speaker 01:
That ruling was wrong.

[00:01:41] Speaker 01:
This court's precedent in the guidelines allowed courts to consider any sufficiently reliable evidence to determine the fact of a prior conviction.

[00:01:50] Speaker 01:
And here, when the court did look past the judgment and found

[00:01:53] Speaker 01:
that the judgment was wrong and that Mr. Cruz had instead pleaded guilty to assault by drugging.

[00:02:01] Speaker 01:
The second part is that Colorado assault by drugging isn't a crime of violence.

[00:02:07] Speaker 01:
The guidelines crime of violence definition relevant here is that it has as an element of the offense, the use of violent physical force that is force capable of causing physical pain or physical injury.

[00:02:18] Speaker 01:
And here,

[00:02:20] Speaker 01:
The least culpable acts criminalized just by the plain text of the Colorado drugging statute requires causing nothing more than mental impairment or mental injury.

[00:02:29] Speaker 04:
Could we just on that point separate the injury from what causes the injury?

[00:02:36] Speaker 04:
So wouldn't administration of a drug to another person without that person's consent be physical force, leaving aside the injury?

[00:02:47] Speaker 01:
It is the indirect application of force.

[00:02:50] Speaker 01:
We agree.

[00:02:51] Speaker 01:
The question is whether it rises.

[00:02:52] Speaker 04:
Well, is it even indirect?

[00:02:54] Speaker 04:
I mean, if you're administering a drug to someone without their consent, why would that even be indirect?

[00:03:01] Speaker 01:
I believe the Supreme Court case calls it indirect application of force.

[00:03:06] Speaker 01:
It could be direct.

[00:03:08] Speaker 01:
It doesn't matter to us whether it's direct or indirect.

[00:03:11] Speaker 01:
Our point is that it's force.

[00:03:13] Speaker 01:
The question is whether it rises to the level of

[00:03:15] Speaker 04:
Violent physical force and that depends on the on the on the injury that's right your honor whether it's capable of causing physical pain or physical injury in your argument is that if the statute includes Mental impairment injury then it sweeps to problem.

[00:03:36] Speaker 01:
That's exactly right your honor because there's a

[00:03:39] Speaker 01:
multiple ways that you could have an application of force that isn't capable of causing physical pain or physical injury if, like here, all it does is cause mental impairment.

[00:03:50] Speaker 01:
And so the government's attempt to narrow the statute makes no sense.

[00:03:55] Speaker 01:
The generic meaning of mental means non-physical.

[00:03:59] Speaker 01:
It's relating to the total emotional and intellectual response of an individual.

[00:04:07] Speaker 01:
Yet the government defines mental as brain, but cites no Colorado case, no Colorado statute, no dictionary defining mental in that non-generic way.

[00:04:16] Speaker 01:
And so the government can't meet its burden here to show that the statute falls within the federal crime and violence definition.

[00:04:26] Speaker 04:
What is your best case on this issue?

[00:04:30] Speaker 01:
So I think I would point the court to Castro, a 2023 Ninth Circuit case.

[00:04:36] Speaker 01:
Though there's two other cases that are also very helpful for us, Sanchez Perez out of the Sixth Circuit, 2024, and Burris, 2019.

[00:04:45] Speaker 01:
And all of those cases, other circuits, determined that where the definition of bodily injury for their assault statutes wrapped in mental illness or mental impairment, that those statutes were overbroad because even if they required application of force, they didn't require violent force capable of causing physical pain or physical injury.

[00:05:07] Speaker 04:
Is WinRoe your best 10th Circuit case?

[00:05:10] Speaker 01:
I think WinRoe is a case that is helpful to explain our force argument that we agree there's force.

[00:05:18] Speaker 01:
It's just not violent force.

[00:05:20] Speaker 01:
And so I think WinRoe is helpful in showing it is like a slight touching, that the administration of a drug is like a slight touching, but we're looking at the effects here because it encompasses mental injuries, mental harms,

[00:05:36] Speaker 01:
than it is over broad.

[00:05:43] Speaker 01:
So if there are no more questions about the crime and violence issue, I will proceed to the acceptance of responsibility issue.

[00:05:49] Speaker 01:
Here, the district court erred because it misinterpreted and misapplied

[00:05:56] Speaker 01:
the acceptance of responsibility guideline because it withheld the reduction based on defense counsel's purportedly frivolous reliability objection to the PSR.

[00:06:07] Speaker 01:
Application Note 1A says that courts can deny acceptance points based on relevant conduct only when the defendant falsely denies or frivolously contests factual guilt that does not encompass the situation

[00:06:22] Speaker 01:
here when a lawyer makes a legal objection, whether or not it's frivolous.

[00:06:28] Speaker 03:
So let me ask you this.

[00:06:29] Speaker 03:
So if the argument before the district court had been, your honor, object to the PSR, he didn't do it, what's that?

[00:06:42] Speaker 01:
That would seem to, and then the district court goes on to find that, in fact, he did do it.

[00:06:49] Speaker 01:
In that case, that seems to be a false denial.

[00:06:52] Speaker 01:
I think it would present a question of whether counsel can speak for the defendant himself.

[00:06:57] Speaker 01:
The cases where the courts affirm denial of the acceptance reduction, it's the defendant himself usually testifying, sentencing hearing, or saying something.

[00:07:08] Speaker 01:
But in that situation, it would be more akin to a

[00:07:12] Speaker 01:
false denial, though I think you'd have to ask if counsel can do that.

[00:07:16] Speaker 03:
Right.

[00:07:17] Speaker 03:
OK, fair enough.

[00:07:19] Speaker 01:
So here, defense counsel raised an evidentiary challenge to the PSR's allegations.

[00:07:27] Speaker 01:
That was a legal objection that didn't deny Mr. Cruz's factual guilt.

[00:07:32] Speaker 01:
The government doesn't really contest that application note 1A doesn't cover legal challenges.

[00:07:38] Speaker 01:
So if the court agrees that that is in fact what Mr. Cruz's counsel did, then that's sufficient to rule in Mr. Cruz's favor.

[00:07:45] Speaker 03:
Didn't the counsel's objection, didn't it go to the weight of the evidence?

[00:07:53] Speaker 01:
No, Your Honor.

[00:07:54] Speaker 01:
So as a threshold matter for sentencing purposes, the court can rely on anything.

[00:07:59] Speaker 01:
Any evidence, the rules of evidence don't typically apply.

[00:08:03] Speaker 01:
The only requirement is that it meets some threshold

[00:08:06] Speaker 01:
a threshold amount of reliability.

[00:08:10] Speaker 01:
It has to be sufficiently reliable for the court to rely on it.

[00:08:13] Speaker 01:
And so if that's the objection, then the question is whether, whatever it is the counsel is objecting to here, PSR allegation, whether it meets that sufficient indicia of reliability standard that the guidelines set.

[00:08:28] Speaker 01:
And in that case, that's the only question.

[00:08:35] Speaker 01:
Did I answer Your Honor's question?

[00:08:38] Speaker 04:
Is that a legal?

[00:08:39] Speaker 04:
Is that why it's a legal objection?

[00:08:41] Speaker 01:
It's a legal objection for a couple of reasons, Your Honor.

[00:08:46] Speaker 01:
If we look to this court's decision in McDonald, there was a reliability objection to the PSR there.

[00:08:53] Speaker 01:
And on appeal, one of the defendant's claims was, well, the district court didn't fulfill its fact-finding obligation under Rule 32.

[00:09:04] Speaker 01:
And this court said, well, it didn't have to fulfill a fact-finding obligation under Rule 32 because there was no disputed fact.

[00:09:10] Speaker 01:
All you did was dispute the reliability.

[00:09:12] Speaker 01:
So it's a threshold question about whether the court can consider the allegation or consider the evidence.

[00:09:18] Speaker 04:
Aren't we kind of in the gray area of a mixed question of law and fact if we're talking about reliability?

[00:09:27] Speaker 04:
How can that determination be made without considering the facts?

[00:09:32] Speaker 01:
So I think you could characterize it as a mixed question of factor law, Your Honor.

[00:09:37] Speaker 01:
But the question for this guideline is whether it's a factual denial of guilt.

[00:09:43] Speaker 01:
And a reliability objection, because it doesn't raise a factual challenge at all, that's what the court said in McDonald, then it can't possibly be considered a factual denial of guilt.

[00:10:04] Speaker 01:
And the other reason, Your Honor, is because this court has said that the government makes the point that on appeal, if you challenge a reliability determination by the court, that's reviewed for a clear error.

[00:10:19] Speaker 01:
The government says it's clear.

[00:10:20] Speaker 01:
It must be a factual question.

[00:10:23] Speaker 01:
This court in Martinez and again in Anderson made the point that, yes, it's clear error review, but it's more akin to an evidentiary ruling, like under the rules of evidence,

[00:10:33] Speaker 01:
If counsel makes a Daubert challenge, there has to be a determination by the court about whether the evidence or the expert's opinions are sufficiently reliable.

[00:10:43] Speaker 01:
That's reviewed for abuse of discretion.

[00:10:45] Speaker 01:
This court has suggested that abuse of discretion would be a more appropriate standard, given that it is an evidentiary ruling.

[00:10:54] Speaker 01:
But the court doesn't have to decide that.

[00:10:56] Speaker 01:
The only question for the acceptance of responsibility

[00:11:00] Speaker 01:
claim brought here is whether it was a factual denial of guilt and here it was not.

[00:11:12] Speaker 01:
If there are no other questions there, I would like to just briefly address harmlessness.

[00:11:22] Speaker 01:
The government, of course, has the burden to show

[00:11:25] Speaker 01:
that the errors were harmless.

[00:11:27] Speaker 01:
These are guidelines errors, so they are presumptively prejudicial.

[00:11:31] Speaker 01:
So the government has to show this is the very rare case where the incorrect guidelines range didn't affect the sentence, and they can't possibly do that here, where the range that the court calculated was 92 to 115 months.

[00:11:44] Speaker 01:
And if Mr. Cruz is correct on both errors, that would make the guidelines range significantly lower at 41 to 51 months.

[00:11:53] Speaker 03:
Doesn't the district court's sentencing methodology suggest that the calculation of the guideline range didn't have much effect on the ultimate sentence?

[00:12:05] Speaker 01:
If it did, Your Honor, that wouldn't be the basis or it couldn't be the basis of harmlessness because it is itself an independent error, which is why we raised that as our third claim.

[00:12:16] Speaker 01:
But what the court was really doing was throwing up its hands and saying, I don't know what the guidelines were here, but I'm going with my gut.

[00:12:23] Speaker 01:
Because that is a separate and independent error.

[00:12:26] Speaker 01:
We know from this court's case on Pena Hermosillo that that can't be the basis of finding harmlessness.

[00:12:31] Speaker 02:
So if the court said that, and that is clearly wrong, I think,

[00:12:40] Speaker 02:
And we say, well, then the court's methodology was wrong.

[00:12:44] Speaker 02:
Everything that flowed from that is not dependable.

[00:12:48] Speaker 02:
Would that be all that our appellate court would need to say, or would we need to get into the other issues that you've been arguing today?

[00:12:57] Speaker 01:
I think that could be all that the court says.

[00:12:59] Speaker 02:
If the methodology is just plain wrong, can we salvage anything for further discussion by us?

[00:13:09] Speaker 01:
I think that that would be a way for your honors to resolve this case, to say this methodology was wrong and send it back.

[00:13:15] Speaker 01:
I think because of the way that federal sentencing works, the guidelines are the lodestar.

[00:13:20] Speaker 01:
They have to start there.

[00:13:21] Speaker 01:
And then that is the proper methodology.

[00:13:24] Speaker 01:
It would be certainly helpful to the district court to receive guidance from this court on what the proper guidelines calculation was.

[00:13:31] Speaker 02:
So what would you think would be helpful?

[00:13:33] Speaker 02:
I mean, sometimes we do that.

[00:13:35] Speaker 02:
We say, look, we're going to give you a little

[00:13:38] Speaker 02:
guideline here about what we'd like to see done.

[00:13:42] Speaker 02:
What would you like to have the court say?

[00:13:45] Speaker 01:
I think it would be helpful if the court considered and addressed the guidelines errors and said, you're allowed to look at anything.

[00:13:54] Speaker 01:
You're allowed to say that indeed he was convicted of second degree assault by drugging.

[00:13:59] Speaker 01:
That's not a crime of violence.

[00:14:00] Speaker 01:
And you can take away acceptance points based on an objection that counsel raises that doesn't deny factual guilt.

[00:14:09] Speaker 01:
you know, adjusting the guidelines with those things in mind.

[00:14:13] Speaker 01:
You have to start there.

[00:14:14] Speaker 01:
That has to be your lodestar.

[00:14:16] Speaker 01:
From that point, you can decide to vary upward or downward and explain your reason, but you can't rely on your gut.

[00:14:22] Speaker 02:
I think the risk would be that you could remand and say you've got to go with the guidelines and we'll end up with exactly the same sentence unless we get into some more of the parameters.

[00:14:37] Speaker 02:
So that's why I'm asking.

[00:14:42] Speaker 02:
So you're saying that consent by drugging is not a violent force.

[00:14:47] Speaker 02:
What else do you think would be a useful guideline thing for us to address?

[00:14:48] Speaker 01:
I think also the acceptance of responsibility, Your Honor, to make clear that legal arguments by counsel that don't deny factual guilt can't be a basis for withholding the acceptance points.

[00:15:02] Speaker 01:
That has to do with a defendant's personal contrition.

[00:15:06] Speaker 01:
I see my time has expired, but if I may finish my thought.

[00:15:10] Speaker 01:
And then making clear that the acceptance points for that reason should not have been withheld.

[00:15:17] Speaker 01:
And then, of course, going into the methodology and saying, you can't go based on your gut.

[00:15:22] Speaker 01:
You have to start with the guidelines as the lodestar and then use a proper, reasonable, non-arbitrary method for deciding either to stick within that range or to vary upward or downward.

[00:15:35] Speaker 01:
Thank you, Your Honors.

[00:15:38] Speaker 00:
May it please the court, Elizabeth Ford-Milani, on behalf of the United States.

[00:15:43] Speaker 00:
The district court correctly calculated Mr. Cruz's guidelines range based on his prior crime of violence conviction and his failure to accept responsibility.

[00:15:53] Speaker 00:
Any guidelines error was harmless.

[00:15:55] Speaker 00:
And the district court used a procedurally sound method to come to the final sentence in this case.

[00:16:01] Speaker 00:
This court should affirm.

[00:16:02] Speaker 00:
I want to start quickly where Judge Ebell, you left off about the sentencing methodology.

[00:16:07] Speaker 00:
And while the government contends our contention is that the methodology was wholly sound, this court need not even address that issue at all because it is waived.

[00:16:17] Speaker 00:
That claim was not preserved in the district court, and plain error was not raised in the opening brief.

[00:16:24] Speaker 00:
So for these reasons, under this court's precedent like Loeffler, this court need not resolve that issue.

[00:16:31] Speaker 00:
So I want to go back to the crime of violence issue for a moment.

[00:16:34] Speaker 00:
For the reasons discussed in the answer brief, we also believe the contention that the court erred by looking beyond the Colorado judgment in this case, we believe that was wave two.

[00:16:45] Speaker 00:
But in preparing for oral argument, I went back and I looked through those transcripts.

[00:16:49] Speaker 00:
I think I agree with the reply brief that page 16 is not a good example of that waiver in volume three.

[00:16:55] Speaker 00:
But I would direct the court to just a few pages later on, page 20, when there is this discussion about how the court's saying to counsel, the law doesn't allow me to look beyond this ambiguous judgment.

[00:17:08] Speaker 00:
And counsel agrees that that would be problematic.

[00:17:11] Speaker 00:
So I think that the combination of that statement, the numerous times the district court talked about how it was hemmed in by what was in the judgment,

[00:17:21] Speaker 00:
I think that that amounts to an intentional relinquishment of a known right.

[00:17:25] Speaker 00:
But if this court gets to the crime of violence issue, I think that two cases can easily resolve this case without going into the thorny morass of the categorical approach.

[00:17:36] Speaker 00:
And I think those cases are this court's opinion in Cherry.

[00:17:40] Speaker 00:
It's cited in the answer brief.

[00:17:41] Speaker 00:
and the Seventh Circuit's opinion in Miller.

[00:17:44] Speaker 00:
And Cherry talks about where an unambiguous judgment exists, there is no reason to look beyond it to discern the fact of the prior conviction.

[00:17:53] Speaker 03:
But what if you do, maybe you don't have to, but in this case there, and I guess the other thing is, I mean, what about that says that you can't?

[00:18:06] Speaker 03:
You don't have to, but what says you can't when other evidence is before you?

[00:18:11] Speaker 00:
So I would point out that in Cherry, there was other evidence before the court.

[00:18:15] Speaker 00:
I mean, they talked about the Cardo Appellate Court opinion.

[00:18:19] Speaker 00:
I'm not sure if that was before the district court, but that was certainly before the appellate court.

[00:18:24] Speaker 00:
But instead, this court said, our inquiry ends with the judgment, because that is the reflection of the conviction.

[00:18:31] Speaker 00:
Now, I don't disagree that that's not the crime that he pled guilty to.

[00:18:35] Speaker 04:
Even the district judge said it was wrong.

[00:18:37] Speaker 00:
It was wrong in the sense that that's not, and I don't dispute, that's not what Mr. Cruz agreed to plead guilty to.

[00:18:43] Speaker 04:
And we're just supposed to ignore all that?

[00:18:45] Speaker 00:
The unambiguous judgment is where the inquiry ends.

[00:18:49] Speaker 00:
Now I will point out that there is a remedy to fix the judgment.

[00:18:53] Speaker 04:
Why is that?

[00:18:54] Speaker 04:
Why would the inquiry end there if there is clear evidence that that wasn't really the offense he pledged to?

[00:19:02] Speaker 00:
I think that it makes sense because the judgment is the record of conviction.

[00:19:06] Speaker 00:
That is the final buck stops with the judgment.

[00:19:11] Speaker 00:
Correct, Your Honor.

[00:19:11] Speaker 00:
And I would push back again and say that there is a remedy for this to have been fixed.

[00:19:16] Speaker 00:
And in fact, that remedy is ongoing.

[00:19:17] Speaker 00:
It can be fixed at any time.

[00:19:20] Speaker 00:
But if this court disagrees that the court

[00:19:23] Speaker 00:
the inquiry should have not stopped with the judgment and sort of disagrees with Cherry and Miller, then I think that this court should conclude that Colorado's second-degree assault by drugging is a crime of violence.

[00:19:38] Speaker 03:
Before we get there, let me ask you.

[00:19:40] Speaker 03:
How do you correct?

[00:19:41] Speaker 03:
I mean, so defendant is sentenced, pursuant to the judgment, and you say, well, it can be corrected.

[00:19:49] Speaker 03:
So, OK, after the fact it's corrected, what do you do then?

[00:19:54] Speaker 00:
I suppose it would depend on when that occurred.

[00:20:00] Speaker 00:
If that occurred before sentencing, I think that... But it didn't.

[00:20:04] Speaker 00:
Right, right.

[00:20:05] Speaker 00:
So at this point, I suppose it could be a 2255, but I think the key time to have fixed this was long ago.

[00:20:11] Speaker 04:
Why didn't the government try to fix it?

[00:20:14] Speaker 04:
I mean, everybody knew that it was wrong.

[00:20:17] Speaker 04:
I think that would pose- Isn't that something that the government should be doing?

[00:20:20] Speaker 04:
They want to have their sentences based on what was really the basis for the sentence?

[00:20:27] Speaker 00:
Certainly.

[00:20:27] Speaker 00:
And I think that there would be difficult representation problems of the government trying to fix something on behalf of a defendant in state court.

[00:20:36] Speaker 04:
Isn't the government trying to fix something to render justice?

[00:20:39] Speaker 00:
Well, so as to be candid, Your Honor, if you look back at the record, the court said this error, this problem with

[00:20:47] Speaker 00:
what the judgment says, that can be remedied because both of the Colorado second degree assault provisions are crimes of violence.

[00:20:55] Speaker 00:
So that was not an approach that the government took below.

[00:20:57] Speaker 00:
But I think that it is sound, given this court's opinion on Cherry.

[00:21:01] Speaker 04:
All right.

[00:21:01] Speaker 04:
Let's talk about crime of violence then.

[00:21:03] Speaker 00:
Certainly.

[00:21:04] Speaker 00:
So start with the statute.

[00:21:07] Speaker 00:
This is the second degree assault provision.

[00:21:09] Speaker 00:
For a purpose other than lawful medical or therapeutic treatment, the defendant intentionally causes stupor

[00:21:16] Speaker 00:
unconsciousness, or other physical or mental impairment or injury to another person by administering to him without his consent a drug, substance, or preparation capable of producing the intended harm.

[00:21:29] Speaker 00:
So let's dial in on some of those words.

[00:21:32] Speaker 00:
Impairment, the common meaning is damage or to make worse.

[00:21:35] Speaker 00:
An injury similarly means hurt, damage, or loss.

[00:21:40] Speaker 00:
So impairment and injury have similar meanings here.

[00:21:43] Speaker 00:
according to dictionary definitions, which is this damage or loss concept.

[00:21:48] Speaker 00:
Now, given that the mental injury in this case, or impairment, is caused by a substance or drug, not for medical or therapeutic treatment, I think the best reading of the statute must be that the mental, the aspect of the mind, must be the brain.

[00:22:04] Speaker 00:
And I recognize that my opposing counsel's argument that that just reads physical right out of the statute.

[00:22:11] Speaker 00:
But I don't think that's true.

[00:22:13] Speaker 00:
The United States Supreme Court has recognized that redundancy in statutes to make sure that they encapsulate all the possible conduct is not uncommon.

[00:22:24] Speaker 00:
And looking at just this statute, there's redundancy, right?

[00:22:27] Speaker 04:
Because there's a, because- Is it a matter of redundancy, really?

[00:22:31] Speaker 04:
I mean, the statute says physical or mental impairment.

[00:22:37] Speaker 04:
I mean, it's framed in the disjunctive, which suggests that the mental impairment part is not physical.

[00:22:44] Speaker 00:
I think that a fair reading is that there is an intent to capture a lot of conduct, just the way drug, substance, or preparation is similarly.

[00:22:54] Speaker 04:
Well, we do agree that there may be more than one way to read that.

[00:22:58] Speaker 00:
It's possible.

[00:22:58] Speaker 04:
All right.

[00:22:59] Speaker 04:
And isn't, under the categorical approach, your burden to show that it clearly is categorically a crime of violence?

[00:23:09] Speaker 04:
So if there's more than one way of reading it, how do you meet the burden?

[00:23:12] Speaker 00:
So I think in that scenario, then we would go to this legal imagination.

[00:23:16] Speaker 00:
If it's not entirely clear if the conduct that the defense is posing falls into those plain terms, then we look to, well, has Colorado ever prosecuted anybody for second degree assault for causing anguish?

[00:23:29] Speaker 00:
And not yet have I found a case where that is the scenario.

[00:23:34] Speaker 00:
And so I think that we go to legal imagination.

[00:23:37] Speaker 04:
I will point out that- Was anguish the only mental impairment that is possible?

[00:23:41] Speaker 00:
Those that were raised were embarrassment, in the opening brief, fright, anguish, or embarrassment.

[00:23:47] Speaker 00:
And I think it makes sense, again, to have this particular understanding of mental.

[00:23:52] Speaker 00:
So if someone has a concussion, I think, of course, that's a physical injury in the broadest sense, because it happened to your body, and the body is part of the physical corpus, right?

[00:24:02] Speaker 00:
But I think it wouldn't be abnormal for us to call that a mental injury, a concussion.

[00:24:07] Speaker 00:
So I think it makes sense that.

[00:24:10] Speaker 04:
What if the defendant had administered some kind of drug without the victim's consent and it produced clinical anxiety?

[00:24:23] Speaker 04:
That's it.

[00:24:24] Speaker 00:
I think that would be hard to describe as an impairment, a hurt, damage, or loss.

[00:24:29] Speaker 00:
And I think that that.

[00:24:30] Speaker 04:
That's not a mental impairment.

[00:24:32] Speaker 04:
It may require some treatment.

[00:24:33] Speaker 04:
It may require some medication.

[00:24:36] Speaker 00:
I don't think that I would describe that as a hurt, a damage, or a loss, a chemical response like anxiety.

[00:24:41] Speaker 00:
Because I think, I'm not a doctor, but my understanding is that anxiety is a chemical response in your brain.

[00:24:48] Speaker 04:
So and I don't think that that can- We're back to physical impairment?

[00:24:51] Speaker 00:
Well, I just don't think that that would constitute what those words mean.

[00:24:54] Speaker 00:
I don't think that causing anxiety would be called an injury in an ordinary sense.

[00:24:57] Speaker 04:
Isn't that the problem here is we don't know.

[00:25:00] Speaker 04:
And for the categorical approach, we have to know.

[00:25:03] Speaker 00:
I think that the plain meanings of the terms do not capture this fright, anxiety, or, and we don't have any cases.

[00:25:11] Speaker 00:
So for instance, the reply brief for the first time, I'll note, cites Sanchez-Perez, Castro, and Burruss.

[00:25:19] Speaker 00:
And in those cases, first of all, the statutes are different.

[00:25:22] Speaker 00:
They talk about mental illness, which perhaps could arguably encapsulate your anxiety approach.

[00:25:30] Speaker 00:
But again, at least in Castro, my memory is that there were state cases where there was no touch, there was no force at all.

[00:25:39] Speaker 00:
It was

[00:25:40] Speaker 00:
some sort of other behavior that was swept up in the statute and state prosecutions, which we just don't have here.

[00:25:46] Speaker 00:
So I think that's when we rely on this legal imagination idea.

[00:25:49] Speaker 00:
The categorical approach is not where we should sit and think of every sort of possible hypothetical, if that's not what the plain meaning of the statute is really capturing.

[00:25:58] Speaker 04:
I guess I'm still back on the burden here.

[00:26:01] Speaker 04:
Is it your burden to show that it's a crime of violence?

[00:26:04] Speaker 00:
It was in the district court, Your Honor, yes.

[00:26:06] Speaker 04:
All right.

[00:26:07] Speaker 04:
Can you point to any cases that hold that an offense is a crime of violence when mental impairment alone is sufficient for criminal liability?

[00:26:16] Speaker 00:
I haven't seen that.

[00:26:17] Speaker 00:
And I will notice or I will note that it's possible because Colorado statute is different than other states.

[00:26:24] Speaker 00:
I guess we could put it that way.

[00:26:25] Speaker 00:
And a couple other cases have noticed that Colorado statutes are quite different nationally.

[00:26:32] Speaker 00:
But even if this court disagrees with regard to the crime of violence calculation,

[00:26:37] Speaker 00:
I think this is absolutely a harmlessness case.

[00:26:40] Speaker 00:
This is the rare case where the record makes absolutely clear that the court was using the 3553A factors to sentence this defendant and not relying on the calculated range.

[00:26:51] Speaker 00:
In fact, it said that I counted eight different times in the sentencing transcript that it thought the guidelines here were a forfeit.

[00:26:59] Speaker 02:
So I think that instead, the court's reliance- So you thought the guideline range was what?

[00:27:04] Speaker 00:
A forfeit.

[00:27:06] Speaker 00:
A forfeit.

[00:27:06] Speaker 00:
a poor fit, like it didn't fit the facts here, and that it was incorrectly representing what the correct sentence should be to this court.

[00:27:15] Speaker 00:
Based on those 3553A factors, the violence that were involved in the prior assault convictions, the violence involved in this case, and as well as similar conduct and how that is addressed in other statutes, as well as the need to deter

[00:27:32] Speaker 00:
this particular defendant because this was not his first felon in possession offense.

[00:27:38] Speaker 00:
If the court has no further questions on that point, I would like to touch briefly on the acceptance of responsibility point.

[00:27:45] Speaker 00:
So I will note that comment note one in three

[00:27:49] Speaker 00:
E1.1 is talking about frivolously contesting relevant conduct that the court determines to be true has acted in a manner inconsistent with acceptance of responsibility.

[00:28:02] Speaker 00:
It's not necessary for the defendant to deny his factual guilt on the elements.

[00:28:07] Speaker 00:
There's also a discussion of relevant conduct.

[00:28:09] Speaker 00:
So I want to point the court's attention to that.

[00:28:12] Speaker 00:
And just as Your Honor Judge Carson mentioned, the objection to the in connection with enhancement, it gets a little wild here.

[00:28:21] Speaker 00:
OK.

[00:28:21] Speaker 00:
The objection to the in connection with enhancement really called on the sufficiency and the weight of the evidence supporting whether or not Mr. Cruz pointed a gun at the victim in this case.

[00:28:33] Speaker 00:
This was not an argument that says, for example, this police

[00:28:37] Speaker 00:
report is unreliable as a matter of law because X, Y, Z reason.

[00:28:41] Speaker 00:
In fact, I don't even read the objection as talking about the police report.

[00:28:45] Speaker 00:
Instead, the objection was there are facts on one side and there are facts on the other.

[00:28:51] Speaker 00:
Therefore, you shouldn't apply the enhancement.

[00:28:54] Speaker 00:
And therefore, that is a purely factual question, not this sort of reliability as a matter of law.

[00:29:00] Speaker 00:
And what that objection ignored and what I don't see addressed in the opening brief is the fact that not only did the victim say the gun was pointed at me, but the victim identified that this was a Taurus 40 caliber.

[00:29:17] Speaker 00:
If that reliably showed that this relevant conduct occurred,

[00:29:22] Speaker 00:
And so counsel's failure to acknowledge that point and failure to acknowledge this record evidence with respect to the in connection with, that rendered this argument frivolous.

[00:29:31] Speaker 00:
Not only that, but then it wasn't withdrawn at sentencing after the government had attached to the court and provided to the court all these police reports talking about the gun and what kind of was.

[00:29:43] Speaker 04:
Let me ask you this.

[00:29:45] Speaker 04:
Does defense counsel then have to agree

[00:29:49] Speaker 04:
with the PSR's relevant conduct determination to ensure that the client receives acceptance of responsibility?

[00:29:59] Speaker 00:
I don't think that disagreeing would necessarily always be frivolous, if that makes sense, Your Honor.

[00:30:08] Speaker 04:
Does it make a difference that it's counsel rather than defendant making the argument?

[00:30:14] Speaker 00:
I don't think so either, Your Honor, because the counsel acts as agent for the defense.

[00:30:18] Speaker 00:
And it's not like Mr. Cruz, during his colloquy with the court, said, I disavow that objection.

[00:30:24] Speaker 00:
So I think that we always attribute.

[00:30:27] Speaker 00:
I see that my time is up.

[00:30:28] Speaker 00:
If I could finish my thought, Your Honor.

[00:30:30] Speaker 00:
Judge Matheson, I think that we always attribute these objections, these arguments, to the defense.

[00:30:37] Speaker 00:
Regardless, any error was harmless for the reasons that are laid out in the brief.

[00:30:41] Speaker 00:
And we'd ask for this court to affirm.

[00:30:43] Speaker 00:
Thank you.

[00:30:44] Speaker 04:
Thank you, counsel.

[00:30:46] Speaker 04:
Time has expired.

[00:30:47] Speaker 04:
The case will be submitted, and counsel are excused.