[00:00:01] Speaker 00:
I would ask for three minutes for rebuttal.

[00:00:06] Speaker 03:
Okay, just try and watch the clock.

[00:00:07] Speaker 00:
Thank you May it please the court Doug beavers for Mr.. Mendonza This case is not about interpreting the child pornography guidelines.

[00:00:19] Speaker 00:
It is about whether an unelected agency is

[00:00:23] Speaker 00:
can use so-called commentary to change the entire structure of a regulation that was approved by Congress.

[00:00:29] Speaker 00:
That regulation is 1B1.3, which unambiguously tells district judges how to evaluate specific offense characteristics all through the guidelines.

[00:00:40] Speaker 00:
Under that regulation, it says, unless otherwise specified, base offense level, specific offense characteristics, and cross references shall be determined on the basis of all acts

[00:00:52] Speaker 00:
committed that occurred during the commission of the offense or relevant conduct We after Kaiser we look only at in interpreting that we look only at

[00:01:05] Speaker 00:
at the text or first at the text of 2G2.2 and it uses the word specific offense characteristics and it does not specify.

[00:01:16] Speaker 00:
The government doesn't even argue that it's specified.

[00:01:18] Speaker 00:
It's clearly silent as to whether it's limited to relevant conduct or not.

[00:01:22] Speaker 03:
Well, but if we look at B5 in particular, it says if the defendant engaged in a pattern of activity involving sexual abuse or exploitation, it doesn't say, you know, in the course of this particular offense, it just says engaged in without any limitation as to when he might have done that.

[00:01:43] Speaker 03:
So just on the face of that isn't at a minimum a possible reading of that is that if he ever engaged in such a pattern of activity,

[00:01:52] Speaker 00:
Isn't it?

[00:01:54] Speaker 00:
Well, that would, if you look, it's clearly silent as to whether or not it applies to relevant conduct.

[00:02:00] Speaker 00:
And 1B1.3 tells you what to do when it's silent.

[00:02:06] Speaker 00:
It's a clear and unambiguous instruction.

[00:02:10] Speaker 00:
And it's all through the guideline book.

[00:02:12] Speaker 00:
The government points out that once in a while, or sometimes in the guidelines, the specific offense characteristic does say

[00:02:23] Speaker 00:
Offense conduct, but it's all through the section if you look at this the section itself and if you look at If you look at the guideline right above it it describes what it described it uses offense characteristics in some sections if you look at specific offense characteristic three it says that if the offense involved distribution for pecuniary gain and

[00:02:50] Speaker 00:
There they've used the word defense, but in B, if the defendant distributed in exchange for any valuable consideration, they don't use the word defense.

[00:02:59] Speaker 01:
But counsel, following up on Judge Miller's question, if you look at the concept of a pattern of activity, doesn't that itself, that phrase, imply a sequence of events over time?

[00:03:14] Speaker 00:
It could imply, it implies some sequence, but that

[00:03:20] Speaker 00:
relevant conduct, the definition in 1B1.3 covers a huge amount of time.

[00:03:29] Speaker 00:
It covers all acts that are related to that.

[00:03:32] Speaker 00:
If someone possesses child pornography under 1B1.3, it's all child pornography, not just the offense of conviction.

[00:03:41] Speaker 00:
It's all that's related.

[00:03:44] Speaker 00:
And if you look at the search warrant cases, persons possessing child pornography,

[00:03:50] Speaker 00:
They possess it for years and years and years.

[00:03:52] Speaker 00:
It doesn't get stale.

[00:03:54] Speaker 00:
That could be 15 years of activity.

[00:03:58] Speaker 01:
Well, but counsel, unless I'm missing your point, at least with respect to pattern of activity involving sexual abuse or exploitation of a minor,

[00:04:09] Speaker 01:
If we're just looking at possession of child pornography, that would not qualify as a pattern, because it has to be a pattern involving sexual abuse or exploitation, which is actual abuse, actual exploitation, not simple possession, correct?

[00:04:28] Speaker 00:
Right.

[00:04:29] Speaker 00:
But anything related to, in terms of the time period of the child pornography, the pattern

[00:04:37] Speaker 00:
It could it clearly at my later argument is clear that you could the pattern can be satisfied in two days to even maybe twice on the same day, but it has to be some pattern that's to be some separation but not.

[00:04:54] Speaker 00:
That is implied by that, and so there is some.

[00:04:57] Speaker 00:
description as to how long that could apply.

[00:05:00] Speaker 00:
The word itself, but then if you look at the other words in the guideline, they also distributed could theoretically be one moment, one distribution, but in the regular and ordinary drug case, distribution, it's many, many distributions.

[00:05:15] Speaker 00:
It's not different than pattern.

[00:05:18] Speaker 00:
Distribution

[00:05:20] Speaker 00:
a person distributes drugs once and then goes across the street and distributes again.

[00:05:25] Speaker 00:
It's a few minutes later.

[00:05:26] Speaker 01:
That's the same thing.

[00:05:28] Speaker 01:
Turning to the pattern of activity here, doesn't your interpretation render this important add-on a practical nullity?

[00:05:40] Speaker 01:
Because what you'd have to have is both possession of child pornography or distribution of child pornography and essentially simultaneously, perhaps there's a space in between, but basically simultaneously actual sexual abuse.

[00:05:58] Speaker 00:
Not absolutely simultaneously.

[00:06:02] Speaker 00:
It's the guideline for 1b 1.3 includes relevant conduct any conduct which is related or resulted from or Happened during the offense of conviction during during the commission of the offense of conviction for possession of child pornography in the normal case it's it's over several years and

[00:06:26] Speaker 00:
It is, in the normal case, it applies to a long period of time.

[00:06:34] Speaker 00:
And it is quite reasonable that the enhancement would only apply to people who are caught with child pornography and then did something connected to that during that period of time.

[00:06:49] Speaker 00:
But it's quite likely to be over a period of time.

[00:06:55] Speaker 00:
sense of Congress that the government cites, Congress was talking about the belief that possession of child pornography leads to other crimes.

[00:07:04] Speaker 00:
And there are many cases where that often happens, and that there are some relationship between some type of sexual conduct and the possession of child pornography.

[00:07:19] Speaker 03:
I wanted to reserve some time.

[00:07:21] Speaker 00:
You may.

[00:07:22] Speaker ?:
Thank you.

[00:07:27] Speaker 03:
Mr. Yang.

[00:07:30] Speaker 04:
May it please the court, Roger Yang for the United States.

[00:07:33] Speaker 04:
This court should conclude that the plain language of 2G 2.2B5, the pattern of activity enhancement, does not require that the pattern of activity be related to the offense of conviction, nor does it limit the age of the conduct that can support application of the enhancement.

[00:07:51] Speaker 04:
Therefore, this court should affirm its application to Mr. Mendonca and his sentence.

[00:08:00] Speaker 04:
2g 2.2 b5 does not contain any language saying that it has to be during the offense of conviction and That's true, but how do you deal with the argument about 1b 1 3?

[00:08:17] Speaker 04:
Certainly your honor so 1b 1 point What 1.1 actually okay?

[00:08:28] Speaker 04:
states that there are four categories in the sentencing guidelines.

[00:08:34] Speaker 04:
There's the base offense level, there's specific offense characteristics, there's cross references, and then there are special instructions.

[00:08:42] Speaker 04:
Congress mandated that this enhancement be added to 2G2.2, not anywhere else in the offense.

[00:08:51] Speaker 04:
So the sentencing commission, given that they only have these four categories, sensibly placed it

[00:08:57] Speaker 04:
in specific offense characteristics without the complication of saying that all specific offense characteristics must absolutely be related to the offense of conviction.

[00:09:12] Speaker 04:
Then, in 1B1.3, the Simpson Commission provided

[00:09:18] Speaker 04:
the kind of wiggle room, the idea that if a specific offense character specifies that it is going to be outside of relevant conduct in the 1.3 cents, that it will apply.

[00:09:35] Speaker 04:
using, at the beginning of 1B, 1.3 unless specified.

[00:09:41] Speaker 04:
And this 2G 2.2 B5 specifies specifically that the defendant's past conduct will be considered when assessing a defendant and his sentence.

[00:09:57] Speaker 04:
And it provides the five-point enhancement mandated by Congress.

[00:10:02] Speaker 03:
When you say it provides specifically that you look at past conduct,

[00:10:06] Speaker 03:
Are you referring to be five itself or?

[00:10:09] Speaker 04:
Something else yes your honor if the defendant engaged in a pattern of activity that is what Congress guided the sensing Commission to add to the to the sensing guideline and what do we do I mean so I

[00:10:27] Speaker 03:
If all we had is that phrase, I think it probably does support your reading.

[00:10:33] Speaker 03:
But what about the fact that B5 is one of a list of, I guess, seven things, some of which say that they're about the offense, some of which don't say it, but seem like they really only make sense if they're talking about the offense.

[00:10:53] Speaker 03:
I think the argument on the other side is that the inference should be that this too is just about the offense.

[00:10:57] Speaker 03:
So what's your answer to that?

[00:10:59] Speaker 04:
This was the argument advanced by the government throughout its litigation regarding this guideline.

[00:11:06] Speaker 04:
And that is that

[00:11:08] Speaker 04:
The beginning of the guideline itself says if the defendant.

[00:11:14] Speaker 04:
Every other portion of 2G2.2 says if the offense involved.

[00:11:20] Speaker 04:
So if the underlying offense involved or if something happened during the course of the offense.

[00:11:28] Speaker 04:
This 2G2.2 B5 focuses on the defendant, the defendant as a person.

[00:11:35] Speaker 04:
Every other sentencing guideline that enhances sentences based on the defendant's prior convictions, prior conduct, all concentrate on the defendant as a person, which furthers the sentencing purpose of 3553A of concentrating on the specific defendant before you.

[00:12:00] Speaker 04:
Even in the cases that

[00:12:03] Speaker 04:
accepted this placement theory that is in Chapman and Seurat and Debus, noted that the government's reading of the guideline, if read in isolation, could have this specific interpretation.

[00:12:22] Speaker 04:
So in other words, the plain language of the statute could support the government's interpretation.

[00:12:29] Speaker 04:
And then the 1996 amendment made that crystal clear.

[00:12:33] Speaker 01:
Mr. Yang, to what extent does the government's position rise or fall on the panel determining whether the provision is ambiguous?

[00:12:44] Speaker 04:
The government believes that even if this court were to find the guideline genuinely ambiguous, the 1996 amendment, as well as the case law interpreting and harmonizing

[00:13:01] Speaker 04:
A guideline with one be one point three since then all point that this is a reasonable interpretation and then

[00:13:09] Speaker 04:
also that the Sensing Commission should be given deference with regard to that interpretation.

[00:13:14] Speaker 01:
Let me perhaps restate it.

[00:13:16] Speaker 01:
So it's pretty clear if we were to determine that the provision is ambiguous that the government wins here because under Kaiser we would defer to the commentary, correct?

[00:13:28] Speaker 01:
Yes.

[00:13:29] Speaker 01:
My question really is driving at what if we, to what extent is the government claiming that its position

[00:13:38] Speaker 01:
is grounded in an unambiguous interpretation of the provision in the government's favor.

[00:13:46] Speaker 04:
Because the plain language of the statute does not tie the defendant's past conduct to the offense of conviction.

[00:13:55] Speaker 04:
And then logically, under the structure of the guidelines, the government has available to it

[00:14:04] Speaker 04:
if there was sexual abuse or exploitation of minors to charge those offenses.

[00:14:10] Speaker 04:
2G2.1 was promulgated in 1987.

[00:14:15] Speaker 04:
3.1 and 3.2 were promulgated in 1987 as well.

[00:14:24] Speaker 04:
And so the government had available to it all sorts of ways to hold people responsible for sexual abuse and exploitation

[00:14:34] Speaker 04:
as a portion of the offense.

[00:14:37] Speaker 04:
But Congress's intent in placing this in the child pornography trafficking and possession guideline was intended to punish those with hands-on and exploitation conduct in their past who then got caught with only child pornography.

[00:14:56] Speaker 03:
And just to be clear, this guideline does not apply to production offenses?

[00:15:00] Speaker 03:
There's a separate guideline for that?

[00:15:02] Speaker 03:
2G2.1, yes.

[00:15:04] Speaker 04:
And this guideline also works in harmony with 4B1.5, which was promulgated later, because 4B1.5 requires a hands-on or exploitation offense to apply, and it specifically excludes trafficking and possession of child pornography offenses.

[00:15:28] Speaker 01:
Mr. Yang, can I just

[00:15:30] Speaker 01:
return to the phrase unless otherwise specified in 1B1.3.

[00:15:34] Speaker 01:
Is there anything that would guide the panel on whether that phrase requires express or can also include an implicit expression by the Commission?

[00:15:54] Speaker 04:
The cases interpreting these texts and structure of the guidelines with 1B1.3 have tried to harmonize this by saying if the guidelines language concentrates on a factor such as the defendant or the characteristics of the defendant or the defendant's past conduct, that those are to be harmonized together and read together

[00:16:22] Speaker 04:
to specify, essentially, under the unless specified clause, that the sentencing judge should concentrate on these characteristics and this past conduct rather than conduct related to the offense.

[00:16:40] Speaker 04:
And so part of the statutory construction is to try to harmonize everything and all the cases that have

[00:16:50] Speaker 04:
since Chapman and the 1996 amendment have all stated that in order to harmonize this, you have to basically read it.

[00:17:00] Speaker 02:
The argument on the other side on harmonizing the provisions is

[00:17:04] Speaker 02:
1B1.3 says unless otherwise specified and in Chapter 2 it doesn't specify, it has no temporal specification.

[00:17:17] Speaker 02:
The argument on the other side would be the way to harmonize it is to say that under 1B1.3 it has to occur during the Commission of Defense.

[00:17:27] Speaker 02:
So what's your response?

[00:17:28] Speaker 04:
I see that my time is about to expire.

[00:17:30] Speaker 04:
Thank you.

[00:17:34] Speaker 04:
The government's response is that it does specify.

[00:17:38] Speaker 04:
The guideline itself states the defendant had engaged in this prior conduct.

[00:17:46] Speaker 04:
That is specific enough to focus the district court

[00:17:50] Speaker 04:
on the defendant's characteristic, which is the past conduct, rather than something in the course of conduct during the offense, which applies to all the other portions of 2G2.2.

[00:18:05] Speaker 04:
Thank you.

[00:18:08] Speaker 03:
Thank you, Mr. Yang.

[00:18:10] Speaker 03:
Mr. Beaver's rebuttal.

[00:18:12] Speaker 00:
Yes.

[00:18:13] Speaker 00:
I think the clearest way to figure out what otherwise specified means is to look at the rest of the guideline book, particularly 2K2.1, the gun guidelines, where Part C specifically limits the characteristic to guns cited in the offensive conviction as to the cross-reference

[00:18:38] Speaker 00:
Whereas 1B1.3 would allow it to any relevant conduct, whether it was cited or not.

[00:18:44] Speaker 00:
That gun guideline also says that if you possessed a firearm, the offensive conviction, the type of gun is limited to any relevant conduct, whereas the prior conviction is expressly outside of relevant conduct and previous to it.

[00:19:06] Speaker 00:
I think the only, I think with your question as to whether the word pattern could implies in some way is a specifically

[00:19:23] Speaker 00:
is otherwise specified.

[00:19:25] Speaker 00:
It's not clear enough.

[00:19:27] Speaker 00:
And I think if you look at the second argument, where the government is arguing that the pattern applies to two sex crimes committed within maybe an hour or two apart, that's the type.

[00:19:40] Speaker 00:
If he had child pornography back at that time, this would have clearly applied.

[00:19:47] Speaker 00:
And that's one way that it could be.

[00:19:50] Speaker 00:
If they don't like it, they can move it to section 4B1.5, which applies to the child pornography production.

[00:19:58] Speaker 00:
The congressionally approved guideline that applies to prior offense conduct, 4B1.5, they chose not to put it in there.

[00:20:08] Speaker 00:
So it's fairly easy to fix, as they did with the intent

[00:20:15] Speaker 00:
the intended loss guideline that was addressed in in the alpha where they Congress just moved it it's not that difficult to move but I think the big issue is agency deference and whether just using the word pattern or just using the word whether that implies that that the agency then can decide how long it

[00:20:40] Speaker 00:
that it can incorporate 30 years past.

[00:20:42] Speaker 00:
That's a big decision.

[00:20:44] Speaker 00:
Part 2 shows how big and difficult it is for judges to resolve cases that are outside of relevant conduct 30 years before.

[00:20:53] Speaker 00:
That's difficult.

[00:20:55] Speaker 00:
And it should be an issue that should be decided by Congress as to whether or not they tell judges that they have to do that kind of thing in basically every case.

[00:21:08] Speaker 00:
Thank you.

[00:21:09] Speaker 03:
Thank you very much.

[00:21:10] Speaker 03:
We thank both counsel for their helpful arguments and the case is submitted.