[00:00:00] Speaker 01:
Case number 22-3084, United States of America, Lucas Denny, appellant.

[00:00:07] Speaker 01:
Mr. Hickley for the appellant, Mr. Goodhand for the appellate.

[00:00:13] Speaker 04:
Morning.

[00:00:14] Speaker 04:
Morning, Your Honor.

[00:00:16] Speaker 04:
May it please the court, counsel for the government.

[00:00:20] Speaker 04:
The issues on appeal are specific applications of two sentencing enhancements that are factually specific to the offense of conviction.

[00:00:30] Speaker 04:
Enhancements were advocated for by the government and adopted by the district court at sentencing.

[00:00:35] Speaker 04:
I'm not here denying the extensive relevant conduct beyond the offense conduct captured in both the pre-sentence report and the comments of the district court.

[00:00:47] Speaker 04:
But both enhancements are specific to offense conduct, not the relevant conduct.

[00:00:53] Speaker 04:
And there's a bit of a torture history that I'm not going to go into as to how we ended up in this case with a single 111 B count and nothing else in an indictment that led to an immediate guilty plea and arraignment.

[00:01:07] Speaker 04:
But with respect to the two enhancements that were applied, one for more than minimal planning and the second for use of a dangerous instrument,

[00:01:17] Speaker 04:
As to the first, I believe the question begins, or the issue begins with a question of what is the simple form of a Section 111B enhancement, because the case law tells us that the aggravated form, the plus four levels, apply to a offense that involves more than minimal planning, and more than minimal planning is defined as planning beyond the simple form.

[00:01:42] Speaker 04:
Now, I think there's an issue here I need to raise just briefly that's set forth in the briefs but not called out.

[00:01:48] Speaker 04:
And that is in the DC Circuit, in the Kim case in 1994, the circuit distinguished between what is called the simple form and what might be called the simplest form.

[00:01:59] Speaker 04:
And this circuit said the simplest form is not the baseline.

[00:02:03] Speaker 04:
The simple form is the baseline.

[00:02:06] Speaker 04:
And the defense reads that to mean that even among the simple form, there is a spectrum of conduct.

[00:02:12] Speaker 04:
as to what might amount to a simple form before you jump to more than minimal planning that takes you out of the simple form.

[00:02:21] Speaker 03:
Before you get to the question of how much planning there was, could I ask what seems to me an antecedent question, which is what has to be more than minimally planned?

[00:02:40] Speaker 03:
You say it's the offense, but the relevant guideline says the key question is whether the assault involved more than minimal planning.

[00:02:56] Speaker 04:
And that reference, I think, directs the court to the offense conduct.

[00:03:01] Speaker 04:
We are concerned here with what is the baseline offense conduct of a simple form?

[00:03:07] Speaker 03:
The offense has three elements.

[00:03:11] Speaker 03:
Assault, the victim is an officer performing official duties, and use of a dangerous weapon.

[00:03:21] Speaker 03:
And the reason I'm focused on, let me just assume I think there was more than minimal planning of the assault.

[00:03:31] Speaker 03:
but maybe not more than minimal planning to use a dangerous weapon.

[00:03:36] Speaker 04:
Well, I think that's a very good point.

[00:03:38] Speaker 03:
On those assumptions, how would I come out?

[00:03:40] Speaker 04:
Well, I think you would have to come out that the use of the dangerous weapon was spontaneous because it was an instrument that Mr. Denny- But the assault was more than minimally planned.

[00:03:53] Speaker 04:
Well, to the extent that the assault

[00:03:56] Speaker 04:
That assumes that the planning identified by the district court, the travel, the acquisition of the various instruments and items brought with them, the discussion with other individuals, the financing, the raising of money, that all of those constitute steps in anticipation of an assault.

[00:04:15] Speaker 04:
And I think that is a step forward.

[00:04:17] Speaker 04:
But the point you've raised I think is a good one, which is that the use of the weapon in this instance was the spontaneous picking up of the PVC pipe laying at his feet and within two seconds attempting to knock the instrument out of the officer's hands with that pipe.

[00:04:36] Speaker 00:
I was just going to say wasn't there a retreat and then go and pick up a pipe?

[00:04:42] Speaker 04:
The retreat was from getting blasted in the face with the pepper spray.

[00:04:47] Speaker 01:
Why did he get blasted in the face with the pepper spray?

[00:04:50] Speaker 04:
He attempted to reach up and grab the instrument that the officer was using.

[00:04:54] Speaker 01:
He had tried once to disarm the spray from the officer.

[00:04:59] Speaker 01:
Correct.

[00:04:59] Speaker 01:
And that didn't fail.

[00:05:00] Speaker 01:
So then, as Judge Child says, he had to retreat.

[00:05:03] Speaker 01:
Think of another plan.

[00:05:05] Speaker 01:
That's when he picked up the PVC pipe.

[00:05:09] Speaker 04:
To say that he, I understand the court's point, but to say he thought of another plan, I think is reading too much into it.

[00:05:16] Speaker 01:
I'm sorry, he did it as an automaton, or did he go, he was clearly planning, he was, excuse me, he was clearly planning to do whatever he could, first of all, to get into the Capitol.

[00:05:27] Speaker 01:
He'd assaulted many officers already, and here was another officer who was standing between him and the inside of the Capitol.

[00:05:34] Speaker 01:
And to do that, he was going to have to get this crowd control spray out of the officers, not just hand, it was up his whole arm.

[00:05:42] Speaker 01:
He was holding it.

[00:05:43] Speaker 01:
He was going to have to get it out.

[00:05:44] Speaker 01:
And he tried one tactic, and that didn't work.

[00:05:48] Speaker 01:
And as Judge Childs says, retreated.

[00:05:50] Speaker 01:
And then,

[00:05:52] Speaker 01:
He, there's no claim that someone handed him the pipe.

[00:05:55] Speaker 01:
He saw a pipe, thought about what to do with the pipe, picked the pipe up, and went and attacked the officer with it.

[00:06:02] Speaker 01:
Why is that itself, given that this, and by the way, when that didn't work, he went back, found another pipe, and threw it at the officer.

[00:06:09] Speaker 01:
Why isn't that enough to demonstrate more than minimal planning, even for the use of the pipe as a weapon to,

[00:06:20] Speaker 01:
try and injure the officer and get the crowd control spray?

[00:06:25] Speaker 04:
I think because, again, as I said to start, the simple form has a spectrum of conduct before you get out of more than minimal planning.

[00:06:34] Speaker 04:
And I think if you look at the Smith case cited by the government from the Seventh Circuit, a very similar episode where the defendant was dispossessed of a firearm in a bar,

[00:06:47] Speaker 04:
He then left, went back to his house, obtained another handgun and a long gun, then drove back to the bar.

[00:06:55] Speaker 04:
in order to recover his first firearm.

[00:06:57] Speaker 04:
There you have an extended period of planning contemplation.

[00:07:01] Speaker 01:
Does it have to be a certain amount of time?

[00:07:02] Speaker 01:
Because obviously that couldn't happen here.

[00:07:05] Speaker 01:
Had he gone home and come back, it would have all been over.

[00:07:08] Speaker 01:
So there can't be a time limit on this.

[00:07:10] Speaker 01:
It really has to be, do we see, like maybe that first time, maybe hypothetically, or we can even assume when he jumped and tried to grab

[00:07:19] Speaker 01:
the spray gun out of the guy's arms that might have been a simple assault but he was then calculating that didn't work

[00:07:29] Speaker 01:
Now, what shall I use to make it happen?

[00:07:32] Speaker 01:
And that's when he tried the PVC pipe.

[00:07:34] Speaker 01:
And we know he was continually calculating about how he was going to do it to get past this officer and get into the Capitol, because he had a third effort.

[00:07:44] Speaker 01:
Not charged here, but after the PVC pipe didn't work, he tried throwing another pipe.

[00:07:50] Speaker 01:
So why isn't it?

[00:07:51] Speaker 01:
If it were spread out more in time, or if he had to go back to his car to get the PVC pipe, it sounds like you would agree.

[00:07:58] Speaker 01:
But here he retreated, found a net pipe, decided what to do with it, and went back at the officer.

[00:08:04] Speaker 01:
Why is that not enough, comparing it to the case you just referenced?

[00:08:09] Speaker 04:
Well, again, I think there's a gulf between those two factual scenarios where the scenario from the prior case is clearly planning.

[00:08:20] Speaker 01:
Tell me the factual gulf.

[00:08:21] Speaker 01:
Is it just time?

[00:08:22] Speaker 04:
I think so.

[00:08:24] Speaker 04:
It's sort of like a continuous sequence of events where one leads to another leads to another within a matter of just a few seconds without really

[00:08:35] Speaker 04:
a thoughtful analysis of what's about to happen in the way that more than minimal planning describes.

[00:08:44] Speaker 01:
In the Seventh Circuit case, after his first gun was taken away, if the guy had then, he had his jacket say on the back of the chair, and then gone back to his jacket and pulled out,

[00:08:57] Speaker 01:
a second gun that he had in the pocket of his jacket.

[00:09:00] Speaker 01:
So never left the room, only took a matter of seconds.

[00:09:04] Speaker 01:
Wouldn't that be the same?

[00:09:05] Speaker 01:
Wouldn't that still be more than minimal planning?

[00:09:07] Speaker 01:
Because you have the deliberate decision to pick up a tool, a dangerous weapon, and use it.

[00:09:15] Speaker 04:
I think that's actually a second offense.

[00:09:18] Speaker 04:
And the second offense would be planning.

[00:09:19] Speaker 01:
On a second offense, that's not what I'm asking you.

[00:09:20] Speaker 01:
That would be more than minimal planning.

[00:09:23] Speaker 04:
As to the second offense, yes.

[00:09:26] Speaker 01:
I'm not as much second offense, I'm saying as to the time he goes and gets the gun out, that's more than minimal planning on attacking, I'm a little bit as an officer there, but attacking the other person.

[00:09:35] Speaker 01:
This is, okay, so leaving your first failed encounter, retreating, getting a weapon, a new weapon, first time he just had his hands, here he got a new weapon, and going back,

[00:09:54] Speaker 01:
that counts, in my hypothetical, as more than minimal planning.

[00:09:58] Speaker 04:
I don't think it's more than minimal.

[00:10:00] Speaker 04:
I think it might be planning, but it's not planning beyond the simple form.

[00:10:04] Speaker 00:
You seem to be doing a lot of explaining here today, but let's think about the statement of offense, and then we also had the plea colloquy in which there's a lot of admissions there.

[00:10:17] Speaker 00:
And I just feel like you're taking the time to kind of splice in between events and time periods right now.

[00:10:25] Speaker 00:
But there's a lot of admissions already on the record.

[00:10:30] Speaker 04:
Well, Your Honor, I think the plea colloquy obviously was aimed at the aggravated form of the offense and the B count, which involves the use of a dangerous instrument.

[00:10:40] Speaker 04:
And there were admissions that were undeniable there.

[00:10:46] Speaker 04:
They were undeniable factually that the PVC pipe was capable of being a dangerous weapon if employed in a certain fashion, but otherwise was benign.

[00:10:56] Speaker 04:
And so for the necessity of the plea, he had to admit that he employed the PVC pipe and that the PVC pipe qualified under the statute as a dangerous instrument.

[00:11:10] Speaker 00:
Yeah, but you're challenging both here today.

[00:11:13] Speaker 04:
Okay, so I see that as a signal.

[00:11:17] Speaker 04:
Let's go to the second one.

[00:11:18] Speaker 04:
And I don't want to spend too much more time.

[00:11:19] Speaker 04:
I'd like to reserve a little bit for rebuttal.

[00:11:22] Speaker 04:
I think what the government is trying to do here and what the court did was erase the specific reference in note one to 2B2.1, which is that when you are using a dangerous instrument as opposed to a dangerous weapon,

[00:11:38] Speaker 04:
that the instrument has to be wielded in a way that makes it with the intent to inflict bodily injury.

[00:11:48] Speaker 04:
Didn't the district court find that here?

[00:11:51] Speaker 01:
Didn't the district court find that here?

[00:11:53] Speaker 04:
He did, but I think on this issue, the video evidence so contradicts the district court's finding in that regard that that finding is clearly erroneous.

[00:12:03] Speaker 04:
Okay, so this is just a factual dispute.

[00:12:06] Speaker 04:
Correct.

[00:12:07] Speaker 04:
Under a clear error standard.

[00:12:09] Speaker 04:
Yeah, the video shows that he was not swinging that at the officer.

[00:12:13] Speaker 04:
He was not swinging it in any way intending to injure the officer.

[00:12:18] Speaker 01:
What is our standard review for this fact question?

[00:12:20] Speaker 01:
Normally that's clear error, but we didn't argue below that he didn't have this intent.

[00:12:27] Speaker 01:
The district guard found it, asked your client, he agreed to it.

[00:12:31] Speaker 01:
So it's like a plain clear error.

[00:12:36] Speaker 04:
I can't say I thought that one through in the few seconds I have here left.

[00:12:40] Speaker 04:
I'm not sure I have a coherent answer to give you, but I acknowledge it's clear there are.

[00:12:48] Speaker 04:
Maybe by rebuttal I can do some minimal planning.

[00:12:50] Speaker 04:
But I just think our point is that the video evidence simply doesn't support an intent to commit bodily injury with that instrument.

[00:12:57] Speaker 04:
And that's a separate question under the guidelines than the element of the statute.

[00:13:02] Speaker 00:
And with that, I'll reserve another question real quick on jurisdiction.

[00:13:06] Speaker 00:
This was brought under 28 USC 1291, but 18 USC 3742A2 provides that you can file a notice of appeal when you're actually challenging the incorrect application of the sentencing guideline.

[00:13:20] Speaker 00:
So does that difference in jurisdiction statement matter to you in terms of how we, knowing our jurisdiction here?

[00:13:30] Speaker 04:
Your honor, that's a question.

[00:13:31] Speaker 04:
I'm frankly, I wasn't cognizant of that error in the paperwork.

[00:13:39] Speaker 04:
We should have, the notice of appeal should have been for, I mean, these are only sentencing issues.

[00:13:43] Speaker 04:
So it should have been the error at sentencing as opposed to the error at any other junction in the case.

[00:13:50] Speaker 04:
So I wish I could inform you further, but I can't.

[00:13:56] Speaker 03:
Why do we need to worry about intent?

[00:14:02] Speaker 03:
Dangerous weapon is a defined term.

[00:14:05] Speaker 03:
And the definition is the instrument is capable of inflicting serious bodily injury.

[00:14:14] Speaker 03:
If that prong is satisfied, we're done.

[00:14:18] Speaker 04:
I don't think so because the specific application note under 2B 2.2 further refines that as to a dangerous instrument as compared to a dangerous weapon.

[00:14:31] Speaker 03:
It says dangerous weapon, which is the operative term in the guideline, has the meaning given it in 1B 1.1 and includes something else.

[00:14:47] Speaker 03:
But 1B1.1 defines a dangerous weapon, as I said.

[00:14:54] Speaker 03:
It's an instrument, which means there's no magic words difference between weapon and instrument.

[00:15:03] Speaker 03:
An instrument capable of causing serious bodily injury.

[00:15:09] Speaker 04:
But the specific enhancement under 2B2.2 speaks to the offense conduct.

[00:15:17] Speaker 04:
Though the instrument used in the offense was used with the intent to commit bodily injury.

[00:15:24] Speaker 04:
So now we're talking about the specific application of enhancement under 2B2.2, not a general definition under 1P1.1 note.

[00:15:33] Speaker 00:
But even if you just hit the hand, you know, to take the pepper spray out or any motion towards someone, why is that not intent?

[00:15:44] Speaker 00:
Just projecting yourself with someone, what is defined as a dangerous weapon.

[00:15:50] Speaker 04:
Well, again though, I think the point goes back to the video, which the manner in which the pole was actually wielded shows that if he was trying to hit the officer in the head, he would have wielded in a different way.

[00:16:03] Speaker 04:
If he was trying to hit the officer in the torso,

[00:16:06] Speaker 00:
People can commit bank robberies and they didn't intend to shoot somebody but the circumstances bring themselves to that point where they feel like either I'm in danger or the other person's in danger and it's not going to be me.

[00:16:19] Speaker 00:
So when you're looking at intent in that regard I'm not sure that I follow your train of thought that it has to be so planned out that

[00:16:28] Speaker 00:
Circumstantially, I plan to have all of these various steps in there.

[00:16:32] Speaker 00:
Sometimes things go awry, but if you have some initial intent, whatever happens later, that's your charge.

[00:16:39] Speaker 04:
I understand the court's point, but I think here, again, that goes back to your example is using a dangerous weapon, which there's only one intent behind using a dangerous weapon, as opposed to an instrument capable of being used in a dangerous fashion.

[00:16:59] Speaker 01:
I'm trying to understand your argument about how he did.

[00:17:02] Speaker 01:
The swinging of the pipe and I think my is if I understand your argument said he went sort of overhead.

[00:17:10] Speaker 01:
And that was that shows not intend had he intended to injure he would have gone side to side.

[00:17:15] Speaker 01:
Is that your point?

[00:17:17] Speaker 04:
Well, he didn't even really go overhead.

[00:17:18] Speaker 04:
He only lifted it beyond horizontal enough to get it above the instrument, above the pepper gas gun.

[00:17:26] Speaker 04:
And then he tried to drop it down on the pepper gas gun.

[00:17:30] Speaker 04:
He doesn't swing it at all.

[00:17:32] Speaker 04:
It simply falls of its own weight.

[00:17:36] Speaker 01:
Well, someone had to lift it up because the officer was in an elevated platform.

[00:17:40] Speaker 01:
The only part of his body that was really exposed because he was behind a brick wall was pretty much the arm holding the gun, his helmet, and his head.

[00:17:48] Speaker 01:
So there was no torso to get.

[00:17:50] Speaker 01:
He would have hit a brick wall had he done it.

[00:17:51] Speaker 01:
So the only way to get to the officer or to the gun was to go up and over and down.

[00:17:58] Speaker 01:
And there is no way, unless you've

[00:18:02] Speaker 01:
You may be better at physics than me, but given that the canister for the spray is all along the guy's arm and held up against his body, there was no way that you could get the canister and the spray gun out without at a minimum injuring his arm and hand.

[00:18:21] Speaker 04:
Well, I think if you look at the video closely, it's just... I've looked at it very closely already.

[00:18:26] Speaker 04:
He's got a strap.

[00:18:28] Speaker 04:
It's an instrument that's operated with one hand on the trigger, and there's a strap in the arm.

[00:18:34] Speaker 01:
But I don't know that Mr... He can't dislodge it without really doing... If it's visible to you and me on the video, it's visible to Mr. Jenny, who was right there front and center.

[00:18:43] Speaker 01:
Understood.

[00:18:47] Speaker 01:
Any other questions?

[00:18:49] Speaker 01:
All right.

[00:18:50] Speaker 01:
I know you wanted to save some time for rebuttal, and we will give you two minutes for rebuttal, OK?

[00:18:55] Speaker 04:
Excellent.

[00:18:55] Speaker 04:
Yes, thank you.

[00:18:57] Speaker 01:
Can we hear from the government now?

[00:19:03] Speaker 02:
Good morning, Your Honors.

[00:19:04] Speaker 02:
May it please court David Goodham for the United States.

[00:19:06] Speaker 02:
If I could take the issues in order.

[00:19:08] Speaker 02:
And addressing first your question, Judge Katz, relating to what is it we were talking about must be planned for.

[00:19:16] Speaker 02:
And I certainly noticed the tension between, on the one hand, the language on assault in the actual guideline.

[00:19:24] Speaker 02:
But then you go to the note and it says commission of the offense in a simple form.

[00:19:30] Speaker 02:
I took my cues, honestly, there's not a lot of case law out there on this, but I took my cues from the government's position in Coombs.

[00:19:37] Speaker 02:
And so we took on the sort of more stringent burden here by demonstrating more than minimal planning for an assault with a dangerous weapon.

[00:19:47] Speaker 02:
In Coombs, which is 823 Fed Appendix at 617, I believe.

[00:19:56] Speaker 02:
I'm sorry, once more.

[00:19:57] Speaker 02:
I'm sorry, Coombs is 823 Fed appendix and 813, 613, I'm sorry.

[00:20:06] Speaker 02:
And at page 617, it says the government contends.

[00:20:10] Speaker 02:
Now, critically, the caveat is this is a section 113 offense.

[00:20:17] Speaker 02:
I didn't see any section 111 offenses.

[00:20:19] Speaker 02:
But it says the government contends that the simple form of his crime required only that on a particular date,

[00:20:27] Speaker 02:
In a particular location, he knowingly assaulted another individual with a dangerous weapon with the intent to do bodily harm.

[00:20:34] Speaker 02:
I will add that Coombe cites to Bean, which is 18F3 1367, not an assault case.

[00:20:42] Speaker 02:
It's a Judge Easterbrook opinion.

[00:20:44] Speaker 02:
And Judge Easterbrook says, the offense is the crime of which the defendant has been convicted.

[00:20:52] Speaker 02:
So anyway.

[00:20:53] Speaker 02:
You can read it either way.

[00:20:54] Speaker 03:
Yes.

[00:20:54] Speaker 03:
Assault.

[00:20:56] Speaker 03:
In the context of a three element statute, one element of which is assault might just mean that element or it might be shorthand for whatever offenses are under the assault guideline.

[00:21:10] Speaker 02:
Right.

[00:21:11] Speaker 02:
And this one, the 282.2 is labeled aggravated assault.

[00:21:16] Speaker 02:
So I agree that you could just take that to mean assault and picking up the title aggravated assault, or it could be the assault in more simple form.

[00:21:24] Speaker 02:
But again, we feel comfortable with, I'm sorry.

[00:21:28] Speaker 02:
Sorry, finish it.

[00:21:30] Speaker 02:
We feel comfortable with the evidence that we have here demonstrating that

[00:21:35] Speaker 02:
This is more than planning for even an ADW assault with a dangerous weapon.

[00:21:40] Speaker 02:
So that's the burden we took.

[00:21:42] Speaker 03:
So if I think assault might be

[00:21:44] Speaker 03:
narrower, you're not pressing that position.

[00:21:48] Speaker 02:
We are not.

[00:21:49] Speaker 02:
And again, given the conflicting signals in the guideline, we just didn't end.

[00:21:54] Speaker 02:
The government at least has staked out a position elsewhere that we just wanted to be consistent, and we weren't worried about the proof.

[00:22:00] Speaker 03:
OK, so if assault means the whole offense, there's lots of planning to come to Washington, march, protest, cause trouble,

[00:22:11] Speaker 03:
No question.

[00:22:12] Speaker 03:
Sure.

[00:22:13] Speaker 03:
What's the more than minimal planning to use the dangerous weapon?

[00:22:17] Speaker 02:
Well, first of all, we have to, we back up, we put it in context.

[00:22:22] Speaker 02:
We have his repeated admonitions that he's going to be fighting.

[00:22:25] Speaker 02:
He's going to be fighting to take back the country.

[00:22:27] Speaker 02:
He's going to be fighting to keep Biden out of office.

[00:22:31] Speaker 02:
We also have most critically his purchases.

[00:22:34] Speaker 02:
He purchases the protective vest.

[00:22:38] Speaker 02:
He purchases another weapon, the pepper spray.

[00:22:42] Speaker 02:
Is pepper spray a dangerous weapon?

[00:22:45] Speaker 03:
That might cinch it up for you.

[00:22:47] Speaker 03:
I wasn't sure.

[00:22:48] Speaker 02:
I believe it is.

[00:22:50] Speaker 02:
When you look at the definition of significant bodily injury in the context of this note,

[00:22:57] Speaker 02:
You see that serious bodily injury is, quote, injury involving extreme physical pain and or prolonged impairment of a bodily organ.

[00:23:06] Speaker 02:
And that's 1B1.1 at note one.

[00:23:09] Speaker 02:
So I think not only do we have him purchasing a dangerous weapon, researching weapons law, excluding firearms as a necessary thing that he can bring to the district, purchasing what we believe is a dangerous weapon, the pepper spray.

[00:23:28] Speaker 02:
Then, and I think this is critical, even putting aside this notion of a calculated attempt to seize the weapon from the sergeant and then going back and using the pipe,

[00:23:38] Speaker 02:
You look at the sequence of events here, and you see that he exhausted, used up his pepper spray before he gets to the PDC pipe.

[00:23:48] Speaker 02:
So what we have here, I would suggest, is a man who is prepared for battle, consistent with his military training.

[00:23:57] Speaker 02:
He uses up, throws his canister of pepper spray at an officer before he then goes to the PDC pipe with respect to the sergeant.

[00:24:06] Speaker 02:
And he's adapting to the battlefield situation here.

[00:24:10] Speaker 02:
He goes to the PDC pipe, he picks it up and he uses it to try and dislodge the weapon that the officer is using to protect himself and his comrades.

[00:24:21] Speaker 01:
So even... I'm just going to add, you mentioned that he had come

[00:24:27] Speaker 01:
the capital planning, or I think Judge Katz has mentioned to cause trouble, but it was even more than that.

[00:24:33] Speaker 01:
It was specifically had mentioned in advance police officers, which he had said were integrated with or part of Antifa.

[00:24:46] Speaker 01:
And so he came with the intent to fight

[00:24:49] Speaker 02:
police officers with these dangerous absolutely and the district court seized on that the defendant made much below of the notion that you could take his rhetoric and you take his planning and you could look at it and say this was just self defense measures that were taken and this was puffery and the district court seized on exactly the language that your honor has identified which is

[00:25:12] Speaker 02:
And he used the phrase, Antifa is a hobgoblin for you doing whatever you want to do.

[00:25:18] Speaker 02:
And as evidence of that, the district court pointed to that.

[00:25:22] Speaker 02:
DC police are assisting Antifa.

[00:25:26] Speaker 02:
And that was a day before this event.

[00:25:30] Speaker 00:
On the 11th Circuit, Mr. Denny cites through the case of United States versus Tapia, which seems to require more sophisticated planning.

[00:25:38] Speaker 00:
Do you take that position at all?

[00:25:40] Speaker 02:
You know, no, I apologize.

[00:25:43] Speaker 02:
I don't have to have you in front of me and I'm the fast escape me right now.

[00:25:47] Speaker 02:
I would suggest that actually the best case and again, there's not a lot of case law here, but I would suggest ironically the best case.

[00:25:55] Speaker 02:
that we have is the one cited by my opponent, which is Coombs.

[00:26:00] Speaker 02:
Coombs involves a man standing in a restroom stall in a national park.

[00:26:08] Speaker 02:
A woman comes in, sees the cowboy boots of the man in the stall, curious, but nonetheless goes to the stall next to the man, and the man comes out of his stall and attacks her.

[00:26:24] Speaker 02:
He has on toilet paper in a rough attempt maybe to disguise himself.

[00:26:29] Speaker 02:
And he uses pepper spray in his own fists, which were heavily shod, shod, not the right word, with fortified with his rings.

[00:26:38] Speaker 02:
In that case, the court said that was minimal planning.

[00:26:42] Speaker 02:
He came out of the restroom stall and he attacked the woman.

[00:26:46] Speaker 02:
I would suggest that we have much more evidence of the minimal planning in the weeks ahead here of this defendant, the buying of the gear, the wearing of the gear.

[00:26:56] Speaker 02:
That's another thing here.

[00:26:58] Speaker 02:
I'm sorry, Your Honor.

[00:26:59] Speaker 02:
The wearing of the gear here, you just have to look at the PSR report.

[00:27:03] Speaker 02:
It's replete with photographs.

[00:27:06] Speaker 02:
This man was ready for battle.

[00:27:08] Speaker 02:
He engaged in battle repeatedly over the course of that day.

[00:27:12] Speaker 02:
He did exactly what he said he was going to do, which is fight to keep Biden out of office.

[00:27:17] Speaker 00:
And just to make sure that we're not going too far in the opinion with the early pre-planning that goes way back to December on some of the Facebook posts,

[00:27:27] Speaker 00:
Do we need to go that far back in terms of getting to the minimum planning?

[00:27:30] Speaker 00:
And I guess I piggyback on some of Judge Millett's question about there's a lot of instantaneous thoughts in terms of retreat, then go get another instrument.

[00:27:41] Speaker 00:
I just want to know how far we need to really go back to all of the Facebook posts to make assumptions from there.

[00:27:46] Speaker 02:
I think Coombs answers that question, too.

[00:27:48] Speaker 02:
But there's no sense that there was much advanced planning relating to the man coming out of his bathroom stall with toilet paper wrapped around his face.

[00:27:56] Speaker 02:
But that was significant enough for the plus two enhancement here.

[00:28:00] Speaker 02:
Certainly planning, of course, necessarily involves things that happened before the event.

[00:28:06] Speaker 02:
So I think you can go all the way back as far as you want, frankly, at least weeks.

[00:28:12] Speaker 00:
And what was your rationale in waiving the timeliness of the appeals, agreeing to that?

[00:28:18] Speaker 02:
Your Honor, I think it was a day late.

[00:28:23] Speaker 02:
And from our perspective, this is an important issue.

[00:28:27] Speaker 02:
And there's no need for us to stand on the day late feature of the notice of appeal.

[00:28:33] Speaker 02:
And it's a discretionary matter.

[00:28:35] Speaker 02:
That's all, obviously.

[00:28:37] Speaker 02:
It's this court's call, as usual.

[00:28:42] Speaker 02:
I feel that we have adequately briefed the issue that my opponent conceived as a factual issue, clearly erroneous relating to the intent to do bodily injury.

[00:28:53] Speaker 02:
I think that's there.

[00:28:56] Speaker 03:
Do you have a preference between an affirmance on the ground that finding of intent was not clearly erroneous or a legal ruling that intent is not necessary under the definition?

[00:29:13] Speaker 02:
No particular preference.

[00:29:15] Speaker 02:
We've staked out both positions.

[00:29:17] Speaker 03:
I just assume if you're waving a time bar, it's because you want some legal ruling, I would have thought.

[00:29:25] Speaker 02:
Well, we certainly think the easier route here is when a defendant is asking that a judge overturn a factual finding on a clearly erroneous standard.

[00:29:36] Speaker 02:
And, you know, again, I think the issue that your honor has questioned my opponent about relating to that, it's a complex one.

[00:29:44] Speaker 02:
That guideline, I would suggest, is not particularly cleanly written.

[00:29:53] Speaker 02:
And so anyway, again, we took on ADW in the first half of this argument.

[00:29:58] Speaker 02:
We're perfectly willing on it.

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

[00:30:01] Speaker ?:
OK.

[00:30:01] Speaker 01:
Is clear error harder than plain error?

[00:30:06] Speaker 02:
Is clear error harder than plain error?

[00:30:07] Speaker 01:
They didn't preserve this argument below.

[00:30:10] Speaker 02:
I'm sorry, we didn't?

[00:30:11] Speaker 02:
They didn't preserve this argument below.

[00:30:13] Speaker 02:
Oh, oh, oh, right.

[00:30:14] Speaker 01:
Same question because he agreed that he had intent to forcefully hit the officer.

[00:30:20] Speaker 01:
So I'm trying to hear if it's plain error on top of clear error or do we just stop with clear error?

[00:30:26] Speaker 02:
I think you can safely just stop at clear error.

[00:30:30] Speaker 02:
I mean, I think, you know, and I would add, you know, he did not challenge the fact that this application, that this enhancement applied.

[00:30:42] Speaker 02:
And you look at the definition of aggravated assault, and you see there are four options there.

[00:30:51] Speaker 02:
He didn't challenge the PSR's application of 2A2.2.

[00:30:55] Speaker 02:
And the only one of the four categories that applies here is the first one, dangerous weapon.

[00:31:01] Speaker 02:
And you see that one is defined as with intent to cause bodily injury.

[00:31:05] Speaker 02:
So I think there is a waiver argument here.

[00:31:07] Speaker 02:
But of course, again, we've just decided that the easy route here is clear error.

[00:31:13] Speaker 01:
The more than minimal planning, are you aware of cases where the planning has been in a relatively compressed time span?

[00:31:27] Speaker 01:
Because one is a little hard to understand the things that happened in there.

[00:31:31] Speaker 01:
Because there wasn't a back and forth, but sort of as Judge Childs teed up at the beginning, one might say that jumping up to try to grab the canister out of the officer's arm the first time would have been a spontaneous reaction.

[00:31:46] Speaker 01:
But when there's not a lot of time,

[00:31:51] Speaker 01:
and there seems to also be a wasn't he he hadn't sort of presumably there's no argument here that he had stashed the pipe there in advance to be used it seemed to be a no no opportunity in that sense no I'm sorry happy count is

[00:32:07] Speaker 02:
I think it can.

[00:32:10] Speaker 01:
The plain language definition is... Are there any cases that have dealt with this more compressed time frame?

[00:32:15] Speaker 02:
Not that I have seen, Your Honor.

[00:32:16] Speaker 02:
The best case I've seen again is the one that I would analogize to premeditation in the context of murder, and the cases are replete with the notion that can be seconds.

[00:32:29] Speaker 02:
So if we take premeditation, which seems to imply even more than just planning, then I would suggest that that's a pretty useful analogy here.

[00:32:40] Speaker 02:
Planning can be seconds.

[00:32:43] Speaker 01:
Any other questions?

[00:32:46] Speaker 01:
Thank you very much.

[00:32:48] Speaker 02:
We would ask that you affirm the judgment conviction below.

[00:32:50] Speaker 02:
Thank you.

[00:32:51] Speaker 01:
And Mr. Shipley, as promised, we're going to give you two minutes.

[00:32:59] Speaker 01:
We need to unmute.

[00:33:00] Speaker 01:
Sorry, we can't hear you.

[00:33:05] Speaker 04:
Thank you, Your Honor.

[00:33:07] Speaker 04:
Addressed briefly, the government's reference to Coombs, which it claims is its best case.

[00:33:11] Speaker 04:
The facts of Coombs are the defendant entered the women's bathroom, which is indication of deliberation of his intent.

[00:33:18] Speaker 04:
He waited for a female to enter the bathroom in a stall.

[00:33:22] Speaker 04:
He planned in advance by attempting to conceal his identity by wrapping toilet paper around his face, and then he committed the assault.

[00:33:30] Speaker 04:
So I think that's quite a distance from where we are here.

[00:33:35] Speaker 04:
And I think the government has just acknowledged it, and I think it has to, that there really is no case law with this sort of compressed time frame.

[00:33:44] Speaker 04:
All of the cases that we cited in both the government and the defense have acknowledged there's not a lot of good case law on an aggravated assault charge under 111B and this minimal planning issue.

[00:33:56] Speaker 04:
all of the cases involve a substantial sequence of events over a period of time, often involving more than one person.

[00:34:04] Speaker 04:
So none of that's applicable here.

[00:34:05] Speaker 04:
So to the extent that, you know, the matter of seconds that pass here constitutes assault in beyond the simple form,

[00:34:15] Speaker 04:
This panel will be making new work in the circuit.

[00:34:20] Speaker 01:
Can I ask you a question in that regard?

[00:34:23] Speaker 01:
I'm sorry, I know you want to talk about the weapon.

[00:34:25] Speaker 01:
I'll give you a minute on that.

[00:34:26] Speaker 01:
But what I'm trying to think about is there are plenty of situations where there's ongoing sort of riotous circumstances.

[00:34:34] Speaker 01:
Obviously, the attack on the Capitol is singular in many ways.

[00:34:40] Speaker 01:
there are plenty of times that police have to encounter riotous disturbances.

[00:34:45] Speaker 01:
And there can be people in those disturbances who are simply sort of reacting in the moment.

[00:34:50] Speaker 01:
And there are others who come in and take advantage of the situation and so are in the middle of it all and start making more deliberate actions against police or against other people in the disturbance.

[00:35:08] Speaker 01:
How could we decide this case in favor of your client in a way that would not deprive the government of the ability to apply or the courts to apply this enhancement in the middle of other sort of riotous circumstances where decisions are made very fast, very quickly, but they can still be thought out and deliberated?

[00:35:34] Speaker 04:
I think obviously with the court writing on a blank sheet here, that's a very difficult proposition.

[00:35:40] Speaker 04:
I would say part of the problem we have in the facts of this particular case is the government's error that led to a charge only a single discrete event, which is the assault with the PVC pipe on Officer KK.

[00:35:55] Speaker 04:
If there were multiple charges,

[00:35:58] Speaker 04:
that extended over a period of time than would be talking about offense conduct that extends over a period of time.

[00:36:06] Speaker 04:
And I think that's a clear slate for the court to write on, or it's an easier set of facts for the court to find or to come to the position that you seem to be suggesting.

[00:36:18] Speaker 04:
this particular case with one event.

[00:36:21] Speaker 01:
It seems a little odd to say he wasn't planning just because they didn't charge him with other conduct that he doesn't dispute having committed.

[00:36:29] Speaker 04:
But I think that takes us back to what the test is.

[00:36:33] Speaker 04:
The baseline is the assault in the simple form.

[00:36:37] Speaker 04:
And in that sense, we're talking about the PVC pipe on Officer KK because that is the charged assault.

[00:36:45] Speaker 01:
Did you want to talk a minute about dangerous weapon?

[00:36:47] Speaker 01:
Give you 30 seconds.

[00:36:48] Speaker 04:
Yeah, I think I'll submit on that one.

[00:36:51] Speaker 04:
I think the courts identified the position of the two parties and it's a question of the court's resolve.

[00:36:58] Speaker 04:
It is not, I agree with my colleague, it is not the cleanest enhancement to apply under circumstances such as this.

[00:37:06] Speaker 01:
All right.

[00:37:07] Speaker 01:
Thank you very much.

[00:37:08] Speaker 01:
Appreciate that.

[00:37:08] Speaker 01:
All right.

[00:37:09] Speaker 01:
The case is submitted.