[00:00:01] Speaker 01: Case number 22-30, the United States of America versus Nicole Henderson, at balance. [00:00:07] Speaker 01: Ms. [00:00:07] Speaker 01: Baty, party at balance. [00:00:09] Speaker 01: Mr. Cahill, party appellee. [00:00:12] Speaker 00: Good morning. [00:00:13] Speaker 02: Good morning. [00:00:13] Speaker 02: May it please the court. [00:00:14] Speaker 02: Mr. Abbate, on behalf of Nicole Henderson, I'd like to reserve two minutes for a bottle, please. [00:00:20] Speaker 02: Just days before the Supreme Court decided Rehaef, Mr. Henderson pled guilty to being a felon in possession. [00:00:25] Speaker 02: Rehaef clarified the government's burden [00:00:27] Speaker 02: to prove an additional knowledge of status element in felon in possession cases. [00:00:31] Speaker 02: But no one told Mr. Henderson that, not the court, not the prosecutor, not even his defense counsel. [00:00:37] Speaker 02: As a result, Mr. Henderson gave up his right to trial despite not knowing that his predicate conviction, which resulted in a six month suspended prison sentence under the DC Youth Act, was a crime punishable by over a year's imprisonment. [00:00:49] Speaker 02: The core issue with this case is whether Mr. Henderson has shown a reasonable probability that he would have gone to trial had he known of the knowledge of status element. [00:00:57] Speaker 02: That answer is yes. [00:00:58] Speaker 02: This case involves at least six of the elements, the circumstances that Greer, Rehaef, and numerous other cases have cited to illustrate when a defendant has made an adequate showing of ignorance of status. [00:01:10] Speaker 02: Specifically, Mr. Henderson. [00:01:12] Speaker 01: Yes. [00:01:13] Speaker 01: Let me ask you a question. [00:01:15] Speaker 01: I'm a little puzzled about why your client wants to withdraw his guilty plea in this case. [00:01:21] Speaker 01: because my understanding is he got a concurrent sentence of three years, which he has served. [00:01:26] Speaker 01: He's unsupervised release. [00:01:28] Speaker 01: So if you win this appeal, he has to go to trial, not just on the federal charge, but also the superior court charge. [00:01:35] Speaker 01: He could get an aggregate sentence that's greater. [00:01:38] Speaker 01: So have to go back to prison and he could get a consecutive sentence when he before he got a concurrent one. [00:01:44] Speaker 01: So I'm just unclear as to why he would want to risk that. [00:01:48] Speaker 02: Correct, Your Honor. [00:01:49] Speaker 02: He would have to go to trial in both cases. [00:01:54] Speaker 02: That is correct. [00:01:55] Speaker 02: Your Honor, Mr. Henderson wants to go to trial. [00:01:58] Speaker 02: He's absolutely clear about that. [00:02:00] Speaker 02: He wants the government to its burden. [00:02:05] Speaker 02: In both cases. [00:02:07] Speaker 02: He's willing to risk consecutive sentences. [00:02:09] Speaker 02: That is correct. [00:02:10] Speaker 02: That is correct. [00:02:11] Speaker 02: And as it stands, these convictions are criminal history points on his record. [00:02:18] Speaker 02: And he wants these counts. [00:02:21] Speaker 02: He's willing to risk that for an acquittal. [00:02:26] Speaker 02: That's correct. [00:02:27] Speaker 02: So this case involves six circumstances that set it apart from the typical defendant in Greer and from all the other Rehaef defendants. [00:02:35] Speaker 02: And those six circumstances. [00:02:37] Speaker 01: Yes, go ahead. [00:02:39] Speaker 01: Your brief seems to really address this Rehaef defendant that he wants to put on. [00:02:43] Speaker 01: He can't put that on in the Superior Court case. [00:02:46] Speaker 02: Um, we, so we would be pursuing that rehab defense in that, in that case, and the government concedes, um, that it is agreeing to jury instructions, um, on that, on that burden. [00:02:58] Speaker 01: But the Superior Court of Defense is the one that has a mandatory three-year minimum. [00:03:03] Speaker 01: That's correct. [00:03:04] Speaker 01: Which they didn't file papers on. [00:03:05] Speaker 01: He kind of lucked out in this case, and they could now file those papers. [00:03:09] Speaker 01: Right. [00:03:09] Speaker 01: And he doesn't have this additional defense that you want to pursue in the federal case. [00:03:14] Speaker 01: So it just seems to me that that is a factor in us considering whether he actually would have wanted to withdraw that. [00:03:23] Speaker 01: Right. [00:03:25] Speaker 01: And should that be a factor that the court is considering? [00:03:36] Speaker 02: I mean, that would be a reason to consider. [00:03:39] Speaker 02: to kick this back for an evidentiary hearing if there were questions as to whether Mr. Henderson would, in fact, want to take that risk. [00:03:46] Speaker 02: That's not what the district court found, however. [00:03:49] Speaker 01: But he didn't want to take that risk when he accepted the plea offer because when there was no rehab defense. [00:03:56] Speaker 01: Right. [00:03:56] Speaker 01: Because there was no. [00:03:57] Speaker 01: Right. [00:03:58] Speaker 01: But he wanted to plead guilty, which seems to indicate that he didn't [00:04:02] Speaker 01: I think he had, I guess, any other kind of defense, such as, for example, I didn't possess a gun. [00:04:07] Speaker 01: That was not something he wanted to pursue. [00:04:10] Speaker 01: Right now, there's this Rahef issue. [00:04:12] Speaker 01: But he still can't pursue that in the Superior Court charge. [00:04:17] Speaker 02: Right. [00:04:17] Speaker 02: He thinks he can pursue that in the DC Superior Court as well. [00:04:22] Speaker 02: And he is willing to do that. [00:04:25] Speaker 01: The PCCA hasn't adopted Rahef. [00:04:26] Speaker 02: That's correct. [00:04:27] Speaker 02: And Atkins, it did not expressly adopt [00:04:30] Speaker 02: adapt that and it said that it was going to, you know, it has hold that as a no, no, it has not explicitly done that. [00:04:37] Speaker 02: But it hasn't not adapted it either. [00:04:39] Speaker 02: And, and as the government shows in its brief, the government is agreeing to jury instructions encompassing that burden. [00:04:49] Speaker 02: So Mr. Henderson is very clear that he would like to go to trial. [00:04:55] Speaker 02: Um, and he's, and again, should that be a question for this court? [00:05:00] Speaker 02: An evidentiary hearing would be appropriate to, to consider that we don't think that the record and what would he say in an evidentiary hearing? [00:05:07] Speaker 01: Like, why would he want to, I guess, risk these consecutive sentences and the mandatory minimum? [00:05:13] Speaker 01: Right. [00:05:13] Speaker 02: So in other cases, right. [00:05:16] Speaker 02: In other cases, an evidentiary hearing has illuminated, you know, [00:05:20] Speaker 02: whether a defendant would like to take these types of risks. [00:05:23] Speaker 02: But here, there were not as many risks. [00:05:26] Speaker 02: I mean, even if you were to get a consecutive sentence, we're talking about three years. [00:05:31] Speaker 02: He's already served three years, potentially 18 to 24 months on the federal sentence. [00:05:37] Speaker 02: That's not a whole lot of time for him, where on the flip side, he could get acquittal. [00:05:42] Speaker 02: Um, and so that's the kind of calculus that he, that he had here. [00:05:46] Speaker 02: It's not, this is not a case where, for example, he had charges dismissed. [00:05:50] Speaker 02: Um, you know, that's, that was the case, I believe in, in, in world, um, or, uh, who are you go, for example, where the court did kick it back for an evidentiary hearing in those cases, the defendant had charges dismissed. [00:06:03] Speaker 02: There was an act, there was an actual question of fact as to whether they would have [00:06:07] Speaker 02: risked potentially multiple additional years in prison, 10 years, I believe, in Juarico, and additional charges. [00:06:16] Speaker 02: And there was a question of whether there would be enough evidence to convict on those dismissed charges. [00:06:21] Speaker 02: Here, there's nothing like that. [00:06:23] Speaker 02: Again, the acceptance of responsibility points were two points, the difference of six months in the guidelines. [00:06:30] Speaker 02: He's willing to take that risk. [00:06:33] Speaker 02: He's already served those three years. [00:06:35] Speaker 02: I mean, we're talking about 18 to 24 months, or 12 to 18 months on the federal side. [00:06:42] Speaker 02: And that's something he's willing to risk, so to speak, for the potential acquittal. [00:06:48] Speaker 02: Because he believes he did not have the mens rea for a 922-G conviction. [00:06:55] Speaker 02: So that's what he's hoping to achieve with trial. [00:07:00] Speaker 00: What's this theory for why he threw away the gun when being pursued if he didn't have the mens rea to know he was illegally possessing the gun? [00:07:13] Speaker 02: Yeah. [00:07:15] Speaker 02: I have not had that conversation with him. [00:07:18] Speaker 02: And he says that he did not know he had the gun. [00:07:25] Speaker 02: And that's all he's told me. [00:07:28] Speaker 00: And he did not have the status, rather. [00:07:30] Speaker 00: I didn't ask you about your conversations with him, but just you as his counsel, what do you think would be the best argument at trial that he lacked the mens rea to know he was illegally possessing the gun when he threw away the gun? [00:07:42] Speaker 02: So the question is not whether he was illegally possessing it. [00:07:46] Speaker 02: It's whether he had the status, right? [00:07:48] Speaker 02: Did he know his defenses that he did not know that he was convicted of a crime punishable? [00:07:53] Speaker 00: Is there another reason he might have been illegally possessing the gun? [00:07:56] Speaker 02: Well, again, the rehab defense is whether he knew he was of this status, that he was convicted of a crime punishable by over a year's imprisonment. [00:08:07] Speaker 02: And that is his defense. [00:08:09] Speaker 00: I understand that. [00:08:10] Speaker 00: And it is possible that maybe he was violating two laws by possessing this gun. [00:08:15] Speaker 00: And he was not aware of the felon in possession violation. [00:08:20] Speaker 00: He was aware of some other crime he was violating. [00:08:23] Speaker 00: Right. [00:08:24] Speaker 00: That's the only scenario I can think of where it would make sense that he threw the gun away absent the mandatory knowledge that he was a felon in possession. [00:08:34] Speaker 02: I mean, there's all sorts of reasons why he may have thrown the gun away. [00:08:37] Speaker 02: Like what? [00:08:39] Speaker 02: He thought he wasn't supposed to have a gun, generally speaking, right? [00:08:44] Speaker 02: In general. [00:08:44] Speaker 02: Or I thought I committed a crime. [00:08:47] Speaker 02: I don't want to be apprehended by the police. [00:08:51] Speaker 02: throw the gun away. [00:08:51] Speaker 02: We see this all the time. [00:08:52] Speaker 00: I don't know. [00:08:56] Speaker 02: I don't know. [00:08:57] Speaker 02: But the point is here, the defense that he's going to put on is the Rehaef defense, which is, you know, absence of mens rea. [00:09:06] Speaker 00: My next question is, it's not your fault that the facts are that the facts are. [00:09:11] Speaker 00: So I don't mean it to be a hostile question, but he, I think was arrested for being a felon in possession twice for this federal arrest. [00:09:22] Speaker 00: Do you have a number in mind of how many times someone would have to be arrested as a felon in possession before they knew they were? [00:09:30] Speaker 02: I think you have to look at the facts as a whole here, right? [00:09:34] Speaker 02: So here we do not just have the exit. [00:09:36] Speaker 00: Let's say he was arrested 20 times for being a felon in possession. [00:09:38] Speaker 00: Do you think at that point he would have no good defense that he didn't know he was a felon? [00:09:44] Speaker 02: Sure, I think. [00:09:44] Speaker 00: What about 19? [00:09:45] Speaker 02: Sure, sure. [00:09:46] Speaker 02: What about 10? [00:09:48] Speaker 02: I think that's very plausible. [00:09:52] Speaker 02: Here we have two, one of which was dismissed. [00:09:55] Speaker 02: We also have Mr. Henderson, who is 18 years old, had diagnosed learning disabilities, had a youth act sentence, walked away at sentencing with not a day to spend in prison, a six month prison sentence, and a year probation. [00:10:10] Speaker 00: Yes. [00:10:10] Speaker 00: I understand the facts, and I appreciate your vigorous advocacy in the facts. [00:10:17] Speaker 00: I noticed the learning disability. [00:10:19] Speaker 00: I also noticed that he had been admitted to college. [00:10:22] Speaker 00: Certainly lots of people excel in college overcoming learning disabilities. [00:10:27] Speaker 00: So they're obviously not in conflict. [00:10:30] Speaker 00: To the extent that this is in the record, can you give us a sense of how easily he understands things that most people understand? [00:10:42] Speaker 02: Right, and the district court here called these learning disabilities severe, said they impacted his high school as well as his everyday life. [00:10:52] Speaker 02: That's in the record. [00:10:53] Speaker 02: The PSR notes two IEPs that were from 2005 and 2010. [00:10:59] Speaker 02: And they both indicate that he has some type of, seems like dyslexia. [00:11:03] Speaker 02: He has difficulty processing written information and also processing oral information. [00:11:12] Speaker 02: So it seems like this is these learning disabilities. [00:11:16] Speaker 02: And it also says that he needed specialized instruction 20 to 60% of the time. [00:11:21] Speaker 02: And that's from the IEP. [00:11:23] Speaker 02: That's what we have in the record. [00:11:26] Speaker 02: Clearly, these learning disabilities impacted, again, this is what the district court said, his everyday life and made it very hard. [00:11:32] Speaker 02: And those are the district court's words. [00:11:34] Speaker 02: So certainly, there's at least reasonable doubt that he did not understand, did not have the knowledge, did not take away that he was convicted of a crime punishable by over a year simply by reading the plea documents or listening to the- So the court, when he entered his plea- Right. [00:11:52] Speaker 01: Had a colloquy with him where they- [00:11:54] Speaker 01: where the judge told him what the maximum was. [00:11:57] Speaker 01: And it was striking to me that in this plea colloquy, the judge said, you look confused. [00:12:03] Speaker 01: Are you confused about that? [00:12:04] Speaker 01: And he said, no. [00:12:05] Speaker 01: I'll just note, even though it's not on the record, that judge was Neil Kravitz, who I appeared before as a USA and who was my colleague when I was in Superior Court. [00:12:17] Speaker 01: That is a very careful judge when he does his plea. [00:12:23] Speaker 01: I mean, it's not on the record, but Judge Kravitz was satisfied that he was not confused. [00:12:31] Speaker 02: Right. [00:12:31] Speaker 02: I mean, so I think just as plausibly as you could read that as evidence of knowledge, you could easily read that as evidence of confusion, when in light of the fact that he was, again, 18 years old at the time, first adult conviction, I know that his attorney was seeking Youth Act treatment. [00:12:49] Speaker 02: And again, he was [00:12:52] Speaker 02: He had these learning disabilities. [00:12:55] Speaker 01: But I guess what I'm asking you about is the transcript in which he's told what the maximum is. [00:13:01] Speaker 02: Correct. [00:13:02] Speaker 01: Judge Kravitz says, oh, you look confused. [00:13:04] Speaker 01: Are you confused? [00:13:05] Speaker 01: He says, no. [00:13:06] Speaker 01: Right. [00:13:07] Speaker 01: And then Judge Kravitz moves on. [00:13:08] Speaker 01: Right. [00:13:09] Speaker 01: Judge Kravitz. [00:13:09] Speaker 01: That seems to be a very clear statement by him that he understood them. [00:13:13] Speaker 01: I mean, I would submit this. [00:13:14] Speaker 01: Which was three years, which is more than one. [00:13:17] Speaker 02: Right. [00:13:17] Speaker 02: And I would submit that that simple answer, no, might just as plausibly be considered to be, you know, I'm scared. [00:13:29] Speaker 02: I'm 18. [00:13:30] Speaker 02: I'm in this setting. [00:13:32] Speaker 02: I don't want to say I'm confused. [00:13:34] Speaker 02: But if you read, again, consider the circumstances taken together. [00:13:39] Speaker 02: The statement, you look confused, is also pretty profound. [00:13:43] Speaker 02: The fact that Judge Kravitz noted that Mr. Henderson was confused and then proceeded. [00:13:48] Speaker 02: And asked him about it, and he said no. [00:13:50] Speaker 02: Right, exactly. [00:13:50] Speaker 02: But then did not proceed to further, for example, explain, re-explain the sentence in layman's terms again. [00:13:57] Speaker 02: And you said Judge Kravitz is a very careful judge. [00:14:00] Speaker 02: Clearly, he is. [00:14:01] Speaker 02: I mean, we can see that in the sentencing transcript where it [00:14:04] Speaker 02: He went out of his way to discuss rehabilitation. [00:14:07] Speaker 02: The entire sentencing transcript was about use act treatment. [00:14:11] Speaker 02: And even if Mr. Henderson was somehow had the knowledge at the plea colloquy, the question is whether he had the knowledge at the time of the offense. [00:14:21] Speaker 02: And certainly, by the time he walked out of sentencing, with sentencing. [00:14:25] Speaker 01: I guess to take a step back from this, you would propose to argue to a jury that no doesn't mean no in the context of this plea colloquy. [00:14:34] Speaker 01: I guess in terms of what we're trying to do here is try to figure out if you really would have wanted to take this to trial. [00:14:39] Speaker 01: But your argument is you wanted to go before a jury and say, although he was charged twice by being a felon in possession, a person having a conviction that carries more than a year's punishment is what he's charged with twice. [00:14:54] Speaker 01: And then when he was actually pleading guilty to the felony, [00:14:59] Speaker 01: He was asked, are you confused about this maximum sentence? [00:15:01] Speaker 01: He said, no. [00:15:03] Speaker 01: And you want to take this to a jury and ask them to find that he didn't understand he was a felon. [00:15:09] Speaker 02: So here, our task is reasonable probability of reasonable doubt. [00:15:14] Speaker 02: That colloquy is one example, one circumstance among, like I said, six or seven that Greer Rehaef and other cases found to be adequate showing of ignorance of status. [00:15:25] Speaker 02: That colloquy at least shows that he was confused at one point, even if somehow he wasn't confused when he came out of that colloquy by the time he left sentencing with an actual sentence. [00:15:37] Speaker 01: I think that colloquy says he looked confused. [00:15:40] Speaker 01: He was asked if he was confused, and he said no. [00:15:42] Speaker 01: I don't think that colloquy shows that he actually was confused because he said he wasn't confused. [00:15:48] Speaker 02: I mean, you could plausibly think that, and a reasonable juror could also plausibly think [00:15:53] Speaker 02: You know, an 18 year old kid with learning disabilities whose attorney has been talking about youth act treatment who's already received a juvenile adjudication knows what that is first time in the adult system says he's not confused, maybe because he's scared. [00:16:05] Speaker 02: And, you know, the judge doesn't further explain it. [00:16:08] Speaker 02: But even if you thought that he was, he did have that knowledge by the time he left sentencing with a sentence that was six months suspended, a year of probation and never had to serve a day, it's at least plausible that he did not have the knowledge when he walked out of sentencing. [00:16:23] Speaker 02: And then, you know, three years past, we have this offense, again, plausibility, a plausible rehab defense. [00:16:29] Speaker 02: That's what we have to show. [00:16:30] Speaker 00: If we were. [00:16:33] Speaker 00: If we were to agree with you, do you think that it would be rare for a defendant to succeed with a Raheef defense post? [00:16:56] Speaker 00: Imagine that the conviction sensing happened before Raheef, and then it's either appealed [00:17:04] Speaker 00: or it's not preserved, but appealed, or comes up on ineffective assistance. [00:17:12] Speaker 00: Do you think that, in other words, if your client were to win, do you think it would be rare that clients win? [00:17:19] Speaker 02: I think it would be. [00:17:20] Speaker 02: I mean, this is what we call, this is like that unicorn case that was foreshadowed in Greer. [00:17:26] Speaker 02: Greer said, there's the typical defendant, a felon knows he's a felon. [00:17:31] Speaker 02: but then also said that there are circumstances in which that might not be the case and cited, you know, string side of from the transcript. [00:17:39] Speaker 02: This case has six or seven of those circumstances. [00:17:43] Speaker 02: In this case, this is that again, that unicorn case, that rare case that was foreshadowed in Greer. [00:17:48] Speaker 02: And again, you know, we have actual confusion [00:17:51] Speaker 02: We have his local DC youth juvenile offender status conviction, limited cognitive abilities. [00:17:58] Speaker 02: He's 18 years old at the time and he never sentenced to a year in prison, served no time on that original offense. [00:18:04] Speaker 02: And then we have three years that elapsed. [00:18:06] Speaker 02: I mean, that's why we said this case is on all fours with Guzman. [00:18:09] Speaker 02: None of the cases that the government cites for Muenoso, Wallace, Payne, Gordado, none of them have any mitigating circumstances like this. [00:18:17] Speaker 02: And they all have previous convictions. [00:18:19] Speaker 02: Thank you. [00:18:20] Speaker 00: I appreciate that. [00:18:20] Speaker 00: But just before you leave, make sure, Judge Payne, any more questions? [00:18:23] Speaker 00: And Judge Rogers, if you have anything. [00:18:26] Speaker 02: No, I'm OK. [00:18:27] Speaker 00: OK. [00:18:27] Speaker 00: Thank you very much, Judge. [00:18:28] Speaker 00: Thank you. [00:18:29] Speaker 00: Thank you. [00:18:37] Speaker 03: Mr. Kay. [00:18:38] Speaker 03: Yes, Your Honor. [00:18:40] Speaker 03: May please the court, Timothy Cahill for the United States. [00:18:44] Speaker 03: I'd like to begin by addressing appellants DC felon possession cases and the significance they have in showing his knowledge of status as a felon. [00:18:52] Speaker 03: Appellants tried to minimize those by suggesting that they were merely arrests, but the record in this case shows that those proceedings involved far more than just arrests. [00:18:59] Speaker 03: That would point in the record to A234-36 and A241-45, which show that these both occurred within months of his sentencing for attempted robbery, while he was actually still in supervision for his attempted robbery conviction. [00:19:13] Speaker 03: In these cases, he had presentments in both cases where he was appointed counsel. [00:19:18] Speaker 03: He was expressly charged in open court with having been possessed a firearm after having previously been convicted of a crime punishable by imprisonment for a term exceeding one year. [00:19:29] Speaker 03: After both presentments, he was detained in DC jail. [00:19:32] Speaker 03: He had preliminary hearings in both of those cases represented by counsel where he had an opportunity to challenge whether there was probable cause that he was a felon in possession in those cases. [00:19:42] Speaker 03: During those proceedings, he did not challenge his felon status, and after one of the hearings, he was placed on high intensity supervision. [00:19:49] Speaker 03: After one, he was detained in DC jail. [00:19:51] Speaker 03: He was arraigned. [00:19:53] Speaker 03: He had bond review hearings. [00:19:54] Speaker 03: He had numerous status hearings, including five status hearings that occurred while he was being held in DC jail on a probation revocation. [00:20:04] Speaker 03: During the course of those proceedings, his counsel challenged his bond conditions, sought numerous continuances to engage in plea negotiations about whether he might plead guilty to being a felon in possession. [00:20:15] Speaker 03: Never once challenged the premise of these charges, which is that he was a felon. [00:20:20] Speaker 03: Submit that, given that all of this occurred, [00:20:22] Speaker 03: before he committed the 922 G1 offense in this case, it shows that he would have had no viable rehab defense had he proceeded to trial. [00:20:30] Speaker 03: He could not plausibly claim he was unaware of his status as a felon, particularly because if he had proceeded to trial, it would have opened the door for the government to introduce evidence of this extensive criminal history [00:20:42] Speaker 03: including the proceedings involving these two other felon in possession cases, to rebut the suggestion that he didn't have knowledge of his status as a felon. [00:20:51] Speaker 03: He would have been going to trial on a felon in possession charge, where the government would have been free to introduce evidence of two other commissions of being a felon in possession. [00:20:59] Speaker 00: Do you know if the government agreed with the district court's federal district court sentence here? [00:21:07] Speaker 00: Or did the district court give a lighter sentence than the government recommended? [00:21:11] Speaker 03: In the instant case, in the district court case, this actually, I believe, was ultimately what the government was proposing in connection with the plea agreement. [00:21:19] Speaker 03: The government asked for a concurrent sentence aggregate of three years, which was what was given as a result of the global plea, which encompassed the other DC felon in possession charge. [00:21:32] Speaker 03: I also wanted to address the appellant's reliance on his learning disabilities in this case to support his claim. [00:21:40] Speaker 03: McClellan has identified two diagnoses of learning disabilities in the pre-sentence report. [00:21:45] Speaker 03: And I want to focus on both the timing of those diagnoses and the nature of what the disabilities actually were. [00:21:51] Speaker 03: The PSR shows that the more significant diagnoses occurred when McClellan was only eight years old. [00:21:57] Speaker 03: And the types of things that identified were difficulty with counting, with telling time, with rhyming words, with letter blends, with self-control. [00:22:05] Speaker 03: You don't want to minimize the difficulties that might pose for someone going through an education. [00:22:10] Speaker 03: But none of them suggest the sort of severe cognitive impairment that Appellant has alleged here, especially given that at the age of 15, when Appellant was diagnosed as still having some learning disabilities, it noted that his reading comprehension had significantly improved, and his remaining issues were things like reversing B's and D's and difficulty reading. [00:22:29] Speaker 03: By the time he was 18 years old, Superior Court sentencing transcript shows that he was on track to graduate, that he had been admitted to college. [00:22:36] Speaker 03: It discussed the fact that he had originally been doing well in school. [00:22:40] Speaker 03: It noted that he had had a recent downturn in his grades, but his counsel attributed those to family issues and marijuana usage. [00:22:46] Speaker 03: There was no indication from Appellant or his counsel that these learning disabilities were preventing him from doing well at school by the time he was 18 years old. [00:22:54] Speaker 03: Let alone any showing that he had the sort of mental capacity issues that would make him unable to understand the clear and unambiguous language from the Superior Court judge telling him what the maximum sentence was. [00:23:08] Speaker 03: Let alone all of the indications of his status as a felon through the two DC felon in possession cases that I just discussed. [00:23:15] Speaker 03: I would note that this is a far cry from the world case in the Ninth Circuit that Appellant relies on, where the court did find there was a plausible Reheif defense, where the Appellant had presented medical evidence that he had was quote, irreversible brain damage, with specific evidence that was causing him to have major memory lapses, combined with the contemporaneous evidence that he had been willing to go to trial and had in fact rejected a plea. [00:23:41] Speaker 03: Here, all of the indications are the opposite of that. [00:23:45] Speaker 03: This case is more like something like the pain case we cited from the Seventh Circuit, where the court noted that although the defendant in that case had been a special education student, and in fact had been diagnosed with a bipolar disorder, neither of those factors, while of course they may have caused great difficulties in his life, neither of them could be tied to an inability to understand or remember his status as a felon. [00:24:09] Speaker 03: Particularly in this case again when it's when the record shows that. [00:24:13] Speaker 03: There were repeated reminders even after the exchange that was discussed during a palance argument about. [00:24:20] Speaker 03: The Judge Kravitz asking him if there was anything about the maximum possible sentence he was not aware of or was confused about. [00:24:27] Speaker 03: And he said, no. [00:24:28] Speaker 03: That wasn't the end of the matter. [00:24:29] Speaker 03: I mean, later in that same plea hearing, the judge again reiterated that he was being convicted of what was a felony offense in the District of Columbia. [00:24:38] Speaker 03: At the sentencing hearing, there was again a reminder that the maximum sentence, even under the DC guidelines, let alone the statutory maximum, but even under the DC guidelines that the sentence could have been up to 24 months of incarceration, [00:24:51] Speaker 03: And then again, subsequent to all of that were the two cases with the DC felon in possession charges with numerous court hearings where he was aware that he was being charged on the basis that he was a felon, that he was a felon, that he had a felony, that that was his status. [00:25:06] Speaker 00: Yes. [00:25:06] Speaker 00: Let me ask you a question that I don't know that either of us have the expertise to feel confident in our answer to, but I am curious. [00:25:18] Speaker 00: I think if you just asked [00:25:20] Speaker 00: Average person in the street is murder or felony. [00:25:23] Speaker 00: They would say yes. [00:25:24] Speaker 00: And if you asked is Jay walking felony, they would say no. [00:25:28] Speaker 00: What do you think they would say about attempted robbery? [00:25:32] Speaker 03: I agree, Your Honor, that that falls in between those two examples. [00:25:35] Speaker 03: I think that's self-evident. [00:25:37] Speaker 03: I would really hesitate to suggest an answer, especially because I think it's difficult. [00:25:41] Speaker 03: I would admit to place myself in the position of a layperson. [00:25:45] Speaker 03: But I don't really think that's the issue here. [00:25:48] Speaker 03: I agree that in those two extreme examples, Your Honor, that might hold some sway. [00:25:53] Speaker 03: But I think the key point here, and as I think the First Circuit mentioned in [00:26:01] Speaker 03: I think it was in the Gordardo case. [00:26:05] Speaker 03: The First Circuit actually discussed whether or not there was something peculiar in the state law crimes at issue in that case, where the state law used different terminology about felonies, misdemeanors, or even other terms that were not necessarily consistent with the federal definitions of those terms. [00:26:22] Speaker 03: And they emphasized there that the terminology actually isn't even what's the key. [00:26:26] Speaker 03: The key here, and in fact how it's defined in the federal FIP statute, is not with the word felony. [00:26:31] Speaker 03: It's whether or not the offense is punishable by more than one year in prison. [00:26:35] Speaker 03: And here, there is ample evidence that this defendant was repeatedly advised and repeatedly confirmed his understanding that attempted robbery was punishable by three years in prison, and then was, in the DC FIPP cases, regardless of whether it was the word of felony or not, was advised that he had the sort of felon status that prohibited him from owning a firearm. [00:26:56] Speaker 03: And he was, in fact, being charged with having committed the crime. [00:26:58] Speaker 03: And in those cases, again, [00:27:01] Speaker 03: It wasn't even just the word felony. [00:27:03] Speaker 03: He was charged expressly at those presentments with having illegally possessed a firearm after having been convicted of a crime punishable by a president for a term exceeding one year. [00:27:14] Speaker 03: And throughout many, many court hearings, represented by counsel, with an opportunity to get himself out of detainment, multiple stretches of detainment, including one that was five months in DC jail, by challenging whether there was probable cause for those crimes [00:27:29] Speaker 03: He never contested the premise that he was a felon, that he had been convicted of a crime punishable by a term of imprisonment exceeding one year. [00:27:42] Speaker 03: There are no further questions. [00:27:43] Speaker 03: For all of those reasons, we would ask that the judgment of the district court be affirmed in this case. [00:27:48] Speaker 00: If you would, let me check, Judge Pan. [00:27:50] Speaker 00: And Judge Rogers, any questions? [00:27:53] Speaker 01: No, thank you. [00:27:54] Speaker 00: Thank you. [00:27:54] Speaker 00: Thank you, Your Honor. [00:27:56] Speaker 00: Ms. [00:27:57] Speaker 00: Body, maybe two minutes. [00:27:59] Speaker 02: Yes. [00:28:00] Speaker 02: Um, just a few points here on the learning disabilities. [00:28:04] Speaker 02: Um, you know, obviously we have the IEPs from when he was very young. [00:28:08] Speaker 02: So when, when government's council talks about letter blends, of course that's appropriate for, uh, an, an eight year old, but we know that from, from the record that we have, uh, he was running about three grades behind. [00:28:21] Speaker 02: And the question is, are those learning disabilities, um, something that [00:28:25] Speaker 02: could create reasonable doubt here. [00:28:27] Speaker 02: And we submit yes. [00:28:28] Speaker 02: And even the court in Guerdado highlighted that, you know, distinguished Guerdado from Guzman on the basis of learning disabilities and found those to be significant. [00:28:38] Speaker 00: Is it possible to graduate from high school and be admitted to college if you're three years behind? [00:28:43] Speaker 02: Three years behind in terms of his development. [00:28:46] Speaker 02: Yes, sure. [00:28:47] Speaker 02: Sure. [00:28:48] Speaker 02: And again, if the district. [00:28:50] Speaker 02: I'm asking academic. [00:28:52] Speaker 00: I'm sorry. [00:28:52] Speaker 00: Academic development. [00:28:54] Speaker 02: Yeah, absolutely. [00:28:55] Speaker 02: I think so. [00:28:57] Speaker 02: I mean, he had to get the grades, get the transcript, but you could absolutely be. [00:29:04] Speaker 02: And if that was a factual question, sorry, go ahead. [00:29:08] Speaker 00: I think what you're saying is high schools would routinely hand out graduation diplomas to people with a ninth grade education. [00:29:16] Speaker 02: If he was behind developmentally in terms of his processing, he could still take off [00:29:23] Speaker 02: the check marks that he needed to get into college. [00:29:25] Speaker 02: And again, we don't know what college this was, but it was a generic statement by Judge Kravitz that he was admitted to college. [00:29:34] Speaker 02: Again, if this was an issue of fact, then we should have an evidentiary hearing about it, but the district court did not even allow a hearing. [00:29:45] Speaker 02: And again, I would point to 2255B here, which states that a hearing is [00:29:51] Speaker 02: appropriate unless the record conclusively establishes. [00:29:55] Speaker 02: And here we do not have conclusively, the record does not conclusively establish that there is no plausible rehabed offense. [00:30:03] Speaker 02: And then finally on the FIPs, again, those were brought in conjunction with other charges. [00:30:09] Speaker 02: And at bottom, Mr. Henderson is entitled to submit both good facts and bad facts to the jury. [00:30:18] Speaker 02: He never got that opportunity because of the ineffective assistance [00:30:21] Speaker 02: of his trial counsel. [00:30:23] Speaker 02: So with that, we ask the court to reverse the district court and allow Mr. Henderson to withdraw his guilty. [00:30:30] Speaker 02: Thank you very much.