Thank you, I was made, please, the court. The question of whether a prior military court marshal can serve as a predicate for enhancement under the armed career criminal act is governed by two questions. The first question is whether the term any court is referenced in the statute as an unlimited meaning. The Supreme Court has addressed that in small of the United States, and they answer that question as net. Clearly, there are some limitations to the term any in the reference to any court. I'm going to say three circuit courts that are opposed to your position. There are three circuit courts, Your Honor. All those circuit courts, at least the two major ones, McDonald and Martinez, which are ninth circuit and seventh circuit, were both prior to the small opinion from the Supreme Court. Both of those cases rely on a definition of any that's unlimited. When the court says any, or when the statute says any court, there is no limitation on that. The Supreme Court in small clearly said that is not the case. Well, what support do you find in small? Small dealt with a conviction in a Japanese court. Correct
. But the point of small was not specific to Japanese. It was specific to a foreign conviction. What they said is that traditionally, we've not traditionally, but when we say any court, are we talking about any having an unlimited meaning? In other words, if it's a court, it counts. And they clearly said that's not the case. We have to put some context to have a true meaning of the word any. And looking at the Japanese court, there wasn't much dispute that what Mr. Small had done in Japan would have been illegal in the United States. There also wasn't a lot of inquiry into what the Japanese procedures involved. It was rather a more general classification of all the foreign bodies to say, we don't really want to engage in an inquiry into each foreign court that comes before us. So what we're going to say is that because these courts have a number of anomalies that make them incomparable to our courts, we're going to say no foreign courts. So that, any pretty wouldn't be necessary in this case, because Mr. Grant, sole objection to the issues before us, were that prior military convictions were not proper as predical offenses under the armed career criminal law? Absolutely, I don't even base that
. We're here in object that his convictions in those military courts and otherwise were predical offenses. And that's not an issue in front of the court, you know, we are not arguing the nature of the specific convictions. We're arguing the system from which those convictions came. And I think that's an important distinction, because we get into, if we get into the specific convictions, then we're at the point that I think this court and other courts around the country have probably heard to their wits end about what classifies as a predicate offense, categorical approaches, modified categorical approach. This is a different type of armed career criminal case. What's important here is does the military justice system have the same or have the sufficient procedures to give us confidence that what Mr. Grant was convicted of can now serve as a predicate for a very serious sinencing enhancement? The court? You know, in other parts of the guidelines, in the definitional section, particularly as to what counts and what doesn't. In the previous chapter, it says that general court marshals can be counted for guideline purposes. And then it also says that foreign convictions can't be. That's in the earlier part of the guidelines. Tell me why, I think I know the answer, but tell me why we couldn't extrapolate from the early part of the guidelines to this part to reach a common sense solution since military tributes or authorized barricle one of the Constitution. Hopefully my answer is the same as the one you're thinking of, but there's a difference between the statutory language that I'm talking about and what's found in the guidelines
. And I think the difference is apparent throughout the case law that the guidelines have now become advisory and what's in there serve as exactly what they're titled, a guideline. The statutory mandatory minimum, which is something that cannot be changed. The judge cannot go below it under any circumstances. That's a mandate from Congress. So looking at the statutory language, which is more specific and I think far more powerful than the guidelines, I think that's where we're stuck. So if we take that same analogy and we look at the statutes that are referred to in the Armcrew Criminal Act, they actually do reference military courts separately from prior convictions. And that's, we find the interplay between the Armcrew Criminal Act and the felon and possession, which they refer back and forth to each other. So I don't think the guidelines are really a controlling factor here. I think what's more important here is the statutory language, the way the Supreme Court has interpreted the statutory language. And then the general view of the military system, the Almander, I'll probably be in this pronounce, but the Almander as Tories, the Jones lines of cases that kind of led up to a print day, have clearly always said that recidivism, prior convictions, are the one element that we're not going to require any additional court action on. In other words, we don't need a jury to find that bound to reasonable doubt to make this crime go from zero to 10 to 15 to life. The reason being that we have confidence in our courts that have found those priors, that those were properly entered, that the constitutional protections were afforded the defendant and the prior proceeding
. It's different with the military justice system. And that has historically been the case in the United States and Supreme Court all the way up to this court in the Joshua case about three or four years ago, where the court was considering the difference between a civilian and a military criminal justice system. And they cited the Dowdy case, which was a court of appeals of the armed forces opinion, the Schlesinger V. Councilman from the Supreme Court, which says, as a matter of law, the military and civilian courts are separate. So I don't disagree that while the military courts draw their authority from Article One, the question here is Article Three. And the courts have clearly said, the Supreme Court has over and over said, that Article Three courts are the best vehicle we have for the protection of individual rights and individual liberty for the people who are at risk of losing their property, their life or their liberty for criminal defendants. What they have said is that the military courts, which are not Article Three courts, are very different. And that those differences are extremely important in trying to determine how much credence we give, the conviction, or any other result that comes from a military court. And a military court has kind of the big two or the fifth and sixth amendments. There's no grand jury indictment, there's no jury trial in a military court. Military courts have an entirely different purpose than Article Three courts. The military courts are to keep the fighting function ready to get
. The military courts are to discipline the soldiers within the armed forces. What they are not is good as an Article Three court at is ensuring individual liberties, ensuring the fairness of the criminal proceeding. What way do you put on the fact that the court of military justice is confirmed by the United States Congress? Isn't acted, I mean, it's good. Not much. And the reason for it is because it's enacted in an entirely different set of laws. In fact, when the United States Congress legislates with military concerns, they do it with precision. This court said that in Lebron V. Rumsfeld. And the specific thing there is that when Congress wants to talk about a military issue, even when it's military justice, whatever it may be, they specifically stated. And they specifically stated in the felon and possession statute, which is closely related to this statute, that a dishonorable discharge would spark that prosecution. They made no mention of military courts or prior military court marshals as ever serving as a predicate for the armed court criminal act. And I think that's an important point because the two simply don't compare
. Well, those three cases from circus, but I've told you actually about, do you have any authority to the contrary? Not directly on point, because those are the only three cases that seem to have addressed this issue period. But if you look at the cases, McDonald, which is the case out of the seventh circuit, I believe, that was based on the reasoning and the graft in case, which is a turn of the century United States Supreme Court case involving a double jeopardy claim. It's not at all relevant to what we're talking about here today. The case law has evolved extensively since the McDonald opinion. And McDonald has not been updated. There's been no new case. The Martinez case really doesn't give us much help because it's two entirely different arguments. I mentioned in the brief that I believe it was Mr. Martinez that conceded he was an armed court criminal. So the court was somewhat, I guess, irritated. In fact, he would then turn around and argue that he wasn't. And nevertheless, considered his arguments, which were a little bit different than what we have here
. What he was arguing is that there was some type of non-textual violation of separation of powers by doing this and that somehow this would affect in the negative way military concerns. He didn't really articulate the same argument we're making today. So McDonald and Martinez, I don't think, offer us any help. Those were both pretty small. So those were both still operating under the assumption any court meant any court. And that's just not the case anymore. The Supreme Court has clearly foreclosed that argument. There is a logical limitation to the term any. And in this particular case, we look at, again, the military justice system and the long historical line of cases, they kind of conclude a few years ago with this court's opinion stating they're not the same. They don't have the same prosecution system. They don't have the same court system. They don't have the same procedural safeguards
. They don't have the same functions. So there's very little similarity once we get below the superficial view of these courts between an Article III federal court and a uniformed code of military justice court martial. One of the cases that, I think the third circuit, or not the third circuit case, but the case number three you are referring to is either United States V. Lee, which is very old and also based on graphed and I think on faulty reasoning. There was another case called, I believe, Stucky out of the eighth circuit where the judge said that drug offenses were not counted if they were prior court marshals, but violent crimes were. He clearly didn't, that was dicta, but he also didn't offer any logical reasoning for how that would reconcile with the Supreme Court's opinion and small. So the circuit cases that are out there don't really address this issue in a proper manner. They're decades old. They don't give any credence to the fact that the courts have repeatedly held that there's a big difference between military law and civil law, or civilian law to be more clear. And they also don't give a lot of, some of them didn't have the benefit of small, but some even after small continue to insist that any court means any court, which is simply not the case. I think if there are no more questions, I will save my time to respond to the government. Okay, thank you, Hendrick
. Let's hear from Ms. Haines. Thank you. Thank you, Ron. May I please the court? My name is Stacey Haines, I'm half of the government. Defense makes a lot of the case of smalls, the 2005 case, which held that unique court did not apply to foreign courts. It held that it applies to domestic courts. So the defense and their brief and their arguments trying to equate military courts without a foreign court. And as the honor has noted, that is not the case. Military courts were enacted by article one of the Constitution. They were Congress enacted the military code of justice under Title 10 of the United States Code. They are mentioned in the guidelines, as you're on a mention, in 4A1
.2G, I believe, they say military convictions for general court marshals can't count for criminal history points, but yet a following section of the guidelines do not count foreign convictions. And one of the reasons that small sets forth for this is that foreign countries operate in completely different ways the United States justice system does. And the American sense of fairness cannot always be equated with judicial systems in other countries. That argument does not apply to the United States military courts. As your honors have noted, and as we have discussed, they are enacted through article one of the Constitution. Their code of military justice is fourth in Title 10. They have procedural safeguards. They go up on review by a military court of review and Mr. Grant's appeal actually went up and was reviewed and affirmed. So they do have those procedural safeguards. I would also state that it's some interesting to note in Title 18, the United States Code Section 922G. Is that what you think the key is that the existence or non-existence of procedural safeguards? I think that's one of the keys, the fact of the fairness issue and the fact of whether smalls dealt with there being the fairness issue and whether or not countries sometimes criminalize acts that would not be crimes in an American court system. They also dealt with the fact that it would be difficult for US courts to define what those crimes are to obtain the convictions to actually make the case. And none of that equates with a military court. We have access to the military documents, the certified convictions. We have access to the military code of justice. We have access to all that. And it doesn't equate on the same level. I would also note that one of the cases graphed, and I believe it was, an old case is defense counsel noted, but it afforded full faith and credit to military judgments in a civil court of law. So they said that military judgments are to be afforded full faith and credit, meaning they were to be upheld or they were to be afforded full faith and credit by the civil courts. Foreign judgments aren't necessarily in that same realm, but these are. And so that's one of the reasons as well. I would note that 922G, as I mentioned, has a provision in it that not only are felons prohibited, but the whole other class of categories of individuals, including people who are dishonably discharged from our United States military. So it would make sense that in 1985, when they added that to the statute to prohibit those individuals from having firearms and ammunition, to prohibit someone who's been dishonably discharged, that if a person likewise had a violent history and were a recidivist and fell under the terms of 924E, that they would be subject to enhanced penalties under 922G
. They also dealt with the fact that it would be difficult for US courts to define what those crimes are to obtain the convictions to actually make the case. And none of that equates with a military court. We have access to the military documents, the certified convictions. We have access to the military code of justice. We have access to all that. And it doesn't equate on the same level. I would also note that one of the cases graphed, and I believe it was, an old case is defense counsel noted, but it afforded full faith and credit to military judgments in a civil court of law. So they said that military judgments are to be afforded full faith and credit, meaning they were to be upheld or they were to be afforded full faith and credit by the civil courts. Foreign judgments aren't necessarily in that same realm, but these are. And so that's one of the reasons as well. I would note that 922G, as I mentioned, has a provision in it that not only are felons prohibited, but the whole other class of categories of individuals, including people who are dishonably discharged from our United States military. So it would make sense that in 1985, when they added that to the statute to prohibit those individuals from having firearms and ammunition, to prohibit someone who's been dishonably discharged, that if a person likewise had a violent history and were a recidivist and fell under the terms of 924E, that they would be subject to enhanced penalties under 922G. It does not equate or make sense that someone could be prohibited from having firearms, and someone could have prior violent felony convictions out of a military corps and those not enhanced them to make their non-curricular criminal. The whole statutory purpose behind the felon and possession statute and the arm-career criminal statute more specifically is to prohibit those individuals who have shown a violent propensity for danger from having firearms and ammunition. And that's exactly the case here, Mr. Graham. His convictions were in the military court. They were in Korea, but had they been down the street in Fort Jackson, here in Columbia, South Carolina. It would have been the same court of military justice that convicted him and sentenced him and reviewed his case. So those military laws have forced and effect not only in the United States, but in Korea. So it's interesting to note, would the Defense Council have the same argument, would they have made the same argument, how it happened at Fort Jackson versus it having happened in Korea as it did with Mr. Graham? I didn't get that he was drawn to distinction that a general court march of held in Korea would be different from one held here. Is that for you or say any argue? No, sir, I'm just, they argued that on the trial level at sensing they kept making a big deal that had occurred in Korea, that it was outside the United States in Korea. But here they have focused more on not the fact of it occurring in Korea, but it occurring in a military court
. It does not equate or make sense that someone could be prohibited from having firearms, and someone could have prior violent felony convictions out of a military corps and those not enhanced them to make their non-curricular criminal. The whole statutory purpose behind the felon and possession statute and the arm-career criminal statute more specifically is to prohibit those individuals who have shown a violent propensity for danger from having firearms and ammunition. And that's exactly the case here, Mr. Graham. His convictions were in the military court. They were in Korea, but had they been down the street in Fort Jackson, here in Columbia, South Carolina. It would have been the same court of military justice that convicted him and sentenced him and reviewed his case. So those military laws have forced and effect not only in the United States, but in Korea. So it's interesting to note, would the Defense Council have the same argument, would they have made the same argument, how it happened at Fort Jackson versus it having happened in Korea as it did with Mr. Graham? I didn't get that he was drawn to distinction that a general court march of held in Korea would be different from one held here. Is that for you or say any argue? No, sir, I'm just, they argued that on the trial level at sensing they kept making a big deal that had occurred in Korea, that it was outside the United States in Korea. But here they have focused more on not the fact of it occurring in Korea, but it occurring in a military court. From your position, it wouldn't make any difference as long as the general court march would try to and tend to go up to, yes, sir, yes, sir, exactly. And the other correlation that I would bring to the court is attention is juvenile adjudications. Family court, as your honor is aware, operates a little different than our adult courts. There are no jury trials. However, juvenile adjudications are set forth as proper predicates under 924e. Should they meet the involve the user carry, refer on knife or other destructive device? And if they would be punishable by a term of imprisonment, had it been convicted by an adult. So it does not make the argument that the military court is a little different than our civilian courts and that there's no juries. There are certain constitutional safeguards that are not set forth by virtue of having no juries. That does not hold water in the government's view. Under the right case, issue by the force circuit, a case from Judge Wooten here in South Carolina, they held that juvenile adjudications can serve as proper predicates to make an individual an arm-carried criminal. So if juvenile convictions can serve as enhancing predicates if they're violent, then it follows suit that military court marshals that meet the definition of violent felonies can likewise follow suit. And as you're on a noted, there are a number of circus that have held this
. From your position, it wouldn't make any difference as long as the general court march would try to and tend to go up to, yes, sir, yes, sir, exactly. And the other correlation that I would bring to the court is attention is juvenile adjudications. Family court, as your honor is aware, operates a little different than our adult courts. There are no jury trials. However, juvenile adjudications are set forth as proper predicates under 924e. Should they meet the involve the user carry, refer on knife or other destructive device? And if they would be punishable by a term of imprisonment, had it been convicted by an adult. So it does not make the argument that the military court is a little different than our civilian courts and that there's no juries. There are certain constitutional safeguards that are not set forth by virtue of having no juries. That does not hold water in the government's view. Under the right case, issue by the force circuit, a case from Judge Wooten here in South Carolina, they held that juvenile adjudications can serve as proper predicates to make an individual an arm-carried criminal. So if juvenile convictions can serve as enhancing predicates if they're violent, then it follows suit that military court marshals that meet the definition of violent felonies can likewise follow suit. And as you're on a noted, there are a number of circus that have held this. Some of them are older cases. The 1970 case, we have a six-circuit Lee, but the six-circuit had a more recent case as well. It was an unpublished opinion, Thompson, but it occurred after Smalls. And they cited Martinez and McDonald in that opinion, holding the same as the court held before in Lee. And the other cases are McDonald from the night circuit and Martinez from the seventh circuit. And the eighth circuit stuck the case as well. So those are a litany of cases that have considered and found that military courts would be considered within that any court to allow a proper conviction to count as a predicate under arm-carried criminal. I think we understand your position. Yes, sir. Thank you. I'm here with the reply from Mr. Kendrick
. Some of them are older cases. The 1970 case, we have a six-circuit Lee, but the six-circuit had a more recent case as well. It was an unpublished opinion, Thompson, but it occurred after Smalls. And they cited Martinez and McDonald in that opinion, holding the same as the court held before in Lee. And the other cases are McDonald from the night circuit and Martinez from the seventh circuit. And the eighth circuit stuck the case as well. So those are a litany of cases that have considered and found that military courts would be considered within that any court to allow a proper conviction to count as a predicate under arm-carried criminal. I think we understand your position. Yes, sir. Thank you. I'm here with the reply from Mr. Kendrick. Thank you, Mayor Police Court. There are a couple of specific points I want to respond to. At the outset, I'll say absolutely. I would make this argument if the court martial happened in Fort Jackson. The issue of Korea, while it may have been mentioned in the trial court, that wasn't what the court was. It was not what this objection or what this appeal is about. What this appeal is about is the fact that military courts are different than Article III courts. The courts have held that. And when we say they're a little different, that's not exactly right. They're a lot different. And I guess what we have to think about is what is the most important facet of the criminal justice system? And if it's a jury trial, which I think that anyone who has been anytime in that system would have to agree with, then that particular point right there answers the question. There is not the same jury trial in a military court
. Thank you, Mayor Police Court. There are a couple of specific points I want to respond to. At the outset, I'll say absolutely. I would make this argument if the court martial happened in Fort Jackson. The issue of Korea, while it may have been mentioned in the trial court, that wasn't what the court was. It was not what this objection or what this appeal is about. What this appeal is about is the fact that military courts are different than Article III courts. The courts have held that. And when we say they're a little different, that's not exactly right. They're a lot different. And I guess what we have to think about is what is the most important facet of the criminal justice system? And if it's a jury trial, which I think that anyone who has been anytime in that system would have to agree with, then that particular point right there answers the question. There is not the same jury trial in a military court. In fact, the United States Supreme Court in US X-REL, Toth V. Quarrel, said that a diverse civilian jury serves the primary purpose of standing up in defensive liberty, even in the face of hysteria and prejudice. Those 12 different people serve as the oldest and most powerful check against government intervention in our lives. Military juries are not the same. They don't have the same diversity. They don't have the same, I guess, gathering. In other words, they're simply assigned by a convening officer. They don't have the same unanimity requirement, right, if that were two thirds. So you're saying that there can be no objection to a panel. As you put it designated by the presiding military action? Absolutely not. You can agree that you have.
. In fact, the United States Supreme Court in US X-REL, Toth V. Quarrel, said that a diverse civilian jury serves the primary purpose of standing up in defensive liberty, even in the face of hysteria and prejudice. Those 12 different people serve as the oldest and most powerful check against government intervention in our lives. Military juries are not the same. They don't have the same diversity. They don't have the same, I guess, gathering. In other words, they're simply assigned by a convening officer. They don't have the same unanimity requirement, right, if that were two thirds. So you're saying that there can be no objection to a panel. As you put it designated by the presiding military action? Absolutely not. You can agree that you have... Not even proposed. No, I agree with what I'm saying. I'm not saying that. I believe you have one per-emptory challenge and you can make challenges for cause, which you will then get another military member in that place. What Quarrels was discussing was the fact that the broad, diverse range of citizens is opposed to the small, focused group of the military by itself as a whole, creates a problem, creates a very big difference. Judges are a big difference. Military judges are called to serve when needed. They're not constantly judges. Article 3 judges have life tenure. The reason for that, obviously, it's one of the best ways to guarantee that those judges remain independent. Once you reach the bench, you're there to study, barring exceptional circumstances
.. Not even proposed. No, I agree with what I'm saying. I'm not saying that. I believe you have one per-emptory challenge and you can make challenges for cause, which you will then get another military member in that place. What Quarrels was discussing was the fact that the broad, diverse range of citizens is opposed to the small, focused group of the military by itself as a whole, creates a problem, creates a very big difference. Judges are a big difference. Military judges are called to serve when needed. They're not constantly judges. Article 3 judges have life tenure. The reason for that, obviously, it's one of the best ways to guarantee that those judges remain independent. Once you reach the bench, you're there to study, barring exceptional circumstances. Not so in the military. Those are very important differences. So I think that when we say a little bit different, when small was saying that the foreign courts may not serve the American sense of fairness, nor do the military courts, as we understand it. An Article 3 court guaranteed to defend the individual, guaranteed to uphold his rights, is very different than the military court, which is not in any way to serve the purpose of the individual. It is to serve the purpose of the military. It is almost exactly the opposite of the Article 3 court, where the federal courts have historically been, where the individual goes for redress. How could it be solely to serve the purpose of the military, even in Mr. Grance case, he was convicted of serious offenses and put in prison? Start now. Was that to serve the military? Was that to punish him? Again, I think that if we get into the specifics of that case, then I think we lose sight of what it is I'm arguing. It's the general process that the procedures which are different. When we talk about Mr. Grant electing to proceed non-Jury, he didn't elect to proceed non-Jury as we would understand it in the federal district court
. Not so in the military. Those are very important differences. So I think that when we say a little bit different, when small was saying that the foreign courts may not serve the American sense of fairness, nor do the military courts, as we understand it. An Article 3 court guaranteed to defend the individual, guaranteed to uphold his rights, is very different than the military court, which is not in any way to serve the purpose of the individual. It is to serve the purpose of the military. It is almost exactly the opposite of the Article 3 court, where the federal courts have historically been, where the individual goes for redress. How could it be solely to serve the purpose of the military, even in Mr. Grance case, he was convicted of serious offenses and put in prison? Start now. Was that to serve the military? Was that to punish him? Again, I think that if we get into the specifics of that case, then I think we lose sight of what it is I'm arguing. It's the general process that the procedures which are different. When we talk about Mr. Grant electing to proceed non-Jury, he didn't elect to proceed non-Jury as we would understand it in the federal district court. He elected to proceed non-Jury as the military court present juries. So the reason that they don't have the same procedural safeguards is because the military courts are to protect the fighting function of the army, the discipline of the soldiers. The army has obviously grown a great deal since the introduction of the Constitution, but it doesn't change that the purpose is the defense of our nation, to fight our wars. Can you say that the United States military courts, court and general court and general courts, don't use due process? I think that the difference is that when we say due process, they use the process that is due a soldier in the military, but they do not use the process that would be due an individual American charged with the crime as we understand it in Article III court. We have all different kinds of different levels of due process all the time. It's not a question. Absolutely due process, it's a question. Is the important reasonable due process? Right. And if he's afforded reasonable due process in the military, does that translate into a higher level of due process in the Article III court? I didn't answer that as no, because you've got these courts who have repeatedly said, the reason we have confidence in a recidivist enhancement is because this person already had his full litany of constitutional rights, not in the military. So it's different. That's why it doesn't apply as exactly what Small said in the foreign courts. We don't know
. The last thing I'll address in the remaining seconds is the issue of the juvenile adjudication, I think, is not applicable here for two reasons. Number one, juvenile adjudication specifically included in these statutes. I think right pointed that out, opinion from this case, but also the juvenile system, again, the Supreme Court has reviewed at McEvervy, Pennsylvania and said, we don't think a jury trial will help the individual, will help the juvenile in the system. So the lack of some of these procedural safeguards is actually specifically done for the protection of the individual receiving the process. As opposed to in the military courts, the lack of procedural safeguards is clearly for the benefit of the military, the system giving out the decisions. So there's a very big difference, and I don't think that applies. There's no more questions. I think I'm ending right on time. Do I have to answer that