May it please the court. The district court here applied a crime of violence enhancement that more than doubled the guidelines range. And the government and its briefing does not dispute that it was an error to do so. This court should grant relief so that Mr. Goody-Ares can be recitanced based on the correct guidelines range. The error in this case was based on a straightforward principle of law. Crimes that require only a minzraya of recklessness do not qualify as crimes of violence under the force clause. Virtually every circuit, including this one, has applied that principle. And the government still has not cited any conflicting authority on that point. The ninth circuit applied this recklessness principle to the very statute at issue here, California Penal Code Section 246. It concluded that because that offense requires only a minzraya of recklessness, it does not qualify as a crime of violence under the immigration guideline. Did you point that out to the district judge? You're on a, we can see that this is under plain error review. Absolutely. I thought it's, if it's so obvious, why didn't you point it out? Well, you're on a, the standard under plain error review isn't whether it's so obvious that it was pointed out. If that were the standard, you could never get relief on the plain error review. The standard is whether after you identify the error, is it one that is clear, obvious? And here it is in light of this unanimous authority across every circuit court has applied this principle. And including this court in the Bayerano and Garcia cases applied this recklessness principle to the provisions of 18 USC Section 16
. That's the same principle that the ninth circuit applied with respect to this particular statute. And for that reason, I think there is a, the consensus across the circuit shows both that there was an error here and that it was a plain error. Why would it be plain when the statute speaks in terms of willfully and maliciously shooting into an inhabited dwelling? I mean, you know, regardless of whether it's error or not, when the language of the statute itself speaks of an inhabited dwelling and willfully and malicious shooting, that's the point. You know, I know all the arguments that, well, this is recklessness, but I mean, we don't say willfully and maliciously and say, well, under the force clause, this is not directed at a particular individual, the person of another, and I understand all those arguments, but the arguments on one side of a case, it should have been brought up before the district care. You're on again, we certainly can see this was an error that was overlooked by council, overlooked by the probation office, by the other parties, everybody missed it. And that's why we're here under plain error review. We can see that we don't attempt to make any argument that it's anything more than that. But the reason you look, you look beyond the label in the statute, which I agree the California statute itself says willfully malicious in it, but there's consensus again in the Supreme Court and across every circuit that we don't simply defer to the labels. We look to how they're construed in the state courts and the elements as they're applied in the state courts. When you do that analysis here, the conclusion is inevitable, it's clear it's plain, it's obvious that this isn't a crime of violence under this court's case law and under the case law in every circuit court across the country. The adversary process supposed to do some work here. Again, I mean, we can see it was plain error, it's absolutely should have been pointed out. And had it been pointed out, the district court needs help from the lawyers and you've got the Supreme Court's opinion and goal and subsequent cases saying that trial courts are really the key players. In the sensing process and I was suspect that that would lead you to believe that the reversals on plain error with question of whether the credit card California crime was a crime of violence would never even raise before the trial court that would be to avoid situations like this. It's where, you know, it might have been disposed of perhaps in your favor, but it just seems to me that you're asking for something that goes against the normal way in which sentencing and sentencing appeals are expected to proceed. We haven't even gotten to the fourth fall
. I'm just talking about given the language on the face of the statute. I read the opinions saying they're all so clear. I mean, to me, to be spraying all over the place and many of the things that are argued about in supplemental, I think, came down after the district court. I think you're on our couple of points on that. First, under the Henderson decision from the Supreme Court last year, those subsequent cases, even though they're after the district court's decision are nonetheless factored in in the analysis of whether the error is plain. But I want to go back to your other point about the central importance of the district court's role in the sentencing process. I actually think that's a key reason why the court should remand here for recentencing so that the court can exercise its discretion under a correct calculation of the guidelines range. And the government argues that even if it is plain error, while the district court went above the guidelines range based on the 3553A factors, so you should deny relief. But I think the court should reject that position just that. That rationale for remand would sort of wipe out a lot of because we could say in every instance, we should remand a case so that it can be an error for proceeding and done to the correct way. So, I mean, the rationale you've given me would just undercut the whole reason. Well, you're on I don't think it would undercut a lot of was that there are four prongs for a lot of there's no doubt that plain error relief is going to be a typical or unusual, but the first two prongs of a lot of whether there's an error and whether it's as plain and obvious where you have a consensus across the circuits as it is in this case are going to do a lot of work in most cases. So, when you get to the third prong, I think the seventh circuit is right to recognize, especially in light of the Supreme course decision last year in Pew, that an error in calculating the guidelines range impacts a person substantial rights. I think here we can show the same thing that was shown in slayed where this court remanded on plain error review based on an error that was acknowledged by the court and granted recentencing in that case. I think here the sentence is even relief is even more justified than in slayed if you just compare the magnitude of the error in slayed this court granted plain error relief based on a three level increase in the offense level. I would think your initial problem and perhaps your only problem in this case is the clarity of the error
. I don't know if the magnitude really affects too much the plain error analysis at least in my mind. And so we don't have for circuit prior precedent interpreting this statute right. You're on our disagree with that. I think if you look at the Garcia case, Garcia versus Gonzalez, it says it's interpreting section 16A about title 18, which is the same force clause that applies under section 2L1.2. And when it interprets that it says that what we're dealing with they are a reckless assault does not qualify under 16A because quote it does not contain an element that there be the intentional employment of physical force against a person or thing here we don't have that we don't just as in Garcia we don't have a statute that requires the intentional employment. We don't always just transpose your honor Lee a cow was an immigration case and the Supreme Court very clearly said there that the same language has to be interpreted consistently whether in the immigration context or in the criminal context that's why you see a footnote in Lee a call which says that even if there was some ambiguity here we would have to apply. The chance to consider the argument about a weather transportation was possible or not was never brought before again I absolutely agree that this is under a plane air analysis but we've got a case US be night where there was a miscalculation of a sentence and there was a downward variance in that case. And the court held in that case that that defendant's substantial rights were not a thing. I wouldn't be analysis be the same whether you're over or under the guidelines. I think I'm aware of the night case your honor and I think the difference the first key difference with night is the magnitude of the air and I agree with Judge Moss that the magnitude might not have any impact on whether it's a whether the air is plain. I think it does factor into the calculus in terms of whether it affects substantial rights and whether it warrants this court's exercise this discretion under plane air review in night it was only a two level error in the guidelines and the sentence that was imposed was nonetheless still below the the what would have been the correct guidelines range. And so for that reason I think it's very different than here where you're dealing with a seven level increase not a two level increase you're dealing with the situation where the error resulted in increasing the guidelines range by approximately 125 to 140%. I think I made it seem like this is some great injustice but the you know I read the sentence sentence in transcript with hair I could just record going to arrive at the same conclusion no matter what he's he's very emphatic about this whole matter and he talks about. I look at this file and I see a defendant who has after his deportations returned to this country on six occasions been removed on six occasions I has a criminal record it includes drug convictions convictions but in decent exposure for obstruction of justice. I think it's a very different case of this but I don't know if it's a very different case of this but I don't know if it's a very different case of this but I don't know if it's a very different case of this but I don't know if it's a very different case of this but I don't know if it's a very different case of this but I don't know if it's a very different case of this but I don't know if it's a very different case of this but I don't know if it's a very different case of this but I don't know if it's a very different case of this but I don't know if it's a very different case of this but I don't know if it's a very different case of this but I don't know if it's a very different case of this but I don't know if it's a very different case of this but I don't know if it's a very different case of this but I don't know if it's a very different case of this but you read that text and transcript
. Giorner, I absolutely agree that Giorner, you made clear his reasons for varying upward here but the problem is that the problem is that I can say that apart from the error in the guidelines calculation Giorner, you got the process. What he did is just what the Supreme Court says you're supposed to do in the pukase which is he calculated the guidelines range. He just got it wrong because we didn't point it out and we can see that. And he then used that guidelines range as the jumping off point. He said, look, I think there's a factor in this case, the fact that he's been in and out of the country all these times, that's not accounted for in the way that the guidelines are calculated. There's no specific offense characteristic that takes into account deportations and returns that aren't prosecuted criminally. He said, because of that, I think the way the guidelines work here, there's a factor that's missed under 3553A. So I'm going to vary above the guidelines. And he varied above by 70%. Had he done that exact same analysis, citing all the reasons that you cite and using the correct guidelines range, he would have ended up at a sentence of 36 months, which is less than half of the 78 months he imposed here. We must not be reading the same sentence. I'm sorry. Mr. Grimner, just before you sit down, maybe you can tell me the case that you think that is best for you, not on the underlying question of whether this is error, but has the same sort of confluence of no circuit precedent directly on point, transfer from one context to another context. And I understand that you say there's arguably no circuit split, but you've read the government's brief, you know what they say. So what other case would be similar to that and a record like this? Well, there was a lot packed into that question
. Right, but I'm asking you to try to, in other words, I was trying to explain to you what I meant by your best case. So not your best case on whether this is error, but your best case on whether we should apply an error review and grant you relief. And if you don't have, you know, kind of comes to mind, that's fine. Well, I think that they're on the question of applying interpretive principles from the immigration context here. I think Leacal is very clear on that. So that would be the best case. In terms of the broader question, I think the two cases I would point to are slayed where there is extra where the court exercises its discretion under the third and fourth prongs of O'Lano based on a much less significant change in the guidelines range than it's present here. I don't think I've been clear. I was trying to find a case that had all of these elements. And I couldn't find one. And it doesn't seem to me that you're articulating one. Well, I will agree. There's maybe not a case is exactly like this one. I think this. I caught on cut against you in this area because of that instance of what declined to reverse because of the plane error standard and said, you know, there's no circuit case on point. And there's a split in the circuit
. Doesn't judge kingdoms opinion there? Cut against you? Well, I think it doesn't because there isn't a circuit split in this case. And because I, again, I think the Garcia case and the Beirut who case. I agree on that point. Well, I mean, I give Mr. Miller credit for coming up with something that at least on its surface looks like a circuit split. But when you dig below the surface and Martinez, Martinez, and Curtis, those two statutes differ in a material respect that absolutely explains the different outcome in those cases. There's the government, I'm sure if there were one out there, the government would have found a case that declines to extend Leical's holding to recklessness cases. There's not a case like that out there. Thank you. Appreciate it. Mr. Miller. May I please the court? My name is William Miller here on behalf of the government. Because the defendant is unable to cite to any binding authority addressing a statute, making a crime like this one, he's unable to satisfy his burden establishing plain error review. The government concedes that there is error, correct? The government, I don't concede that there is. Well, you make an argument in your brief that there's no error
. No judge mods. I did not. So don't you think that argument is foreclosed now? You can't come up your own appeals, say there isn't any error if you've never made the argument in your pillow for you. That's likely correct, Your Honor. And just by way of that. I mean, you've listened to the earlier on. Yeah, by way of that. I think you're giving up much, you know, prosecutors gain credibility by conceding what they must and moving on. And I understand that that fully. I just. How much you've made the point that you didn't need to get into it? Correct. That's where I was headed, Judge Wilkinson. And is this case doesn't require taking a position on error necessarily because any error in this case would not be plain because the defendant's able to cite to any binding authority addressing a statute like this one. And I think it's important to understand at the outset what exactly this California statute requires. What this statute requires as interpreted by the California courts is the intentional firing of a gun. It requires general intent as to the consequences of hitting the building
. And so it's different from the statutes that Mr. Carpenter relies on because unlike those statutes, which are essentially reckless battery statutes, they're recklessly causing some sort of harm. Here, the nature of the force is specified in the crime. It requires the intentional shooting of a gun, which is violent force. And so in that sense, it's distinguishable from the cases on which Mr. Carpenter relies where there is no discussion in the statute or element of violent force in the statute. Here, the willful employment of violent force is an element of the crime. And so even under Leacal, it satisfies that part of the of Leacal's holding. And no one would dispute that shooting a gun is violent force under the Supreme Court case in Johnson. And so that's really what we're dealing with here is a crime that requires the intentional use of violent force with a general intent as to the consequences. And that issue has divided courts. And I would point the court to. Is the force clause required in your view that you anticipate a specific consequence of those words against the person of another? Does it require that you intend to inflict force upon a particular person? Whereas if you're shooting into an inhabited dwelling, may or may not hit somebody, or whatever, you could be just trying to shoot the window out, for example, rather than aiming at a particular issue. Does that undercut your force clause argument? If you just don't like the people in the house, you don't want to hurt them necessarily, but you would like to just shoot out a window or just mess up their door. Not that these are admirable behaviors, but I'm just wondering how that squares with against the person of another. In your high, I think while people are talking about recklessness
. Right. And in your hypothetical judge, we'll consider, I think that would at least constitute the threatened use of force because it is firing a gun at an occupied building or in close proximity to an occupied building. That would at least rise to the level of threat and force. And I would point the courts. I would draw the courts attention to the 10th Circuit case in US versus Ramon Silva. In that case, the court addressed a statute like this one that was a crime that required intentional force, but with only a general intent as to the consequences. And in that case, with only a general intent as to the consequences, because that's what this California statute does. I mean, there's no dispute that this California statute has intentionally firing a gun as an element. The part where a lesser man's area comes into play is really only as to the consequences. And that's the question that has divided courts. Mr. Carpenter has cited the Narvaez Gomez case from the 9th Circuit. But on the other side, you have a 10th Circuit case addressing a very similar statute to this one. And in that case, the Texas statute says knowingly discharged as a firearm at or in the direction of one or more individuals. That in the direction of is the same type of language that comes into play with the California statute, which says in close proximity to. There's not a specific intent that you have to make the hit the consequence
. And so in that case, the 10th Circuit held that because the intentional force of violence is an element, this general intent as to the consequences, it still qualifies under the force clause. And so that's where the division really comes in. And that's why the cases that Mr. Carpenter relies on aren't informative of this question. Those cases are all about reckless batteries. They don't define the element of force. Here, the statute on its face and California courts say that this requires an intentional shooting, which is that that's the violent force part. And so that's really where the split comes in. And then the Illinois statute that was addressed in the Curtis case by the 7th Circuit, it functions the same way. Knowingly or intentionally discharges a firearm in the direction of a vehicle here, she knows or reasonably should know to be occupied by a person. It's the same as this California statute. You have intentionally firing the gun. And then it's in the direction of a vehicle here we have in close proximity to an occupied structure. And so it functions the same way and the 7th Circuit held that that also was a crime of violence. And I think that the important part, and this comes out of the silvicase, there was a descent in that case. And the majority says the descent focuses on what apprehension causing aggravated assault lacks as an element, namely the specific intent to induce the fear, which is the consequence. Missing from its analysis is a discussion of the intentional conduct that the crime actually prescribes. And so that's the same problem we're confronted with here. And so for those reasons, there truly is a split. And the immigration cases that the defendant cites from our circuit don't govern because the crime at issue is very different. And I would also point out that the fact that those cases arose under the immigration context is also important here, because although the force clause in that immigration context is the same, the definition doesn't function the same way. Where do you get this in close proximity language? That comes out of people versus overmen, which is the case that Narvaez Gomez relied on when it found that the statute requires a lesser mens rea. Okay. And so that's. Certainly not in Section 240, so not in the. It seems to me that you're over arguing your case. I'm not sure I agree with just about anything you've said in the last five minutes, but that doesn't necessarily mean that I think there's no plain error here so that maybe you could give me the essence of the argument that one has to. Follow to find there is no plain error because maybe I've misunderstood what is required to find no plain error. If I have to buy your interpretation of all these cases, I'm not so sure what. And I apologize for that. My point was just to sort of highlight that there was a bit of an overgeneralization in the dependence argument. My argument is that any error here is not clearer obvious
. Missing from its analysis is a discussion of the intentional conduct that the crime actually prescribes. And so that's the same problem we're confronted with here. And so for those reasons, there truly is a split. And the immigration cases that the defendant cites from our circuit don't govern because the crime at issue is very different. And I would also point out that the fact that those cases arose under the immigration context is also important here, because although the force clause in that immigration context is the same, the definition doesn't function the same way. Where do you get this in close proximity language? That comes out of people versus overmen, which is the case that Narvaez Gomez relied on when it found that the statute requires a lesser mens rea. Okay. And so that's. Certainly not in Section 240, so not in the. It seems to me that you're over arguing your case. I'm not sure I agree with just about anything you've said in the last five minutes, but that doesn't necessarily mean that I think there's no plain error here so that maybe you could give me the essence of the argument that one has to. Follow to find there is no plain error because maybe I've misunderstood what is required to find no plain error. If I have to buy your interpretation of all these cases, I'm not so sure what. And I apologize for that. My point was just to sort of highlight that there was a bit of an overgeneralization in the dependence argument. My argument is that any error here is not clearer obvious. That's what this court has to decide and clearer obvious. The question is, is there binding authority from the Supreme Court or the for circuit addressing this issue? And the point I was making before is really. I have to buy your argument on the error part of it. Correct. I don't think we do, but I was. Correct. The only. We love that. And perhaps it was not a good strategy for me to start with that. The point of that discussion was just so that courts are truly divided on this issue. But as to whether or not there's binding authority from the Supreme Court or the for circuit in this case. The neither court has addressed this statute or one like it. And so that's the first part. And then the second part is that these cases on recklessness address a different type of statute than we're dealing with here and arise in a different context, the immigration context. And in the immigration context. He the Mr
. That's what this court has to decide and clearer obvious. The question is, is there binding authority from the Supreme Court or the for circuit addressing this issue? And the point I was making before is really. I have to buy your argument on the error part of it. Correct. I don't think we do, but I was. Correct. The only. We love that. And perhaps it was not a good strategy for me to start with that. The point of that discussion was just so that courts are truly divided on this issue. But as to whether or not there's binding authority from the Supreme Court or the for circuit in this case. The neither court has addressed this statute or one like it. And so that's the first part. And then the second part is that these cases on recklessness address a different type of statute than we're dealing with here and arise in a different context, the immigration context. And in the immigration context. He the Mr. Carpenter is correct to point out that this force clause uses the same language as the illegal reentry context, but the definitions are different in material ways. In the immigration context, the crime of violence definition is comprised of a force clause where you have a crime with an element of force and a residual clause. There's no list of enumerated offenses. And that's different from the illegal reentry context where you have enumerated offenses and a force clause. And leading into that force clause, the language actually says or any other crime that has as an element of force. And so similar to the Supreme Court's analysis in Begay and Sykes, the second part of the definition refers back to the first. And when you look at that definition of enumerated offenses in the illegal reentry guidelines, you find a crime that has the same mens rea as the crime that we're dealing with here. And that's manslaughter. Manslaughter is a general intent crime as this court has held in Peterson. And so the context matters, I guess, is the point that I'm trying to make. And those cases that the defendant relies on arise in a different context and address different kinds of crimes. And so they don't provide an answer to the question we're dealing with here. And so that's the government's argument is that there's a lack of binding authority on this particular type of crime. Moving to the third and fourth prongs of plain error review. That definitely presents a closer question as to whether or not the defendant has shown a substantial likelihood or a non speculative basis that the sentence would be different. But I do think
. Carpenter is correct to point out that this force clause uses the same language as the illegal reentry context, but the definitions are different in material ways. In the immigration context, the crime of violence definition is comprised of a force clause where you have a crime with an element of force and a residual clause. There's no list of enumerated offenses. And that's different from the illegal reentry context where you have enumerated offenses and a force clause. And leading into that force clause, the language actually says or any other crime that has as an element of force. And so similar to the Supreme Court's analysis in Begay and Sykes, the second part of the definition refers back to the first. And when you look at that definition of enumerated offenses in the illegal reentry guidelines, you find a crime that has the same mens rea as the crime that we're dealing with here. And that's manslaughter. Manslaughter is a general intent crime as this court has held in Peterson. And so the context matters, I guess, is the point that I'm trying to make. And those cases that the defendant relies on arise in a different context and address different kinds of crimes. And so they don't provide an answer to the question we're dealing with here. And so that's the government's argument is that there's a lack of binding authority on this particular type of crime. Moving to the third and fourth prongs of plain error review. That definitely presents a closer question as to whether or not the defendant has shown a substantial likelihood or a non speculative basis that the sentence would be different. But I do think. If you argument rely on the second and fourth prongs, just need the first and third prongs alone. Right. And we only have to find, you know, it's really have to find one of the prongs not satisfied. I mean, you have to show them all for me. It just seemed to me that your argument on prongs to and for was stronger than your arguments on one and two. One and three. One and three. We didn't get into one and three. If you only need to well on one prong. That's right. And I would agree with your with your characterization, judge will consent. You have as much closer questions. Absolutely. The government does not deny that. But the second prong, I believe that the absence of binding authority is clearly in the government's favor. And as to the fourth prong, the question there is whether or not failure to address the error would call into question the fairness and integrity of judicial proceedings
. If you argument rely on the second and fourth prongs, just need the first and third prongs alone. Right. And we only have to find, you know, it's really have to find one of the prongs not satisfied. I mean, you have to show them all for me. It just seemed to me that your argument on prongs to and for was stronger than your arguments on one and two. One and three. One and three. We didn't get into one and three. If you only need to well on one prong. That's right. And I would agree with your with your characterization, judge will consent. You have as much closer questions. Absolutely. The government does not deny that. But the second prong, I believe that the absence of binding authority is clearly in the government's favor. And as to the fourth prong, the question there is whether or not failure to address the error would call into question the fairness and integrity of judicial proceedings. And here in light of the defendant's history and characteristics as thoroughly explained by the district court, the 78 month sentence for a defendant like this one simply doesn't, doesn't call, call those things into question. I mean, the court came very close to saying, you know, this is the sentence I'm going to impose regardless. I mean, it's somewhat of a unique sinencing hearing because the fence council actually reopened the argument after the court had announced its sentence and called into question his sentence. And so the court continued said, I want to make a good record for this and continue to thoroughly explain his sentence. And so it wasn't a case where he said, you know, this is my sentence regardless of how any of the other issues come out, but it comes pretty close. And light of the fact that they sort of reopened the analysis and the court's discussion of the factors is spot on. It's a pretty thoughtful discussion. I mean, it goes on for a number of pages and it talks about respect law and deterrence and the kind of 3553, a fact as you expect, but it wasn't as if the district court just gave the whole thing the back of its hand, you know, it didn't. You know, a very good idea of why the sentence was imposed in fact, repeated about three or four times. And a lot of that is by virtue of the fact that this fence council sort of reopened the argument. I think the factor that the court found most significant is that the defendant had committed several illegal re entries and had been given a second chance, but rather than treating it, this is the words of the district court, rather than treating it as a second chance. He saw it as a. He had been a safe to go religion early, right? He had he had been fast track several times before and so he had little to no consequences for his prior illegal reentry crimes. And so that was really the factor that was driving the district court and he was. Anything further you wish to add or let me ask my pro panelists if they have. Thank you
. And here in light of the defendant's history and characteristics as thoroughly explained by the district court, the 78 month sentence for a defendant like this one simply doesn't, doesn't call, call those things into question. I mean, the court came very close to saying, you know, this is the sentence I'm going to impose regardless. I mean, it's somewhat of a unique sinencing hearing because the fence council actually reopened the argument after the court had announced its sentence and called into question his sentence. And so the court continued said, I want to make a good record for this and continue to thoroughly explain his sentence. And so it wasn't a case where he said, you know, this is my sentence regardless of how any of the other issues come out, but it comes pretty close. And light of the fact that they sort of reopened the analysis and the court's discussion of the factors is spot on. It's a pretty thoughtful discussion. I mean, it goes on for a number of pages and it talks about respect law and deterrence and the kind of 3553, a fact as you expect, but it wasn't as if the district court just gave the whole thing the back of its hand, you know, it didn't. You know, a very good idea of why the sentence was imposed in fact, repeated about three or four times. And a lot of that is by virtue of the fact that this fence council sort of reopened the argument. I think the factor that the court found most significant is that the defendant had committed several illegal re entries and had been given a second chance, but rather than treating it, this is the words of the district court, rather than treating it as a second chance. He saw it as a. He had been a safe to go religion early, right? He had he had been fast track several times before and so he had little to no consequences for his prior illegal reentry crimes. And so that was really the factor that was driving the district court and he was. Anything further you wish to add or let me ask my pro panelists if they have. Thank you. We think we understand your argument. And Mr. Carpenter, let's hear from you in rebuttal. Let's start back with the planeness issue. The government ceases now sort of for the first time, I think in the 28 J letter on the fact that this California statute in overman says that it requires intentional discharge of a gun with, but then with reckless disregard for the consequences. That intent requirement isn't what we're looking for under leo cowl under leo cowl and as it's been extended by this court in. Aron and Garcia what we require under the force clause is an intentional use of force against another person. And some intentional acts somewhere along the way is not enough. If you look at the facts of leo cowl itself to DUI or person drives their car into someone and causes injury. Certainly the drinking and then the getting in the car and driving all of those are intentional acts, but they're undertaken with reckless disregard for the safety of others. The same is true with the intentional discharge of a firearm here. There are many circumstances in which intentionally discharging a firearm is not directed against another person at all at a firing range while you're hunting, etc. What is required under the force clause is an intentional use of force against another person. That's what's missing here and that's why the cases that the government cites as potentially creating some type of conflict don't really create a conflict. Because when you look, you know, Mr. Miller cited one of the cases where the persons required to fire at a person or at a vehicle in which they reasonably believe a person is located
. We think we understand your argument. And Mr. Carpenter, let's hear from you in rebuttal. Let's start back with the planeness issue. The government ceases now sort of for the first time, I think in the 28 J letter on the fact that this California statute in overman says that it requires intentional discharge of a gun with, but then with reckless disregard for the consequences. That intent requirement isn't what we're looking for under leo cowl under leo cowl and as it's been extended by this court in. Aron and Garcia what we require under the force clause is an intentional use of force against another person. And some intentional acts somewhere along the way is not enough. If you look at the facts of leo cowl itself to DUI or person drives their car into someone and causes injury. Certainly the drinking and then the getting in the car and driving all of those are intentional acts, but they're undertaken with reckless disregard for the safety of others. The same is true with the intentional discharge of a firearm here. There are many circumstances in which intentionally discharging a firearm is not directed against another person at all at a firing range while you're hunting, etc. What is required under the force clause is an intentional use of force against another person. That's what's missing here and that's why the cases that the government cites as potentially creating some type of conflict don't really create a conflict. Because when you look, you know, Mr. Miller cited one of the cases where the persons required to fire at a person or at a vehicle in which they reasonably believe a person is located. That's very different from the statute here. If you look at the facts of people versus overman, which the California courts held were sufficient to satisfy this statute, the defense theory there was I fired the gun in the air. The court said that's fine because you were in close proximity to a building. So the discharge of the fire wasn't directed at a person. It wasn't even directed at a building and to answer Judge Wilkinson's question, it's absolutely not enough under two L1.2. If the use of force is directed against the building under two L1.2, it requires a use of force against another person. In that sense, two L1.2's force clause is narrower than the one in section 16A. Also want to go back to the question of whether this court's precedent bears on this issue and Beirannou and Garcia interpret section 16A and section 16B of Title 18. It granted they do so in the immigration context. But in Leacow, the Supreme Court said that those provisions have to be interpreted consistently. If you look at page 11 of the Leacow decision, 543 US 11, it specifically says the minis-rayer requirement in both 16A and 16B must be interpreted consistently. In those two cases, this court has applied, has extended Leacow to cover reckless offenses. And that principle that reckless offenses don't qualify under those provisions is uniform
. That's very different from the statute here. If you look at the facts of people versus overman, which the California courts held were sufficient to satisfy this statute, the defense theory there was I fired the gun in the air. The court said that's fine because you were in close proximity to a building. So the discharge of the fire wasn't directed at a person. It wasn't even directed at a building and to answer Judge Wilkinson's question, it's absolutely not enough under two L1.2. If the use of force is directed against the building under two L1.2, it requires a use of force against another person. In that sense, two L1.2's force clause is narrower than the one in section 16A. Also want to go back to the question of whether this court's precedent bears on this issue and Beirannou and Garcia interpret section 16A and section 16B of Title 18. It granted they do so in the immigration context. But in Leacow, the Supreme Court said that those provisions have to be interpreted consistently. If you look at page 11 of the Leacow decision, 543 US 11, it specifically says the minis-rayer requirement in both 16A and 16B must be interpreted consistently. In those two cases, this court has applied, has extended Leacow to cover reckless offenses. And that principle that reckless offenses don't qualify under those provisions is uniform. I will concede that this court hasn't addressed this particular statute. So in that sense, sure, the error isn't that plain or obvious, but it doesn't need to be. The principle that is plain and- The cases were cases of reckless matter. And they were very different from the particular statute at an issue here, which is words willfully and maliciously, which doesn't- And this court- They are not- They're not to the point where they really are- The recklessness cases aren't really dealing with this kind of statute. They're dealing with reckless battery. Well, certainly some of them deal with reckless battery, but none of them are- They're not. They're reasoning certainly isn't limited to that circumstance. And nothing- And it suggests that this is- And nothing would support the notion that you can have an offense by offense. Well, you require recklessness if it's battery, but if it's something else, we're going to require a different insureia. The principle that motivates, that underlies Leacow decision is that- In saying that the crime must require the use of force, the natural reading of that- Is that it's the active, intentional use of force. This court has extended that in Beironte, in Garcia to say that that doesn't cover reckless uses of force. And here, that's what we're dealing with. I mean, the ninth circuit analyzed this very statute and rejected the very government- The argument that the government's making here. That makes the error plain. And if there- There is no conflicting authority on that point in any other circuit and the reckless- And the government's sites are different in material ways. First, none of them deal with the same insureia requirement that the California courts have imposed upon section 246
. I will concede that this court hasn't addressed this particular statute. So in that sense, sure, the error isn't that plain or obvious, but it doesn't need to be. The principle that is plain and- The cases were cases of reckless matter. And they were very different from the particular statute at an issue here, which is words willfully and maliciously, which doesn't- And this court- They are not- They're not to the point where they really are- The recklessness cases aren't really dealing with this kind of statute. They're dealing with reckless battery. Well, certainly some of them deal with reckless battery, but none of them are- They're not. They're reasoning certainly isn't limited to that circumstance. And nothing- And it suggests that this is- And nothing would support the notion that you can have an offense by offense. Well, you require recklessness if it's battery, but if it's something else, we're going to require a different insureia. The principle that motivates, that underlies Leacow decision is that- In saying that the crime must require the use of force, the natural reading of that- Is that it's the active, intentional use of force. This court has extended that in Beironte, in Garcia to say that that doesn't cover reckless uses of force. And here, that's what we're dealing with. I mean, the ninth circuit analyzed this very statute and rejected the very government- The argument that the government's making here. That makes the error plain. And if there- There is no conflicting authority on that point in any other circuit and the reckless- And the government's sites are different in material ways. First, none of them deal with the same insureia requirement that the California courts have imposed upon section 246. Yeah, you know, that's an interesting argument, but normally one would expect a district court to look to controlling authority. And controlling authority is generally found in the Supreme Court and- And the circuit court is in the- By the district court. Now, you know, you say, well, the California Supreme Court is controlling authority. It's controlling authority as to that statute. But it's- That's a different thing from being controlling authority in one's own circuit. And the district court's follow for circuit opinions. We hope they do. But then, you know, they're not- I'm nervous about your idea that the people who have to go rolling all over the country. Well, I think that when you combine the- The ninth circuit case that deals with this particular statute and says it doesn't qualify based on this reckless insureia principle, and you combine that with this course decision, applying that very same reckless insureia principle, I think that makes the error plain. But I wanted to turn just for a second to Judge Floyd's question earlier about why- To exercise discretion under the- The fourth prong here as compared to night. And I think one of the most- The starkest illustrations of why it's warranted here is the disparity in the size of the sentence. And in- In- In Slade, for example, where the court granted relief, the sentence was 39% above the top end of what would have been the correct guidelines range. Here, we're dealing with the sentence that is nearly four times the top end of the court. And more than five times the low end of the guidelines range. That's an error that I think warrants this court's exercise of discretion. Thank you
. Thank you so much. We'll come down and greet you both and then adjourn in order to reconstitute the panel. This honorable court will take a brief recess