All right. Call the case of United States versus Lairmore. Is it Duzenbury or Duzenbury? We'll hear your argument. Good morning, Your Honours. May I please the court on John Duzenbury for Joshua Lairmore? It's my contention that the only issue... Hold on a second, Mr. Duzenbury. Wait for both to file in here. Thank you. What's your.
.. Yes. I maintain your honor that the only issue presented in this appeal is whether Mr. Lairmore's possession of the firearm in this case facilitated the theft of the firearm. Because that's the issue, it is important to note I think at the outset that that is by its nature a nuanced case specific factual determination. And because it is questions that pertain to the elements of burglary, statutory or at common law, and the similarities or differences between those elements and other crimes, whether it's larceny or safe cracking, are at most interesting but ultimately beside the point. The District Court here I contend in four specific respects that I can identify. First, it employed a categorical approach in resolving what is as I mentioned, ultimately affects specific determination. Clearly blunt in all of the cases prior to the guideline amendment, turn on or make clear that whether into what extent of the crime is a crime or a crime or a crime. The firearm is used in connection with another felony offense. It's specific to the facts of that case. That was the rule before blunt
. That was the rule before the guideline amendment that was also as this court has repeated in Hampton and... So looking at the facts of this case, how is the theft of the... How's the firearm not in connection with the theft? It was the object of the theft. And my contention, it's precisely because it's the object of the theft. And nothing else that it was not actually used in any way other than being the object of the theft. If facilitated theft, didn't it? I think you steal the firearm without taking the firearm. That's the point. But it doesn't have to be used to brandish or to threaten
. It can actually just facilitate the offense itself, right? But I think to facilitate means that it somehow renders the firearm possession offense more dangerous. That was a part of the preface of the blunt panel. But if that's the case, then if the blunt said that, that's true. You're right about that, sir. But the change to the guideline and the analogy, I believe the reason Judge Osteen ultimately had some concern about it. But the burglary, the commentary, the application note commentary after the change in 2006 made it very clear that for burglary, you break in with the intent to do whatever you're going to do as a felony. And then that's the completed defense. You open it and you take the gun and that's all that's necessary. It doesn't have to have anything further than that. And although Judge Osteen pointed out correctly that under North Carolina law, there is no intent acquired with safe cracking. But the other elements of it are certainly the same as burglary or breaking and entering without authority. And if blunt is changed by the change in the guidelines, how is this different than the nature of just completing the crime of safe cracking and then taking the gun from that? How is that any different than what they said for burglary? The guideline amendment essentially defines the issue of in connection with out of existence in the context of burglary or how it only in the context of burglary
. It categorically declares that irrespective of the specific facts, if a firearm is taken during a burglary, then it is possessed in connection with the firearm offense. But it does not foreclose the rest of the blunt analysis in terms of what in connection with means. The blunt's determination that in connection with in this circuit has a more narrow meaning requires a much closer nexus between the firearm of the gun offense and whatever the object offense is. That remains intact. That is undisturbed by the guideline amendment. What is your point is it would have been a simple matter for the sensing commission to add larceny or theft offensive. That's what they wanted to accommodate. That would be my position because in the effect as I see it of the guideline amendment as it relates to burglary is to turn what was what had there to forebend. As I said a case specific factual determination into a categorical determination as it relates to burglary but that categorical determination does not go beyond burglary. Crimes of larceny, safe cracking are not within that are not within the context that's foreclosed by the amendment. Hence I mean clearly the sentencing commission could not overrule this courts of blunt ruling. It simply eclipsed the holding in blunt as it relates to burglary but in terms of the analytical underpinnings that get to that bring you to whether in a particular case a firearm is possessed in connection with another offense of crime
. The intention that the firearm could potentially have facilitated the offense in terms of in this case the facts are that you're client. Ahead the gun. Yes weapon. So there was an interim of time where potentially he could have run into somebody else and the situation could have escalated. Isn't that the kind of concern that we have with respect to firearms and facilitating for emboldening an actor to commit another offense. I think not you know but I think I think they're directly at odds with the kinds of scenarios that have that this court is shown concern for because because I think it's particularly instructive to note that in blunt the court identified examples of facts which although absent from that record had they been present might have might have led to a different result such as keeping the gun close and hand. Well here we have the very opposite the defendant here the gun in a remote location in Hampton you've got the defendant attempting to access the the firearm when he's being in the process of being arrested. If he had left the police officer went outside and gotten the computer to start the report and then your client decided that he was going to go back into the safe and take the hot the fire on which you didn't hit the backyard. What would have happened if as he is walking out of the way the safe was to take it the high of the backyard the police officer to come in and see him with the gun. At that case don't we have exactly the situation that Judge Dias made reference to in terms of how it ups the Annie in terms of the danger of the situation. Well if it if it didn't happen doesn't mean that it was not something that could forcibly happen and that's I think what we have to keep in mind isn't it. I think not you know I don't think that that these type of provisions which tend to clearly in the in the the preface to the analysis and blunt where the court notes that the objective of the purpose of this plus for adjustment is to ensure that greater punishment is imposed on people who engage in conduct with firearms that renders that makes the the the conduct more dangerous than it would otherwise have been in the absence of the file
. The scenario the hypothetical scenario that the court poses I think is because of this hypothetical nature is beyond the scope of what this adjustment is intended to reach because in fact I'm not aware of any case in which in which. Hypothetical facts facts that did not in fact exist but which might have existed resulted in the the sustaining the the imposition of this of this adjustment because when you look at the facts that actually occurred. They were. I would contend 180 degrees out of phase with the type of behavior that is intended to be addressed by this adjustment take hiding the gun placing it in a remote area. Not employing the gun in any fashion to address the police officer in fact not according to the evidence didn't even access the gun until after the police officer said already left after having spent several minutes in the presence of the officers with the safe open. The notion of facilitating escape or the possibility of a violent encounter well here he was in his own residence or at least a residence where he was. Staying with the permission of the own so none of those scenarios present themselves on the specific facts of this case so I would contend that to say that. The plus four adjustment applies here not because of anything that was actually done but but but because of what might have happened I think would be a departure from from the analytical. Presidents that that that that precedes they all blunt Hampton. Alvarado Perez and other cases even on published cases all turn on the facts of that specific case the the guideline amendment. Carves out categorically cars out an exception where the facts the specific facts don't matter as it relates to burglary but as in any other context in any context that's other than burglary where the facts are rendered irrelevant. Well maybe a bit of no statement but but where the facts are not the determining
. The facts are not despositive in any other context it is a purely factual determination and here the facts do not. Satisfied the requirements as laid down in blunt so your position is that blunt the the 14 B amendment notwithstanding the blunt remains good law. The respect to the facts of this case absolutely absolutely the analysis and the door which the government sites the safe circuit decision that essentially says if you're facilitating the offense of the firearm is the object of the offense that's just not. Under our under our standards in the core I think not because it and I think primarily because it is it is purely categorical in nature it is not fact specific and but I also think it's problematic because it's logically I think it rests on an invalid logical premise I don't think that the mere existence of a firearm can facilitate it's death anymore than the existence. The homicide victim can facilitate except that he didn't break into the safe just to get whatever was in there he broke into the safe to steal firearms and then to sell them that's what he said I think that I think that's not quite correct your own as I recall he broke into the safe to steal money finding none took a firearm with the intent of turning it into money here the his drug problem was really at the point. The core of this all this behavior and I think we actually call this brother is a witness at the sentencing here in the brother said the brother is the person who was called who was called saying I've got these guns what do I do with and rather than following his brother's advice he actually who suggested he called the owner apologize asked for forgiveness Mr. Laramon called the police and concocted this scenario so I see that my time is about up thank you. Mr. Cochran. Mr. Cochran. Mr
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