Legal Case Summary

Good morning. Good morning, Your Honor. Judge Jordan and I want to extend our thanks for the second day to Judge Karmett Lepez from the first circuit in Port of Appeals, who hails from Portland, Maine. We're happy to have him here and it's been a very, I don't say tough, sitting. We have a V9 argument scheduled for a two-day sitting, which is almost unheard of. So for making him earn his, his, the travel expense. Thank you. Thank you. It is a workout, but it's a great pleasure to be here. Thank you. All right, we'll call our first case of this session, United States versus Jones. Good morning, Your Honor. My name is Tom Patton. I represent the appellant, Mikael Jones. And I would like to request three minutes of rebuttal time please

. That's granted. The district court sentence in this case needs to be reversed for three reasons. First, the district court aired in finding that a Pennsylvania misdemeanor fleeing or alluding conviction categorically was a crime of violence. Second, the judge aired in finding that Mr. Jones committed an assault upon Officer O'Durgo when he ran away from Officer O'Durgo and Officer O'Durgo tackled Mr. Jones from behind. And finally, the judge committed procedural error by number one, presuming that the guideline range was the presumptively reasonable sentence. And number two, by failing to address a meritorious claim that we raised about the application of 3553A factors. Why don't we start with your assertion in the supplemental letter briefs about the camp? Is this Pennsylvania statute divisible and overbroad in the language of the camp? I believe it is divisible in the sense that you can divide the misdemeanor violation from the felony violation because to be guilty of the felony violation the state has to prove an additional element beyond a reasonable doubt. But he was convicted of the misdemeanor. That is correct. So in order to be divisible, it would have to be divisibility within that provision, isn't it? My point is simply it's overall it's divisible between the misdemeanor and the felony versions. I do not believe that the misdemeanor version itself is divisible within itself. So there should be no modified categorical approach here? I would agree

. Once you understand that he actually pled guilty to the misdemeanor offense and once it's understood that that is what he pled guilty to, then yeah, I don't think that there's any modified categorical approach. The misdemeanor offense, any driver of a motor vehicle who willfully fails or refuses to bring his vehicle to a stop or who otherwise flees or attempts to elude a pursuing police officer when given a visual and audible signal to bring the vehicle to a stop. Correct? That is correct. Now, under cikes, isn't it pretty clear from the standpoint of the Supreme Court that, as Justice Kennedy said, confrontation with police is the expected result of vehicle flight. It places property in persons at serious risk of injury. Risk of violence is inherent to vehicle flight. Isn't that kind of open and shut categorical approach that this is a crime of violence? It is not, Your Honor. Psyche specifically, Justice Kennedy in his opinion for the court, specifically with hell deciding whether or not there is a true lesser included offense, if the true lesser included offense could not be a crime of violence. Now, the government insights argue to the Supreme Court that it's true. Does he rely on that reasoning really? I mean, he rebutts a challenge that Psyche makes, but is that really holding of the case? Yes, they specifically say that the government would have them go further and find that when doing a categorical approach, it makes no difference if there is a lesser included offense. And then he says, we don't have to take that step here, so they do not. So, it's the right, we're in the space that was reserved, right? Correct. So, the question is, even though they didn't go that far because their case didn't call for it, does the language of the majority opinion not drive when the question is presented as it squarely is here, does the language of the majority opinion not drive to the same conclusion in this instance? That it doesn't matter, you know, you can call it a misdemeanor, you can call it a felony, you can call it Bob. It doesn't matter what you call it when you're in a car and you're trying to get away from the police, you put yourself, the police, and other people at risk

. That's the language of Psyche. That's the question that it does not drive your honor. And the reason is, is when any court applies the categorical approach, it is doing so based upon the elements of the statute before it. Because the categorical approach is all about what conduct violates the elements of the offense. So, what is there about what I read that doesn't fit with Psyche? Because in Pennsylvania, if the defendant engages in conduct, the language of the statute is, it is a law enforcement officer or a member of the general public due to the driver engaging in a high speed chase, which the Pennsylvania Superior Court, that's what makes it a felony, okay? We don't have that. You don't, but here's why Psyche doesn't control. As this court said in the United States versus Lewis, which it's an unpublished opinion, but it's an opinion we cite, where they were trying to decide whether an Ohio burglary was a crime of violence versus an aggravated burglary. The government made the same argument, said that we argued that burglary wasn't a crime of violence because under the particular Ohio statute in that case, if somebody was likely to be present, it was aggravated burglary. And Mr. Lewis was only convicted of burglary. The government argued doesn't make any difference, court. You shouldn't worry yourselves if there's aggravated burglary and just regular burglary. And this court said that no, that approach was wrong, that statutes don't exist in a vacuum, divorced from the overarching legislative scheme that they're a part of. True enough

. But we didn't have a Supreme Court opinion that says burglary is inherently risky and violent. Well, actually, burglars and an enumerated offense. And this court said that the way Ohio had defined burglary, the risk was less than an enumerated. And I understand that your argument is, if I've got it right, look, the Pennsylvania statute, the legislature in Pennsylvania, you chose to make the dividing line exactly along the risk line that the government and the district court want to ignore. That they've got a section, they've got a felony piece that deals with high risk, and then they've got the other. And he pled to the lesser, and that should control. But here's the question that I have when I'm more over that argument. First, I look at the language of the actual statute, which for the felony says it'll be the felony offense if you quote, if there's quote, endangering law enforcement officer or member of the general public due to the drivers engaging in a high speed chase. So the fact that a high speed chase will get you a felony doesn't that leave a whole lot of risky indeed substantially risky behavior underneath the felony picked up by the misdemeanor. It does not matter for this reason because it's a high speed chase or its safest can be. No, because when you're doing the categorical approach and deciding what conduct ordinarily satisfies the elements of the offense, you not only look at the statute, you look at the state court's interpretation of the statute in in Pennsylvania in in or a RCY, the Pennsylvania Superior Court said high speed chase is not a we're not interpreting that literally. We're saying any conduct that presents a risk beyond the run of the mill failure to stop violates the felony version in that case, the driver never went faster than 35 miles per hour. And they still the Superior Court said that is if that satisfies the elements of the felony because we don't care we're not looking at high speed as a literal term. We're looking at if it presents any risk beyond the routine failure to stop

. So when the different. So your suggestion is that because there's a Superior Court case interpreting this statutory section as reaching cases that might not be viewed in ordinary parlance as high speed. That that leaves that leaves the misdemeanor covering only no risk circumstances or risks that are comparatively relatively less than the enumerated offense offenses. Well, I mean the case actually says require a different level of danger from the run of the mill dangers posed. I mean it says okay there are dangers they're run of the mill dangers but they're dangers and then there's the different level of danger. Sure it posits that but there are run of the mill dangers. Every offense has dangers. The question in doing the interpreting the otherwise clauses is there is it a danger that is categorically or relatively the same as the arson burglary or use of the law. Is this the argument that was rejected by the majority in psychos? It's just Kagan just as Kagan makes a very persuasive case and sites in fact the kind of statute that you're telling us this statute is imagine it's nothing more than a failure to stop. There's no danger at all involved in it. We shouldn't be talking so broadly is the import of a message. The only reason that those folks in the majority are doing what they're doing is because Indiana happened to call it all a class D felony. But in the end that's the position that loses. The position that wins is the position that when you're talking about fleeing in a vehicle that involves a risk that we think the majority in the Supreme Court fits within the academic definition of violent felony

. Two things first with regard to when you say it's because there was a Pennsylvania interpretation of the statute you have to rely on that. The Supreme Court says you have to do that. They did that in the James case with Burgblow as aggravated burglary deciding what how much was this what substantial step was enough and deciding what was currently under Florida law. The second the Justice Kagan's descent made clear what the majority opinion made clear saying they were not deciding the issue that's in front of you today. Sikes does not control on that and that's true. That's a given. All we're trying to figure out is what is the import of Sikes or the case we've now got the import of Sikes is you look at the elements of the statute that's in front of you in the statute that was in front of the Supreme Court from Indiana treated all flights from law enforcement in a vehicle as a class D felony. Yes, but not all alike they had a gradation just the way this one's actually it wasn't when a vehicle when it was involved fleeing in a vehicle it was always a felony and that's why this that's why the Supreme Court shot down the argument always a felony but there were gradations that was the whole point of the argument. There's there's this kind of level of risk. There's this kind of level of risk. There's this kind of level of risk. I have like four levels of risk they ran through right. Right, but the key one was one subsection said that if you commit any of the violations in the one subsection in a manner that created a risk there were a class D felony but there was another subsection that said hey if you violate a three which was fleeing and you do it in a vehicle no matter what it's always a class D felony and so what the Supreme Court said is Indiana has made the determination with the way given the elements of their statute. The Indian has made the determination that any flight in a vehicle creates these risks of injury

. Aren't you fighting against all the circuits that have addressed this issue. I think the six the fourth, the eleventh have all said that even if there's an aggravated provision that involves you know endangered special endangerment. Yes, still the lower level is still a crime of violence. Yes. The sixth circuit that the statute of issue there the lesser included defense only was a lesser included fence or excuse me the aggravated defense was only if you created danger to the public. It didn't include creating a danger to the police officers and the fourth and the eleventh circuit cases both dealt with the same Florida statute that bumped it up the penalty if there was a high speed chase but Florida law actually required there be a real high speed chase. I do want to address the your lightest on and what if you wanted to address briefly your other. The aggravated assault your honors would simply say that for there to be the aggravated assault that the parties agree that you use a common law definition of assault which is the defendant either the crime is committed by either a willful attempts to inflict injury upon the person of another or by a threat to inflict injury upon the person of another which when coupled with an apparent present ability causes a reasonable apprehension of immediate by Lee harm here and that's the government claims it was the latter type. The problem with that is as we point out in the brief it has to be an intentional crime and there's no evidence that Mr. Jones was intending to try and put officer on Durkho in fear of being harmed with the gun in second officer on Durkho when you say there's no evidence of that. The judge made a fact finding after taking evidence that there was a deliberate attempt to draw the gun not consistent with throwing away but to draw the gun. Is it not within the district courts bear amput of discretion and fact finding capacity to look at that and say if you try to draw the gun and not to dispose of it that you do have an intent. You can make it inferences from the evidence certainly I don't believe the judge ever made a finding that I find the gun was drawn to be used. He simply said there are case laws that says in fact at the end of the first day where we took the testimony he pressed the prosecutors like where's the assault here I don't see the assault when we came back on the second day when he announced the sentence

. He never said I find that there was an assault here he just says there's case law that says if you have a gun while you're running from the police that can be enough unfortunately he was relying on a case that was involving reckless and danger and enhancement instead of the ag that is all but even if you find you can find the intent officer on Durkho was crystal clear that he never saw the gun. He said he saw Mr. Jones fumbling in his waistband but he didn't know what he was going for didn't see the gun and in fact when a step further and said if I had seen the gun or knew he had a gun I would not have tackled him. Who shot it out that he has a gun somebody shot it out officer Bainey shot it out it was kind of like simultaneous right that the thing was as on Durkho was tackling right. He heard somebody shout gun but he never saw the gun and didn't know if there was a gun. And so officer on Durkho who testified and the government had the opportunity to lay this out to say hey did you see the gun were you afraid that you were going to get harmed. Officer on Durkho was explanation for why he thought there was an aggravated assault was I was in the line of my job and I got hurt and I think that's an aggravated assault. Never said I was in fear that I was going to get shot I was in fear that he was going to use the gun against me and there just isn't any assault by threatening if the person who was supposedly threatened doesn't suffer the mental you know anguish of being put in fear of serious by Well what do we do with the district court judge is finding that as you and you've described it too that these things were happening in the same virtually simultaneously so that even though officer on Durkho doesn't see it and he and Mr. Jones should stop running into each other and chase it. There would be nice. As he's making his move against Mr. Jones his partner yells gun so you know he his test my may very well be I wouldn't I would have gone for the fly and tackle had I seen the gun but well I'm doing it I hear gun and I know he's reaching for something. Is there is there enough in that fact situation to say like the district were good enough. There is it your honor and the point I would make and it's a point I made it the district court it's not that you're saying you can't consider when you're imposing the sentence on Mr

. Jones that as he was running away from the police gun came out. This is a very specific massive enhancement under the guidelines that has a very specific requirements to it and so simply saying that you can't use hit him with the six level enhancement for aggravated assault doesn't mean that the fact that he ran and the fact that he had the gun doesn't get factored into the sentence so we're not you know it's not a one or the other. But your position is had had officer of the rainbow been able to say definitively I saw he wasn't running naturally he was reaching for something in his pants if he had said and I figured it was a gun. Six level enhancement if he sees the gun and says or just that I thought he had a gun and was pulling a gun out and. It was reasonable for him to think so yes that can be an assault because the assaults is a and if he hadn't seen it but he had heard his companions say gun before he launched the tackle that would be enough right because it's the perception that's your point it could have been but yeah because it is a subjective and in this we cite this and from Lafayve on substance of criminal law about mens ray and not just the mens ray it's that it's not just a man's ray it's not just a man's ray it's not just a man's ray it's not just a man's ray it's not just a man's ray it's not just a man's ray it's not just a man's ray it's not just a man's ray it's not just a man's ray it's not just a man's ray it's not just a man's ray it's not just a man's ray it's not just a man's ray it's not just a man's ray it's not just a man's ray it's not just a man's ray it's not enough of course to intend to scare without succeeding if the other fails to notice the threatened battery the threatener not having succeeded in his plan cannot be held guilty of assault so it's just not an assault and it doesn't mean that what Mr. Jones did is okay it just means it's not an assault so you don't get the six level enhancing. All right we'll hear from you. Thank you. May it please the court. My name is Mike Ivory I'm an assistant US attorney and I'm from Pittsburgh. Good morning, Your Honours. Good morning. I would like to address Mr. Patton's points in sequence

. First of all intentional vehicular flight is categorically a crime of violence under the sentencing guidelines. Secondly, what says that in the sentencing guidelines? I'm sorry Your Honour you say you say it's categorically a violent felony under the sentencing guidelines. I assume what you mean is the government's position is that's correct. Is the government's position in the guidelines? We didn't say it in the guidelines. I didn't see it. Well again we are dealing with a guideline issue here whether or not the Pennsylvania vehicular flight statute is a crime of violence under the sentencing guidelines. I believe psychs controls the disposition of this matter. The other courts to have addressed this particular case. The fourth six and 11 circuits have looked at statutes that are virtually identical to the Pennsylvania statute. There's only one way by which the Pennsylvania statute can be violated and then you have different predations of penalties. Basically what the pencil was that true and you know when you're in your answering brief you say the Pennsylvania offensive vehicular flight statute does not different any material respect from the Indiana fence of the Hiccup flight. But it seems like it it differs in one pretty dramatic way and that is Pennsylvania chooses to call the low risk form of it a misdemeanor and chooses to call the higher risk at felony and that's something that didn't happen in Indiana and that looks like in fact it was the dispositive point in psychs that's what the descent points out and it seems to be accurate that there's a because they were all equally weighted class the felonies in Indiana. The Supreme Court was going to treat them all like but here Pennsylvania's made a different choice. Is that not a material difference? No it's a distinction I think without a different your honor because there's only one way by which the Indiana statute can be violated as well as the Pennsylvania statute is violated. Whether it's the particular grade assigned with the legislature and whether certain types of flight are treated more severely the bottom line is as a categorical matter all forms of intentional vehicular flight are inherently risky. That's what the Supreme Court all forms of intentional vehicular flight are categorically crimes of violence because of the risk imposed. Well when you say that that's that is what they held your opposing counsel's made much of the fact and it is a fact that the Supreme Court said we're not talking about lesser because we don't have to talk about that and that's off the table and the descent is it pains the point out that that's not something that's being talked about. So when you say that's what sites holds it looks like sites exactly doesn't hold that because they leave the question open expressly. Sights how that all forms of intentional vehicular flight are comparable to the enumerated crimes of arson and burglary because and in fact even said that it's even more dangerous than burglary because the flight necessarily takes takes takes occurs within the presence of the police officers you can't have a vehicular flight without the police being present because a mere failure to stop involved a serious potential risk of physical injury intentional failure to stop will fulfill your to stop yes it's your honor so. But that's not what sites. Sights talks about flight and justice Caden categorizes the statute as a failure to stop and hours is especially fleeing and eluding basically fleas or attempts to elude police officer all there has to be a failure to stop before you can clear a mood your honor but maybe it is only a failure to stop. I don't think so but if you look at the pencil venue statute they have a firm of defenses that deal with the willfulness aspect of the crime but I think we might be getting too far a feel at that point I mean I think when you look at the different types of cases that have analyzed this issue post psychs that have looked at whether or not there are lesser included offenses they all use psychs more or less as a floor a floor that establishes that all forms of vehicular flight intentional vehicular flight. And then they pose a risk of danger and that therefore because of that risk they are crimes of violence and then they really don't have to address the different gradations of the penalties involved again the Florida statute and the Tennessee statute that have been analyzed post psychs have relied upon the basic the essence of psychs which is vehicular flight intentional vehicular flight is a crime of violence and whether or not there are positive statutes. The statute that said failure to stop a simple failure to stop is a misdemeanor anything beyond failure to stop a simple failure stop is a felony. Would the government's position be the same if Mr. Jones had been charged under that statute of failure to stop would you still be saying he's in a car the cars moving serious risk right there under psychs all over. What would the men's rate of for that particular statute be would it be a reckless a reckless failure to stop if it's a local failure to stop after being told by the police stop and you go and then sure that's inherent at the point of the failure to stop statute is somebody in authority told you to stop right so you can assume that so you're there there is there is a there's no set of statutory language that would take this out of crime of violence for the government because as long as a person is behind the way. So if you're in a wheel of a car your position is you got 6,000 pounds of metal around you your violent at least there's a potential for a risk of violence risk of danger which is what the Supreme Court did look at in sites so the short answer to your question is yes it would be a crime of violence

. Whether it's the particular grade assigned with the legislature and whether certain types of flight are treated more severely the bottom line is as a categorical matter all forms of intentional vehicular flight are inherently risky. That's what the Supreme Court all forms of intentional vehicular flight are categorically crimes of violence because of the risk imposed. Well when you say that that's that is what they held your opposing counsel's made much of the fact and it is a fact that the Supreme Court said we're not talking about lesser because we don't have to talk about that and that's off the table and the descent is it pains the point out that that's not something that's being talked about. So when you say that's what sites holds it looks like sites exactly doesn't hold that because they leave the question open expressly. Sights how that all forms of intentional vehicular flight are comparable to the enumerated crimes of arson and burglary because and in fact even said that it's even more dangerous than burglary because the flight necessarily takes takes takes occurs within the presence of the police officers you can't have a vehicular flight without the police being present because a mere failure to stop involved a serious potential risk of physical injury intentional failure to stop will fulfill your to stop yes it's your honor so. But that's not what sites. Sights talks about flight and justice Caden categorizes the statute as a failure to stop and hours is especially fleeing and eluding basically fleas or attempts to elude police officer all there has to be a failure to stop before you can clear a mood your honor but maybe it is only a failure to stop. I don't think so but if you look at the pencil venue statute they have a firm of defenses that deal with the willfulness aspect of the crime but I think we might be getting too far a feel at that point I mean I think when you look at the different types of cases that have analyzed this issue post psychs that have looked at whether or not there are lesser included offenses they all use psychs more or less as a floor a floor that establishes that all forms of vehicular flight intentional vehicular flight. And then they pose a risk of danger and that therefore because of that risk they are crimes of violence and then they really don't have to address the different gradations of the penalties involved again the Florida statute and the Tennessee statute that have been analyzed post psychs have relied upon the basic the essence of psychs which is vehicular flight intentional vehicular flight is a crime of violence and whether or not there are positive statutes. The statute that said failure to stop a simple failure to stop is a misdemeanor anything beyond failure to stop a simple failure stop is a felony. Would the government's position be the same if Mr. Jones had been charged under that statute of failure to stop would you still be saying he's in a car the cars moving serious risk right there under psychs all over. What would the men's rate of for that particular statute be would it be a reckless a reckless failure to stop if it's a local failure to stop after being told by the police stop and you go and then sure that's inherent at the point of the failure to stop statute is somebody in authority told you to stop right so you can assume that so you're there there is there is a there's no set of statutory language that would take this out of crime of violence for the government because as long as a person is behind the way. So if you're in a wheel of a car your position is you got 6,000 pounds of metal around you your violent at least there's a potential for a risk of violence risk of danger which is what the Supreme Court did look at in sites so the short answer to your question is yes it would be a crime of violence. So when Justice Kagan says the government the majority doesn't address a simple failure stop and I don't and I don't understand them to be even implying that that would be a risk of violence she doesn't understand the majority's what you're saying. I would never dare to say something like that your position is oh yes my position is that under the particular hypothetical that you asked your honor using sites as a benchmark yes that would constitute a crime of violence. Maybe we maybe the statute is divisible it says who willfully fails or refuses to bring his vehicle to a stop or who otherwise flees or attempts to elude a pursuing vehicle officer maybe we have two out of three here that are categorical. I I I I I crimes of violence where if you just fail or refuse to bring your vehicle to a stop I mean you can have to look at the river you mirror and not see the police and they get upset and charge you with with that but certainly by its nature isn't violent is it would we apply anything other than the categorical approach here. This this statute is I believe what under the cancel be indivisible so it would be the categorical approach that would apply there's only one way to violate the statute which is stop no go chase that's what does it and it says or that's that's correct it does but it's still the same the same mens rea it's not like the pencil being a simple assault statute with a different types of mens rea pertaining to different types of acts of the statute can be violated and mulch different ways there's only one way by which the statute can be violated I just don't understand that that's statement it's it says you just heard Judge Rendell read it to you you can fail to bring your vehicle to a stop or you can flee or you can attempt to elude a police officer. Those are those are are those not phrased in the disjunctive so that there's different ways that you can do this well I think what you have to look at is that there has to be a failure to bring the vehicle to a stop because when it says when you have any visual and audible signals to bring the vehicle to a stop and then any who will fully fails to do so or who otherwise flees are attempts to elude a pursuing a stop or a direct officer so clearly I think when you look upon it as there has to be a failure to stop the vehicle I mean that's a necessary factual predicate for all of this and then you just have different types of conduct not conduct but you just have a chase I mean well it doesn't say chase well that's correct. It's like touched on flight it also touched on attempts to elude capture doesn't really talk about the failure to stop the district court here. Talk looked at the conduct really did a modified approach here. Boy wasn't that as an alternate holding your honor I believe the defense argued that the modified categorical approach should have been utilized because the statute I believe the phrase was criminalized violent as well as non violent behavior. So the judge didn't actually say this is categorically he really did look at the conduct I think when you look at Judge McLaughlin's analysis especially with this reliance on this court's determination in the Jackson case as well as the oil case which specifically addresses the issue of gradation and lesser included offenses. This is holding can be determined that yes categorically this is a crime of violence but then as an alternate in the I believe Judge McLaughlin's words work you could also find it to be a crime of violence under the modified categorical approach so the judge actually reach the same determination by two different routes. Are you defending his application of the modified are you defending his application of the modified categorical approach that Frank this seems very difficult to defend. In light of the capture on her and I believe that the statute is indivisible the categorical approaches the way to to analyze this so under the camp the modified categorical approach cannot be applied to this. So we disagreed with your categorical approach argument we would have to reverse but we not

. So when Justice Kagan says the government the majority doesn't address a simple failure stop and I don't and I don't understand them to be even implying that that would be a risk of violence she doesn't understand the majority's what you're saying. I would never dare to say something like that your position is oh yes my position is that under the particular hypothetical that you asked your honor using sites as a benchmark yes that would constitute a crime of violence. Maybe we maybe the statute is divisible it says who willfully fails or refuses to bring his vehicle to a stop or who otherwise flees or attempts to elude a pursuing vehicle officer maybe we have two out of three here that are categorical. I I I I I crimes of violence where if you just fail or refuse to bring your vehicle to a stop I mean you can have to look at the river you mirror and not see the police and they get upset and charge you with with that but certainly by its nature isn't violent is it would we apply anything other than the categorical approach here. This this statute is I believe what under the cancel be indivisible so it would be the categorical approach that would apply there's only one way to violate the statute which is stop no go chase that's what does it and it says or that's that's correct it does but it's still the same the same mens rea it's not like the pencil being a simple assault statute with a different types of mens rea pertaining to different types of acts of the statute can be violated and mulch different ways there's only one way by which the statute can be violated I just don't understand that that's statement it's it says you just heard Judge Rendell read it to you you can fail to bring your vehicle to a stop or you can flee or you can attempt to elude a police officer. Those are those are are those not phrased in the disjunctive so that there's different ways that you can do this well I think what you have to look at is that there has to be a failure to bring the vehicle to a stop because when it says when you have any visual and audible signals to bring the vehicle to a stop and then any who will fully fails to do so or who otherwise flees are attempts to elude a pursuing a stop or a direct officer so clearly I think when you look upon it as there has to be a failure to stop the vehicle I mean that's a necessary factual predicate for all of this and then you just have different types of conduct not conduct but you just have a chase I mean well it doesn't say chase well that's correct. It's like touched on flight it also touched on attempts to elude capture doesn't really talk about the failure to stop the district court here. Talk looked at the conduct really did a modified approach here. Boy wasn't that as an alternate holding your honor I believe the defense argued that the modified categorical approach should have been utilized because the statute I believe the phrase was criminalized violent as well as non violent behavior. So the judge didn't actually say this is categorically he really did look at the conduct I think when you look at Judge McLaughlin's analysis especially with this reliance on this court's determination in the Jackson case as well as the oil case which specifically addresses the issue of gradation and lesser included offenses. This is holding can be determined that yes categorically this is a crime of violence but then as an alternate in the I believe Judge McLaughlin's words work you could also find it to be a crime of violence under the modified categorical approach so the judge actually reach the same determination by two different routes. Are you defending his application of the modified are you defending his application of the modified categorical approach that Frank this seems very difficult to defend. In light of the capture on her and I believe that the statute is indivisible the categorical approaches the way to to analyze this so under the camp the modified categorical approach cannot be applied to this. So we disagreed with your categorical approach argument we would have to reverse but we not. I hope you wouldn't but I think that is what the why is. But it would be harmless if we agree it would be harmless if you agreed and it wouldn't be error if we find that it's that it's divisible. Well right wouldn't have been error because he did the modified he did. He reached the same result through to the same two different routes that is correct. What about chambers here for a minute the lower courts and chambers sort of reason the long the lines that you know any what any failure to report is violent because the police might come get you sort of the same way you're reasoning that any failure to stop at all might end up with some violence and the Supreme Court said that work those things are not the same that failure work is not the same as alluding the rest of evading arrest. Does that does that have anything should that be a cautionary tale for courts of appeals who read too broadly what might be a crime of violence. Well I again I don't think there's any there's I don't think there's getting around sites which is different than chambers because you had to look at the they reference the enumerated crimes of burglary and arson to determine how dangerous flight is I don't believe that that analysis played a role in the chambers decision. Well the Supreme Court was by its terms dealing with the felonious of a vehicular flight statute so and and we are by the terms of the Pennsylvania statute dealing with the statute that does not have us looking strictly to felonious but it's got its categorized it. Well it's chosen to categorize it now you can say given the length of time you could serve under the guidelines that qualifies as a quote felony I'm not going to get into that that piece of the argument with you but since sites went out of its way to say we're not talking about that I ask you again this chambers caution against reading violent felony too broadly because the mere risk that there might be a competition with police was not enough and shame. So the fingers and the mere possibility that your failure to stop might cause harm isn't enough here. If we did a risk analysis of a failure for someone to report as opposed to someone who's operating 6,000 pounds of still down a highway with the police following them clearly there's a greater degree of danger involved with that and the police are necessarily always present when there's a failure to stop case. And when we look at the ordinary course which is what we're supposed to do invariably a lot of these incidents result in high speed chases are in chases where there is damage done to property. So if I as an ordinary citizen see the lights go on behind me. I don't pull over immediately maybe I see something on the side of the road that makes me uncomfortable about pulling over right there I travel another half mile before I pull over am I now a violent felon for purposes of the guidelines

. I hope you wouldn't but I think that is what the why is. But it would be harmless if we agree it would be harmless if you agreed and it wouldn't be error if we find that it's that it's divisible. Well right wouldn't have been error because he did the modified he did. He reached the same result through to the same two different routes that is correct. What about chambers here for a minute the lower courts and chambers sort of reason the long the lines that you know any what any failure to report is violent because the police might come get you sort of the same way you're reasoning that any failure to stop at all might end up with some violence and the Supreme Court said that work those things are not the same that failure work is not the same as alluding the rest of evading arrest. Does that does that have anything should that be a cautionary tale for courts of appeals who read too broadly what might be a crime of violence. Well I again I don't think there's any there's I don't think there's getting around sites which is different than chambers because you had to look at the they reference the enumerated crimes of burglary and arson to determine how dangerous flight is I don't believe that that analysis played a role in the chambers decision. Well the Supreme Court was by its terms dealing with the felonious of a vehicular flight statute so and and we are by the terms of the Pennsylvania statute dealing with the statute that does not have us looking strictly to felonious but it's got its categorized it. Well it's chosen to categorize it now you can say given the length of time you could serve under the guidelines that qualifies as a quote felony I'm not going to get into that that piece of the argument with you but since sites went out of its way to say we're not talking about that I ask you again this chambers caution against reading violent felony too broadly because the mere risk that there might be a competition with police was not enough and shame. So the fingers and the mere possibility that your failure to stop might cause harm isn't enough here. If we did a risk analysis of a failure for someone to report as opposed to someone who's operating 6,000 pounds of still down a highway with the police following them clearly there's a greater degree of danger involved with that and the police are necessarily always present when there's a failure to stop case. And when we look at the ordinary course which is what we're supposed to do invariably a lot of these incidents result in high speed chases are in chases where there is damage done to property. So if I as an ordinary citizen see the lights go on behind me. I don't pull over immediately maybe I see something on the side of the road that makes me uncomfortable about pulling over right there I travel another half mile before I pull over am I now a violent felon for purposes of the guidelines. It depends how well for you're being your honor. Again and how would and how would anybody ever know that well because noted on my conviction if we if it wasn't really very willful well if you look at the Pennsylvania stats that there was an affirmative defense and affirmative defense that says you know if there are if it can be shown by proponents of evidence that the failure to stop immediately for police officer car was based upon a good faith concern for personal safety. And you can look into the term whether the time and location of the event what type of police vehicle was being used say in your high. It's a plea right like a like 99% of these things you're going to plead to the misdemeanor or you're going to come in and fight it on affirmative defense I plea I'm out I'm done. But now I'm a violent felon. I'm a very bad guy. I'm a very bad guy. I'm a very bad guy. I'm a very bad guy. I'm a very bad guy. I'm a very bad guy. I'm a very bad guy. I'm a very bad guy. I'm a very bad guy

. It depends how well for you're being your honor. Again and how would and how would anybody ever know that well because noted on my conviction if we if it wasn't really very willful well if you look at the Pennsylvania stats that there was an affirmative defense and affirmative defense that says you know if there are if it can be shown by proponents of evidence that the failure to stop immediately for police officer car was based upon a good faith concern for personal safety. And you can look into the term whether the time and location of the event what type of police vehicle was being used say in your high. It's a plea right like a like 99% of these things you're going to plead to the misdemeanor or you're going to come in and fight it on affirmative defense I plea I'm out I'm done. But now I'm a violent felon. I'm a very bad guy. I'm a very bad guy. I'm a very bad guy. I'm a very bad guy. I'm a very bad guy. I'm a very bad guy. I'm a very bad guy. I'm a very bad guy. I'm a very bad guy. I'm a very bad guy. I'm a very bad guy. I'm a very bad guy. I'm a very bad guy. I'm a very bad guy. I'm a very bad guy. I'm a very bad guy. I'm a very bad guy. I'm a very bad guy. I'm a very bad guy. I'm a very bad guy. As a defendant, you have reason to know that that's been a conspire in the police officers. I mean, it's it's it's it's a person is the question though not what you have reason to know. But also what the police officer knows because that seems to be the argument that's pushed on us most aggressively is that officer

. I'm a very bad guy. I'm a very bad guy. I'm a very bad guy. I'm a very bad guy. I'm a very bad guy. I'm a very bad guy. I'm a very bad guy. I'm a very bad guy. I'm a very bad guy. I'm a very bad guy. I'm a very bad guy. As a defendant, you have reason to know that that's been a conspire in the police officers. I mean, it's it's it's it's a person is the question though not what you have reason to know. But also what the police officer knows because that seems to be the argument that's pushed on us most aggressively is that officer. Derrick, he didn't see a thing, but he didn't know what was going on. Common law common law assault recognizes two types of common law assault. There's attempted battery where you don't even as the victim have to know that someone is trying to batterize you. Secondly, there is conduct. I guess menacing is the the term of art that they use and it's conduct that is intended to cause the victim to fear immediate bodily harm. The actions the purpose are to either cause fear are that you as the defendant have an awareness that the actions will cause fear. Producing a gun, drawing a gun during a foot chase. He's not in this case he had apple opportunity during the early parts of the foot chase to throw the weapon away. Okay, he does not draw the gun until officer Bainey starts to approach him with in Derrick, closing from behind. And then you have the simultaneous warning given and then you have the tackle by in Derrick. So, you know, maybe in Derrick though did not specifically see a gun, but officer Bainey did. And Mr. Jones did not produce that weapon, draw that weapon until Bainey approaches him. So that's a sort of conduct and I don't think that there's any procedural area in this case either

. Derrick, he didn't see a thing, but he didn't know what was going on. Common law common law assault recognizes two types of common law assault. There's attempted battery where you don't even as the victim have to know that someone is trying to batterize you. Secondly, there is conduct. I guess menacing is the the term of art that they use and it's conduct that is intended to cause the victim to fear immediate bodily harm. The actions the purpose are to either cause fear are that you as the defendant have an awareness that the actions will cause fear. Producing a gun, drawing a gun during a foot chase. He's not in this case he had apple opportunity during the early parts of the foot chase to throw the weapon away. Okay, he does not draw the gun until officer Bainey starts to approach him with in Derrick, closing from behind. And then you have the simultaneous warning given and then you have the tackle by in Derrick. So, you know, maybe in Derrick though did not specifically see a gun, but officer Bainey did. And Mr. Jones did not produce that weapon, draw that weapon until Bainey approaches him. So that's a sort of conduct and I don't think that there's any procedural area in this case either. Judge MacOcclin specifically asked Mr. Patton several times what is the basis for the variance the judge retired the chambers for approximately half an hour came out and said I've given this considerable thought. And I don't think bless you that a variance is not warranted in this case. So I think in all three grounds that this court should affirm the judgment of conviction sentence below. Thank you. Thank you, Your Honours. If you would be inclined to hold it and fleeing and eluding is divisible because it sets out either failure to stop or flees or attempts to elude. The Pennsylvania Superior Court in Commonwealth versus Cateau and this is on page 34 of our merits brief our opening brief says that the elements of the misdemeanor version of 30 of the fleeing and eluding is quote an operator's willful failure to bring his or her vehicle to a stop in the face of an audibly or visually identifiable police officer signal to do so. So just failure to stop and again on page 34 of our brief is the factual basis of Mr. Jones is guilty plea to the fleeing and eluding count in that factual basis was in this case on February 16th of 2008 you fail to bring your vehicle to a stop when you were being pursued by officer Ryan and her co of the Eerie police department that was on February 16th of 2008 at West 38 and Liberty streets in the city of Erie that constitutes the crime of fleeing or attempting to elude a police officer. So it was clearly what he pled to was failing to stop that is what he admitted to that the elements that he admitted to. I do think chambers is a cautionary tale of trying going too far with the hypotheticals of what all bad things could happen. And in fact in this case in this court after the chamber's response to Mr. Ivory's point which is in chambers it's not always the case that they were just going to put you into conflict with the police but a failure to stop by definition will have you in conflict with the police because by definition they're there giving you a command and you're failing to obey it that is a conflict it's inherent

. Judge MacOcclin specifically asked Mr. Patton several times what is the basis for the variance the judge retired the chambers for approximately half an hour came out and said I've given this considerable thought. And I don't think bless you that a variance is not warranted in this case. So I think in all three grounds that this court should affirm the judgment of conviction sentence below. Thank you. Thank you, Your Honours. If you would be inclined to hold it and fleeing and eluding is divisible because it sets out either failure to stop or flees or attempts to elude. The Pennsylvania Superior Court in Commonwealth versus Cateau and this is on page 34 of our merits brief our opening brief says that the elements of the misdemeanor version of 30 of the fleeing and eluding is quote an operator's willful failure to bring his or her vehicle to a stop in the face of an audibly or visually identifiable police officer signal to do so. So just failure to stop and again on page 34 of our brief is the factual basis of Mr. Jones is guilty plea to the fleeing and eluding count in that factual basis was in this case on February 16th of 2008 you fail to bring your vehicle to a stop when you were being pursued by officer Ryan and her co of the Eerie police department that was on February 16th of 2008 at West 38 and Liberty streets in the city of Erie that constitutes the crime of fleeing or attempting to elude a police officer. So it was clearly what he pled to was failing to stop that is what he admitted to that the elements that he admitted to. I do think chambers is a cautionary tale of trying going too far with the hypotheticals of what all bad things could happen. And in fact in this case in this court after the chamber's response to Mr. Ivory's point which is in chambers it's not always the case that they were just going to put you into conflict with the police but a failure to stop by definition will have you in conflict with the police because by definition they're there giving you a command and you're failing to obey it that is a conflict it's inherent. I would cite the United States versus Hopkins which was this court ruling that Pennsylvania's escape misdemeanor escape conviction was not a crime of violence following chambers. And in that case officers went to a with an arrest warrant went to arrest the defendant for a misdemeanor offense and under Pennsylvania law once you are confronted by the police what they warrant you are considered to be in custody for purposes of the escape statute he ran and was taken into custody. This court found that the escape was not a crime of violence because Pennsylvania graded escape as a misdemeanor but it was a felony if the actor employed force threat deadly weapon or other dangerous instrumentality to affect the escape. And they said this defendant was found guilty of the misdemeanor escape which meant that he was only being apprehended for a misdemeanor and it means he did not use threat or employed force threat or deadly weapon. And so they found that that the misdemeanor violation of the escape was conduct materially less violent and aggressive than the numerator of the fancy. Is that really relevant though when what we're talking about here involves a vehicle and the big existence of the vehicle and the special danger posed by a vehicle seems to weigh so heavily in the Supreme Court's discussion. The last thing I guess that I would like to leave on the fleeing and eluding is the idea that if you find that a Pennsylvania misdemeanor is a crime of violence what you'll be saying is that even though the state legislature and the state courts have said what separates a misdemeanor fleeing and eluding from a felony is if you if the defendant engages in conduct that puts the public or the police anybody in danger beyond a run of the mill failing to separate the state court. So you're going to stop and you'd be saying that even though that's what distinguishes those two the misdemeanor still presents a serious potential risk of physical injury to another. And I just think that's pretty in Congress that you would find that the misdemeanor version would present that risk when the Pennsylvania court said in the ordinary case that's the felony version. On the aggravated assault that would like to point out that the government has never argued that officer Bainey was the victim of the assault. They did not argue that in the district court. They didn't argue that in their briefs to this court. And so I would say they have waived any type of argument that somehow Bainey was the officer who was assaulted. They have always said that on Dirtle was the officer that was assaulted

. I would cite the United States versus Hopkins which was this court ruling that Pennsylvania's escape misdemeanor escape conviction was not a crime of violence following chambers. And in that case officers went to a with an arrest warrant went to arrest the defendant for a misdemeanor offense and under Pennsylvania law once you are confronted by the police what they warrant you are considered to be in custody for purposes of the escape statute he ran and was taken into custody. This court found that the escape was not a crime of violence because Pennsylvania graded escape as a misdemeanor but it was a felony if the actor employed force threat deadly weapon or other dangerous instrumentality to affect the escape. And they said this defendant was found guilty of the misdemeanor escape which meant that he was only being apprehended for a misdemeanor and it means he did not use threat or employed force threat or deadly weapon. And so they found that that the misdemeanor violation of the escape was conduct materially less violent and aggressive than the numerator of the fancy. Is that really relevant though when what we're talking about here involves a vehicle and the big existence of the vehicle and the special danger posed by a vehicle seems to weigh so heavily in the Supreme Court's discussion. The last thing I guess that I would like to leave on the fleeing and eluding is the idea that if you find that a Pennsylvania misdemeanor is a crime of violence what you'll be saying is that even though the state legislature and the state courts have said what separates a misdemeanor fleeing and eluding from a felony is if you if the defendant engages in conduct that puts the public or the police anybody in danger beyond a run of the mill failing to separate the state court. So you're going to stop and you'd be saying that even though that's what distinguishes those two the misdemeanor still presents a serious potential risk of physical injury to another. And I just think that's pretty in Congress that you would find that the misdemeanor version would present that risk when the Pennsylvania court said in the ordinary case that's the felony version. On the aggravated assault that would like to point out that the government has never argued that officer Bainey was the victim of the assault. They did not argue that in the district court. They didn't argue that in their briefs to this court. And so I would say they have waived any type of argument that somehow Bainey was the officer who was assaulted. They have always said that on Dirtle was the officer that was assaulted. Thank you. Thank you. Thank you.

Good morning. Good morning, Your Honor. Judge Jordan and I want to extend our thanks for the second day to Judge Karmett Lepez from the first circuit in Port of Appeals, who hails from Portland, Maine. We're happy to have him here and it's been a very, I don't say tough, sitting. We have a V9 argument scheduled for a two-day sitting, which is almost unheard of. So for making him earn his, his, the travel expense. Thank you. Thank you. It is a workout, but it's a great pleasure to be here. Thank you. All right, we'll call our first case of this session, United States versus Jones. Good morning, Your Honor. My name is Tom Patton. I represent the appellant, Mikael Jones. And I would like to request three minutes of rebuttal time please. That's granted. The district court sentence in this case needs to be reversed for three reasons. First, the district court aired in finding that a Pennsylvania misdemeanor fleeing or alluding conviction categorically was a crime of violence. Second, the judge aired in finding that Mr. Jones committed an assault upon Officer O'Durgo when he ran away from Officer O'Durgo and Officer O'Durgo tackled Mr. Jones from behind. And finally, the judge committed procedural error by number one, presuming that the guideline range was the presumptively reasonable sentence. And number two, by failing to address a meritorious claim that we raised about the application of 3553A factors. Why don't we start with your assertion in the supplemental letter briefs about the camp? Is this Pennsylvania statute divisible and overbroad in the language of the camp? I believe it is divisible in the sense that you can divide the misdemeanor violation from the felony violation because to be guilty of the felony violation the state has to prove an additional element beyond a reasonable doubt. But he was convicted of the misdemeanor. That is correct. So in order to be divisible, it would have to be divisibility within that provision, isn't it? My point is simply it's overall it's divisible between the misdemeanor and the felony versions. I do not believe that the misdemeanor version itself is divisible within itself. So there should be no modified categorical approach here? I would agree. Once you understand that he actually pled guilty to the misdemeanor offense and once it's understood that that is what he pled guilty to, then yeah, I don't think that there's any modified categorical approach. The misdemeanor offense, any driver of a motor vehicle who willfully fails or refuses to bring his vehicle to a stop or who otherwise flees or attempts to elude a pursuing police officer when given a visual and audible signal to bring the vehicle to a stop. Correct? That is correct. Now, under cikes, isn't it pretty clear from the standpoint of the Supreme Court that, as Justice Kennedy said, confrontation with police is the expected result of vehicle flight. It places property in persons at serious risk of injury. Risk of violence is inherent to vehicle flight. Isn't that kind of open and shut categorical approach that this is a crime of violence? It is not, Your Honor. Psyche specifically, Justice Kennedy in his opinion for the court, specifically with hell deciding whether or not there is a true lesser included offense, if the true lesser included offense could not be a crime of violence. Now, the government insights argue to the Supreme Court that it's true. Does he rely on that reasoning really? I mean, he rebutts a challenge that Psyche makes, but is that really holding of the case? Yes, they specifically say that the government would have them go further and find that when doing a categorical approach, it makes no difference if there is a lesser included offense. And then he says, we don't have to take that step here, so they do not. So, it's the right, we're in the space that was reserved, right? Correct. So, the question is, even though they didn't go that far because their case didn't call for it, does the language of the majority opinion not drive when the question is presented as it squarely is here, does the language of the majority opinion not drive to the same conclusion in this instance? That it doesn't matter, you know, you can call it a misdemeanor, you can call it a felony, you can call it Bob. It doesn't matter what you call it when you're in a car and you're trying to get away from the police, you put yourself, the police, and other people at risk. That's the language of Psyche. That's the question that it does not drive your honor. And the reason is, is when any court applies the categorical approach, it is doing so based upon the elements of the statute before it. Because the categorical approach is all about what conduct violates the elements of the offense. So, what is there about what I read that doesn't fit with Psyche? Because in Pennsylvania, if the defendant engages in conduct, the language of the statute is, it is a law enforcement officer or a member of the general public due to the driver engaging in a high speed chase, which the Pennsylvania Superior Court, that's what makes it a felony, okay? We don't have that. You don't, but here's why Psyche doesn't control. As this court said in the United States versus Lewis, which it's an unpublished opinion, but it's an opinion we cite, where they were trying to decide whether an Ohio burglary was a crime of violence versus an aggravated burglary. The government made the same argument, said that we argued that burglary wasn't a crime of violence because under the particular Ohio statute in that case, if somebody was likely to be present, it was aggravated burglary. And Mr. Lewis was only convicted of burglary. The government argued doesn't make any difference, court. You shouldn't worry yourselves if there's aggravated burglary and just regular burglary. And this court said that no, that approach was wrong, that statutes don't exist in a vacuum, divorced from the overarching legislative scheme that they're a part of. True enough. But we didn't have a Supreme Court opinion that says burglary is inherently risky and violent. Well, actually, burglars and an enumerated offense. And this court said that the way Ohio had defined burglary, the risk was less than an enumerated. And I understand that your argument is, if I've got it right, look, the Pennsylvania statute, the legislature in Pennsylvania, you chose to make the dividing line exactly along the risk line that the government and the district court want to ignore. That they've got a section, they've got a felony piece that deals with high risk, and then they've got the other. And he pled to the lesser, and that should control. But here's the question that I have when I'm more over that argument. First, I look at the language of the actual statute, which for the felony says it'll be the felony offense if you quote, if there's quote, endangering law enforcement officer or member of the general public due to the drivers engaging in a high speed chase. So the fact that a high speed chase will get you a felony doesn't that leave a whole lot of risky indeed substantially risky behavior underneath the felony picked up by the misdemeanor. It does not matter for this reason because it's a high speed chase or its safest can be. No, because when you're doing the categorical approach and deciding what conduct ordinarily satisfies the elements of the offense, you not only look at the statute, you look at the state court's interpretation of the statute in in Pennsylvania in in or a RCY, the Pennsylvania Superior Court said high speed chase is not a we're not interpreting that literally. We're saying any conduct that presents a risk beyond the run of the mill failure to stop violates the felony version in that case, the driver never went faster than 35 miles per hour. And they still the Superior Court said that is if that satisfies the elements of the felony because we don't care we're not looking at high speed as a literal term. We're looking at if it presents any risk beyond the routine failure to stop. So when the different. So your suggestion is that because there's a Superior Court case interpreting this statutory section as reaching cases that might not be viewed in ordinary parlance as high speed. That that leaves that leaves the misdemeanor covering only no risk circumstances or risks that are comparatively relatively less than the enumerated offense offenses. Well, I mean the case actually says require a different level of danger from the run of the mill dangers posed. I mean it says okay there are dangers they're run of the mill dangers but they're dangers and then there's the different level of danger. Sure it posits that but there are run of the mill dangers. Every offense has dangers. The question in doing the interpreting the otherwise clauses is there is it a danger that is categorically or relatively the same as the arson burglary or use of the law. Is this the argument that was rejected by the majority in psychos? It's just Kagan just as Kagan makes a very persuasive case and sites in fact the kind of statute that you're telling us this statute is imagine it's nothing more than a failure to stop. There's no danger at all involved in it. We shouldn't be talking so broadly is the import of a message. The only reason that those folks in the majority are doing what they're doing is because Indiana happened to call it all a class D felony. But in the end that's the position that loses. The position that wins is the position that when you're talking about fleeing in a vehicle that involves a risk that we think the majority in the Supreme Court fits within the academic definition of violent felony. Two things first with regard to when you say it's because there was a Pennsylvania interpretation of the statute you have to rely on that. The Supreme Court says you have to do that. They did that in the James case with Burgblow as aggravated burglary deciding what how much was this what substantial step was enough and deciding what was currently under Florida law. The second the Justice Kagan's descent made clear what the majority opinion made clear saying they were not deciding the issue that's in front of you today. Sikes does not control on that and that's true. That's a given. All we're trying to figure out is what is the import of Sikes or the case we've now got the import of Sikes is you look at the elements of the statute that's in front of you in the statute that was in front of the Supreme Court from Indiana treated all flights from law enforcement in a vehicle as a class D felony. Yes, but not all alike they had a gradation just the way this one's actually it wasn't when a vehicle when it was involved fleeing in a vehicle it was always a felony and that's why this that's why the Supreme Court shot down the argument always a felony but there were gradations that was the whole point of the argument. There's there's this kind of level of risk. There's this kind of level of risk. There's this kind of level of risk. I have like four levels of risk they ran through right. Right, but the key one was one subsection said that if you commit any of the violations in the one subsection in a manner that created a risk there were a class D felony but there was another subsection that said hey if you violate a three which was fleeing and you do it in a vehicle no matter what it's always a class D felony and so what the Supreme Court said is Indiana has made the determination with the way given the elements of their statute. The Indian has made the determination that any flight in a vehicle creates these risks of injury. Aren't you fighting against all the circuits that have addressed this issue. I think the six the fourth, the eleventh have all said that even if there's an aggravated provision that involves you know endangered special endangerment. Yes, still the lower level is still a crime of violence. Yes. The sixth circuit that the statute of issue there the lesser included defense only was a lesser included fence or excuse me the aggravated defense was only if you created danger to the public. It didn't include creating a danger to the police officers and the fourth and the eleventh circuit cases both dealt with the same Florida statute that bumped it up the penalty if there was a high speed chase but Florida law actually required there be a real high speed chase. I do want to address the your lightest on and what if you wanted to address briefly your other. The aggravated assault your honors would simply say that for there to be the aggravated assault that the parties agree that you use a common law definition of assault which is the defendant either the crime is committed by either a willful attempts to inflict injury upon the person of another or by a threat to inflict injury upon the person of another which when coupled with an apparent present ability causes a reasonable apprehension of immediate by Lee harm here and that's the government claims it was the latter type. The problem with that is as we point out in the brief it has to be an intentional crime and there's no evidence that Mr. Jones was intending to try and put officer on Durkho in fear of being harmed with the gun in second officer on Durkho when you say there's no evidence of that. The judge made a fact finding after taking evidence that there was a deliberate attempt to draw the gun not consistent with throwing away but to draw the gun. Is it not within the district courts bear amput of discretion and fact finding capacity to look at that and say if you try to draw the gun and not to dispose of it that you do have an intent. You can make it inferences from the evidence certainly I don't believe the judge ever made a finding that I find the gun was drawn to be used. He simply said there are case laws that says in fact at the end of the first day where we took the testimony he pressed the prosecutors like where's the assault here I don't see the assault when we came back on the second day when he announced the sentence. He never said I find that there was an assault here he just says there's case law that says if you have a gun while you're running from the police that can be enough unfortunately he was relying on a case that was involving reckless and danger and enhancement instead of the ag that is all but even if you find you can find the intent officer on Durkho was crystal clear that he never saw the gun. He said he saw Mr. Jones fumbling in his waistband but he didn't know what he was going for didn't see the gun and in fact when a step further and said if I had seen the gun or knew he had a gun I would not have tackled him. Who shot it out that he has a gun somebody shot it out officer Bainey shot it out it was kind of like simultaneous right that the thing was as on Durkho was tackling right. He heard somebody shout gun but he never saw the gun and didn't know if there was a gun. And so officer on Durkho who testified and the government had the opportunity to lay this out to say hey did you see the gun were you afraid that you were going to get harmed. Officer on Durkho was explanation for why he thought there was an aggravated assault was I was in the line of my job and I got hurt and I think that's an aggravated assault. Never said I was in fear that I was going to get shot I was in fear that he was going to use the gun against me and there just isn't any assault by threatening if the person who was supposedly threatened doesn't suffer the mental you know anguish of being put in fear of serious by Well what do we do with the district court judge is finding that as you and you've described it too that these things were happening in the same virtually simultaneously so that even though officer on Durkho doesn't see it and he and Mr. Jones should stop running into each other and chase it. There would be nice. As he's making his move against Mr. Jones his partner yells gun so you know he his test my may very well be I wouldn't I would have gone for the fly and tackle had I seen the gun but well I'm doing it I hear gun and I know he's reaching for something. Is there is there enough in that fact situation to say like the district were good enough. There is it your honor and the point I would make and it's a point I made it the district court it's not that you're saying you can't consider when you're imposing the sentence on Mr. Jones that as he was running away from the police gun came out. This is a very specific massive enhancement under the guidelines that has a very specific requirements to it and so simply saying that you can't use hit him with the six level enhancement for aggravated assault doesn't mean that the fact that he ran and the fact that he had the gun doesn't get factored into the sentence so we're not you know it's not a one or the other. But your position is had had officer of the rainbow been able to say definitively I saw he wasn't running naturally he was reaching for something in his pants if he had said and I figured it was a gun. Six level enhancement if he sees the gun and says or just that I thought he had a gun and was pulling a gun out and. It was reasonable for him to think so yes that can be an assault because the assaults is a and if he hadn't seen it but he had heard his companions say gun before he launched the tackle that would be enough right because it's the perception that's your point it could have been but yeah because it is a subjective and in this we cite this and from Lafayve on substance of criminal law about mens ray and not just the mens ray it's that it's not just a man's ray it's not just a man's ray it's not just a man's ray it's not just a man's ray it's not just a man's ray it's not just a man's ray it's not just a man's ray it's not just a man's ray it's not just a man's ray it's not just a man's ray it's not just a man's ray it's not just a man's ray it's not just a man's ray it's not just a man's ray it's not just a man's ray it's not just a man's ray it's not enough of course to intend to scare without succeeding if the other fails to notice the threatened battery the threatener not having succeeded in his plan cannot be held guilty of assault so it's just not an assault and it doesn't mean that what Mr. Jones did is okay it just means it's not an assault so you don't get the six level enhancing. All right we'll hear from you. Thank you. May it please the court. My name is Mike Ivory I'm an assistant US attorney and I'm from Pittsburgh. Good morning, Your Honours. Good morning. I would like to address Mr. Patton's points in sequence. First of all intentional vehicular flight is categorically a crime of violence under the sentencing guidelines. Secondly, what says that in the sentencing guidelines? I'm sorry Your Honour you say you say it's categorically a violent felony under the sentencing guidelines. I assume what you mean is the government's position is that's correct. Is the government's position in the guidelines? We didn't say it in the guidelines. I didn't see it. Well again we are dealing with a guideline issue here whether or not the Pennsylvania vehicular flight statute is a crime of violence under the sentencing guidelines. I believe psychs controls the disposition of this matter. The other courts to have addressed this particular case. The fourth six and 11 circuits have looked at statutes that are virtually identical to the Pennsylvania statute. There's only one way by which the Pennsylvania statute can be violated and then you have different predations of penalties. Basically what the pencil was that true and you know when you're in your answering brief you say the Pennsylvania offensive vehicular flight statute does not different any material respect from the Indiana fence of the Hiccup flight. But it seems like it it differs in one pretty dramatic way and that is Pennsylvania chooses to call the low risk form of it a misdemeanor and chooses to call the higher risk at felony and that's something that didn't happen in Indiana and that looks like in fact it was the dispositive point in psychs that's what the descent points out and it seems to be accurate that there's a because they were all equally weighted class the felonies in Indiana. The Supreme Court was going to treat them all like but here Pennsylvania's made a different choice. Is that not a material difference? No it's a distinction I think without a different your honor because there's only one way by which the Indiana statute can be violated as well as the Pennsylvania statute is violated. Whether it's the particular grade assigned with the legislature and whether certain types of flight are treated more severely the bottom line is as a categorical matter all forms of intentional vehicular flight are inherently risky. That's what the Supreme Court all forms of intentional vehicular flight are categorically crimes of violence because of the risk imposed. Well when you say that that's that is what they held your opposing counsel's made much of the fact and it is a fact that the Supreme Court said we're not talking about lesser because we don't have to talk about that and that's off the table and the descent is it pains the point out that that's not something that's being talked about. So when you say that's what sites holds it looks like sites exactly doesn't hold that because they leave the question open expressly. Sights how that all forms of intentional vehicular flight are comparable to the enumerated crimes of arson and burglary because and in fact even said that it's even more dangerous than burglary because the flight necessarily takes takes takes occurs within the presence of the police officers you can't have a vehicular flight without the police being present because a mere failure to stop involved a serious potential risk of physical injury intentional failure to stop will fulfill your to stop yes it's your honor so. But that's not what sites. Sights talks about flight and justice Caden categorizes the statute as a failure to stop and hours is especially fleeing and eluding basically fleas or attempts to elude police officer all there has to be a failure to stop before you can clear a mood your honor but maybe it is only a failure to stop. I don't think so but if you look at the pencil venue statute they have a firm of defenses that deal with the willfulness aspect of the crime but I think we might be getting too far a feel at that point I mean I think when you look at the different types of cases that have analyzed this issue post psychs that have looked at whether or not there are lesser included offenses they all use psychs more or less as a floor a floor that establishes that all forms of vehicular flight intentional vehicular flight. And then they pose a risk of danger and that therefore because of that risk they are crimes of violence and then they really don't have to address the different gradations of the penalties involved again the Florida statute and the Tennessee statute that have been analyzed post psychs have relied upon the basic the essence of psychs which is vehicular flight intentional vehicular flight is a crime of violence and whether or not there are positive statutes. The statute that said failure to stop a simple failure to stop is a misdemeanor anything beyond failure to stop a simple failure stop is a felony. Would the government's position be the same if Mr. Jones had been charged under that statute of failure to stop would you still be saying he's in a car the cars moving serious risk right there under psychs all over. What would the men's rate of for that particular statute be would it be a reckless a reckless failure to stop if it's a local failure to stop after being told by the police stop and you go and then sure that's inherent at the point of the failure to stop statute is somebody in authority told you to stop right so you can assume that so you're there there is there is a there's no set of statutory language that would take this out of crime of violence for the government because as long as a person is behind the way. So if you're in a wheel of a car your position is you got 6,000 pounds of metal around you your violent at least there's a potential for a risk of violence risk of danger which is what the Supreme Court did look at in sites so the short answer to your question is yes it would be a crime of violence. So when Justice Kagan says the government the majority doesn't address a simple failure stop and I don't and I don't understand them to be even implying that that would be a risk of violence she doesn't understand the majority's what you're saying. I would never dare to say something like that your position is oh yes my position is that under the particular hypothetical that you asked your honor using sites as a benchmark yes that would constitute a crime of violence. Maybe we maybe the statute is divisible it says who willfully fails or refuses to bring his vehicle to a stop or who otherwise flees or attempts to elude a pursuing vehicle officer maybe we have two out of three here that are categorical. I I I I I crimes of violence where if you just fail or refuse to bring your vehicle to a stop I mean you can have to look at the river you mirror and not see the police and they get upset and charge you with with that but certainly by its nature isn't violent is it would we apply anything other than the categorical approach here. This this statute is I believe what under the cancel be indivisible so it would be the categorical approach that would apply there's only one way to violate the statute which is stop no go chase that's what does it and it says or that's that's correct it does but it's still the same the same mens rea it's not like the pencil being a simple assault statute with a different types of mens rea pertaining to different types of acts of the statute can be violated and mulch different ways there's only one way by which the statute can be violated I just don't understand that that's statement it's it says you just heard Judge Rendell read it to you you can fail to bring your vehicle to a stop or you can flee or you can attempt to elude a police officer. Those are those are are those not phrased in the disjunctive so that there's different ways that you can do this well I think what you have to look at is that there has to be a failure to bring the vehicle to a stop because when it says when you have any visual and audible signals to bring the vehicle to a stop and then any who will fully fails to do so or who otherwise flees are attempts to elude a pursuing a stop or a direct officer so clearly I think when you look upon it as there has to be a failure to stop the vehicle I mean that's a necessary factual predicate for all of this and then you just have different types of conduct not conduct but you just have a chase I mean well it doesn't say chase well that's correct. It's like touched on flight it also touched on attempts to elude capture doesn't really talk about the failure to stop the district court here. Talk looked at the conduct really did a modified approach here. Boy wasn't that as an alternate holding your honor I believe the defense argued that the modified categorical approach should have been utilized because the statute I believe the phrase was criminalized violent as well as non violent behavior. So the judge didn't actually say this is categorically he really did look at the conduct I think when you look at Judge McLaughlin's analysis especially with this reliance on this court's determination in the Jackson case as well as the oil case which specifically addresses the issue of gradation and lesser included offenses. This is holding can be determined that yes categorically this is a crime of violence but then as an alternate in the I believe Judge McLaughlin's words work you could also find it to be a crime of violence under the modified categorical approach so the judge actually reach the same determination by two different routes. Are you defending his application of the modified are you defending his application of the modified categorical approach that Frank this seems very difficult to defend. In light of the capture on her and I believe that the statute is indivisible the categorical approaches the way to to analyze this so under the camp the modified categorical approach cannot be applied to this. So we disagreed with your categorical approach argument we would have to reverse but we not. I hope you wouldn't but I think that is what the why is. But it would be harmless if we agree it would be harmless if you agreed and it wouldn't be error if we find that it's that it's divisible. Well right wouldn't have been error because he did the modified he did. He reached the same result through to the same two different routes that is correct. What about chambers here for a minute the lower courts and chambers sort of reason the long the lines that you know any what any failure to report is violent because the police might come get you sort of the same way you're reasoning that any failure to stop at all might end up with some violence and the Supreme Court said that work those things are not the same that failure work is not the same as alluding the rest of evading arrest. Does that does that have anything should that be a cautionary tale for courts of appeals who read too broadly what might be a crime of violence. Well I again I don't think there's any there's I don't think there's getting around sites which is different than chambers because you had to look at the they reference the enumerated crimes of burglary and arson to determine how dangerous flight is I don't believe that that analysis played a role in the chambers decision. Well the Supreme Court was by its terms dealing with the felonious of a vehicular flight statute so and and we are by the terms of the Pennsylvania statute dealing with the statute that does not have us looking strictly to felonious but it's got its categorized it. Well it's chosen to categorize it now you can say given the length of time you could serve under the guidelines that qualifies as a quote felony I'm not going to get into that that piece of the argument with you but since sites went out of its way to say we're not talking about that I ask you again this chambers caution against reading violent felony too broadly because the mere risk that there might be a competition with police was not enough and shame. So the fingers and the mere possibility that your failure to stop might cause harm isn't enough here. If we did a risk analysis of a failure for someone to report as opposed to someone who's operating 6,000 pounds of still down a highway with the police following them clearly there's a greater degree of danger involved with that and the police are necessarily always present when there's a failure to stop case. And when we look at the ordinary course which is what we're supposed to do invariably a lot of these incidents result in high speed chases are in chases where there is damage done to property. So if I as an ordinary citizen see the lights go on behind me. I don't pull over immediately maybe I see something on the side of the road that makes me uncomfortable about pulling over right there I travel another half mile before I pull over am I now a violent felon for purposes of the guidelines. It depends how well for you're being your honor. Again and how would and how would anybody ever know that well because noted on my conviction if we if it wasn't really very willful well if you look at the Pennsylvania stats that there was an affirmative defense and affirmative defense that says you know if there are if it can be shown by proponents of evidence that the failure to stop immediately for police officer car was based upon a good faith concern for personal safety. And you can look into the term whether the time and location of the event what type of police vehicle was being used say in your high. It's a plea right like a like 99% of these things you're going to plead to the misdemeanor or you're going to come in and fight it on affirmative defense I plea I'm out I'm done. But now I'm a violent felon. I'm a very bad guy. I'm a very bad guy. I'm a very bad guy. I'm a very bad guy. I'm a very bad guy. I'm a very bad guy. I'm a very bad guy. I'm a very bad guy. I'm a very bad guy. I'm a very bad guy. I'm a very bad guy. I'm a very bad guy. I'm a very bad guy. I'm a very bad guy. I'm a very bad guy. I'm a very bad guy. I'm a very bad guy. I'm a very bad guy. I'm a very bad guy. I'm a very bad guy. As a defendant, you have reason to know that that's been a conspire in the police officers. I mean, it's it's it's it's a person is the question though not what you have reason to know. But also what the police officer knows because that seems to be the argument that's pushed on us most aggressively is that officer. Derrick, he didn't see a thing, but he didn't know what was going on. Common law common law assault recognizes two types of common law assault. There's attempted battery where you don't even as the victim have to know that someone is trying to batterize you. Secondly, there is conduct. I guess menacing is the the term of art that they use and it's conduct that is intended to cause the victim to fear immediate bodily harm. The actions the purpose are to either cause fear are that you as the defendant have an awareness that the actions will cause fear. Producing a gun, drawing a gun during a foot chase. He's not in this case he had apple opportunity during the early parts of the foot chase to throw the weapon away. Okay, he does not draw the gun until officer Bainey starts to approach him with in Derrick, closing from behind. And then you have the simultaneous warning given and then you have the tackle by in Derrick. So, you know, maybe in Derrick though did not specifically see a gun, but officer Bainey did. And Mr. Jones did not produce that weapon, draw that weapon until Bainey approaches him. So that's a sort of conduct and I don't think that there's any procedural area in this case either. Judge MacOcclin specifically asked Mr. Patton several times what is the basis for the variance the judge retired the chambers for approximately half an hour came out and said I've given this considerable thought. And I don't think bless you that a variance is not warranted in this case. So I think in all three grounds that this court should affirm the judgment of conviction sentence below. Thank you. Thank you, Your Honours. If you would be inclined to hold it and fleeing and eluding is divisible because it sets out either failure to stop or flees or attempts to elude. The Pennsylvania Superior Court in Commonwealth versus Cateau and this is on page 34 of our merits brief our opening brief says that the elements of the misdemeanor version of 30 of the fleeing and eluding is quote an operator's willful failure to bring his or her vehicle to a stop in the face of an audibly or visually identifiable police officer signal to do so. So just failure to stop and again on page 34 of our brief is the factual basis of Mr. Jones is guilty plea to the fleeing and eluding count in that factual basis was in this case on February 16th of 2008 you fail to bring your vehicle to a stop when you were being pursued by officer Ryan and her co of the Eerie police department that was on February 16th of 2008 at West 38 and Liberty streets in the city of Erie that constitutes the crime of fleeing or attempting to elude a police officer. So it was clearly what he pled to was failing to stop that is what he admitted to that the elements that he admitted to. I do think chambers is a cautionary tale of trying going too far with the hypotheticals of what all bad things could happen. And in fact in this case in this court after the chamber's response to Mr. Ivory's point which is in chambers it's not always the case that they were just going to put you into conflict with the police but a failure to stop by definition will have you in conflict with the police because by definition they're there giving you a command and you're failing to obey it that is a conflict it's inherent. I would cite the United States versus Hopkins which was this court ruling that Pennsylvania's escape misdemeanor escape conviction was not a crime of violence following chambers. And in that case officers went to a with an arrest warrant went to arrest the defendant for a misdemeanor offense and under Pennsylvania law once you are confronted by the police what they warrant you are considered to be in custody for purposes of the escape statute he ran and was taken into custody. This court found that the escape was not a crime of violence because Pennsylvania graded escape as a misdemeanor but it was a felony if the actor employed force threat deadly weapon or other dangerous instrumentality to affect the escape. And they said this defendant was found guilty of the misdemeanor escape which meant that he was only being apprehended for a misdemeanor and it means he did not use threat or employed force threat or deadly weapon. And so they found that that the misdemeanor violation of the escape was conduct materially less violent and aggressive than the numerator of the fancy. Is that really relevant though when what we're talking about here involves a vehicle and the big existence of the vehicle and the special danger posed by a vehicle seems to weigh so heavily in the Supreme Court's discussion. The last thing I guess that I would like to leave on the fleeing and eluding is the idea that if you find that a Pennsylvania misdemeanor is a crime of violence what you'll be saying is that even though the state legislature and the state courts have said what separates a misdemeanor fleeing and eluding from a felony is if you if the defendant engages in conduct that puts the public or the police anybody in danger beyond a run of the mill failing to separate the state court. So you're going to stop and you'd be saying that even though that's what distinguishes those two the misdemeanor still presents a serious potential risk of physical injury to another. And I just think that's pretty in Congress that you would find that the misdemeanor version would present that risk when the Pennsylvania court said in the ordinary case that's the felony version. On the aggravated assault that would like to point out that the government has never argued that officer Bainey was the victim of the assault. They did not argue that in the district court. They didn't argue that in their briefs to this court. And so I would say they have waived any type of argument that somehow Bainey was the officer who was assaulted. They have always said that on Dirtle was the officer that was assaulted. Thank you. Thank you. Thank you