Are you? No, we have a substitute council. And your name, I'm sorry. Please, the court. Thank you, Your Honours. My name is Laurie Koch. It is not Richard Coglan. And I represent the appellant Rodney Smalley in this case. Are you an assistant federal public defender? Yes, I am. And I have requested and I would again request three minutes for federal public. Thank you, Your Honours. I just want to start with the relevant facts which of this case which are that my client Rodney Smalley robbed a bank. He accomplished it by walking into the bank, handed the teller note, which said, give me all the money now or I will stab you. And said to the teller, I want the money, I got a knife. And the knife was in the pocket or remained out of view at all times. Exactly. And that's from my perspective, that's an important fact to explain. Well, interestingly, both you and the government agreed that the brandishing or possession enhancement was the appropriate one, although the judge didn't agree. You know, I just wonder if you're not spending your wheels because you want to resent and sing. And the court, whether it could do it or not, made it perfectly clear what it would do anyhow with the sentence, even if it accepted your view of the guidelines
. And the Supreme Court of the United States, just two days ago, even I could understand that we shouldn't mess around too much with district court sentences. So I mean, I mean, if you go back, you're going to get the same sentence. Well, you know, there are a couple points that I would like to make a response to that. First of all, this judge, Judge Kugler, and I were on trial in another matter when the sentencing occurred. And I recall that, as usual, everybody was very busy. I think that even given the new Supreme Court pronouncements from this week of Kim Bro and Gaul, that still the first important step is to properly calculate the guidelines. And I think Gaul said that the guidelines are still a factor. They represent years of discretion and experience. But he said if I was wrong, I'd still come out with that sentence. So I mean, I understand they did say to calculate correctly. No, that I read them. Okay, we sent it back. He said, okay, I was wrong, but I made it clear before and I make it clear now. This is the sentence I think it will obey. Here's why I think the record in this case is different from that situation. And I understand there are those situations because here the judge clearly thought he had properly applied the guidelines and said in the record at a record page 73. He said, I do think a guideline sentence is called for in this case. That's page 73 to 74
. And then if one looks at the amended judgment that he filed in the record at page 10. First of all, the sentence would end up being an upward departure. Correct? It would be. Exactly. Because the range as he anticipated using the four level was 57 to 71. Correct. But had he gotten the first step right, the range would have been 51 to 63. And he would have had to justify the 71 somehow. Is that correct? That's correct. Exactly. And so the additional evidence in this record that the judge thought that he was imposing a guideline sentence is taken from the amended judgment and the statement of reasons. The sentence, the statement says the sentences within the guideline range that range does not exceed 24 months. And the court finds no reason to depart from the sentence called for by application of the guidelines. So your honors to me that means that this judge thought he had had applied a guideline sentence to Mr. Smalley. And he clearly says there are no reasons to depart from the guidelines. Which is why I think Judge Greenberg that this is a different situation than where a court says. And if I had made a mistake, I would have imposed the same sentence anyway
. That's not what this judge said. If he meant to up. At least there's some conflict or inconsistency that perhaps he wasn't thinking about. Now, did you get notice of this letter? Did you know that this was happening? Because this procedure seems a little bit strange to me. Perhaps it's permitted by the local rule, but if it's an amendment, it doesn't seem to be permitted. Your Honor, I did receive notice of the letter. I didn't respond because I felt that and in retrospect, I absolutely wish I had and I wish I had objected. But I felt that the judge would not put that on record because I felt that the judge would not amend the judgment that it would stand as it was that he had imposed the sentence. I didn't believe that he would say under 3553 a I would impose the same sentence. But ultimately, and obviously he did do that. I'll be at outside of the time limit. I also recall when I got that letter thinking this is not a rule 35 issue. This is not arithmetic. Are earth medical or technical or other clear error? But how about under a pellet rule? I've written opinion or an amplification of a prior opinion. I'm not sure we're reading the same thing because I've got here the brief of the government in the exact way because it's the most paid seven of the appendix and paid seven of the appendix says this. I read this at the time and I picked up the error the government made on the if. It says the court notes that and I want to read it in an if. That if it ruled in favor of the enhancement warning only a three level reduction instead of four level reduction
. The court would have imposed the same sentence. So what he's saying is if I was wrong about the guidelines, my sentence still would have been the same. I mean, to me that's perfectly clear what I mean it's it's not a three level reduction. It's an enhancement. Yeah, it's an enhancement. It's an enhancement. So the court ruled what the way you have to read it is the court ruled notes that if it ruled in favor of the enhancement warning only a three level enhancement instead of a four level. The court would have imposed the same sentence so that even if the judge was wrong on this brandishing point, he said he would have come out the same way. So if we send it back, he's telling us maybe I was wrong. Maybe it's maybe it's not within the range, but I still would have given it. And now the Supreme Court says he can do that pretty much. Then he explained why do it the sentencing. Why he thought it was appropriate. Who explained why I thought the judge at the sentencing was pretty careful to indicate that that's an interesting point because I've just I looked at the appendix this morning to see what the judge said because the government makes the argument that well this guy had a horrible prior record. In fact, Judge Kugler mentioned that only one time at page 73. And in no way if this court want to read through his ruling again, which begins on page 71. He runs through the 3553 A factors and mentions that bank robbery is a bad crime and refers to the fact that Mr. Smoli has a horrible record
. And that's one paragraph is the amount of time that the judge spends on that issue. What he doesn't say, but which the government does say is that these convictions were to he never once says, well, these were too old to be counted. But I think they should still be counted. He doesn't say that. There is no way you can tell from this record why the judge thought an upward departure was called for. Well, in fact, he didn't he didn't upward depart. He said guideline. He said guideline sentence is called for right. But the effect from Mr. Smoli's perspective was more of a sentence than than what he would otherwise. And on this record, there was no explanation of the reasons why he would have upwardly departed or upwardly buried. And you're on the problem, I think with the process, the procedure that judge applied in this case is that in any situation, the guidelines are in my experience almost always the important starting point for imposing sentence. And if a judge makes a mistake in terms of setting a loss amount, if this is a money case and setting the amount of drugs, finding that something was called in connection with another felony, and then chooses to say on that record, so a perfunctory statement. Well, and in case I'm wrong about that, I would have I would impose the same sentence anyway. Your honors, I submit that's what occurred in this case and that makes a mockery of the state. The judges do that all the time. It trials when they give an opinion, and they say, but even if I had found differently on this fact, it would have come out the same. But you notice the Supreme Court, I think, used the word variances rather than departures in its opinion
. And I don't know if they didn't make an analysis of the three of cases. I first saw that I couldn't see the distinction, but I understand it now variances, well, you're not following it. The part is what we're changing it somehow, I don't know. But it's sort of that's what he was doing. He was a variant. But that's not clear from the record that that's what he was doing because he didn't say I am varying from the guidelines, what he said is a guidelines sentence is called for given all the facts of this case. But then he said it wasn't because he said he would have reached the same. Well, first of all, jurisdictionally, I would argue that the court can't even consider what he did say in the amended judgment because that was two weeks later. I understand that. Does that have to be said in open court under 3553 state, that amplification or whatever you want to call it, the letter? 3553, see I'm not. 18 United States code 3553, so he requires the court to state the reasons for a sentence in open court. The defendant has to be there. Yes, I think that's right. How far? I'm curious. How far can you go under local appellate rule 3.1? If I'm a sentencing judge, could I say this? Could I add additional reasons? Do you follow what I'm getting at? Yes, and I think the case law on that topic is clear. And even the case is the government sites and make it clear that local rule 3.1
. And I'm not exactly sure of the language. It's looked upon with this favor. It's discouraged that that courts file opinions after the fact. And then the two cases that have considered it and allowed a judge to do that. And for the appellate review process, they've both involved, it's the Bennett case. And I believe Palulo involved detailed factual memorandums where the judge went further and explains his factual findings and conclusions of law and why they arrived at the result. Well, it just can't be said that this page 7 in the record of the amended judgment rises to the level of the type of document to the quote amplification of the opinion. It's not to enable us to, to on appeal. It's almost to take away the appeal. Exactly. If you look at it that way. One other thing. What's the standard of review here? Do we have to give due deference? We're applying facts to the law, right? Aren't we? I think that the standard is due deference. It's whether or not the court misapplied the guidelines. Thank you. Thank you, honors. Good morning, your honor. I'm hoping to be able to jump on the bandwagon of spinning your wheels here that was suggested at the outset by Judge Greenberg
. I do think that the judge gave an indication. Change my name from pan. I had actually noticed that your honor. Under what exception do we consider then that letter or whatever you want to call it? Rule 3.1 I think is our strongest. Is that really a written amplification and doesn't it have to be stated in open court? It's an alternative holding and I think an alternative holding is an amplification of the reasoning. It's giving a new reason for getting to the same result. Do we know what of his reasons apply to that alternate sentence? He stated some things on the record. There's no question about a imposed sentence. Do we kind of know what he considered in arriving at the conclusion that he would impose the same sentence? Isn't that kind of naked? Doesn't it stand out? I certainly would have preferred a more of an exegesis here. But isn't the exegesis that as Gaul says? The Supreme Court said it for the first time in Gaul, I believe, that you have to correct the correct guideline. When we review, we review for errors such as a procedural error at the outset of incorrectly fixing the guideline. So isn't it essential? I know I'm compounding the question, but Gaul sets forth a sentencing process that has to begin at the right point. And here Judge Cookley did that in sentencing. But then decided to just attach on to the 71 months without doing all the first up. Can we sanction that? Actually, we can, Your Honor, and the Supreme Court has as well. I mean, there's no question that the norm is to start with the sentencing guidelines and get it right. But there still is the concept of harmless error, which the Supreme Court endorsed in Williams, in which this court has followed in numerous cases
. But how can we say it's harmless when his stated during the sentencing, a guideline sentence is called for. And then in the flick of an order later, he essentially departs upward, what, some eight months? Well, that's what a 71 month sentence was, an upward departure. Well, I don't want to quibble because I made the mistake myself. But I do think a variance versus a departure may be important here because I do take it that, you know, under this circuit's caseload. Forget Barrett's departure. He, the 71 months, is outside of the guy. So I got absolutely and he would have to go outside the guidelines to get there. And there's no question about that. The question for harmless error is whether or not the judge would, in fact, impose the same sentence and whether he can impose the same sentence. But who is to show that the government's burden here? And how do you, how can you convince me that that he would have ran? Because that's what he said, Your Honor, but he said a guideline without any, the opportunity of anybody to argue it. Like of the switch, oh, by the way, is that the way we should, we should be dealing with sentences post-gall? Well, there are two questions there. I mean, one question is, you know, when he said a guideline sentence is appropriate, was he taking into account the guideline range that had been calculated where he found that that additional point, you know, was merited? Yeah, you did. It was 63.71. That's the point. So if I am wrong that that additional point was warranted, it may be that I still think that guideline range appropriately takes into account all the 3553A factors and that that's where the individual should be. Well, look, suppose I personally think it looks like these probably spending the wheels. But what would really be the harm if we wrote a couple of pages, you know, little opinion and say, well, which is not sure
. And let them sentence them again and get it right. It is brandishing and therefore just do it. And if it comes out the same, well, that's a different issue. And, you know, I mean, it's a hack. It's really a little hard to argue against that. I mean, it's no. Did you remember I hear you and obviously, you know, we've gone sort of pretty far along the defense route here in our in our opening brief and saying, you know, we think the three points was where it should have been. Why did you say that? It's not you talk about in terms of more than brandishing. It's not brandishing. It's brandishing, displaying or possessing. And as I read the pre sentence report, I'm not so sure they weren't right. The way I read it. It says that otherwise used as defined in the commentary to mean the conduct did not amount to the discharge of a firearm, but was more than brandishing, displaying or possessing a firearm or other dangerous weapon. And well, if I'm standing there and I say, I've got a knife and I'm going to basically injure you with it. Isn't that more than possessing it? Why did you throw that away? I'm curious to know. There's a hierarchy here. You're honored. And the otherwise used is the most serious thing that you can do. Yeah, I'm aware of that. And it stayed in his back pocket the entire time. But a case law says talks about pointing or making use of somehow. And that's the case law. But as Judge Van Antwerden points out, you know, the guideline itself doesn't really say pointing or. Well, certainly this guideline has been criticized because the otherwise used really isn't defined with with as much particularity as you ideally would like. On the other hand, I mean, our position remains what defense did and obviously you're free to disagree and agree with Judge Cougler and that certainly would be an easy way to decide the case. But it certainly makes the other issues go away. It's a forest and trees kind of thing. I mean, it never left his back pocket and that is not the most serious thing you can do with a knife. And what you want to give the note that said I have a knife. He wasn't sort of implicitly saying, but don't worry, I'm not going to use it. So when he made the judge's clue, this reason wasn't he made the extra statement. And I'm going to use it if you don't give me the money that that was directing it towards her. And it just seemed at least in the government's view and defense view that this was not the most serious thing he could do with that. But brandishing is defined as making the presence of either displaying the weapon or making its presence known in order to intimidate. Yes. If he had said, I've got a knife
. Yeah, I'm aware of that. And it stayed in his back pocket the entire time. But a case law says talks about pointing or making use of somehow. And that's the case law. But as Judge Van Antwerden points out, you know, the guideline itself doesn't really say pointing or. Well, certainly this guideline has been criticized because the otherwise used really isn't defined with with as much particularity as you ideally would like. On the other hand, I mean, our position remains what defense did and obviously you're free to disagree and agree with Judge Cougler and that certainly would be an easy way to decide the case. But it certainly makes the other issues go away. It's a forest and trees kind of thing. I mean, it never left his back pocket and that is not the most serious thing you can do with a knife. And what you want to give the note that said I have a knife. He wasn't sort of implicitly saying, but don't worry, I'm not going to use it. So when he made the judge's clue, this reason wasn't he made the extra statement. And I'm going to use it if you don't give me the money that that was directing it towards her. And it just seemed at least in the government's view and defense view that this was not the most serious thing he could do with that. But brandishing is defined as making the presence of either displaying the weapon or making its presence known in order to intimidate. Yes. If he had said, I've got a knife. I would agree with you. But he said, he didn't say just I've got a knife. He said, I'm going to use it. Yeah. That was implied in I have a knife. He wasn't saying, I have a knife, but don't worry. You're safe because I'm not taking it out of my pocket. When he said, I have a knife, it was implicit. And I'm going to use it if I need to. So give me the money. And if you know, again, the ones with the gun, they differentiate between just waving it around and saying, give me the money judge Ben Antwerp. It's rule in my favor. I actually wish you were judgemaker. But I do want to get to the question of, you know, why are we here? And if you're going to write an opinion, I mean, I do think it's important that you leave open the possibility that you're not going to be able to do it. Even though I think in this record, if you conclude that this wasn't as much detail as you want, we do want to leave open the possibility for judges to do this in the future. I mean, there's the cross-b case out of the second circuit that came out right after the guidelines. And I think got it kind of right where they were judge says, you know, this is a real answer. I mean, after the factory, you mean at the sentencing at the sentencing, right? If we leave open the judge saying, this is a really tough guidelines issue and it could be three, it could be four, I'm not sure
. I would agree with you. But he said, he didn't say just I've got a knife. He said, I'm going to use it. Yeah. That was implied in I have a knife. He wasn't saying, I have a knife, but don't worry. You're safe because I'm not taking it out of my pocket. When he said, I have a knife, it was implicit. And I'm going to use it if I need to. So give me the money. And if you know, again, the ones with the gun, they differentiate between just waving it around and saying, give me the money judge Ben Antwerp. It's rule in my favor. I actually wish you were judgemaker. But I do want to get to the question of, you know, why are we here? And if you're going to write an opinion, I mean, I do think it's important that you leave open the possibility that you're not going to be able to do it. Even though I think in this record, if you conclude that this wasn't as much detail as you want, we do want to leave open the possibility for judges to do this in the future. I mean, there's the cross-b case out of the second circuit that came out right after the guidelines. And I think got it kind of right where they were judge says, you know, this is a real answer. I mean, after the factory, you mean at the sentencing at the sentencing, right? If we leave open the judge saying, this is a really tough guidelines issue and it could be three, it could be four, I'm not sure. But I think, you know, 71 months is about right whether I, you know, whether I put it in here or not. And certainly again, there's ample. And that may lay bare the entire problem with this situation because it wasn't at sentencing. It wasn't at loud. It wasn't with the procedural regularity. It was at, oh, by the way, bam. And yet it ends up that the process was never followed. And what you're saying is, don't focus so much on the process, but focus on the fact that it's sentencing. It just says, well, that's not before us. But that lays bare. In fact, the problem I see with what happened here, that it wasn't at sentencing. And I think it's a difficult issue as to whether we should countenance this type of, oh, by the way, and even if it's a departure, it's okay. Yeah. And let me explain how this sort of arose because I don't think this is sort of our standard operating procedure necessarily. Well, that would be good to know. Yeah. At the time we have an issue that we lose. We just asked the judge
. But I think, you know, 71 months is about right whether I, you know, whether I put it in here or not. And certainly again, there's ample. And that may lay bare the entire problem with this situation because it wasn't at sentencing. It wasn't at loud. It wasn't with the procedural regularity. It was at, oh, by the way, bam. And yet it ends up that the process was never followed. And what you're saying is, don't focus so much on the process, but focus on the fact that it's sentencing. It just says, well, that's not before us. But that lays bare. In fact, the problem I see with what happened here, that it wasn't at sentencing. And I think it's a difficult issue as to whether we should countenance this type of, oh, by the way, and even if it's a departure, it's okay. Yeah. And let me explain how this sort of arose because I don't think this is sort of our standard operating procedure necessarily. Well, that would be good to know. Yeah. At the time we have an issue that we lose. We just asked the judge. I would say it didn't matter. But I think in this case, we came to the conclusion fairly quickly. Rightly or wrongly that we didn't find that the four levels were supportable under these backs. Maybe we were wrong there. And so we just had to come to a conclusion, are we going to confess our outright? Or are we going to make a harmless or argument? And you're going to make it easy for us. Right? Or sound like all these had so many. Well, I think there was a question of, you know, are we going to be just spinning our wheels? I mean, it is in the record that judge Kugler takes a dim view of bank robbery cases. And he's he tends to be an outside the guy. Well, what I mean, he thinks he thinks that the guidelines for bank robbery are actually too lenient. Now we now know from the Supreme Court that that's an okay base is pretty much to sort of do what you want. But he said 71 at the top of the guideline. He didn't go above it. Yeah, you really haven't. We really I think bitch by implication and I I raised 3553 C the requirement of the court state its reasons for a sentence in open court. Let's let's let's zero in on that for a minute. In your view, this this is adequate under local call it rule 3.1. We don't have a problem with that open court
. I would say it didn't matter. But I think in this case, we came to the conclusion fairly quickly. Rightly or wrongly that we didn't find that the four levels were supportable under these backs. Maybe we were wrong there. And so we just had to come to a conclusion, are we going to confess our outright? Or are we going to make a harmless or argument? And you're going to make it easy for us. Right? Or sound like all these had so many. Well, I think there was a question of, you know, are we going to be just spinning our wheels? I mean, it is in the record that judge Kugler takes a dim view of bank robbery cases. And he's he tends to be an outside the guy. Well, what I mean, he thinks he thinks that the guidelines for bank robbery are actually too lenient. Now we now know from the Supreme Court that that's an okay base is pretty much to sort of do what you want. But he said 71 at the top of the guideline. He didn't go above it. Yeah, you really haven't. We really I think bitch by implication and I I raised 3553 C the requirement of the court state its reasons for a sentence in open court. Let's let's let's zero in on that for a minute. In your view, this this is adequate under local call it rule 3.1. We don't have a problem with that open court. Well, I don't know if it's confrontation or not. I haven't researched it. But what do you say? Well, we have the bent case out of this circuit in which there was, I believe that was significant application all about sentencing issues. But let me take a quick check and make sure I'm not making that up. You see Bennett. The sensing memory. Looking to. Yeah, I think that was all sentencing amplification. There is 161. Yeah, loud consideration of supplementary memory and then. We can contain a more comprehensive. This is the 98 case. Yeah, this is not under the construct that we now have of start with the guideline get it right go through 3553 and answer. Well, start with the guideline and get it right has always been the rule, but in Flores, which this court decided I think just last year. I don't know if I have the date right, but certainly is more recent. The court said there were basically the judge had departed downward and then the individual raised four claims of sentencing error. And this court said we don't need to reach any of those because the departure was so low that even if you want all four, it doesn't matter. Yeah, that was in the 32 30 month
. Well, I don't know if it's confrontation or not. I haven't researched it. But what do you say? Well, we have the bent case out of this circuit in which there was, I believe that was significant application all about sentencing issues. But let me take a quick check and make sure I'm not making that up. You see Bennett. The sensing memory. Looking to. Yeah, I think that was all sentencing amplification. There is 161. Yeah, loud consideration of supplementary memory and then. We can contain a more comprehensive. This is the 98 case. Yeah, this is not under the construct that we now have of start with the guideline get it right go through 3553 and answer. Well, start with the guideline and get it right has always been the rule, but in Flores, which this court decided I think just last year. I don't know if I have the date right, but certainly is more recent. The court said there were basically the judge had departed downward and then the individual raised four claims of sentencing error. And this court said we don't need to reach any of those because the departure was so low that even if you want all four, it doesn't matter. Yeah, that was in the 32 30 month. Well, suppose we simply said about a page. Look, we think that the government and the federal right. I think this is a brandishing case. We're also not sure in the state of the guide. The judge thinks it's a guideline sentence. What he really should have done. What he really would have done if he had it. And therefore, we're just going to remain it when I'm sentenced again. I mean, I'm not going to fight to the death on this particular one. I would prefer a memorandum opinion to a presidential one that might. Depending upon which way we go. That might suggest again that I understand the concern the court has that the better practices that all this occur in open court, you know, when it when it happens. I do take seriously now that we have that wouldn't really matter then the open court issue is dead at that point. Whether it's open court or not, we wouldn't even reach it. Is this become is this a practice? This is the only time I know of in the district of New Jersey. This is the only time to my knowledge that we've done this in the district of New Jersey. And, you know, frankly, it's an unusual situation. I mean, normally when the government comes in and says three points and the defense comes in and says three points, the judge says, okay, three points
. Well, suppose we simply said about a page. Look, we think that the government and the federal right. I think this is a brandishing case. We're also not sure in the state of the guide. The judge thinks it's a guideline sentence. What he really should have done. What he really would have done if he had it. And therefore, we're just going to remain it when I'm sentenced again. I mean, I'm not going to fight to the death on this particular one. I would prefer a memorandum opinion to a presidential one that might. Depending upon which way we go. That might suggest again that I understand the concern the court has that the better practices that all this occur in open court, you know, when it when it happens. I do take seriously now that we have that wouldn't really matter then the open court issue is dead at that point. Whether it's open court or not, we wouldn't even reach it. Is this become is this a practice? This is the only time I know of in the district of New Jersey. This is the only time to my knowledge that we've done this in the district of New Jersey. And, you know, frankly, it's an unusual situation. I mean, normally when the government comes in and says three points and the defense comes in and says three points, the judge says, okay, three points. The way, you know, I suspect again Judge Ben Antwerp, and if you disagree, you know, you can certainly write an opinion or dissent on it. Actually, I wrote a law review article advocating that federal judges filed 1925 be opinions, you know, like they do in state court and Pennsylvania. I think in New Jersey too, in which after appeals taken, there's a statement the issues complained of and Judge can then address it. It's my Clarks thought it was a pretty good article, but it hasn't received. And Clarks have a way of thinking what you do. You think it hasn't gone much, but there hasn't been much movement beyond that. Yeah, well, I mean, I think we've sort of covered the position. I'm happy to yield the remainder of time to my opposing counsel. Okay. Thank you. How do we get around Bennett, which seems to say we can, as press eventual opinion in this circuit that we can consider that statement of issues filed after the fact that statement I would have imposed the same sense anyhow. I think that you can get around it by finding that factually the wrongly worded sentence that was put in the imprisonment section of the judgment. It was not even placed in the statement of reasons as the government had asked. It does not qualify as an amplification of the judge's opinion in any way. And, you know, I would like to address and actually disabuse your honor if possible of the notion that this case war and this application of otherwise used. And rather than brandish, and what I'd like to do is just to read to you the definitions of brandish and otherwise used. But before I do that, I'd like to point out that your honor indicated that the problem is with my client statement, I'm going to stab you, which seems to be a direct threat. If you look at the Rob Bank robbery guidelines, where a firearm as brandish or possessed, it's increased by five levels
. The way, you know, I suspect again Judge Ben Antwerp, and if you disagree, you know, you can certainly write an opinion or dissent on it. Actually, I wrote a law review article advocating that federal judges filed 1925 be opinions, you know, like they do in state court and Pennsylvania. I think in New Jersey too, in which after appeals taken, there's a statement the issues complained of and Judge can then address it. It's my Clarks thought it was a pretty good article, but it hasn't received. And Clarks have a way of thinking what you do. You think it hasn't gone much, but there hasn't been much movement beyond that. Yeah, well, I mean, I think we've sort of covered the position. I'm happy to yield the remainder of time to my opposing counsel. Okay. Thank you. How do we get around Bennett, which seems to say we can, as press eventual opinion in this circuit that we can consider that statement of issues filed after the fact that statement I would have imposed the same sense anyhow. I think that you can get around it by finding that factually the wrongly worded sentence that was put in the imprisonment section of the judgment. It was not even placed in the statement of reasons as the government had asked. It does not qualify as an amplification of the judge's opinion in any way. And, you know, I would like to address and actually disabuse your honor if possible of the notion that this case war and this application of otherwise used. And rather than brandish, and what I'd like to do is just to read to you the definitions of brandish and otherwise used. But before I do that, I'd like to point out that your honor indicated that the problem is with my client statement, I'm going to stab you, which seems to be a direct threat. If you look at the Rob Bank robbery guidelines, where a firearm as brandish or possessed, it's increased by five levels. If the danger weapon is otherwise used, increased by four levels, the danger weapon is brandish or possessed, increased by three levels. And finally, if the threat of death was made, increased by two levels. So the conduct that your honor is concerned with is dealt with in the guidelines. And he would get two points for saying, I'm going to stab you. The fact that a knife was on his person, I agreed and the government agreed made this even worse than just a threat of death. There was a dangerous weapon present. It was brandish or possessed. And both sides agreed that that was the situation. Otherwise used has to be more than brandish. And I think that's exactly the definition of otherwise used. Otherwise used with reference to dangerous weapon means the conduct did not amounts to the discharge of a firearm, but was more than brandishing, displaying or possessing a firearm or other dangerous weapon. And this, the conduct, the record facts in this case show that there wasn't anything more than that. And when Judge Kugler asks us to take a break and consider the Johnson case which involved defendants using sledge hammers and bats. Although I'm not asking for a ruling from any court that any time of what the brandish guideline clearly says, whether it's visible or not is not necessary for brandishing, but I would submit that for otherwise used. And there may be ways to do it without it being visible, but the cases to date have all said the person has to see the weapon in order for it to have been otherwise used. And I tried to think of ways where could there be a gun in a pocket, you know pointed out from from under the jacket, but not outside. Still pointed right, but that's that's brandish. How about Wilson? The bomb
. If the danger weapon is otherwise used, increased by four levels, the danger weapon is brandish or possessed, increased by three levels. And finally, if the threat of death was made, increased by two levels. So the conduct that your honor is concerned with is dealt with in the guidelines. And he would get two points for saying, I'm going to stab you. The fact that a knife was on his person, I agreed and the government agreed made this even worse than just a threat of death. There was a dangerous weapon present. It was brandish or possessed. And both sides agreed that that was the situation. Otherwise used has to be more than brandish. And I think that's exactly the definition of otherwise used. Otherwise used with reference to dangerous weapon means the conduct did not amounts to the discharge of a firearm, but was more than brandishing, displaying or possessing a firearm or other dangerous weapon. And this, the conduct, the record facts in this case show that there wasn't anything more than that. And when Judge Kugler asks us to take a break and consider the Johnson case which involved defendants using sledge hammers and bats. Although I'm not asking for a ruling from any court that any time of what the brandish guideline clearly says, whether it's visible or not is not necessary for brandishing, but I would submit that for otherwise used. And there may be ways to do it without it being visible, but the cases to date have all said the person has to see the weapon in order for it to have been otherwise used. And I tried to think of ways where could there be a gun in a pocket, you know pointed out from from under the jacket, but not outside. Still pointed right, but that's that's brandish. How about Wilson? The bomb. That was my case as well. And I stood here and argued long and hard that that was not otherwise used, but I didn't take it out. Did they was concealed in a backpack? But it was placed on the counter and it was pointed at a retailer. And then I think the fact that the, and he used it to strike fear. He had a self who and he specifically said that my cell phone can set that off. Right. And so I think that that made. I don't think whether I wrote the case. It's difficult. I think the problem in that case was that Judge Samandall and everyone found well, it's difficult to quote point a bomb. But boy, if anyone ever pointed a bomb, it was if that happens in that case. So, but here the knife stayed in the pocket. He referred to it and that's exactly what brandish calls for. So for all of those reasons or honors, I would ask that this court reversing remand the case to Judge Google for resum. Thank you, Council. Case was will argue will take it on advisement as the court to recess court. I have a safe trip home. Yeah, everybody
. That was a great note. Thank you