# Oral argument — United States v. Southard > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/argument%3A79979 ## Record - **Collection:** Oral argument - **Document type:** Oral argument - **Published:** January 20, 2022 ## Text Final case this morning is United States versus Southard. Case number 21. 6035 Miss Deskin, you may proceed. Good morning again, I represent appellant Jerry Southard and I'd like to start by saying that on the the. Second part of my argument, the procedural errors. And looking at this for oral argument and re looking at the government's arguments, I think that I need to abandon those arguments i'm not buying my own arguments there, so I have to confess that I think i'm just dead in the water on those. And then, on the as to the first issue, which is the four level guideline enhancement and whether that was appropriate. we're once again, just like in the last case, we are you looking at a statement from the Court that I believe is unclear, I did not take. Judge friars comments I took his statements regarding the stolen vehicle as a comment and not a ruling on the record, if it is indeed a ruling that changes everything and that's just where I stand. Well, let me, let me make sure I understand what you mean by that, because I was going to ask you, you do say in your reply brief and i'm quoting if the courts commentary. screwed as an alternative ruling on. However, Mr Southard concedes he cannot establish harm is to the former ruling, so could you tell us exactly what you meant by that. Yes, that was not very well written at all when you're you quote that. And the I think that if he was making an alternative holding there if he was saying this for level enhancement applies, because I find and hold that the government has proved that he. Mr Southard knew he had a stolen vehicle, therefore, he fit the elements for felony possession of a stolen vehicle that then it's met and that four point enhancement applies. And so it's over for Mr so there on that. Okay, and then, let me just make sure I understood the how you started off your argument is is. Are is the only issue remaining for us the four level enhancement are you are you abandoning everything else. I am. Okay, I just wanted to be clear on that. Okay, yes i'm sorry that it took me this long to come to that decision I didn't want to let it go but that's where I stand yep I mean I just I think I was wrong, but on the as to this one okay so. The problem with the stolen vehicle section so there's two felonies that could have applied here to enhance it either stolen vehicle or possession of drugs, as to the stolen vehicle, the government. Is stated that they had a problem, proving that he knew it was stolen, so it was the judge, that was wanting to go there with the stolen vehicle and the government continually push back on that and said nope I think the better argument is the drugs. But that's I mean the objection was made and the judge resolved the appeared to not really care that the government didn't want to pursue it, I mean the Court was very specific about that. that's true. You know he paid after the government said yeah we don't we don't think it's the evidence is a strong on that and basically just seem to want to. whiz right past it, the judge said question Defense Council about it, yes, several pages of the transcript and then right after the end of that. That discussion is when the judge makes what appears to be two pretty clear rulings first it overrules the objection regarding the drugs. And then it says, and by the way, basically I don't I don't believe the explanation and here it's talking about the explanation for the for the. Vehicle supposedly being traded as opposed to stolen judge explains a vehicle was stolen day before. And he has it the next day with his track record, I am satisfied, he knew it was a stolen vehicle, and that was the issue, did he know it. So i'm going to overrule the objection, it seems pretty clear to me he's referring to that second objection that he has not accepted the government's. Essentially, their attempt to just give it up on that. If that's the courts reading of it, I mean I really don't think that I can push back on that. Why that should I guess i'm asking you how, how do you read that some other way. Well, because. After the Court pushes back and questions for several pages on this point and then says i'm going to basically find he knew the vehicle was it. Yes, the the several pages were mainly as I recall about. And getting the facts correct. Right right initially, but you know, and so I think that's why it's so long and he just said, basically, I don't believe the explanation, but you had two parties that were. They said the person who was actually involved in stealing the vehicle said I traded it with Mr southern and Mr southern said I traded it. And it was, and that was not accepted by the Court and he found by a preponderance that or he that's not I have to backtrack there is i'm saying that he did not. Exactly find that I was, I was reading it that he was kind of frustrated with the fact that the government didn't go where he wanted to go. And so, saying, well, I don't believe the explanation, but the the longer. You know, he said i'm satisfied from the authority that defendant had his possession of drugs, coupled with prior convictions made this qualify for the four point enhancement. And he wasn't as clear in the other part, especially for judge fry it, who is generally you know I very clear and the way he makes his holdings and. But this is pretty. This is pretty clear, he says, and with his track record unsatisfied he knew that that was a stolen vehicle I don't know how you could be more clear. And the next sentence connecting it so i'm going to overrule the objection. I mean so for this reason, I mean I, I think I understand your argument, but it's it's it's kind of an uphill battle here. It is clear. It could have been clear and I didn't the reason why I took it that way is because of judge fry it's record and how clear he normally is, but if if this court determines otherwise I mean that's where it stands. And if we do if we determine that, in fact, the district court made that finding, then, is there any room left to you after the Sanchez case. And yeah. Well, sometimes you have to argue hard. that's all I have for Mr southern. So I will see the rest of my time. But I just I just asked you about the other candidate for the felony offense the drug. The drug offense. And you talk about our decision in can to in in your brief. And we're on plane air review, and so my question to you is how that case shows that any error was playing when that case concerned the arm career criminal act and this one doesn't this this this one concerns section 844 a of the controlled substances act so i'm just interested in in in your. Plane error argument based on can to could you just speak to that. Yes, I think that it meets plane air based on the analysis that. One would take in determining is this a qualifying prior conviction or how 844 defines what is a. What if the prior conviction meets its criteria so every time we have that that question, it seems to me when when we're talking about in a CCA like in can to crime of violence violent felony serious drug offense in the. Immigration context, whether something's an aggravated felony in sex crimes if you're defining prior sex convictions every time you go through this categorical approach analysis, and this here is the same thing you're trying to determine. Just like in can to is this a drug narcotic or chemical offense as defined by this statute. And when you're not sure you look at you go through that categorical approach analysis, so my argument is that it meets plane air in that because that is the established analysis that must one must go through, even though that hasn't specifically taken place with the 844. This was a pretty unusual I mean it was a pretty good reach, I think, for applying this four point. And now enhancement going to 844 for that and perhaps that's why there's no case law on on it on this point, but I think that it meets plane air because that's the analysis, you have to go through that's been established. Thank you. Welcome and i'll see the rest of my time or reserve it. Thank you, Mr bottomly. Your microphone. You need to unmute. All right, sorry about that may please the Court bow bottomly on behalf of the United States, I guess, I would just like to address whether the. Short because it seems like the main focus is on whether the district court made a finding that the enhancement applied based on the unauthorized use of the motor vehicle but but simply what he says is, and this is after they've discussed the facts of the stolen motor vehicle he overrules the objection. Based on the possession of the drugs and then he says, and also frankly I don't believe the explanation here is a vehicle that was stolen the day before, and he has it and with his track record i'm satisfied. He knew that was a stolen vehicle so i'm going to overrule the objection and so he's addressing both what's in the PS are. As the reasons for the enhancement and he's also addressing the objections that were made on the record and in the PS are regarding. Both the possession of the drugs and the unauthorized use of a motor vehicle so it's very clear that he is applying the enhancement based on both. And simply, even if this court believe that it was error to apply the enhancement based on the drug possession. There was no prejudice from it because the district court also found that the enhancement applied based on the unauthorized use of the motor vehicle. Well, Council let let me just ask a question about. Reliance on the stolen vehicle under the the guideline the guideline here the 2k 2.1 applies if the defendant used or possessed any firearm or ammunition in connection with another felony offense so even if we take. What the district court said about stolen vehicle and his knowledge of it, how did the defendants possession of the firearm, how do you link it. To. Possession of the stolen vehicle, how does it have a connection to the felony offense. That don't you have to show that for the guideline to apply. We do your Honor I think that's where we would. Obviously point to Sanchez that says the possession of a firearm could have emboldened the defendant to accept the risk of maintaining possession of the stolen vehicle. He talked about even the reason that he had a gun is because he was afraid, you see, I might have is. The judge asked him what are you doing with a gun, he says i'm just i'm just dealing with stupid people and just listening to their bs I'll paraphrase their. Their comments saying they were going to do these things to me, so I was just trying to protect myself that's how I was looking at it, I was trying to. I was not trying to do the wrong thing I was just trying to keep myself safe. He there's also within the PS are the female that stole the gun says that Mr southern steals from drug dealers all the time, so we know he has a stolen vehicle. We know it's not his the judges made a finding that he knew it was not his, and so it is a very strong possibility that he possessed the gun. To facilitate the Commission of the other felony which we believe now is the possession of the stolen vehicle, in other words, if somebody came to claim that vehicle. If the drug dealer that was originally originally supposed to get that car came to claim that vehicle, he would have the gun. Really, everything that I was going to cover has been covered I don't want to waste the court's time, are there any questions. Okay. Unless the Court has any other questions, we would conclude by saying that, although there may have been some errors, there are two they are cumulatively harmless and the Court should affirm the district court's opinion. Okay, thank you, Mr bottomly is desk and anything further from you. Your your MIC is on you. Sorry I forgot I did that. One point. And I guess this is just what ultimately bothers me is that the the government here it's their burden when you object to a. Enhancement in this case and it's their burden to prove it by a preponderance of the evidence and they hear abandoned that argument, and you focus solely on the drugs and so the the judge chose to was the one. wanting to prove it kind of on his own, but I don't think that the government ultimately met its burden and then again, I would just stress that I would ask this court to find that it was not in fact a holding or ruling by the government by judge right on that issue. that's all I have. Any other questions. All right, well, thank you, thank you counsel for the arguments this morning, the case will be submitted and counsel are excused. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/argument%3A79979. Public record. Not legal advice.