[00:00:12] Speaker 00:
Good morning, Miles Pope for Edmund de Bordeaux and I will endeavor to reserve three minutes for rebuttal.

[00:00:17] Speaker 00:
My plan, unless the court has a different preference, is to briefly address the motion to withdraw the guilty plea issue and then focus on the procedural reasonableness of the sentence and the supervision conditions.

[00:00:30] Speaker 00:
Starting with a brief word on the motion to withdraw, the district court should have granted that motion under the liberal pre-sentence standard for withdrawing guilty pleas, given the following three fundamental reasons.

[00:00:43] Speaker 00:
First, Mr. Abordo's consistent post-plea insistence, which began before the issuance of the draft PSR, and so before he even knew what guidelines range or sentencing range he was facing,

[00:00:54] Speaker 00:
The council committed a series of trial errors that undermined his confidence in their representation.

[00:01:00] Speaker 00:
Secondly, the confusion and reticence Mr. Abordo expressed both during the change of plea hearing and thereafter about the course of proceedings and what he was pleading guilty to.

[00:01:10] Speaker 00:
And finally, the fact that by the time Mr. Abordo had reiterated his request to withdraw his plea at sentencing, had sort of affirmatively stated, I want to withdraw my plea, it was clear that he hadn't gotten the full benefit of his bargain, given that his counsel at sentencing had not objected to the PSR's loss amount calculation, and neither had the government and the district court had denied those objections as untimely.

[00:01:35] Speaker 00:
So I acknowledge that Mr. Abordo's pro se filings were not a model of clarity, but under the liberal rules that govern that issue, he should have been allowed to withdraw his plea.

[00:01:44] Speaker 00:
And let's look at his questions about that issue.

[00:01:46] Speaker 00:
I'm going to turn to the sentencing.

[00:01:48] Speaker 00:
And turning to sentencing and the procedural reasonableness of the sentence itself, and I'll get to the supervision conditions thereafter,

[00:01:56] Speaker 00:
So ever since Carty, it has been clear that sentencing courts need to begin by correctly calculating the guidelines range.

[00:02:02] Speaker 00:
They need to keep that range in mind throughout the sentencing process, and they need to explain any variance from the guidelines in a manner that permits meaningful appellate review.

[00:02:11] Speaker 00:
The sentencing court here substantially and erroneously deviated from that process.

[00:02:17] Speaker 00:
Instead of beginning by accurately calculating the guidelines range, it essentially announced it was rejecting some objections as untimely by the government.

[00:02:26] Speaker 00:
But then it said that it was going to consider them as variance arguments.

[00:02:30] Speaker 00:
The government then focused its sentencing argument on those objections, specifically making the, you know, as recast as variance arguments.

[00:02:39] Speaker 00:
the objections to the adjustments, or the lack of adjustments that it argued for in its untimely briefing.

[00:02:47] Speaker 00:
And then after hearing that argument, the sentencing court settled on a sentence that was above the guidelines the court had calculated, but that would have been squarely within the guidelines that would have applied had the court applied the adjustments that the government was seeking, but also granted the acceptance of responsibility reduction that the government really didn't contest and that the PSR recommended.

[00:03:07] Speaker 03:
So I think- So let me just stop.

[00:03:08] Speaker 03:
to get what's the baseline there, because when they have this whole colloquy about the government being untimely in its submission, and then he says, I can't recalculate the guideline range based on what's in the pre-sentence report.

[00:03:24] Speaker 03:
So is that the foundation?

[00:03:26] Speaker 03:
We have the pre-sentence report, we have a guideline calculation, correct?

[00:03:30] Speaker 00:
Correct, we do.

[00:03:33] Speaker 00:
Yes, there's a pre-sentence report.

[00:03:34] Speaker 00:
It calculates the guidelines and the composite range that the pre-sentence reports gets to, which the court says it is essentially, it says it's adopting as its own technical findings.

[00:03:45] Speaker 00:
I agree with that.

[00:03:46] Speaker 03:
OK, so far we're good.

[00:03:48] Speaker 00:
So far, we're great.

[00:03:49] Speaker 00:
Yeah.

[00:03:49] Speaker 00:
It's 30 to 36 months.

[00:03:50] Speaker 00:
Where we get bad is right after that, where the court says, OK, but I'm going to treat, you know, we're in this, you know, the court says this is a little awkward.

[00:03:57] Speaker 00:
There's an interchange of multiple districts practices.

[00:03:59] Speaker 00:
I'm going to treat these guidelines' objections that I have that I have denied and therefore have accepted the 30 to 36 month range as variance arguments.

[00:04:08] Speaker 00:
And that's where the problem begins, because.

[00:04:10] Speaker 03:
All right.

[00:04:10] Speaker 03:
So now, what would preclude the court from then saying, OK, have a guideline range.

[00:04:18] Speaker 03:
We don't have an enhancement or a request from the government that I'm looking at now.

[00:04:26] Speaker 03:
But now I'm going to see should I vary from the guideline range.

[00:04:29] Speaker 00:
So far so good?

[00:04:31] Speaker 00:
Absolutely.

[00:04:31] Speaker 00:
There's no problem varying from the guidelines range, thankfully.

[00:04:34] Speaker 03:
And then where does the court go wrong?

[00:04:37] Speaker 00:
The court goes wrong in announcing that it's going to consider specific guidelines objections as variance arguments.

[00:04:45] Speaker 00:
You need to begin with the guidelines and consider them.

[00:04:48] Speaker 02:
Well, I thought your argument was that the court hadn't explained its variance in the way it had to, not that it considered anything.

[00:04:54] Speaker 02:
I thought it could consider whatever it wanted to, really.

[00:04:56] Speaker 02:
I agree.

[00:05:01] Speaker 00:
Go ahead, answer it.

[00:05:04] Speaker 03:
We got you this far now.

[00:05:05] Speaker 03:
Where does the district court go wrong?

[00:05:07] Speaker 03:
What's your objection?

[00:05:09] Speaker 00:
With the explanation, you're absolutely right.

[00:05:10] Speaker 00:
And I think I've kind of inverted sort of some argumentation there.

[00:05:14] Speaker 00:
Agree.

[00:05:15] Speaker 00:
The court never explains, it never specifically says, here is why I'm varying upwards.

[00:05:19] Speaker 00:
The reason, though, the guidelines are relevant to that is because

[00:05:24] Speaker 00:
You have to begin by calculating the guidelines range.

[00:05:29] Speaker 00:
An upwards variance can be justified by any number of 3553A considerations, but it cannot be justified by the conclusion that the guidelines range was affirmatively wrong.

[00:05:38] Speaker 00:
Not that you disagree with it.

[00:05:39] Speaker 00:
You can certainly disagree with the guidelines and have a Kimbrough sort of disagreement.

[00:05:43] Speaker 04:
Is this a semantics issue?

[00:05:45] Speaker 04:
I guess if the court, part of the problem is lack of explanation.

[00:05:50] Speaker 04:
But let's say the court had said, are you drawing a distinction between the court saying, I'm bearing upwards because these objections or these enhancements should have increased the guidelines range, but they were too late, versus I'm considering the facts, the same facts that would justify these enhancements.

[00:06:11] Speaker 04:
They're not applied, but I still think these facts

[00:06:14] Speaker 04:
warrant of variance.

[00:06:15] Speaker 04:
Is there a substantive difference between those two explanations?

[00:06:18] Speaker 00:
There is, and there's a substantive and not a semantic difference, and this is why.

[00:06:22] Speaker 00:
It's rooted in the facts of this case.

[00:06:26] Speaker 00:
There is a specific objection that the government presses.

[00:06:30] Speaker 00:
It's the objection that the official victim adjustment should have applied.

[00:06:33] Speaker 00:
Government argues, in its sentencing submission, this adjustment should have applied.

[00:06:38] Speaker 00:
the government now concedes correctly on appeal that that argument was wrong.

[00:06:43] Speaker 00:
If that was what the court had in mind and it said it was going to consider these specific objections and the possibility that these enhancements should apply as variance arguments, then it would have been a very different situation had the court first been ruling on the objection and then considering the facts.

[00:06:59] Speaker 00:
And the reason is because, you know, this court has said in CARTI, the court needs to give the guidelines respectful consideration.

[00:07:06] Speaker 00:
So there's a meaningful chance and risk here that the court varied upwards, thinking, yeah, you know what?

[00:07:11] Speaker 00:
Really, this official victim adjustment applies.

[00:07:14] Speaker 00:
But without realizing that actually, no, the official victim adjustment doesn't apply.

[00:07:18] Speaker 00:
And I need to vary upwards either through a Kimbra disagreement that the official victim adjustment should apply in this circumstance, very different analytical framework, or simply under the 3553A factors, but fully embracing that the official victim adjustment does not apply and that the guidelines are

[00:07:34] Speaker 00:
are what they are, or are what they should be.

[00:07:36] Speaker 02:
But your main argument is just that the problem is we can't tell.

[00:07:39] Speaker 02:
Correct.

[00:07:40] Speaker 00:
Correct.

[00:07:42] Speaker 00:
Yes, and to go back to that question, because that is me muddying the waters with that early comment that caused your intervention.

[00:07:48] Speaker 00:
Yes, my argument is the court fails to adequately explain its sentence, because it did not say, I'm varying upwards for this reason.

[00:07:57] Speaker 02:
Just to anticipate what the government might say.

[00:08:01] Speaker 02:
If the government gets up next and says, okay, fine, that's true, the court should have explained, but this is harmless error because it's very clear that the court thought that this sentence needed to be higher because of all the things that it said about why this was so serious.

[00:08:14] Speaker 02:
What would be your response?

[00:08:15] Speaker 00:
My response is twofold.

[00:08:16] Speaker 00:
The first point is what I was saying earlier about how

[00:08:19] Speaker 00:
There's a real problem in the specific record of this case, because the official victim, again, with the court having said, I'm considering these objections as variance arguments, there's a good chance it thought the official victim enhancement applied.

[00:08:32] Speaker 00:
I recognize that like- We don't know.

[00:08:35] Speaker 00:
You don't know.

[00:08:36] Speaker 00:
But there's a good chance.

[00:08:37] Speaker 00:
And on the third prong, I need that.

[00:08:39] Speaker 00:
That's what I need.

[00:08:40] Speaker 00:
So I'm not going to go so far as to say that's what the court said.

[00:08:42] Speaker 00:
But I don't need to.

[00:08:43] Speaker 00:
All I need to show is that on this record,

[00:08:45] Speaker 00:
That could have happened, and there's a real chance that it could have happened.

[00:08:48] Speaker 00:
But the second point is what I argued in my briefing, that the failure to explain in and of itself, and I cite the Second Circuit and DC Circuit cases.

[00:09:00] Speaker 00:
I would urge this court to follow that approach.

[00:09:02] Speaker 00:
I think it makes good sense.

[00:09:04] Speaker 00:
That affects substantial rights, because it deprives my client of meaningful appellate review, which is a substantial right my client has.

[00:09:11] Speaker 03:
So you're saying a plain error review?

[00:09:14] Speaker 00:
We're definitely, I concede we're on plain error review.

[00:09:17] Speaker 00:
But I'm saying on the third prong of plain error review, I would urge the court to hold that there are basically two routes to my victory.

[00:09:25] Speaker 00:
The first one is the stuff about the official victim adjustment.

[00:09:30] Speaker 00:
But the second one is that by failing to explain that, the upward variance, the court has disabled my client from meaningful appellate review.

[00:09:39] Speaker 00:
And on prong three, that affects my client.

[00:09:41] Speaker 03:
So basically, you want to remand for resentencing.

[00:09:43] Speaker 00:
I do.

[00:09:45] Speaker 00:
That'd be great.

[00:09:46] Speaker 03:
And can we talk about the conditions as well, sex offender?

[00:09:54] Speaker 00:
Yes.

[00:09:55] Speaker 00:
We can talk.

[00:09:56] Speaker 00:
Yes, we can.

[00:09:57] Speaker 00:
So I will talk about first the sex offender conditions, and then if I've got time, I'll talk about the employment condition.

[00:10:02] Speaker 02:
With respect to the sex offender.

[00:10:03] Speaker 02:
Sorry, can I just ask a threshold question, though?

[00:10:07] Speaker 02:
If you win on the first issue and we're remanded for resentencing, do we need to reach these?

[00:10:11] Speaker 00:
No, I think it would be, well, it would potentially be helpful to reach, you know, to provide some guidance, especially with the employment condition, because there is this standing order in the District of Hawaii about what that employment condition should be.

[00:10:23] Speaker 00:
So to the extent this court agrees that it's unconstitutionally vague, that might be helpful.

[00:10:27] Speaker 00:
But the answer to your question is no, you do not, and, you know, it would be fully, it would be a full re-sentencing, we would fully... And then you'll be back here for those two points, right?

[00:10:37] Speaker 00:
Of course, especially if it's Hawaii.

[00:10:42] Speaker 00:
You might have to wait a while on that one.

[00:10:44] Speaker 02:
Can we start with the employment one with the word substantial?

[00:10:47] Speaker 02:
Because if I'm understanding your argument, it doesn't seem like you would object to this if the word substantial wasn't there.

[00:10:54] Speaker 02:
And yet, it would seem like the word substantial helps your client.

[00:10:59] Speaker 00:
I understand that question, and I disagree.

[00:11:02] Speaker 00:
It is just affirmatively and fundamentally confusing.

[00:11:07] Speaker 02:
If it does anything, it narrows the circumstances in which your client could violate the condition, right?

[00:11:13] Speaker 02:
It either does nothing or it narrows the range of possible violations.

[00:11:17] Speaker 00:
Well, but it also creates a lack of clarity for my client in terms of when he has to report.

[00:11:22] Speaker 00:
And so while I agree with you, it either does nothing or narrows, it also, though, and this is candidly just from my perspective as a defense lawyer, why I object to it notwithstanding your point, it just is going to be confusing.

[00:11:37] Speaker 00:
It's going to create a situation where

[00:11:39] Speaker 00:
Probation officers who have different perspectives on what counts account count of substantial changes versus clients who have different perspectives on what count of substantial changes are going to get crosswise if you think it would be okay for him just to have to report every employment change then I just am really having trouble with why it would be a problem to add the word substantial Well because that that leaves that leaves a zone where he is Where it's unclear whether he has to report it or not and so if he's yeah, I guess so But why doesn't he just report every change then?

[00:12:08] Speaker 02:
which you think is okay to make him do.

[00:12:12] Speaker 00:
Because, well, if I'm putting myself in the shoes of someone who's on supervised release and I'm trying to basically comply with that directive, I'm in a situation where I might sit there and I might say, well, look, it says substantial.

[00:12:30] Speaker 00:
And so I'm not going to report this attempting to comply in good faith with the condition.

[00:12:35] Speaker 00:
And at that point, you get sort of trapped into a situation where you might get violated.

[00:12:41] Speaker 00:
So the mere existence of that term in the employment condition creates a risk of miscommunication between supervisee and probation, and thereby increases the risks of violation proceedings being initiated against my client.

[00:13:00] Speaker 03:
So if the result of your argument is that every employment change needs to be reported, what would be your argument on that?

[00:13:09] Speaker 00:
Well, I think that's getting the precise contours of the employment condition that ought to be applied are ultimately a matter for the district court.

[00:13:19] Speaker 03:
I understand.

[00:13:20] Speaker 03:
But if we take the word substantial out and say, you cannot use the word substantial.

[00:13:26] Speaker 03:
And we have, in other terms of supervisory conditions, modified, in effect, what can be said.

[00:13:34] Speaker 03:
So now, if the district of Weiss says, OK, every single

[00:13:38] Speaker 03:
Employment change must be reported any objection to that Yes, that's kind of a yes or no question, and then you might have an answer of why but Can I punt because I'll tell you what I know I can't no you can't so why don't you just answered that question my my position I think my position on that is there is no vagueness objection to that and

[00:14:06] Speaker 02:
And I thought you conceded that that would be a fine.

[00:14:09] Speaker 00:
And the reason I said I could punt is because there are other possible arguments, depending on the specifics of the case, that I don't want to necessarily concede.

[00:14:18] Speaker 04:
I mean, it doesn't necessarily solve defendants' problem, right?

[00:14:22] Speaker 04:
Because they would still have a situation where, I don't know, a change could be so minor that they're questioning in their mind, do I really have to report this?

[00:14:34] Speaker 04:
I mean, in some ways, I do agree with Judge Freeland that the substantiality requirement at least gives the defendant an out to say, well, this change seemed minor to me.

[00:14:45] Speaker 04:
And then there would have to be a good faith application of the condition.

[00:14:50] Speaker 00:
Understood.

[00:14:51] Speaker 00:
And again, I think I would just rest on my prior answer, but I take the court's point.

[00:14:57] Speaker 00:
And I will reserve what time I can for rebuttal.

[00:15:09] Speaker 01:
May it please the court, Daniel Zip, on behalf of the United States.

[00:15:12] Speaker 01:
Taking up the last issue on the supervised release condition, all of the defendant's sentencing arguments are subject to plain air review.

[00:15:21] Speaker 01:
He has not shown that the

[00:15:23] Speaker 01:
employment condition in this case was so vague that men of ordinary intelligence would have to simply guess at what the meaning of substantial change is.

[00:15:32] Speaker 01:
In fact, if you look at what's in the guidelines now that he says this was altered from, they provide that if the defendant plans to change where the defendant works or anything about his or her work, which is just as arguably ambiguous as this word substantial is, if anything, it's open to more interpretation.

[00:15:52] Speaker 04:
because we didn't get to it on the first argument that the application of the sex offense-related conditions in those doesn't seem like there is a recent justification for those.

[00:16:05] Speaker 01:
Sure.

[00:16:06] Speaker 01:
Well, the first point is, again, this is subject to plain air review.

[00:16:10] Speaker 01:
And I think whether this is appropriate depends on how closely it aligns with several cases that this court has decided.

[00:16:18] Speaker 01:
TM, Johnson, and Hoag being the

[00:16:20] Speaker 01:
most important ones.

[00:16:21] Speaker 01:
And each of those had specific facts, some of which weighed against the condition, some of which weighed in favor of it.

[00:16:28] Speaker 01:
And this case shares at least some of the attributes with HOAG and with Johnson, the ones that upheld it.

[00:16:33] Speaker 01:
Specifically, although the actual conviction in this case was 20 years old, or more than 20 years old.

[00:16:41] Speaker 03:
More than 30 years old, I think.

[00:16:42] Speaker 01:
He spent, what I meant to say was, he spent 20 years in custody on the offense.

[00:16:47] Speaker 01:
He had just been released from custody on that offense four years before he committed this offense.

[00:16:53] Speaker 01:
And in the years leading up to his release from custody in 2013, 11 times he refused to engage in sex offender treatment.

[00:17:01] Speaker 02:
This offense didn't have to do with sex offending though, right?

[00:17:04] Speaker 02:
This offense?

[00:17:05] Speaker 02:
The offense that was the conviction that led to this sentencing?

[00:17:09] Speaker 01:
Correct.

[00:17:10] Speaker 01:
But that's the same in Hoag was a gun case and TM was a marijuana case.

[00:17:16] Speaker 01:
That's sort of the typical in these type of cases is whether... Those cases say an offense this old can't count.

[00:17:22] Speaker 02:
So I guess when you started to talk about how long he'd been out or something, I thought you were going to say, and now he's sex offending again or something relevant.

[00:17:29] Speaker 02:
But I still don't understand how this more than 30 year old offense is relevant under our cases that talk about it being too old.

[00:17:36] Speaker 01:
Again, I think there's the fact that although it was 30 years ago, we have the fact that he spent a significant amount of time in custody and leading up to the time when he was released relatively shortly before he committed this offense, he refused to engage in sex offender treatment.

[00:17:51] Speaker 01:
And what this court has recognized in Johnson is that a sort of lack of information about whether the defendant is, in fact, a sex offender or needs treatment is one factor that weighs in favor of imposing it

[00:18:05] Speaker 04:
the district court explained any of that as the reason for imposing the conditions.

[00:18:09] Speaker 01:
He did not know although at the at the end he specifically asked defense counsel do you have any objections to the supervised release conditions defense counsel said no so we're squarely in plain error and then the third factor that that weighs in favor of it in this case is that the the language of the condition

[00:18:25] Speaker 01:
condition says sex offender assessment and, if necessary, treatment.

[00:18:29] Speaker 01:
And again, this is a factor that this court has recognized makes this less aggravated than the condition in TM, which mandated sort of highly intrusive sex offender treatment.

[00:18:40] Speaker 01:
Here, if the defendant agrees and goes to the assessment and is determined that he's not attracted to children and doesn't need treatment, then that's the end of the day.

[00:18:49] Speaker 01:
And there's no real violation of any rights on his part.

[00:18:56] Speaker 01:
fails the assessment, then sort of by extension, it's not an abusive discretion to order someone who's failed the assessment to undergo treatment.

[00:19:04] Speaker 01:
And then the final point, all of these cases sort of turn on individual facts and individual factors.

[00:19:10] Speaker 01:
On plain error review, the fact that some way against it and some way for it sort of forecloses the idea that this was something so plain that the court should have recognized it without objection.

[00:19:21] Speaker 04:
What is your site for that proposition?

[00:19:26] Speaker 01:
I think Reeves was, I don't know the case offhand, but it's a common application of plain errors that when there's facts in dispute it can't be plain absent an objection from defense counsel.

[00:19:40] Speaker 04:
Facts in dispute, yes, but you're saying where factors cut both ways that can't be

[00:19:46] Speaker 01:
Right.

[00:19:47] Speaker 01:
If there's not a clear case on point, then it can't be plain.

[00:19:50] Speaker 01:
If there's not a controlling authority.

[00:19:52] Speaker 01:
In this case, there's three cases with different facts that came out in different ways, some of which are shared by this case.

[00:19:58] Speaker 01:
That fundamentally can't be plain error, absent one of those controlling the facts of this.

[00:20:02] Speaker 04:
You're saying in a multi-factor issue, there can't be plain error categorically?

[00:20:10] Speaker 04:
Or you're just saying there needs to be a closer match?

[00:20:13] Speaker 01:
There has to be controlling authority on point, and there's not in this case based on the facts here.

[00:20:17] Speaker 01:
There's multiple cases coming out in different ways.

[00:20:21] Speaker 03:
So can we turn back to the first issue in terms of the sentencing?

[00:20:26] Speaker 03:
explanation.

[00:20:27] Speaker 03:
And you heard the whole colloquy here.

[00:20:28] Speaker 03:
And where I think we left it with Mr. Pope was saying, we don't know.

[00:20:36] Speaker 03:
And so there should be a remand so we can find out if the court was under some mistaken belief with respect to the enhancements or if it was exercising sort of free-floating discretion.

[00:20:48] Speaker 03:
What is the government's response with respect to a requested remand?

[00:20:54] Speaker 01:
We don't believe remand is necessary here for a number of reasons.

[00:20:58] Speaker 01:
First, again, it's on plain air review.

[00:20:59] Speaker 01:
The defendant never objected to the adequacy of this explanation by the court.

[00:21:04] Speaker 01:
And the case law is clear that this court review is only for plain air.

[00:21:08] Speaker 01:
There's nothing in what the court said that suggests that it was operating under a mistaken idea of what the guidelines were.

[00:21:13] Speaker 01:
In fact, it set out the guidelines correctly at the outset, and then it engaged in a 3553 analysis and arrived at the sentence it did.

[00:21:22] Speaker 01:
That is sufficient explanation under this court's case law.

[00:21:25] Speaker 01:
There's no additional requirement that the court sort of use magic words and say that 3553 are equal to X number of months above the guidelines.

[00:21:35] Speaker 01:
Simply correctly calculating the guidelines, engaging in a lengthy detailed analysis of 3553 factors and imposing sentence is sufficient explanation and it's certainly not plainly insufficient.

[00:21:47] Speaker 01:
The court should have said more.

[00:21:51] Speaker 02:
I would also note that... And you don't think that Chavez-Mesa tells us that you have to explain why you're departing from the range?

[00:21:58] Speaker 02:
I mean, it sounds like you're saying all you have to do is sort of give a reason for the sentence, but I read it as more you have to recognize that you're departing from the range and explain why.

[00:22:06] Speaker 02:
And I don't know that that happened here, but if you can explain where that happened, I'd like it.

[00:22:11] Speaker 01:
No, the court never specifically said, I am upwardly departing, but it's sort of...

[00:22:16] Speaker 01:
I don't want to say implied, but it's part of the sentencing process that the court calculates the guidelines and then spends several pages of transcript explaining all of the aggravating factors.

[00:22:25] Speaker 01:
And that implies a sentence slightly above the guidelines it calculated.

[00:22:29] Speaker 01:
It doesn't also need to say the magic words and all those 3553 aggravating factors are the reasons why I went above the guidelines.

[00:22:37] Speaker 01:
That's sort of how the sentencing process worked.

[00:22:39] Speaker 02:
Isn't there some confusion here though because of this official enhancement that you acknowledge would have been improper and the fact that it was in the mix of the conversation?

[00:22:49] Speaker 01:
No, Your Honor.

[00:22:50] Speaker 01:
I think if you look at what the government argued in its papers, we included the official victim and the vulnerable victim as part of our 3553 analysis.

[00:23:01] Speaker 01:
It wasn't just the guidelines.

[00:23:02] Speaker 01:
These are squarely in the heartland of 3553 reasons why a more significant sentence would be appropriate.

[00:23:09] Speaker 01:
The court explicitly said, I'm not applying those to the guidelines and then use them as part of its 3553 analysis just as the government had recommended.

[00:23:19] Speaker 01:
So there's nothing throughout that process that suggests that the court was somehow secretly applying the wrong guidelines.

[00:23:25] Speaker 01:
And certainly on plain error, this court should not sort of assume something that's not plain from the record.

[00:23:31] Speaker 01:
And then I think as you anticipated, my argument to defense counsel would be, ultimately on the third prong, this wouldn't have made a difference.

[00:23:39] Speaker 01:
If the court, ultimately what the argument boils down to this, if the court had been asked at the end, please explain why you went above the guidelines.

[00:23:48] Speaker 01:
he would have simply repeated the 3553 factors that he had just gone over.

[00:23:52] Speaker 01:
And that having just heard from the chief judge, having just heard from the victim and explained why that vulnerable victim and the sort of chief judge rule of law concerns would result in an above guideline sentence, the outcome would have been the same.

[00:24:08] Speaker 02:
And I mean, we might think that that's likely, but can we be sure of that given that the government was arguing there's also an enhancement for official victim that should apply here as well?

[00:24:18] Speaker 01:
Yes, I think we can, only because the court specifically said, I'm not applying that.

[00:24:22] Speaker 01:
And there's never any suggestion at any point throughout the rest of the hearing.

[00:24:26] Speaker 01:
We never argued it.

[00:24:27] Speaker 04:
But the court did say you could argue for a variance based on those exact same objections.

[00:24:31] Speaker 04:
So the record is muddy.

[00:24:35] Speaker 01:
Yes.

[00:24:39] Speaker 01:
I'm happy to address a couple other issues.

[00:24:46] Speaker 01:
questions or I can sit down.

[00:24:49] Speaker 03:
It's your argument.

[00:24:50] Speaker 01:
All right, I guess briefly on the plea withdrawal, the district court was well within its discretion in denying the defense request to withdraw the plea.

[00:25:01] Speaker 01:
He's even giving his pro se filings sort of the benefit of the doubt and saying that he was arguing that he was dissatisfied with counsel, that he sort of had a breakdown in communications.

[00:25:13] Speaker 01:
The fact remains that during the Rule 11 colloquy, the defendant was specifically asked, are you satisfied with the representation of your attorneys?

[00:25:19] Speaker 01:
And he said yes.

[00:25:20] Speaker 01:
That more or less forecloses the idea that that was a basis for withdrawal.

[00:25:25] Speaker 01:
It's also not entirely clear that that was his basis.

[00:25:28] Speaker 01:
Much of his pro se filing seemed to be focused on the smoking gun and the idea that he was upset that he didn't get a better deal.

[00:25:35] Speaker 01:
And that, too, is foreclosed as a reason for withdrawal.

[00:25:39] Speaker 01:
So the district court properly denied it, and specifically when you look at this case, this was not one where a defendant sort of is charged, pleads guilty, and then changes his mind before much has happened in the case.

[00:25:51] Speaker 01:
This is a defendant who had already gone to trial.

[00:25:53] Speaker 01:
The United States had flown a victim out who'd spent much of the day on the stand, had the elderly victim in the hall ready to go, had done opening statements.

[00:26:03] Speaker 01:
To say that it's fair and just at this point, to withdraw the plea and sort of go through that whole process again requires some significant showing on the part of the defendant that these limited pro se filings just don't meet.

[00:26:18] Speaker 01:
Happy to address any other questions.

[00:26:24] Speaker 02:
I don't think we have any.

[00:26:25] Speaker 01:
Thank you.

[00:26:27] Speaker 02:
Let's put two minutes on the clock for rebuttal, please.

[00:26:32] Speaker 00:
Thank you, Your Honor.

[00:26:34] Speaker 00:
To begin with the sentencing point.

[00:26:36] Speaker 00:
it is clear that it is error not to explain a deviation from the guidelines.

[00:26:41] Speaker 00:
So we are in clear error land.

[00:26:43] Speaker 00:
The question then turns to the third prong, which is basically, was the client prejudiced on this record?

[00:26:49] Speaker 00:
And I think, again, happy to go into detail.

[00:26:52] Speaker 00:
But just given the specifics of how the court approached the guidelines issue and how the government argued for it, I would just emphasize what was already observed, which is that the government did go on

[00:27:05] Speaker 00:
in its sentencing argument to say the official victim enhancement should have applied and it now agrees it should not have applied.

[00:27:12] Speaker 00:
And so that gets us under prong three, once we've gotten through the initial hurdle of the failure to explain to this sentence should be reversed.

[00:27:20] Speaker 00:
Turning to the sex offense conditions, I would just emphasize one point.

[00:27:24] Speaker 00:
Not only did the court not give any explanation whatsoever for why it chose to impose those sex offender conditions, it affirmatively said in its sentencing comments,

[00:27:33] Speaker 00:
I'm aware that there are some old sex offenses.

[00:27:36] Speaker 00:
That's how it characterized it.

[00:27:37] Speaker 00:
But I don't see how this bears on the sentence that's being imposed here.

[00:27:44] Speaker 00:
So the court itself said that those sex offenses were irrelevant.

[00:27:48] Speaker 00:
And under the circumstances, given how old they were, and given that explanation that the court provided, I would submit that it is plain error to subject my client to these extraordinarily onerous conditions of supervised release.

[00:28:02] Speaker 02:
What is your response to the argument that the cases are distinguishable in some way that makes this not a clear enough error for plain error?

[00:28:10] Speaker 00:
So the first two points.

[00:28:11] Speaker 00:
The first is, as a general framework matter, this court, particularly and specifically in the supervised release context, has said that we don't need precise appellate law on point.

[00:28:20] Speaker 00:
It is enough to have clearly established principles that guide the court's analysis of supervised release.

[00:28:26] Speaker 00:
That's in Joseph.

[00:28:27] Speaker 00:
which I cited.

[00:28:28] Speaker 00:
And the second point I would make is that, in my view, the cases that I've cited and the argument I've laid out is directly on point to this issue, where you have somebody who has 30-year-old sex offenses and absolutely no evidence whatsoever that the government has pointed to of any sexual reoffending throughout the time from when the offenses became final through four years and pre-trial and pre-sentence release where a court has concluded.

[00:28:53] Speaker 03:
You know, it's not exactly a clean record, or at least it's not a pristine period, as the government points out, because the client's in prison, then gets out at some point, and refuses sex offender treatment.

[00:29:07] Speaker 03:
So I think that there are some factual issues there that could bear on this.

[00:29:14] Speaker 00:
He was denied parole, and there appears to be an indication in the PSR that at least part of that had something to do with failure

[00:29:20] Speaker 00:
to participate in in custody sex offender treatment.

[00:29:23] Speaker 00:
But I agree.

[00:29:24] Speaker 00:
But we nonetheless have from this, but we don't have any allegation of any kind of sexual offending, either in custody or when he gets out.

[00:29:35] Speaker 00:
And we have a court when he's on both pretrial and then pre-sentence release, where you can only release somebody if they've established by clear and convincing evidence that they pose neither a community threat

[00:29:46] Speaker 00:
or a danger of flight, you have a judge essentially finding this person does not pose, by clear and convincing evidence, a risk to the community if he is released under pretrial conditions that do not include sex offender treatment conditions.

[00:29:59] Speaker 04:
On the sex offense conditions, are you relying on substantive error or procedural error for the clean error or both?

[00:30:09] Speaker 00:
Both.

[00:30:13] Speaker 02:
Thank you.

[00:30:13] Speaker 02:
We've taken your time.

[00:30:14] Speaker 02:
Thank you both sides for the helpful arguments.

[00:30:16] Speaker 02:
This case is submitted.