[00:00:00] Speaker 04: Good morning, counsel. [00:00:01] Speaker 04: Good morning, your honors. [00:00:03] Speaker 04: May I begin? [00:00:04] Speaker 02: Yes, please. [00:00:05] Speaker 04: May it please the court, Lisette Pino on behalf of Mr. Aguilera. [00:00:09] Speaker 04: I would like to reserve three minutes for rebuttal. [00:00:11] Speaker 02: Counsel, please be reminded that the time shown on your clock is your total time remaining. [00:00:16] Speaker 04: Yes, your honor. [00:00:16] Speaker 02: Thank you. [00:00:18] Speaker 04: The district court committed legal error when it denied Mr. Aguilera the acceptance of responsibility adjustment on the basis that he had filed a motion to suppress. [00:00:27] Speaker 04: I'd like to start there because this case perfectly illustrates a recurring issue we're seeing in this district. [00:00:33] Speaker 04: After a motion to suppress is denied, the U.S. [00:00:35] Speaker 04: Attorney's Office has started arbitrarily refusing some defendants the consent required for a conditional plea. [00:00:42] Speaker 04: That leaves defendants with a Hobson's choice. [00:00:45] Speaker 04: If a defendant pleads guilty, of course he waives the right to appeal the denial of the suppression issue. [00:00:50] Speaker 04: If he doesn't and goes to trial, [00:00:52] Speaker 04: In the event that he's convicted, the government turns around and argues that he shouldn't get the adjustment for acceptance of responsibility. [00:01:00] Speaker 04: Both the guidelines and 30 years of this court's precedent say the government is wrong. [00:01:05] Speaker 04: A defendant who goes to trial to preserve a legal issue, including the denial of a motion to suppress, is not disqualified from receiving the adjustment. [00:01:14] Speaker 04: On the contrary, as this court said in Vance, a defendant's exercise of his constitutional rights has nothing to do [00:01:21] Speaker 04: with the question of whether he's accepted responsibility for his conduct. [00:01:25] Speaker 02: Counsel, even if we agree with you that there was error in denying the reduction, was any error harmless? [00:01:33] Speaker 04: No, Your Honor. [00:01:34] Speaker 04: Why not? [00:01:36] Speaker 04: So in Molina Martinez, the Supreme Court was very clear that remand is generally required after guidelines error, even if the defendant's ultimate sentence actually does fall within the correct range. [00:01:49] Speaker 04: Which is the case here. [00:01:50] Speaker 04: So the parties in this case were always talking about whether a variance would be required. [00:01:56] Speaker 04: The original guidelines range was 51 to 63 months. [00:02:00] Speaker 04: Probation had recommended a 40 month sentence. [00:02:04] Speaker 04: an 11-month variance. [00:02:06] Speaker 04: Here the district court ultimately granted a six-month variance because it thought that Mr. Aguilera's conduct, firing three times into the air, was too harshly punished by the guidelines range. [00:02:18] Speaker 04: So if the guidelines range had been lower at the 41 to 51 month mark that we argue should apply, there is a possibility that the district court would have granted a variance even from that lower number. [00:02:31] Speaker 02: Counsel, the guideline seems to say that it should be a rare situation where the defendant gets acceptance or responsibility even though he exercises his constitutional right to a trial. [00:02:45] Speaker 02: Why is this one of those rare circumstances? [00:02:48] Speaker 04: Because this is not a case where Mr. Aguilera was challenging his factual guilt at trial in any way, which is rare. [00:02:55] Speaker 04: So if you think about Ochoa-Gaitan, for instance, or McKinney, both of those are cases where the defendant filed a motion to suppress, which was denied, and then went to trial. [00:03:06] Speaker 04: And in both of those cases, this court found the defendant was entitled to the adjustment because he did not contest his guilt at trial. [00:03:12] Speaker 04: He did not put on an affirmative defense. [00:03:15] Speaker 04: He did not put on witnesses. [00:03:18] Speaker 04: Here, Mr. Aguilera did not even cross-examine the government's witnesses. [00:03:21] Speaker 04: He stipulated to two out of the four elements of this offense. [00:03:25] Speaker 02: But what about the other two that he didn't stipulate to? [00:03:28] Speaker 04: So he could not stipulate to actual possession because that would have waived the denial of the suppression motion. [00:03:34] Speaker 04: This court's opinion in Larson is very clear about that. [00:03:38] Speaker 04: As to the knowledge element, he stipulated to the fact that there was a plea colloquy in which he was advised that he could not own a firearm because he had a felony conviction and in which he responded yes. [00:03:50] Speaker 02: So the government was still put to the proof of those elements, correct? [00:03:55] Speaker 04: Yes, and that was also the case in McKinney and Ochoa-Gaitan. [00:03:59] Speaker 04: And I think Ochoa-Gaitan in footnote five makes a great point, which is that there is a difference between a defendant falsely contesting factual guilt and putting the government to its burden of proof, which of course the defendant has a constitutional right to do and which the guidelines accordingly cannot penalize. [00:04:16] Speaker 02: Counsel, we're in the record. [00:04:18] Speaker 02: Can we look to see where the defendant expressed contrition? [00:04:23] Speaker 04: in several places, Your Honor. [00:04:26] Speaker 04: But actually, before I get there, I want to be clear. [00:04:29] Speaker 04: This court does not need to find, as a matter of fact, that Mr. Aguilera showed contrition. [00:04:35] Speaker 04: This court can reverse because the district court committed a legal error and remand for the district court to make that determination in the first instance, which is what this court did in Ochoa-Gaitan. [00:04:45] Speaker 04: It's also what this court did in Luang, the Luang case. [00:04:47] Speaker 04: That said, there is affirmative evidence. [00:04:50] Speaker 02: Well, but Cortez says if the defendant manifested appropriate contrition, exercise of his constitutionally protected rights cannot be held against him. [00:05:02] Speaker 02: And the converse would also be true. [00:05:04] Speaker 02: If he didn't manifest appropriate contrition, then it wouldn't be an error. [00:05:11] Speaker 04: I don't agree, Your Honor. [00:05:12] Speaker 02: I mean, you don't agree with the ruling? [00:05:15] Speaker 04: No, Your Honor. [00:05:15] Speaker 02: Cortez says that, correct? [00:05:17] Speaker 04: I am not remembering that quote in Cortez off the top of my head, but what I'm thinking of is a quote in Vance which says, quite clearly, our established proposition that taking advantage of a constitutional right, in that case a motion to suppress, just like here, cannot be weighed against the defendant is no mere verbal formula. [00:05:37] Speaker 04: It means the motion to suppress is not evidence. [00:05:41] Speaker 04: That fact has no probative value for the acceptance of responsibility calculus. [00:05:46] Speaker 04: I think Ochoa-Gaitan applied that rule as well. [00:05:50] Speaker 04: I think McKinney applied that rule as well. [00:05:52] Speaker 04: So I don't think it's right to say that a defendant's exercise of his constitutional rights can be considered against him. [00:06:02] Speaker 04: But here, there is evidence of acceptance, affirmatively, to answer Your Honor's original question. [00:06:07] Speaker 04: So Mr. Aguilera said that he was not contesting factual guilt four days after the motion to suppress was denied immediately at the next. [00:06:15] Speaker 02: But that's different than expressing contrition for the acts that he committed, correct? [00:06:20] Speaker 04: So, Your Honor, the way this court has defined contrition in the case law, it's not literally, it doesn't have to be literally saying someone is sorry. [00:06:30] Speaker 04: McKinney and Vance both talk about looking at the objective evidence as shown through the defendant's pretrial behavior. [00:06:36] Speaker 04: So offering to enter into a conditional guilty plea, entering into a stipulated bench trial, waiving the right to a jury trial, Gambino Reese talks about that. [00:06:46] Speaker 04: All of that is evidence of acceptance of responsibility. [00:06:49] Speaker 02: And so here what we see is- But I was asking you who are in the record, can we look for evidence of contrition? [00:06:54] Speaker 02: So that's the evidence of contrition that you would offer to us. [00:06:58] Speaker 04: Well, Your Honor, I have plenty more. [00:07:01] Speaker 04: So Mr. Aguilera, in addition to waiving his right to a jury trial, in addition to unconditionally stipulating to any testimony the government wished to introduce, in addition to stipulating to two elements of the offense, which he was not required to do, he cooperated with probation during the pre-sentence interview. [00:07:18] Speaker 04: Probation put that in the PSR. [00:07:20] Speaker 04: And he also submitted a statement taking full responsibility for his behavior. [00:07:25] Speaker 04: And at trial, he was very clear that he was not contesting guilt [00:07:28] Speaker 04: Council made no opening or closing remarks and put on no witnesses, did not cross-examine any witnesses. [00:07:35] Speaker 04: I see that I'm running out of time. [00:07:38] Speaker 02: All right, you want to save the balance of your time for rebuttal? [00:07:40] Speaker 02: Yes, thank you, Your Honor. [00:07:49] Speaker 03: May it please the court, Elizabeth Beringer for the United States. [00:07:53] Speaker 03: The district court did not clearly err in finding that the defendant had not met his burden to show that he clearly demonstrated acceptance of responsibility. [00:08:05] Speaker 03: The whole ruling is this court just has to find whether the district court made a decision without foundation. [00:08:12] Speaker 03: And there was foundation for the district court's decision here if the defendant did not manifest [00:08:17] Speaker 03: acceptance of responsibility. [00:08:19] Speaker 03: Acceptance of responsibility is in the doing and the saying. [00:08:22] Speaker 03: And if we look here under this court's precedent, what kind of doing and saying are we talking about? [00:08:28] Speaker 03: We look at McKinney, which is the rare case where a defendant who goes to trial demonstrates acceptance of responsibility. [00:08:35] Speaker 03: The defendant here did not confess. [00:08:37] Speaker 03: He did not cooperate, which are factors in the policy application note. [00:08:41] Speaker 00: I asked Mr. Arringer, can you speak? [00:08:44] Speaker 00: It seemed as if the district court was relying on an impermissible factor that he went to trial to preserve an issue that he had raised in the motion to suppress. [00:08:52] Speaker 03: I disagree with that, Your Honor. [00:08:54] Speaker 03: And my reading of this is very different from defense counsel. [00:08:58] Speaker 03: When I look at the entire ruling, it seems to be the court was relying on two factors. [00:09:03] Speaker 03: One, the defendant didn't express contrition. [00:09:05] Speaker 03: And I'm going to point the court to 2ER69 and 2ER80. [00:09:10] Speaker 03: In both cases, on 2ER69, the defense counsel says, at every stage of this proceeding, this defendant demonstrated acceptance of responsibility. [00:09:22] Speaker 03: And the court says, no, he didn't. [00:09:24] Speaker 03: He didn't. [00:09:25] Speaker 03: And if we go on 80, the court says, I just don't see contrition here. [00:09:31] Speaker 03: I don't see contrition. [00:09:32] Speaker 03: And the court did comment on specifically in reference to defense counsel's arguments that [00:09:40] Speaker 00: But the court also says, you know, looking at ER 69, he was making, the court was making a distinction between a conditional plea of guilt and picking and choosing the things he wanted to challenge. [00:09:55] Speaker 00: And the court was raising the fact that he was contesting certain things from the motion to suppress as a basis for saying there's no acceptance. [00:10:03] Speaker 00: Doesn't that squarely fall within the Vance case where, that is the issue being preserved for appeal? [00:10:10] Speaker 03: Well, one, in Vance, Vance pleaded guilty. [00:10:13] Speaker 03: So there was manifestation of contrition in that case, a very significant... And the offer was made here, which the government did not accept. [00:10:23] Speaker 03: Well, the offer was illusory, as the court found. [00:10:25] Speaker 03: It was sort of a conditional acceptance of responsibility, as the court found. [00:10:30] Speaker 03: This court has held that just offering to plead guilty [00:10:33] Speaker 03: under a conditional plea does not entitle a defendant to acceptance of responsibility. [00:10:39] Speaker 03: That is in the Nielsen case. [00:10:40] Speaker 03: This court has already decided that. [00:10:42] Speaker 03: So the court was well within its discretion to decide that an offer to conditionally plead guilty is not entitle a defendant. [00:10:51] Speaker 03: And there's evidence that it was a little bit of bluster. [00:10:53] Speaker 00: Let me ask this. [00:10:54] Speaker 00: What should the defendant have done here? [00:10:57] Speaker 00: So the government is under no obligation to accept a conditional plea of guilty. [00:11:02] Speaker 00: But you would agree that going to trial to preserve appellate rights is permissible. [00:11:07] Speaker 00: It can't be held against them. [00:11:09] Speaker 03: Absolutely. [00:11:10] Speaker 00: But it also means that... And so he didn't stipulate to all the facts because under Larson that would have basically mooted his appeal. [00:11:18] Speaker 00: So what did he fail to do that would have otherwise established acceptance of responsibility? [00:11:24] Speaker 03: I want to push back on the Larson point for a second. [00:11:27] Speaker 03: Yes, Larson. [00:11:28] Speaker 03: If he had [00:11:29] Speaker 03: admitted possession, he perhaps could have mooted his appeal. [00:11:33] Speaker 03: But that doesn't mean that he couldn't have accepted responsibility after trial. [00:11:37] Speaker 03: He had an opportunity to speak to the probation officer to admit responsibility there. [00:11:42] Speaker 03: Under this court's decision in green, he could have taken responsibility at sentencing, and none of those would have affected the actual trial date. [00:11:50] Speaker 03: He's not limited by trial to accept responsibility. [00:11:54] Speaker 03: In none of these cases did they say, [00:11:56] Speaker 03: The acceptance of responsibility has to come at a specific moment in time. [00:12:15] Speaker 03: impacted. [00:12:16] Speaker 03: Larson is not an acceptance of responsibility case. [00:12:19] Speaker 00: So where did the district court mention that his statements to the probation officer indicated not accepting responsibility? [00:12:25] Speaker 03: So it mentioned that there was no affirmative evidence of contrition. [00:12:33] Speaker 03: And that would have been one way under this court's case law to have demonstrated contrition. [00:12:39] Speaker 03: doesn't have to speak to the probation officer, but the fact that he didn't means there's an absence of evidence. [00:12:44] Speaker 00: What about the back and forth with defense counsel about the note to the sentencing guidelines that seemed to surprise the court that that was even in there, that it was acceptable to be able to file a motion to suppress and still bring issues to trial in order to preserve an appeal right? [00:13:00] Speaker 03: Well, that was at the beginning of the hearing, and I would note that the government read the application note to the court later in the hearing, so the court was well aware. [00:13:08] Speaker 03: I also want to direct the court's attention to the December 2024 hearing, which is where the court says, I believe it's 322 in the record, where [00:13:20] Speaker 03: defense counsel first proposes, hey, this is our plan. [00:13:24] Speaker 03: We're not contesting guilt here. [00:13:25] Speaker 03: We're going to stipulate to anything that the government wants. [00:13:28] Speaker 03: We're doing the stipulated testimony agreement with the government. [00:13:31] Speaker 03: And the court says, well, I don't know if that's going to be acceptance of responsibility. [00:13:36] Speaker 03: It may be acceptance of responsibility. [00:13:38] Speaker 03: It may not be. [00:13:39] Speaker 03: We're going to have to decide that at sentencing. [00:13:41] Speaker 03: So not only is the court is open to the idea that that could be acceptance of responsibility, [00:13:47] Speaker 03: But he's also putting the defense counsel and the defendant on notice that perhaps the standard hasn't been met, that perhaps there is no contrition, that this isn't a case like McKinney where there was cooperation, there was a statement. [00:13:59] Speaker 03: The defendant, when he was on that sidewalk, could have raised his hands. [00:14:02] Speaker 03: He ran. [00:14:03] Speaker 03: He hid behind a gate. [00:14:04] Speaker 03: He didn't cooperate with police. [00:14:06] Speaker 03: He didn't make a statement. [00:14:08] Speaker 03: He pleaded not guilty, unlike Vance that we're talking about. [00:14:11] Speaker 03: So none of these markers that this court has found demonstrates acceptance or responsibility are in this case. [00:14:18] Speaker 03: And if this court finds that this defendant was entitled to acceptance of responsibility under these facts, very weak issues, foreclosed issues that he's raising. [00:14:28] Speaker 01: Ms. [00:14:29] Speaker 01: Berenger, by the way, it's good to see you again. [00:14:31] Speaker 01: Your Excellency, Your Honor. [00:14:32] Speaker 01: As far as the district court's application of the standard, where in the record is the best indication that the district court did, in fact, know what the standard was and applied? [00:14:41] Speaker 01: I have a lot of questions and a lot of back and forth, but is there some place in the record where it's clear that the district courts acknowledged that acceptance of responsibility could be granted under these circumstances? [00:14:52] Speaker 03: The best example I have, and the record's not precise, these are oral comments from a district court judge at sentencing. [00:15:00] Speaker 03: This is not a written order. [00:15:01] Speaker 03: But I think that we can see from 2ER80 where he says, I just don't see the contrition. [00:15:06] Speaker 03: I just don't see it. [00:15:08] Speaker 03: That alone should be enough. [00:15:09] Speaker 03: He's looking at the entire record. [00:15:11] Speaker 03: This is a judge that remarked that he had been on the case longer than any of the attorneys. [00:15:16] Speaker 03: He had seen the defendant. [00:15:17] Speaker 03: He was very familiar with the case from its inception. [00:15:20] Speaker 03: And so he is seeing the entire record. [00:15:23] Speaker 03: If he just doesn't see the contrition, the defense counsel has been unpointed to it other than these illusory markers that have been pointed to and offered to enter a conditional plea. [00:15:36] Speaker 03: And these sort of factual stipulations, which I point the court to in Gambino Ruiz, a 2024 decision, factual stipulations are not dispositive. [00:15:46] Speaker 03: They're not necessarily [00:15:47] Speaker 03: I'm entitled a defendant to acceptance of responsibility. [00:15:51] Speaker 02: The council did this defendant refused to show up for his first trial. [00:15:56] Speaker 02: He did. [00:15:56] Speaker 02: And did he decline to make an allocution and sentencing. [00:16:00] Speaker 02: He did. [00:16:01] Speaker 03: He did your honor and those are all factors that would have demonstrated acceptance of responsibility. [00:16:09] Speaker 03: If we look to this case where there's... Do we know why he didn't show up at trial? [00:16:13] Speaker 00: I'm trying to remember what... We don't know. [00:16:16] Speaker 03: The defense counsel hadn't even talked to him. [00:16:17] Speaker 03: He said that he, I think it was at that point that counsel had shifted, that she had heard he was sick. [00:16:23] Speaker 03: But I mean, I'm a little sick today. [00:16:24] Speaker 03: I got on the Muni. [00:16:25] Speaker 03: I didn't refuse transport to a hearing today. [00:16:28] Speaker 03: I mean, the court made a finding that he refused transport on the day of his first hearing after. [00:16:34] Speaker 03: And it's also combined with the fact that [00:16:37] Speaker 03: The government was operating under an understanding that the defendant was going to be stipulating was surprised and taken aback that what they'd said at the December 2024 hearing that they would agree to anything the government want and then. [00:16:48] Speaker 03: Two elements the government had to prove up, work through the weekend, prepared a nexus expert, prepared all of its witnesses, shows up, finally enters in some partial stipulations on Sunday night, comes to trial on Monday morning, and there's no defendant to be had. [00:17:03] Speaker 03: So under these circumstances, the defendant has not manifested acceptance of responsibility. [00:17:10] Speaker 03: If there are no further questions, I would ask the court to affirm the judgment and sentence. [00:17:16] Speaker 03: Thank you, counsel. [00:17:18] Speaker 03: Your bottle. [00:17:24] Speaker 02: Counsel, do you agree that we're on plain error review? [00:17:27] Speaker 02: Plain error review, your honor. [00:17:29] Speaker 02: I thought that's what opposing counsel said. [00:17:31] Speaker 04: No. [00:17:32] Speaker 04: And that's actually the first point I want to make. [00:17:35] Speaker 04: Our primary argument is not a clear error argument. [00:17:39] Speaker 04: Our primary argument is that the district court committed legal error. [00:17:42] Speaker 04: And I think that's very clear at 2ER81 [00:17:46] Speaker 04: that the district court was defining contrition wrong. [00:17:49] Speaker 04: It said, to me, acceptance of responsibility is if someone comes in and says, I did it, I'm sorry, I want to get on with my life, and I don't have any quibbles. [00:17:58] Speaker 04: But when someone comes in and says, I want to suppress, loses, and then tries to dismiss and loses, and then goes to trial and loses, that's not acceptance. [00:18:06] Speaker 02: So when the district court denied it, what was the response by defense counsel when the district court denied acceptance of responsibility? [00:18:14] Speaker 02: What was the response from defense counsel? [00:18:17] Speaker 04: Well, defense counsel had indicated that this was an incorrect definition before and then defense counsel tried to respond briefly for the record and the district court would not allow them to respond again. [00:18:30] Speaker 04: So I think this is preserved. [00:18:32] Speaker 04: I don't think we're in plain error land. [00:18:33] Speaker 04: The government has not argued plain error and that's a waivable issue. [00:18:38] Speaker 04: The district court here, its statements make clear that it was defining contrition wrong. [00:18:43] Speaker 04: When it said, I don't see the contrition here, it's because it was applying the wrong standard. [00:18:49] Speaker 02: Now, the government- The standard for a showing of contrition in your view. [00:18:54] Speaker 04: This court looks to objective evidence based primarily on the defendant's pretrial conduct, including [00:19:01] Speaker 04: and offered to enter a conditional guilty plea, which Gambino-Rees does say is evidence of acceptance. [00:19:07] Speaker 02: What about the failure to show up for trial or refusal of transport to court? [00:19:11] Speaker 04: Yes, Your Honor. [00:19:12] Speaker 04: So that brings me to my second point. [00:19:14] Speaker 04: None of these are reasons that the district court gave for denying the adjustment. [00:19:18] Speaker 04: And this court said in Luang that, so Luang actually involved a failure to aliquot, just like in this case. [00:19:26] Speaker 04: And the government cited that as a permissible reason to deny the adjustment. [00:19:29] Speaker 04: And what this court said in 992 was, while the district court clearly would have acted according to law by denying the adjustment for that reason, it did not state that it relied on that factor. [00:19:42] Speaker 04: So this court reversed and remanded for the district court to make that finding in the first instance. [00:19:46] Speaker 04: Here, Mr. Aguilera was sick. [00:19:48] Speaker 04: There's no reason to indicate that the district court did not believe that. [00:19:52] Speaker 04: He had no incentive to delay trial. [00:19:54] Speaker 04: He was asking for immediate release to be deported to Honduras. [00:19:58] Speaker 04: So yeah, no incentive to delay trial, and if this court has nothing else, I respectfully ask. [00:20:04] Speaker 02: I just want to ask, you're asking us to remand for the district court to reassess whether or not the acceptance of responsibility reduction should be granted. [00:20:13] Speaker 02: That's what you're asking us to do? [00:20:15] Speaker 04: Yes, so that the district court can apply the correct legal standard and then make that binding for itself, because this is such a fact-specific inquiry. [00:20:22] Speaker 02: What is the legal standard that you would ask us to have the court apply? [00:20:27] Speaker 04: simply the legal standard this court has reiterated over and over again since Vance. [00:20:31] Speaker 04: What is that standard? [00:20:32] Speaker 04: What is that standard? [00:20:34] Speaker 04: That acceptance of responsibility includes offering to enter a conditional guilty plea, includes going to trial only to preserve legal issues, which the guidelines recognize is permissible. [00:20:44] Speaker 04: And the fact that a defendant moves to suppress, moves to dismiss on a constitutional basis, and then exercises his constitutional right to a trial is a loan [00:20:53] Speaker 02: not a reason to deny acceptance.