[00:00:01] Speaker 03:
Good morning and welcome to the Ninth Circuit.

[00:00:03] Speaker 03:
Judge Hawkins, Judge Fletcher and I are glad to welcome you here today.

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We have three arguments set for argument this morning.

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We just ask you to watch your time and let us know if you want to reserve time for rebuttal and then try and close up as your time's expiring.

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We'll go ahead and move into our first case set for argument, which is a million versus United States.

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That's case number 23-3954.

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Mr. Burke.

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May it please the court.

[00:00:34] Speaker 02:
Good morning.

[00:00:34] Speaker 02:
My name is Michael Burke, and I represent Mr. Emilian in his appeal from the district court's imposition of a statutory maximum sentence of 120 months for his conviction for assault under 113A6.

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I will keep track of my time and attempt to reserve two minutes for rebuttal.

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We are asking that this court vacate the 120-month sentence imposed by the district court as both procedurally unreasonable and substantively unreasonable.

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Under the framework established by Gall and this court's precedent, the first step is to consider whether the sentencing was procedurally unreasonable.

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And as we argue in our opening brief, we believe it is for two reasons.

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The district court is required to adequately explain a sentence in order to permit this court to review meaningfully the reasonable.

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Why didn't he do that?

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I mean, as I go through the record, the district court explained this was a brutal abuse that happened, significant damage, physical damage, multiple assaults.

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He was familiar with this particular defendant because he'd already sentenced this defendant in 2019.

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So there were at least five women, or at least five incidences.

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I don't know if they were all different women, but why isn't that, doesn't that give us enough to go on?

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Well, the case law is very clear that when a judge varies above the guidelines, they must explain the reason for the variance.

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And the law is also very clear that the greater the variance, the more significant the explanation needs to be.

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The judge in this case did that exactly, Your Honor.

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He did state those reasons, but those reasons were identical.

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to what Mr. Likvar had already argued in his motion seeking an upward variance of 24 months.

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There was no distinction.

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And the judge granted that variance.

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So, I don't understand then.

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He might have the same reasons.

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He might have attached greater weight to those reasons.

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Let me ask the question in a slightly different way.

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What should he have said that in your mind would satisfy the sentence he imposed?

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Your Honor, after granting the government's request for an upward variance,

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The court should have explained why he believed that the additional time, up to 87 months, was not sufficient in this case and to explain for this court so that it could review the reasonableness of his decision.

[00:03:21] Speaker 05:
Well, I read what the district judge said at sentencing and I thought that was an explanation.

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My colleague here gave you sort of the bare bones of it, but he knew this defendant

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He had a very long record, including the prior sentence in federal court, but a lot of assaults that had been brought to the tribal court.

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I mean, what more is he supposed to say?

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Well, Your Honor, he's supposed to explain why 87 months, the variance he granted, was insufficient.

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Well, as I read it, I think he did.

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And that was his reasoning.

[00:03:56] Speaker 02:
Well, if that was his reasoning, then, Your Honor, I would say that there was another error that the judge committed, which was a procedural error that would

[00:04:03] Speaker 03:
Likewise, you mean substantive.

[00:04:05] Speaker 02:
I thought, no, we identify to procedural.

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Oh, that's the evidentiary one, which actually seem to be your stronger argument.

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I mean, you have an email.

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This is the one where you have the email from his, I guess, his wife partner at the time.

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where she says, I want him home and he discounts that.

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I'm interested in that because what was the judge supposed to do?

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Can the judge not rely on his common knowledge?

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As he noted, he's dealt with domestic abuse for decades as both a lawyer and a judge.

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Can't he look at that and say, hey, I've seen this pattern over and over again and

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I don't believe this.

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He could say that.

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What the judge here said was I have absolutely no doubt that you called the victim and told her to write this email.

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That's a factual finding.

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that is completely unsupported by any evidence in the record.

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There was evidence at trial that Mr. Emilia spoke with the victim in a phone call that says, you know, if you don't get served, you don't testify, and I don't testify, maybe this will go away.

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That was the only evidence.

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The government presented no evidence at sentencing.

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There is no evidence that Mr. Emilia spoke to the victim in this case and told her to write the letter.

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In fact, I find it very dismissive to the victim in this case to assume that she's only doing what the defendant told her to do.

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The reason she wasn't at sentencing was because there was a death in the family.

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He didn't believe that either.

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The district court judge didn't actually believe that either because as I understand it, she'd already made, even before that, I don't want to say excuse because maybe it is legitimate, but at least the district court thought

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She'd are she had already indicated there was already some indication she wasn't going to show up even before the death.

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Allegedly.

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That's not ringing a bell with me your honor but I will see that that that is possibility but the fact remains that the judge and that we cannot say that the judge did not at least in part base his sentence on his belief about actions that he

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believed beyond any doubt that the defendant had done, but he believed it without any proof.

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So that is our second argument, and that that is procedurally unreasonable, and another reason why this- Well, I guess I would agree with you if there was actually evidence that he used that factual finding to up the sentence, but I viewed his discussion as saying that's why he was going to discount this mitigating evidence.

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I didn't hear him say- Well, he certainly disregarded it.

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He disregarded the mitigating, but I don't think he ever said, because you called her and put pressure and coerced her, I'm going to increase your sentence.

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But I think that's a reasonable assumption, that it was part of his sentencing calculus.

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And also, if this court were to agree, as we argued it, it was a procedural error for him to do that, it would be the government's

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his obligation to prove that it did not affect his sentence in this case, and they have not done that.

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It's clearly part of his analysis.

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His disdain for my client ties in, yes, to historic, and that is another factor, Your Honor.

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The judge's sentence in this case, the maximum that Congress thought should be ever imposed,

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ignores the critical role of the guidelines in sentencing, ignores the expertise of the U.S.

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Attorney's Office, who carefully reviewed this, argued exactly what this judge said and said, this requires 87 months.

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The judge added on an additional almost three years

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33 months without any explanation as to why the government was incorrect in their analysis, and that is a procedural error.

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I don't want to push you off, but before you run out of time and save for rebuttal, I want to hear about the oral fine, because this is a very confusing issue to me.

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He orally says

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You get a $2,000 fine, you can pay it, I'm setting up a payment plan, and we're supposed to go with the oral statement.

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The written says, no fine, I'm waiving it because you can't pay it.

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In a normal world where there's inconsistency there, we would remand it so that the district court could conform the written order to the oral order.

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I wonder if there's some evidence to suggest that the judge actually changed his mind before he issued the written order.

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So what would you have us do here?

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I would believe that because of the disparity, the case would need to be remanded for the district court to explain the difference.

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There is no evidence that I am aware that the judge… He would have to actually re-sentence on that particular issue.

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He could do one of two things.

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He could either conform it and re-impose the fine, which is bad for your client,

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Or he'd have to bring your client back in and re-sentence him, right?

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But the record has to be clear, Your Honor.

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And we believe that regardless of whether this court agrees with me on the procedural and substantive unreasonableness of the sentence, that there was also a wolf child error in this case.

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So the case would need to be remanded anyway.

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So we would argue, and I will reserve the remainder of my time, but the appropriate remedy would be to remand this case for a complete re-sentencing.

[00:09:31] Speaker 01:
Good morning, your honors.

[00:09:32] Speaker 01:
May it please the court?

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My name is Vinny Likvar.

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I represent the United States in this case, the appellee.

[00:09:38] Speaker 01:
Your honors, according to the case files reviewed and referenced by the district court in this case and alluded to by your honor this morning, the defendant had engaged in some combination of severely beating, threatening, sexually abusing, attempting to rape, kidnapping, and strangling four different women in a seven year period between 2015 and 2022.

[00:10:01] Speaker 04:
There's no question that the facts are just horrible.

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But this case is going to go back anyway, right?

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I mean, this is hardly a model of the best sentencing process ever imposed.

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We don't know what the situation with the fine is.

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We don't know is there a special condition of release?

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Can he

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have visitation with his wife or domestic partner.

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Can he see his children?

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All of those things are, they're one way in the oral, they're another way in the written.

[00:10:40] Speaker 04:
So it's going back anyway, right?

[00:10:42] Speaker 01:
Your honor, I will address each of those issues in turn.

[00:10:45] Speaker 01:
I don't think the United States position is that it doesn't have to go back on any of these issues with respect to the, let's start with the fine.

[00:10:52] Speaker 01:
Yes, your honor.

[00:10:52] Speaker 04:
You have to pay a fine.

[00:10:54] Speaker 01:
Your honor, no.

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The case laws keep clear in United States versus Olson in the Ninth Circuit when there was a clear discrepancy like the United States acknowledges that there was here that the written judgment controls.

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Excuse me, the oral pronouncement controls.

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And so is this fine imposed, waived, conditioned?

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Is there a payment schedule?

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Can he show that he can't pay?

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What, when in the sentencing answers those six things?

[00:11:27] Speaker 01:
Your honor, the court announced the, the fine for the defendant and explained which portion of the fine was the assessment, was the fine, the restitution.

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But at a minimum, we have to send it back for the district court to conform the written order, even if you're right on that, to conform the written order to the oral order.

[00:11:47] Speaker 01:
Your honor, in the United States v. Olson, the Ninth Circuit amended it itself, but I want to be clear.

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But most of the time, I give you that, but most of the time we don't do that.

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We do a limited remand.

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Granted, a lot of those are unpublished opinions, but our standard practice tends to be do a limited remand.

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And I've got to be honest, I would tend to want to do a limited remand here because I think there's some suggestion that the district court might have actually changed his mind before he issued the written order.

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I mean, these are so diametrically opposed.

[00:12:17] Speaker 01:
Your honor, I want to be clear.

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The United States tends to agree with the court that if it feels that there's some ambiguity, this case can be sent back on a limited remand to either a firm.

[00:12:27] Speaker 03:
Well, this isn't about ambiguity.

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This is about direct conflict.

[00:12:30] Speaker 01:
Yes, your honor.

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Ambiguity is the wolf child issue, but not on the fine isn't ambiguous.

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There's a conflict.

[00:12:38] Speaker 01:
Yes, your honor.

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In light of that conflict, the United States believes that the court can send it back.

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I was highlighting an instance in which this court

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of course, had amended the judgment when there had been a clear discrepancy between the oral pronouncement and the written judgment.

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But the United States agrees that this case can be limited remand for the fine.

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Moving to the next subject, which Your Honor referenced, which is the special condition number six, I think the court has to look at that in context.

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And the first part of the context is what is the question?

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The question presented was not, can he have contact with his children?

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The question was, can he have contact with the victim on his own with no supervision to then contact the children?

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And the court's first sentence out of its mouth is, before you contact her, that you have to get permission.

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And the children had nothing to do in this case.

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In fact, during sentencing,

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The court wasn't even clear how many children he had or if he had any biological children with the intimate partner.

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So it's clear what the court is saying when it makes comments like, I will not allow it.

[00:13:43] Speaker 01:
It's clear that the court is saying the district court does not want the defendant to contact the victim on his own when looking holistically.

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When looking holistically at the written judgment and what the court is saying, the court is not saying he can't contact his children.

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The court is saying that he cannot, on his own, contact the victim to go through the children.

[00:14:09] Speaker 01:
The first thing he says, which was consistent with the United States' position at the time, is you can't do it alone.

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He will not allow it.

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You need to seek permission to contact the victim to then talk to the children.

[00:14:20] Speaker 04:
We can read those words, but if his intent

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and it's anything but clear, was that he was to have no contact with the children.

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And there may be a record for that.

[00:14:34] Speaker 04:
He didn't make the special findings that are required to make that a special condition, correct?

[00:14:40] Speaker 01:
That is correct.

[00:14:41] Speaker 01:
Your Honor, that is correct.

[00:14:43] Speaker 01:
The United States position is that when looking holistically at the question that was raised, not can he have contact with the children, it's can he contact the victim directly on his own to then have contact with the children, that answer he said was no.

[00:14:58] Speaker 01:
And that's why the written judgment doesn't prevent contact with the children, it only prevents direct contact with her.

[00:15:05] Speaker 01:
And the court again said,

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you must get permission before you're contacting her to get to the children.

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which was the United States position.

[00:15:14] Speaker 05:
So, you know, so far that what we've been discussing with you is very easy.

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That is to say, we just can send it back to the district judge, ask him to clarify, and then he can go forward.

[00:15:24] Speaker 05:
The harder part for me is what do we do with the length of the sentence and what do we do with the fact that he was so clear that this statement from the victim was, I'll say, encouraged or coerced or, you know, without any

[00:15:40] Speaker 05:
evidence beyond his experience in this type of case.

[00:15:45] Speaker 01:
Your honor, I do think that there was evidence beyond his experience in this type of case for this.

[00:15:50] Speaker 01:
And so you know, so what is that evidence?

[00:15:53] Speaker 01:
Your honor, in this in the trial in Colville, United States, of course, talks about the district court is the best position to having sat through trial to weigh the evidence that comes in at trial in this case.

[00:16:03] Speaker 01:
A recorded, there was testimony about a recorded call that the defendant had called the victim and the appellant alluded to this and effectively told her not to cooperate with the United States.

[00:16:13] Speaker 01:
She then did not testify at the trial, which the district court referenced.

[00:16:20] Speaker 04:
What the judge said at sentencing was, I think you, the defendant, called this person and demanded, encouraged, coerced you

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to write a letter supporting leniency.

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That connection has not been made, has it?

[00:16:38] Speaker 01:
Through reasonable inferences, strong reasonable inference.

[00:16:41] Speaker 04:
Can you start your answer to my question with a yes or no?

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Is there a connect in the evidence?

[00:16:47] Speaker 01:
Yes, Your Honor.

[00:16:48] Speaker 04:
Tell me what it is.

[00:16:49] Speaker 01:
Your Honor, the judge said, quote, it was clear to me the reason she wasn't here to testify in the chair to the left of me was because you too had made up.

[00:17:01] Speaker 01:
And in the PSR, the court references that she had, this is the same victim had been abused.

[00:17:06] Speaker 04:
That may get you part of the way there, but what I'm pointing to and what your counsel, opposing counsel has pointed to is that the judge said, I think the defendant called this person and had that person write this letter.

[00:17:23] Speaker 04:
That connection has not been made in the evidence, has it?

[00:17:27] Speaker 01:
there's not been a recorded phone call there is not testimony that that specific phone call took place the United States position is that it's a reasonable inference in the judge only need to make findings of fact that sentencing by preponderance the evidence noting that this victim

[00:17:43] Speaker 01:
had been assaulted multiple times in her past and had always gotten back together with him, which is exactly what happened at trial.

[00:17:50] Speaker 01:
And noting that the trial demonstrated that he exerted power, control, influence over her decisions to cooperate with the United States in this case.

[00:17:59] Speaker 04:
This individual was in custody all this time?

[00:18:02] Speaker 01:
Yes, Your Honor.

[00:18:02] Speaker 04:
Okay.

[00:18:03] Speaker 04:
They still record telephone calls coming out of correctional institutions?

[00:18:07] Speaker 00:
Yes, Your Honor.

[00:18:08] Speaker 04:
Okay.

[00:18:08] Speaker 04:
So all of his calls were recorded?

[00:18:10] Speaker 00:
Yes, Your Honor.

[00:18:11] Speaker 04:
have they been examined to determine the point I'm trying to make, which you're skirting around, is did he call her and say, write a letter requesting leniency?

[00:18:24] Speaker 01:
The United States does not have that direct evidence, Your Honor, that that call was made.

[00:18:30] Speaker 05:
Let me ask it in a slightly different way.

[00:18:32] Speaker 05:
Has the United States looked for that evidence in the phone calls and not found it?

[00:18:36] Speaker 01:
yes your honor okay and and but again you rely on the on the inference on the reasonable inference established by preponderance of the evidence but I would also make this point your honor this court has made clear in United States versus Atherton and other case law that the appellant has to show more than clear error the appellant has to show that

[00:18:56] Speaker 01:
the judge demonstratively relied upon that error in reaching his sentence, which the appellant hasn't shown here, because I think it's important to note that he talks about this phone call, Your Honors, for a few sentences, amongst pages and pages and pages of other reasoning explaining why he's sentencing the defendant to 120 months' prisonment, noting, as the court referenced earlier,

[00:19:18] Speaker 01:
that he had previously sentenced this defendant to a guidelines range sentence that was clearly insufficient and had no impact on this defendant.

[00:19:27] Speaker 01:
I see my time is coming to the end, Your Honor.

[00:19:29] Speaker 01:
Subject to your questions, we would ask the court to affirm the sentence and the conviction and amend the written judgment to reflect the oral pronouncement of the fine.

[00:19:39] Speaker 01:
Subject to your questions, that's all I have.

[00:19:40] Speaker 01:
Thank you.

[00:19:45] Speaker 02:
Very briefly, I'd like to address two points.

[00:19:48] Speaker 02:
First, with regard to the government's reliance on the Atherton decision, it has nothing whatsoever to do with the issue in this case.

[00:19:56] Speaker 02:
Atherton is a case where there was a defendant who had a plea agreement that prevented him from appealing, and the court did the analysis as to whether there was a constitutional due process violation that would allow him to get around the waiver.

[00:20:07] Speaker 02:
That is not what we're talking about here.

[00:20:09] Speaker 02:
This is a sentencing error.

[00:20:11] Speaker 02:
And the government has the burden of proving that it did not affect the judge's sentence.

[00:20:15] Speaker 02:
The second thing I would like to address is with regard to the Wolf Child issue.

[00:20:19] Speaker 02:
The government is misstating what the record says.

[00:20:23] Speaker 02:
The written condition says, you must not contact the victim, and the probation officer will verify compliance.

[00:20:32] Speaker 02:
That is all it says.

[00:20:33] Speaker 02:
And this is what the judge said.

[00:20:35] Speaker 02:
You cannot contact the victim in this case.

[00:20:39] Speaker 02:
So that means you cannot contact any minor child that you have in this case.

[00:20:45] Speaker 02:
It could not be more clear that this is a wolf child violation.

[00:20:48] Speaker 02:
So we would ask that the court remand the entire case for re-sentencing.

[00:20:51] Speaker 03:
Thank you, counsel.

[00:20:52] Speaker 03:
Thank you to both counsel for your arguments in the case.

[00:20:54] Speaker 03:
The case is now submitted.