[00:00:01] Speaker 02: We'll move on to our second argument in Bryant versus United States, and that one is case number 24-3093. [00:00:08] Speaker 02: Ms. [00:00:09] Speaker 02: Stiles? [00:00:29] Speaker 00: Good morning, Your Honors. [00:00:30] Speaker 00: May it please the court, Angela Dowes for the defendant and appellant, Donnie Bryant. [00:00:35] Speaker 00: I'd like to reserve two minutes for rebuttal. [00:00:38] Speaker 00: Your Honors, I start today with two realities, the first being the harrowing underlying case facts, and the second being that the district court in a 20-page decision abused its discretion in denying Donnie Bryant's motion for sentence reduction. [00:00:55] Speaker 00: Yet a motion for sentence reduction should have been granted under the law and the facts. [00:01:00] Speaker 00: First, the district court did not apply the correct law. [00:01:04] Speaker 00: This is true by necessity. [00:01:06] Speaker 00: The district court acknowledged this court has not yet decided whether juvenile status qualifies as an extraordinary and compelling circumstance. [00:01:15] Speaker 00: Also, the recency of the First Step Act and [00:01:18] Speaker 00: The continuing guide. [00:01:20] Speaker 02: Well, council, that may be true, but that doesn't mean that the district court got it wrong. [00:01:24] Speaker 02: I mean, we may not have decided that, but you know, don't we have to look at whether juvenile status should be, should fit within the extraordinary and compelling reasons? [00:01:38] Speaker 00: Yes, your honor. [00:01:38] Speaker 00: So that's certainly why I'm here today. [00:01:40] Speaker 00: So I'll move on to the factual analysis. [00:01:44] Speaker 02: We would review that issue as de novo, right? [00:01:47] Speaker 00: Your honor, I would request that be true. [00:01:50] Speaker 00: I was concerned about the level of review of the decision based on the motion versus, for example, a statutory review, right, which would be de novo as your honor mentions. [00:02:02] Speaker 00: Okay. [00:02:03] Speaker 00: Your honor, so I'll move on to the sort of the second issue under the abuse of discretion standard, the clearly erroneous finding of material facts, which I necessarily have to argue if it's more under abuse of discretion, your honor. [00:02:15] Speaker 00: So youth by itself, [00:02:18] Speaker 00: Although it may not be enough, my argument would be youth plus some other factor would be something to cross the threshold in this matter. [00:02:28] Speaker 02: And you're just talking about extraordinary and compelling. [00:02:31] Speaker 00: Yes, Your Honor. [00:02:32] Speaker 02: Because we can't consider youth under the 3553 factors, right? [00:02:36] Speaker 00: Yes, Your Honor. [00:02:38] Speaker 00: Certainly we can. [00:02:39] Speaker 00: And, you know, maybe jump to that part, Your Honor. [00:02:42] Speaker 00: The court did not find extraordinary and compelling circumstances. [00:02:46] Speaker 02: So it didn't. [00:02:48] Speaker 02: It didn't do the rest, or it did, I forget. [00:02:50] Speaker 00: So at the end, the court mentioned the 3553A factors briefly, but had said that, well, I did not find an extraordinary compelling circumstance. [00:02:59] Speaker 00: So therefore, the 3553A factors are essentially not applicable at this point. [00:03:07] Speaker 04: Did you raise or did the district court consider [00:03:15] Speaker 04: your client's behavior while in custody. [00:03:20] Speaker 00: No, your honor. [00:03:22] Speaker 00: So did you raise it? [00:03:27] Speaker 00: Not in my briefing, your honor, but there is evidence in the record that talks about that. [00:03:31] Speaker 00: For example, in Donnie Bryant's original pro se emotion, he makes a brief mention of his rehabilitation while in custody. [00:03:39] Speaker 00: There are also four letters in the record. [00:03:42] Speaker 00: that the court did not utilize or reference in the decision. [00:03:45] Speaker 00: So we would ask at least that it be remanded on that basis to review rehabilitation. [00:03:50] Speaker 00: And what's been happening the last, it'll be 20 years in May, right, with the client. [00:03:56] Speaker 00: So that's a significant amount of time. [00:03:57] Speaker 00: That's over half of my client's life. [00:04:01] Speaker 00: So I just wanted to talk about more than one fact. [00:04:05] Speaker 00: In addition to youth, it embraces the rulings of the courts deciding against a sentence reduction. [00:04:11] Speaker 00: So they were considering only youth. [00:04:13] Speaker 00: It was known at the time of the original sentencing. [00:04:16] Speaker 00: So I essentially disagree with the district court that youth alone in the deep analysis should be considered without context. [00:04:25] Speaker 00: Just as rehabilitation alone is not enough, youth alone should not be enough. [00:04:29] Speaker 00: So it's really a combination of factors. [00:04:32] Speaker 02: That's why you're pitching this as an abuse or discretion issue as opposed to a legal question. [00:04:36] Speaker 02: Because you think that if it's a legal question, even though you get de novo review, [00:04:40] Speaker 02: That's probably not where the court should come out to say that use has to be considered. [00:04:45] Speaker 00: Your honor. [00:04:46] Speaker 00: Yeah. [00:04:47] Speaker 00: So though I, of course, I do know of her review, your honor. [00:04:50] Speaker 00: So I don't know. [00:04:51] Speaker 02: We appreciate the, your judgment on that. [00:04:54] Speaker 00: So this case was argued together, the youth of the client at the time, together with this unusual circumstance of a co-defendant being re-sentenced 10 years after conviction and trial. [00:05:09] Speaker 04: But this is the code defendant that had a plea agreement. [00:05:13] Speaker 00: Yes, that is correct, Your Honor. [00:05:15] Speaker 00: But an unusual plea agreement, right? [00:05:17] Speaker 00: The one that was not a pretrial plea agreement. [00:05:20] Speaker 00: So I point to the idea that the case law that was used in support of a plea agreement being different was in the context of a pretrial plea. [00:05:29] Speaker 00: And certainly we know that a person that takes a plea versus going to trial [00:05:34] Speaker 00: before trial or taking the risk of trial, that's a different circumstance. [00:05:39] Speaker 00: This is an unusual case, Your Honors. [00:05:43] Speaker 00: There's a risk of kind of trying to discern the reasons for that plea, especially an unusual post-trial plea. [00:05:51] Speaker 00: Subjectivity comes into play. [00:05:53] Speaker 00: There's arguments and negotiation that are not evidence, that were not tested by the jury. [00:06:00] Speaker 00: and no trial to be able to test whatever happened with that plea agreement or the facts related to it. [00:06:06] Speaker 00: So essentially a Sixth Amendment concern compared to my client's case. [00:06:09] Speaker 03: If we can get to the merits here of your argument on the extraordinary and compelling circumstances, you have to come in under section five, other reasons. [00:06:28] Speaker 03: Give me a little bit about your similar in gravity analysis. [00:06:32] Speaker 03: How does his age of 16 compare to sections one through four? [00:06:45] Speaker 00: Your Honor, if I understand the court's concern that it would perhaps unduly expand the other reasons category so that [00:06:55] Speaker 00: many other reasons will flow into the- Well, you have to get there somehow. [00:06:59] Speaker 03: You're on the merits. [00:07:00] Speaker 03: You have to get there. [00:07:02] Speaker 03: It's clear that your claim for Mr. Bryant doesn't fall in categories one through four. [00:07:09] Speaker 00: Yes, Your Honor, undeniably so. [00:07:12] Speaker 00: And briefly, this is an unusual circumstance, not only because of the client's youth, but also taken together with that post-trial plea agreement. [00:07:22] Speaker 00: So that [00:07:23] Speaker 00: is what I'm arguing is the other category. [00:07:25] Speaker 00: And the 2023 amendments to 1B1.13, the Sentencing Commission acknowledged there could be dozens of reasons for granting a motion for sentence reduction, which they could not encapsulate. [00:07:41] Speaker 00: Certainly it would be unusual for the Sentencing Commission to say, if the particular offender was 16 at the time of the offense, and if 10 years after trial and conviction, the co-defendant happens to be resentenced, [00:07:53] Speaker 00: It just isn't something that could be encapsulated. [00:07:55] Speaker 03: Yeah. [00:07:55] Speaker 03: But I think you mean you're overlooking, you still have to shoehorn your argument into some section here. [00:08:00] Speaker 03: And I'm giving you the opportunity to tell me why, why his youth at the time of the commission of this offense, uh, is of similar gravity to paragraphs one through four. [00:08:13] Speaker 00: Yeah. [00:08:13] Speaker 00: The closest under the at least pre 2023 amendments would be the, the U the health issues combined with age under B2, although it's [00:08:23] Speaker 00: Imperfect, that's the closest analogy I have, Your Honor. [00:08:26] Speaker 04: Under a prior version of the statute, I think, these proceedings would be triggered by some statement by Bureau of Prison Officials custodian saying, take a look at this person's sentence. [00:08:45] Speaker 04: Did anything like that happen here? [00:08:48] Speaker 04: Not that I'm aware of, Your Honor, no. [00:08:51] Speaker 04: So the record is, [00:08:53] Speaker 04: blank on whether his current custodians have an opinion one way or another about his rehabilitation. [00:09:02] Speaker 04: That's correct, Your Honor. [00:09:04] Speaker 00: Okay. [00:09:04] Speaker 00: I'll reserve the balance if I could. [00:09:05] Speaker 00: Yep. [00:09:05] Speaker 00: Thank you. [00:09:17] Speaker 01: Good morning, Your Honors, and may it please the court. [00:09:19] Speaker 01: James Gator for the United States. [00:09:21] Speaker 01: You have a new boss. [00:09:23] Speaker 01: I do. [00:09:25] Speaker 01: Thank you, Your Honor. [00:09:27] Speaker 01: There are two primary issues on appeal. [00:09:29] Speaker 01: First is whether the District Court abused its discretion when it analyzed the 3553A factors and found that those factors weighed against a reduction in the appellant's case. [00:09:41] Speaker 01: Second is whether the District Court abused its discretion [00:09:45] Speaker 01: when it found that none of the three pro-offered reasons of the appellant rose to the level of extraordinary and compelling reasons. [00:09:55] Speaker 01: The answer to both of these issues is that the district court did not abuse its discretion. [00:10:00] Speaker 01: First, as to the 3553A factors, the district court took care to analyze the underlying conduct in this case, finding not only the dangerous but ultimately deadly nature of the incident, [00:10:14] Speaker 04: uh... leaving one person murdered in cold blood a second injured and more threatened with the specter of death the court also governments excuse me what's the government's position on whether age can be an extraordinary factor that it could be but is not in this case that it can never be what's your position [00:10:38] Speaker 01: My position is that it would not be a reason that could be or rise to the level of extraordinary and compelling it is inconsistent ever. [00:10:50] Speaker 01: Never as far as the reading I have of the policy of the Sentencing Commission that the catch all be 5 is not a true catch all in itself references section be one through 4 which emphasize the commission's [00:11:07] Speaker 01: care as far as incarcerated individuals who are subject to mental health and physical abuse or deteriorating health, where age is mentioned, it is excluded or limited to individuals of advanced age. [00:11:25] Speaker 01: And again, that's in conjunction with failing mental or physical health. [00:11:30] Speaker 01: All four of those be one through four are not applicable to the appellant. [00:11:35] Speaker 02: So what is a defendant's recourse if at 16 he commits a heinous crime, but everybody says 20 years later, 30 years later, he's been completely rehabilitated? [00:11:51] Speaker 02: Is there, under your theory, that would never be grounds for compassionate release? [00:12:01] Speaker 01: Yes, Your Honor, I think part of that would be just [00:12:05] Speaker 01: a sort of respect for the finality of the sentencing, for the consideration. [00:12:09] Speaker 02: Are there other areas where reduced sentence could come into play under rehabilitation, or it's just, it's not, Congress hasn't allowed for that? [00:12:21] Speaker 01: I think possibly an analysis of B6, which I believe speaks to unusually long sentences. [00:12:30] Speaker 01: But again, that would not be applicable to the appellant in this case, given count one, he was originally given a life without possibility of parole, if I remember correctly, for the Vicar murder conviction. [00:12:41] Speaker 01: That was then changed to be 40 years, although he could have again at the sentencing as the record makes clear, been given that that life without or life conviction. [00:12:57] Speaker 01: And further, at the time of sentencing 2014, the appellant could have and was recommended by the probation office [00:13:05] Speaker 01: to receive the stacking that was available at that time for a total recommended sentence of 150 years. [00:13:14] Speaker 01: That was rejected at that time. [00:13:16] Speaker 01: Instead, the appellant was given the 10 years for each of the 924C convictions running consecutively and the 10 years as opposed to the five that I think is mentioned in some of the briefs given the discharge of the weapon. [00:13:31] Speaker 03: Okay, now Judge Hawkins asked you, was there ever a time that [00:13:35] Speaker 03: age could apply. [00:13:37] Speaker 03: I have a question about Section E of the policy statement on foreseeability of extraordinary and compelling circumstances, where that part of the section says that the reason for the reduction need not have been unforeseen at the time of sentencing. [00:13:58] Speaker 03: Isn't it possible that you could shoehorn [00:14:01] Speaker 03: a youth argument into that section in some case. [00:14:09] Speaker 01: I think it it I guess could be possible given that that you know the age of the appellant at the time of an incident or the conduct would be known. [00:14:21] Speaker 01: But [00:14:23] Speaker 01: I'm having trouble thinking of a way that maybe that that would come into play. [00:14:27] Speaker 01: But I see as far as the kind of expansive language of that there could be a possibility. [00:14:32] Speaker 01: But as far as my reading, as mentioned of B one through four and the policy statement and the limited nature of B five, that youth would not rise sooner. [00:14:43] Speaker 04: Donnie Bryant had been 12 years old. [00:14:48] Speaker 04: Would your position be the same? [00:14:52] Speaker 01: Yes, given that his sentence. [00:14:55] Speaker 01: Was and his age at the time was considered. [00:15:01] Speaker 01: The reduction in this case. [00:15:05] Speaker 01: If the Sentencing Commission had decided to make that a reason or one that could be a extraordinary compelling reason following up on your position that age can never. [00:15:17] Speaker 04: Never ever ever. [00:15:19] Speaker 04: The extraordinary circumstance [00:15:21] Speaker 04: under the fabric of the law we're dealing with here today, you would argue that a 12-year-old engaged in the same behavior that would not qualify. [00:15:35] Speaker 01: So I think I would. [00:15:36] Speaker 04: Your answer is still no. [00:15:39] Speaker 01: My answer would be not youth alone. [00:15:43] Speaker 01: If youth, in this case, as you mentioned, 12 years old, coupled with health. [00:15:47] Speaker 04: That's the fabric of my question, counsel. [00:15:49] Speaker 04: It began earlier when I asked you. [00:15:52] Speaker 04: Your the government's position is that age can never ever ever be an extraordinary circumstance. [00:16:01] Speaker 04: That's still your position. [00:16:03] Speaker 01: Standing alone, yes. [00:16:04] Speaker 04: What if Donnie Bryant were 10 years old? [00:16:10] Speaker 01: I think yes, given that the Sentencing Commission, if it decided that it wanted to incorporate that into its policy, it would have. [00:16:17] Speaker 01: I think age standing alone on the youthful aspect of that would not be sufficient if over time [00:16:25] Speaker 01: the youthful offender, even two years into their sentence, had mental or physical health deteriorations. [00:16:32] Speaker 01: I think that is something that could possibly reach the gravity of, I believe it's B2, but standing alone youth. [00:16:39] Speaker 02: You keep saying standing alone, and I think your opposing counsel has made clear that she's not making a standing alone argument. [00:16:51] Speaker 03: So I. Yeah, I mean, [00:16:56] Speaker 03: Following up on Judge, my colleagues' questions, I mean, you have here a disparity argument between what Bryant received 70 years and the 35 years that Tolliver got after the plea agreement. [00:17:13] Speaker 03: whether the plea agreement excuses the disparity, you still have disparity. [00:17:18] Speaker 03: So could there be a case where you had somebody who was 12, 14, 16, where there was disparity, where in fact they'd be an entitlement to compassionate release? [00:17:32] Speaker 01: I think possibly, well, I [00:17:37] Speaker 01: I don't see disparity as one that is considered by factors be one through four. [00:17:42] Speaker 01: So even considering all the arguments made by the appellant, I think in the briefing, there's mentioned that there was no sort of assertion that there was any mental health or physical problems with. [00:17:53] Speaker 01: Well, what about section six? [00:17:56] Speaker 03: Dealing with unusually long sentences. [00:17:58] Speaker 03: I talked about gross disparity. [00:18:01] Speaker 01: Yes, I think if there were an unlawful gross disparity coupled with the youth or even sort of standing alone given that section that could rise to that level. [00:18:14] Speaker 01: Here the appellant is in a distinctly different position. [00:18:16] Speaker 01: I think they had pled after the plea agreement to one section 924 J if memory serves conviction where again the appellant here vicar murder conviction several 924 C convictions. [00:18:31] Speaker 01: For those reasons, I think it stands sort of separate from that. [00:18:36] Speaker 03: Bryant doesn't necessarily argument, but I mean, why isn't this 35 year differential a gross disparity? [00:18:44] Speaker 03: For somebody who is 16 years old. [00:18:48] Speaker 01: I think because what he was convicted of, he could have received a much greater sentence and what the codefendant was ultimately convicted of after the plea agreement. [00:18:58] Speaker 01: It is not grossly [00:19:02] Speaker 01: sort of unlawful that that portion, the 70 years that he was given. [00:19:10] Speaker 01: So I think that's not a gross disparity given what they ended up convicted of. [00:19:17] Speaker 02: Okay. [00:19:19] Speaker 02: Thank you, counsel. [00:19:20] Speaker 01: Thank you very much for the battle. [00:19:27] Speaker 00: And I briefly [00:19:30] Speaker 00: I believe there's some confusion about the applicability of 1B1.13 in terms of this motion. [00:19:38] Speaker 00: At the time Donnie Bryant filed his motion, it was July of 2023. [00:19:41] Speaker 00: And the amendments to 1B1.13, as Your Honor mentioned, went into effect in November of 2023. [00:19:49] Speaker 00: So Your Honor, I believe, maybe it was of my doing, I didn't argue those new parts of 1B1.13. [00:19:58] Speaker 02: Were not applicable. [00:20:00] Speaker 02: You would argue they're not applicable. [00:20:02] Speaker 00: Your honor, I would argue that I would like to, your honor had noted the newer parts actually have potentially more applicability than, for example, in other countries. [00:20:11] Speaker 02: Oh, and you want to be able to take advantage of them. [00:20:13] Speaker 00: Yes, your honor. [00:20:15] Speaker 00: So I asked to be vacated to remand, not surprisingly, or at least a limited remand to determine the extent of rehabilitation or the new parts of 1B1.13. [00:20:24] Speaker 02: And which part do you think would help you the most? [00:20:28] Speaker 00: Gosh, your honor, [00:20:30] Speaker 00: Part six, perhaps, on the unusually long sentence. [00:20:34] Speaker 00: There's also some commentary by the Sentencing Commission that talks about a motion that makes sense in the context of the new amendments, where you have commendable rehabilitation while incarcerated, and the offense conduct occurred when the defendant was in his late teens or early 20s. [00:20:53] Speaker 00: That's part of the criteria. [00:20:54] Speaker 00: So I certainly would be arguing that if it was rematted back to the district court, Your Honor. [00:21:02] Speaker 00: And, Your Honor, we would just ask that, at minimum, you just at least not have the opportunity for closing the future to file a motion for compassionate release, certainly as facts come to light. [00:21:13] Speaker 02: Yeah, there's no restriction. [00:21:15] Speaker 02: It's not like a habeas petition, right? [00:21:17] Speaker 02: I mean, I'm not sure it's the best strategy, but theoretically, you could file a new motion every year or every other year or whatever. [00:21:27] Speaker 00: I wouldn't suggest that, Your Honor, but certainly, yes, at the appropriate points, Your Honor. [00:21:30] Speaker 02: OK. [00:21:31] Speaker 02: All right, thank you. [00:21:32] Speaker 02: Thank you to both counsel for your arguments in the case. [00:21:33] Speaker 02: The case is now submitted.