[00:00:00] Speaker 03:
Ms.

[00:00:00] Speaker 03:
Pinot.

[00:00:02] Speaker 00:
Good morning, Your Honours.

[00:00:03] Speaker 00:
May it please the Court, Lisette Pinot, on behalf of Mr. Carcamo.

[00:00:06] Speaker 00:
I would like to reserve two minutes for rebuttal.

[00:00:09] Speaker 03:
Just keep an eye on the clock.

[00:00:10] Speaker 00:
Yes, sir.

[00:00:12] Speaker 00:
Under the Due Process Clause, a District Court cannot base a defendant's sentence, even in part, on the defendant's national origin.

[00:00:19] Speaker 00:
But here, the record is clear that Mr. Carcamo's sentence was partly based on the fact that he is from Honduras.

[00:00:26] Speaker 00:
The District Court expressly said it wanted to deter

[00:00:29] Speaker 00:
the dealers coming from Honduras and dealing fentanyl in San Francisco.

[00:00:33] Speaker 00:
That error requires reversal, even under the plain error standard of review.

[00:00:39] Speaker 00:
This court's opinion in Barrero Asasa is clear about what district courts can and cannot do with respect to a defendant's national origin in this context.

[00:00:50] Speaker 00:
A sentencing judge cannot try to deter criminal conduct by people of the same national origin

[00:00:57] Speaker 00:
and give a defendant a harsher sentence to achieve that goal.

[00:01:01] Speaker 00:
What a district court can do is look at defendants who are trafficking in drugs from a source country and penalize those defendants more harshly if there's support in the record to make such a finding.

[00:01:14] Speaker 00:
And that's Barrero's Sassa Footnote 3.

[00:01:16] Speaker 00:
This is permissible because it's penalizing the defendant based on his conduct, not on his national origin.

[00:01:23] Speaker 00:
And the court in Barrero gave the example of two defendants, one American and one Colombian, both of whom are dealing in Colombian drugs, who received the same sentence for engaging in that reprehensible conduct.

[00:01:37] Speaker 00:
That's not based on national origin.

[00:01:39] Speaker 00:
But that isn't what happened here.

[00:01:40] Speaker 00:
The district court cited two reasons for imposing the sentence that it did, which was 12 months higher than the sentence recommended by U.S.

[00:01:52] Speaker 00:
probation.

[00:01:54] Speaker 00:
One was the quantity of fentanyl involved in the case.

[00:01:57] Speaker 00:
And the second was deterrence.

[00:01:59] Speaker 00:
And in terms of deterrence, the court specifically said it was not concerned that Mr. Carcamo was going to commit this crime again.

[00:02:07] Speaker 00:
So specific deterrence as to him is out.

[00:02:10] Speaker 00:
Specific deterrence as to his half brother, who was also involved, is out.

[00:02:14] Speaker 00:
After counsel objected that it would be unfair to penalize Mr. Carcamo for his half brother, who was arguably more culpable and had fled,

[00:02:24] Speaker 00:
the district court disclaimed deterring the half-brother.

[00:02:28] Speaker 00:
And so it really was focused on Honduran drug dealers, in the plural.

[00:02:32] Speaker 03:
Would you agree that the comments by the district court here are pretty far removed from those in Barrera Osaza?

[00:02:40] Speaker 00:
There's certainly fewer comments, Your Honor.

[00:02:43] Speaker 00:
And there were some comments in Barrera Osaza that suggested animus, which is not present here.

[00:02:48] Speaker 03:
There was pretty extensive comments suggestive of animus there.

[00:02:50] Speaker 00:
Right.

[00:02:51] Speaker 00:
But I think the key similarity is that

[00:02:54] Speaker 00:
Both Barrero and this case involve an expressed desire to deter other people of the defendant's national origin.

[00:03:02] Speaker 00:
So in Barrero, the court was trying to send a message, using the defendant to send a message to Colombian drug dealers.

[00:03:09] Speaker 00:
And the same was true here.

[00:03:10] Speaker 00:
The court wanted the dealers coming from Honduras and dealing fentanyl to know, based on Mr. Carcamo's sentence, that they shouldn't do that.

[00:03:18] Speaker 03:
So the PSR describes the, I gather there was a

[00:03:23] Speaker 03:
conspiracy involving some other people who had in fact brought drugs from Honduras or the other participants in the conspiracy who were bringing the drugs were also from Honduras.

[00:03:35] Speaker 03:
Is that correct?

[00:03:37] Speaker 00:
No, Your Honor.

[00:03:38] Speaker 00:
That's wrong on two counts.

[00:03:39] Speaker 00:
So to start, the district court did not make a conspiracy finding.

[00:03:44] Speaker 03:
I know that, but the PSR refers to some of his co-conspirators and they were from Honduras, weren't they?

[00:03:49] Speaker 00:
The PSR mentions other participants in the offense.

[00:03:52] Speaker 00:
It expressly does not make a conspiracy finding.

[00:03:56] Speaker 00:
So the PSR only attributes to Mr. Carcamo the drugs that he took responsibility for, not all the drugs that were found, not the drugs that were found in the Halfbrothers' room, not certain drugs in the rest of the house.

[00:04:08] Speaker 00:
And so that shows that even implicitly there was no conspiracy finding here.

[00:04:14] Speaker 00:
And the district court adopted the PSR without change.

[00:04:18] Speaker 03:
OK.

[00:04:18] Speaker 03:
I take the point there, but even if it's not a conspiracy, there were other people involved with the defendant who had brought drugs, and they were from Honduras.

[00:04:30] Speaker 03:
Were they not?

[00:04:31] Speaker 00:
The people were from Honduras.

[00:04:32] Speaker 00:
There's no evidence in the record that the drugs were from Honduras.

[00:04:36] Speaker 00:
There's no evidence in the record that Mr. Carcamo or anybody else came here from Honduras as part of a scheme to deal drugs in the Bay Area.

[00:04:46] Speaker 00:
There's no evidence.

[00:04:48] Speaker 00:
There's no, you know, texts with a Honduran cartel suggesting some outside involvement.

[00:04:54] Speaker 00:
And the district court recognized this.

[00:04:56] Speaker 00:
So at the hearing, defense counsel tried to suggest that Mr. Carcamo might have been pressured by others into dealing drugs.

[00:05:04] Speaker 00:
And the district court correctly said, I don't have evidence it was at the direction of anyone other than Mr. Carcamo.

[00:05:11] Speaker 00:
And that's at ER 19.

[00:05:14] Speaker 00:
I think it's pretty clear that the district court not only was not finding a conspiracy, but also was not willing to go beyond what Mr. Carcamo himself had admitted that he did.

[00:05:26] Speaker 00:
And all he admitted he did was sell drugs and transport them from Oakland to the Bay Area.

[00:05:32] Speaker 00:
So there's no nexus to Honduras on these facts.

[00:05:36] Speaker 00:
And I think that's pretty important.

[00:05:38] Speaker 00:
And it's actually distinguishable from Barrero Sasa where, you know,

[00:05:43] Speaker 00:
This court noted there could have been a basis in the record to find that the drugs were imported from Colombia.

[00:05:49] Speaker 00:
But even then, this court declined to find that that made the district court's comments permissible because the district court didn't expressly make such a finding.

[00:05:59] Speaker 00:
That's why footnote three is so key.

[00:06:01] Speaker 00:
This court said, in this area of constitutional sensitivity, explicit factual findings on the record are required by the district court.

[00:06:11] Speaker 00:
That didn't happen here.

[00:06:12] Speaker 00:
That's plain error.

[00:06:14] Speaker 03:
Well, explicit factual findings are required if the judge is going to impose a sentence based on the drugs having come from that country.

[00:06:23] Speaker 03:
I guess where I'm having a little bit of difficulty is this is a single reference to a country.

[00:06:34] Speaker 03:
From context, we can infer that that's the country that he's from, but that's

[00:06:39] Speaker 03:
not actually what the judge says, which I think is different from the way the judge talked about it in Barrero's Sassa.

[00:06:45] Speaker 03:
And so how is it plain on this record that Carcamo's status as a person from Honduras was part of the reason for the sentence?

[00:06:58] Speaker 00:
So Barrero's Sassa is clear that the focus should be not on any kind of magic words, but on the actual basis for imposing the sentence.

[00:07:07] Speaker 00:
So here, even though there was only one reference, it was clear that the district court was aware Mr. Carcamo was from Honduras.

[00:07:14] Speaker 00:
And I'll give the court some examples.

[00:07:16] Speaker 00:
The district court specifically referenced multiple times the fact that Mr. Carcamo was going to be deported.

[00:07:21] Speaker 00:
Where was he going to be deported to?

[00:07:23] Speaker 00:
Honduras.

[00:07:24] Speaker 00:
The district court repeatedly referenced that his half-brother had fled.

[00:07:27] Speaker 00:
Where did he flee to?

[00:07:28] Speaker 00:
Honduras.

[00:07:29] Speaker 00:
The district court talked about Mr. Carcamo's mother, who he was supporting.

[00:07:33] Speaker 00:
Where was his mother?

[00:07:34] Speaker 00:
Honduras.

[00:07:35] Speaker 00:
Page one of the PSR

[00:07:37] Speaker 00:
which the district court specifically said that it read, lists Mr. Carcamo's place of birth as Honduras.

[00:07:42] Speaker 00:
So the district court is looking at Mr. Carcamo, and it's perfectly aware that Mr. Carcamo is from Honduras.

[00:07:48] Speaker 00:
Now, the question is, can the court, based on this one comment, conclude that the district court had a thought process along the lines of, well, this defendant is Honduran.

[00:08:00] Speaker 00:
I want to deter other Honduran drug dealers like him.

[00:08:02] Speaker 00:
Therefore, I'm going to give him a higher sentence.

[00:08:05] Speaker 00:
And I think the answer to that is yes.

[00:08:07] Speaker 00:
Because why would the court be concerned about deterring Honduran drug dealers if not for the fact that Mr. Carcamo himself was Honduran?

[00:08:14] Speaker 00:
If Mr. Carcamo had been as American as apple pie and no one brought up Honduras at the sentencing hearing, and out of nowhere the court said, you know, I'm very concerned about deterring Honduran drug dealers.

[00:08:26] Speaker 00:
I'll give you a harsher sentence to bring about that goal.

[00:08:30] Speaker 00:
I think it would be pretty odd and bizarre to make that kind of comment.

[00:08:35] Speaker 00:
So here, it is clear on the record that the district court's statement was based on Mr. Carcamo's national origin, at least in part.

[00:08:43] Speaker 00:
And that's enough under Barrera-Sassa.

[00:08:45] Speaker 00:
I see I'm eating into my rebuttal time.

[00:08:47] Speaker 00:
Thank you.

[00:08:47] Speaker 03:
You may reserve the rest of your time.

[00:08:53] Speaker 03:
Mr. Yeh?

[00:08:58] Speaker 01:
May it please the court.

[00:08:59] Speaker 01:
My name is Kevin Yeh, and I represent the United States.

[00:09:02] Speaker 01:
The judgment below

[00:09:04] Speaker 01:
should be affirmed because the district court did not rely on any impermissible factors in sentencing the defendant.

[00:09:10] Speaker 01:
On the contrary, the record shows that the sentence was primarily driven by, first, the staggering amount of drugs that Mr. Carcamo admitted to possessing when he was arrested, and second, the need to deter drug dealers, both factors appropriate under 3553A.

[00:09:27] Speaker 01:
Unlike cases where the sentencing court's comments were tinged with animus regarding characteristics unconnected to the offense,

[00:09:34] Speaker 01:
the district court made a single solitary reference over two sentencing hearings lasting a total of 50 minutes to drug dealers coming from Honduras.

[00:09:43] Speaker 02:
Could we just, why don't we just go through that statement that the district court made at the sentencing hearing where she says after defense counsel was talking about it being inappropriate to,

[00:10:03] Speaker 02:
take into consideration his half-brother.

[00:10:05] Speaker 02:
And then the district court says, but isn't deterrence, isn't one of the things I have to think about is that it needs to stop referring to the drug, fentanyl and whatnot.

[00:10:24] Speaker 02:
And then the defense counsel says yes, and then the key language that we've all been talking about, the district court says,

[00:10:30] Speaker 02:
that the dealers coming from Honduras and dealing fentanyl in this community and harming not just the people who take the drugs, but the kids who have to walk to school in the Tenderloin, that the businesses that are closing because people don't want to come here, don't I have to think about all of that and that somehow we need to have a sentence

[00:10:59] Speaker 02:
that reflects that so that it stops.

[00:11:06] Speaker 01:
Yes, Your Honor.

[00:11:07] Speaker 01:
And we would submit that that statement should be interpreted as the district court focusing on the drug dealing that is going on.

[00:11:17] Speaker 01:
She does make a reference to drug dealers coming from Honduras.

[00:11:21] Speaker 01:
But ultimately, if you look at the whole content, the tenor in content, as this court instructs in Brero, it's also that this court must look at.

[00:11:29] Speaker 01:
It is clear that the focus is on deterring drug dealers.

[00:11:34] Speaker 02:
I mean, Barrera Assasas also talks about the appearance.

[00:11:40] Speaker 01:
That's correct, Your Honor.

[00:11:40] Speaker 01:
And it is true that this court should take into account any appearance.

[00:11:44] Speaker 02:
Mike doesn't at least raise concerns about, doesn't this give the appearance that she was taking his, you know, origin, his national origin into account when she fixed a sentence at 48 months?

[00:11:59] Speaker 01:
If the district court had made multiple references, including ones tinged with animus the same way the district court in Brero and Saza did, then yes, I would submit that's the case.

[00:12:08] Speaker 01:
But here, the court should look at the entire tenor and content of the sentencing hearings.

[00:12:14] Speaker 01:
There were two of them.

[00:12:15] Speaker 01:
And this is a single solitary reference over two hearings.

[00:12:19] Speaker 01:
And the district court never once even acknowledges the fact that the defendant is Honduran.

[00:12:27] Speaker 01:
Yes, there are discussions about Honduras, but it is clear that the actual basis for the court's decision was not his Honduran ethnicity.

[00:12:37] Speaker 01:
It was deterrence of drug dealers, the pipeline of drug dealers that are in San Francisco.

[00:12:43] Speaker 01:
And in fact, I would point out that not only did the defense counsel not object, but actually said, yes, I agree to the statement.

[00:12:50] Speaker 01:
So in context,

[00:12:51] Speaker 01:
It's clear that this is quite different from all the other cases cited by defense counsel.

[00:12:59] Speaker 02:
Just the fact that there's only this one remark and she didn't really say that defendant had come from Honduras to deal drugs.

[00:13:17] Speaker 01:
I think that's right, Your Honor.

[00:13:19] Speaker 01:
Again, this Court said in Brera o Saza that the decision, the review of the sentence must be made based on our particular reading of the record before us.

[00:13:27] Speaker 01:
That's on 1355, as well as the tenor and content of the record as a whole.

[00:13:32] Speaker 01:
This is not like the other cases, such as Liang, Caba, Bulltail, where not only did the District Court reference the

[00:13:43] Speaker 01:
defendant's ethnicity or national origin, but it was completely untethered from the underlying offense.

[00:13:50] Speaker 01:
So, for example, in Estabilio, the defendant was Hawaiian, but the case dealt with wire fraud.

[00:13:56] Speaker 01:
In Kaba, the defendant was West African, but that is untethered with the underlying crime, which is drug dealing.

[00:14:04] Speaker 01:
And the court

[00:14:06] Speaker 01:
stated that it's not considered the defendant's background as an immigrant from Guinea, but rather the defendant's identification with the West African community.

[00:14:14] Speaker 01:
That is not what happened here.

[00:14:16] Speaker 01:
And so we think that, you know, one isolated remark does not make this plain error.

[00:14:25] Speaker 04:
Well, the other part of the transcript, though, before that discussed the half brother who returned to Honduras, correct?

[00:14:34] Speaker 01:
Yes, Your Honor.

[00:14:36] Speaker 04:
And so it's not, in the context of the case, all of that led up to we have to deter these people from Honduras, correct?

[00:14:43] Speaker 01:
That's correct, Your Honor.

[00:14:44] Speaker 01:
The court did mention the fact that the half-brother fled to Honduras, but again, if you look at it in context, the concern of the court seems to be drug dealing and not so much the fact that this person is Honduran.

[00:14:57] Speaker 01:
Drug dealers could come from anywhere, and I think that was what the district court was trying to get at.

[00:15:05] Speaker 02:
She was just expressing frustration with the sale of fentanyl.

[00:15:13] Speaker 01:
I think that's correct, Your Honor.

[00:15:14] Speaker 02:
In, let's just say she pointed out the tenderloin.

[00:15:18] Speaker 02:
Yes, Your Honor.

[00:15:19] Speaker 02:
And that's it.

[00:15:20] Speaker 02:
That's all that we should take from that.

[00:15:22] Speaker 01:
I think, yes, the frustration is about drug dealing.

[00:15:26] Speaker 01:
This is not in the record, but I think perhaps the district court was alluding to, based on her experience as a judge here in San Francisco, that a large proportion of drug dealers are from Honduras, but ultimately the concern seems to be about drug dealing, not so much where the drug dealers come from.

[00:15:44] Speaker 01:
The court is obviously concerned about children, business, et cetera, and it really doesn't make a difference to her decision where the drug dealers are coming from.

[00:15:53] Speaker 04:
So the government asked for 60 months, correct?

[00:15:56] Speaker 01:
That's correct, Your Honor, which is below guidelines.

[00:15:58] Speaker 04:
The defendant requested 15.

[00:16:00] Speaker 04:
That's correct.

[00:16:01] Speaker 04:
And what was the ultimate sentence?

[00:16:03] Speaker 01:
The ultimate sentence was 48 months.

[00:16:05] Speaker 04:
And below guidelines?

[00:16:06] Speaker 01:
That was below guidelines, yes, Your Honor.

[00:16:07] Speaker 01:
The guidelines here were 70 to 87 months.

[00:16:13] Speaker 01:
So unless the court has any more questions, I would submit and ask the court to affirm the judgment.

[00:16:18] Speaker 03:
Thank you.

[00:16:23] Speaker 03:
Rebuttal?

[00:16:28] Speaker 00:
Thank you.

[00:16:29] Speaker 00:
I'd like to make three points, if I have enough time, which I might not.

[00:16:33] Speaker 00:
I'll start with the most important point, which is here the district court raised Mr. Carcamo's national origin unprovoked.

[00:16:40] Speaker 00:
And so that distinguishes this case from CABA, where the government had actually introduced facts into the record suggesting that

[00:16:47] Speaker 00:
the defendant's community in West Africa was very tight-knit and that news of this sentence would travel widely.

[00:16:54] Speaker 00:
There's nothing like that here, nothing suggesting a specific need for deterrence.

[00:16:58] Speaker 00:
Second, if this court wants a case where there was only one reference as to the defendant's national origin, I think Estabilio is precisely on point.

[00:17:06] Speaker 00:
And I don't think the government is right to say that the offense there was completely unrelated from the defendant's national origin.

[00:17:13] Speaker 00:
The issue in Estabilio was that the defendant, a Native Hawaiian, had embezzled funds from a school for Native Hawaiian children.

[00:17:21] Speaker 00:
And the concern was that she had stolen from her own community.

[00:17:24] Speaker 00:
That's what the judge was getting at.

[00:17:26] Speaker 00:
And that was, again, just one reference to the fact that she was a Native Hawaiian who stole from other Native Hawaiians.

[00:17:33] Speaker 00:
So one reference, I think, can be enough to show that the actual basis for a sentence was at least in part the defendant's national origin.

[00:17:42] Speaker 00:
In terms of this idea that the district court was expressing a general frustration at drug dealing in the Tenderloin, district courts absolutely can do that without reference to national origin.

[00:17:54] Speaker 03:
I think you said you had one more point, if you want to make that briefly.

[00:17:58] Speaker 00:
Yes.

[00:17:58] Speaker 00:
My final point is that under Burgum, reversal can be appropriate when a district court mentions an improper factor at sentencing, even if it does so just once, as long as the reference is sufficiently clear in this court's mind.

[00:18:17] Speaker 00:
Thank you.

[00:18:17] Speaker 04:
I just have one question.

[00:18:18] Speaker 00:
Yes.

[00:18:20] Speaker 04:
You agree that plain error review applies?

[00:18:23] Speaker 04:
I mean, the difficulty here is if defense counsel had objected at the time, my educated guess is the district court would have said, no, no, I'm not basing this on national origin.

[00:18:36] Speaker 04:
I'm just frustrated with this situation.

[00:18:38] Speaker 04:
But here, defense counsel said, yes, this is appropriate.

[00:18:41] Speaker 04:
Yes, this is appropriate.

[00:18:42] Speaker 04:
So how do you get over plain error review?

[00:18:44] Speaker 00:
Well, Your Honor, I think two responses to that.

[00:18:48] Speaker 00:
I think if we look at the record as a whole, there were multiple times where defense counsel, like any good litigator, started by highlighting where he agreed with the district court and then pivoted to an objection.

[00:18:59] Speaker 00:
Here, defense counsel began to respond and he was interrupted and then directed to a different topic by the court.

[00:19:05] Speaker 00:
Second, the Second Circuit and Lung got it right when they recognized that at sentencing, a defendant would understandably be reluctant

[00:19:14] Speaker 00:
to suggest that the district court is biased against him on account of his national origin.

[00:19:19] Speaker 00:
And because correcting these kinds of errors only requires a brief resentencing procedure, the cost of which is quite low, as the Supreme Court acknowledged in Rosales-Moreles, courts should be more willing to entertain these kinds of issues even when there was no clear objection below.

[00:19:38] Speaker 00:
Council did object to the idea of deterrence

[00:19:41] Speaker 00:
of using Mr. Kakemo to deter other people generally.

[00:19:46] Speaker 00:
But to address the court's other point, I think Trujillo Castillon actually provides a powerful response.

[00:19:53] Speaker 00:
The court there, the Seventh Circuit said, the government asks us to speculate about what the district court meant at the expense of the defendant, but we shouldn't have to and we won't.

[00:20:02] Speaker 00:
Clarifying the basis for a defendant's sentence requires only a brief resentencing procedure.

[00:20:07] Speaker 00:
We think that is a very small price to pay.

[00:20:09] Speaker 00:
In light of how constitutionally invidious this kind of error is, I would urge the court to reverse and remand so Mr. Carcamo can be resentenced without reference to his national origin.

[00:20:21] Speaker 00:
Thank you.

[00:20:22] Speaker 03:
Thank you.

[00:20:22] Speaker 03:
We thank both counsel for their arguments, and the case is submitted.