[00:00:03] Speaker 02: Good morning. [00:00:04] Speaker 02: Aloha. [00:00:05] Speaker 02: And on behalf of my colleagues, Judge Hawkins and Judge Clifton, welcome to the Ninth Circuit. [00:00:11] Speaker 02: We have a number of cases that we have submitted previously, and the following cases are submitted. [00:00:20] Speaker 02: Sanchez, La Torre versus Bondi. [00:00:23] Speaker 02: Ramirez, Rincon versus Bondi. [00:00:26] Speaker 02: Houlihan versus Bisignano. [00:00:29] Speaker 02: And Woolley versus Bisignano. [00:00:31] Speaker 02: are all submitted without argument. [00:00:33] Speaker 02: We have three cases on the argument calendar today and we will take them in the order in which they appear on the calendar. [00:00:41] Speaker 02: Our first case is United States versus Castro-Camacho. [00:00:45] Speaker 02: Each of you have ten minutes and whenever you are ready. [00:00:57] Speaker 01: Good morning. [00:00:57] Speaker 01: May it please the court. [00:00:58] Speaker 01: My name is Phil Brennan. [00:00:59] Speaker 01: I'm here representing the appellant and the defendant below Mr. Castro Camacho. [00:01:05] Speaker 01: I would like to reserve two minutes of my time for rebuttal. [00:01:10] Speaker 01: We're asking the court today to reverse the district court's decision to deny our motion for compassionate release and or reduction in sentence and to direct the court on remand that it is proper to consider within its discretion [00:01:23] Speaker 01: not only the zero point offender amendment to the guidelines, but also the math error cited in our briefing. [00:01:31] Speaker 01: There are many things that are not in dispute in this case. [00:01:34] Speaker 01: If Mr. Castro Camacho were to be sentenced today under the current guidelines, his low end range would be 51 months. [00:01:42] Speaker 01: That's based on a criminal history one and an offender level score of 24, and that leads to that range. [00:01:49] Speaker 01: Number two, we're asking for a sentence that is the low end of that range, which is 51 months, which will amount to time served. [00:01:56] Speaker 01: He's going to be deported and his current BOP release date is in November. [00:02:00] Speaker 01: So that would result in him being immediately released from prison. [00:02:05] Speaker 01: The question in this appeal is how do we get there? [00:02:07] Speaker 01: And that's what I presented to the district court judge, two options, both of which would get us to the same result, the 51 month sentence. [00:02:14] Speaker 01: With regard to the reduction in sentence component, which is 3582C2, the question is whether that provides a vehicle for the court to reduce the sentence to the low end of the range of 51 months. [00:02:31] Speaker 01: The question we start with, both with regard to reduction in sentence and compassionate release, is the same, which is first, what does the statute tell us? [00:02:39] Speaker 01: The statute says, first of all, it asks, has there been an amendment to the guidelines? [00:02:45] Speaker 01: The answer is yes, the zero point offender. [00:02:48] Speaker 01: The second question asks whether a reduction in sentence would be consistent with applicable policy statements. [00:02:56] Speaker 01: We maintain the portion of 1B, the sentencing guideline 1B, 1.10B1, [00:03:03] Speaker 01: says that we sentence the defendant as if that amended guideline were in place. [00:03:07] Speaker 02: Counsel, you agreed that the correct guideline range at the time of sentencing would have been 63 to 78, right? [00:03:15] Speaker 01: Correct, Your Honor. [00:03:15] Speaker 02: And he got 60? [00:03:17] Speaker 02: Correct. [00:03:17] Speaker 02: All right. [00:03:18] Speaker 02: I certainly understand your argument and I think the district judge did too and the district judge candidly admitted he had made an error or they had made an error. [00:03:28] Speaker 02: Here is where I have a problem. [00:03:31] Speaker 02: How do you get past Dillon? [00:03:34] Speaker 02: And Dillon says the policy statement instructs courts not to reduce a term of imprisonment [00:03:41] Speaker 02: below the minimum of an amended sentencing range, except to the extent the original term of imprisonment was below the range then applicable. [00:03:51] Speaker 02: If he got 60 and the range then applicable was 63 to 78, how do we get around what the Supreme Court has instructed us in Dillon? [00:04:01] Speaker 01: Well, I think Dillon applies a different, there's a different fact pattern there in the sense that there is not an agreed sentencing or mathematical error. [00:04:10] Speaker 01: And I don't think the court considered that. [00:04:12] Speaker 01: Also, in that case, the defendant is seeking something that I'm not seeking in this case, which is revisiting, rehashing some of the guideline amendments. [00:04:20] Speaker 01: Dillon did not involve an agreed error. [00:04:22] Speaker 01: And I think the problem in reading Dillon the way the government and the district court does is that we have a fiction. [00:04:28] Speaker 01: When we go back and we look at applying the zero-point offender, we have to pretend that the math is correct. [00:04:35] Speaker 01: And I understand this court's concern that every... Why? [00:04:38] Speaker 04: Why do we have to... I mean, that was a decision made some time ago. [00:04:45] Speaker 04: And the limitation contained in the policy statement [00:04:50] Speaker 04: And the thrust of Dillon, indeed, as I understand sentencing generally, is that decisions made a long time ago don't customarily get revisited. [00:05:00] Speaker 04: Even if the district court has a change of heart, it's not empowered to go back and decide, I did that wrong, I'm going to sentence again. [00:05:07] Speaker 04: What's done is done with very narrow limitations. [00:05:13] Speaker 04: And so you keep describing it as a mathematical error. [00:05:16] Speaker 04: I'm not sure it was a mathematical error. [00:05:18] Speaker 04: The district judge made what he subsequently acknowledged was a mistake in believing that you couldn't get two different credits for minor role. [00:05:28] Speaker 04: That wasn't math, but it was the mistake that was made at the time that led to that sentence. [00:05:35] Speaker 04: And district courts do not have inherent power to go back and redo what they did before. [00:05:41] Speaker 01: That's true, Your Honor, but there is a vehicle to revisit the sentence, which is 3582, which says, is there an amendment to the guidelines? [00:05:48] Speaker 01: The answer is yes, that's undisputed, zero-point offender. [00:05:51] Speaker 01: And then the portion that I've cited with regard to the guideline talks about sentencing the defendant as if he were sentenced today and or at the time that that guideline was in place. [00:06:02] Speaker 01: I think at least the first portion of that is inconsistent with the district court's conclusion that it cannot essentially sentence him as if he were being sentenced today. [00:06:12] Speaker 01: I read that provision, which is 1B, 1.10, little b, little 1, the first portion of it says, the amended guideline that would have been applicable to the defendant if the amendment to the guidelines listed in subsection D had been in effect at the time the defendant was sentenced. [00:06:32] Speaker 04: But the next sentence says something very different from what you're suggesting. [00:06:37] Speaker 01: And that to me, Your Honor, at the very least is an inconsistency that goes in the direction of my client based on just basic fairness. [00:06:44] Speaker 01: But also it says that what we're not going to do in that next sentence is we're not going to pick any amendments that aren't included in subsection D. Well, that's not the situation here. [00:06:53] Speaker 01: We are in subsection D, which is the zero point offender. [00:06:57] Speaker 04: what the court I think what your honor is looking at is and shall leave all other guideline application decisions unaffected and one of the guideline application decisions made by the district court before even though acknowledged we've been incorrect is that he didn't qualify for both of the benefits for minor role that's correct your honor but well how is that not affected by what you're trying to argue for today [00:07:20] Speaker 01: Well, first of all, I don't think that's what the statute dictates. [00:07:23] Speaker 01: The statute just says, is it consistent with the guidelines, the policy statements? [00:07:27] Speaker 01: And I think the entirety of the guidelines, my approach would be consistent with the entirety of those guidelines. [00:07:33] Speaker 01: One other aspect of Dillon that wasn't raised was the second component of my argument, which is compassionate release. [00:07:39] Speaker 01: And I think that's also the same vehicle this court can use, or a different vehicle this court can get to the same result. [00:07:45] Speaker 03: What did your client tell the sentencing court in connection with his efforts to secure compassionate relief? [00:07:54] Speaker 01: He did not raise compassionate relief. [00:07:56] Speaker 01: He raised reduction in sentence. [00:07:58] Speaker 01: So I was the one that raised it as an amended portion of his motion. [00:08:02] Speaker 03: And what do you say? [00:08:03] Speaker 03: What's his position with regard to compassionate relief? [00:08:08] Speaker 03: My understanding is the district court had nothing before it about that. [00:08:13] Speaker 01: Well, your honor, first of all, compassionate release. [00:08:16] Speaker 01: I think if we were in the pre November 2023 situation where Arutas says any reason is appropriate, I think I win because my client and I would say that a math [00:08:28] Speaker 01: legal error in terms of not giving minor role reduction points combined with the zero point offender is certainly a basis to revisit sentencing. [00:08:39] Speaker 01: What this court did in a number of cases such as Chen and Roper was sending the court back its ability to consider the changes in the law, which for example, the career offender, things like that. [00:08:54] Speaker 01: So we think this compassionate release is a proper vehicle for the court to consider. [00:08:58] Speaker 01: With regard to the second component of your honor's question, perhaps the court's relating to the 3553 factors, which Judge Bryan decided was yet another basis to deny my motion. [00:09:09] Speaker 01: I think that's the weakest argument as far as supporting the district court's decision on appeal, because that was never in dispute. [00:09:16] Speaker 01: If you look at the briefing and you look at actually the facts of this case, you see that Mr. Castro Camacho, [00:09:22] Speaker 01: putting aside the fact he was drug trafficking, had an exemplary record. [00:09:26] Speaker 01: He was given a lower end sentence for that very reason. [00:09:30] Speaker 01: He's college educated, had a very good job, and that was leading up to sentencing, earning him a lower reduced, I'm sorry, [00:09:38] Speaker 01: sentenced below the guideline range. [00:09:40] Speaker 01: In the Bureau of Prisons, he's been absolutely star-studded. [00:09:43] Speaker 01: He has had a job, GED, been an orderly, taken Bible classes, et cetera, and he's in a low-security prison and has served most of his sentence. [00:09:54] Speaker 01: So I think the 3553 analysis is hard to support on appeal [00:10:00] Speaker 01: And certainly the government never challenged that. [00:10:02] Speaker 01: That wasn't what this case was about. [00:10:04] Speaker 02: This case is- Counsel, you've got under a minute. [00:10:05] Speaker 02: Did you want to reserve the rest of your time? [00:10:07] Speaker 01: I do, Your Honor. [00:10:08] Speaker 01: Thank you. [00:10:08] Speaker 02: You're welcome. [00:10:24] Speaker 00: Good morning, and may it please the court. [00:10:26] Speaker 00: Tanya Culbertson on behalf of the United States. [00:10:29] Speaker 00: District Court did not abuse its discretion in denying Mr. Castro Camacho's request for relief under 3582 C1 and C2. [00:10:37] Speaker 00: I'll discuss C2 first. [00:10:40] Speaker 00: As to Mr. Castro Camacho's C2 arguments, Dillon rejected. [00:10:44] Speaker 00: those precise arguments. [00:10:47] Speaker 00: To get Mr. Castro Camacho any relief under Amendment 821, you would first have to correct the admitted sentencing error at the original sentencing proceeding. [00:10:57] Speaker 00: Supreme Court has held that that kind of correction, quote, exceeds the scope of 3582 C-2 proceedings. [00:11:04] Speaker 00: which I think as this court recognizes are a narrow exception to the rule of finality. [00:11:09] Speaker 00: And as Judge Clifton pointed out, district courts are not empowered to go back and correct any mistake they may have made. [00:11:14] Speaker 02: Counsel, is there anything in the record about what sentence the defendant would have received, originally, had the district court not made the error that the district court conceded it made? [00:11:29] Speaker 00: So do you mean in terms of the calculation of the guideline range? [00:11:32] Speaker 02: No, in terms of what he actually would have gotten. [00:11:34] Speaker 00: We don't know necessarily what the district court would have gotten if it had started a calculation of the range at 63 to 78. [00:11:43] Speaker 02: But it's certainly at least possible that since the district court sentenced to three months under the minimum, that the district court would have sentenced the defendant to under what the minimum would have been had they not made the mistake. [00:12:01] Speaker 00: That's certainly possible, Your Honor, but unfortunately that there is just no way to get to that result under 3582C2. [00:12:07] Speaker 00: And in that respect, I would direct the court to the 28J letter that we filed last week in United States versus Hardiman, where in that case, too, there was an undisputed guidelines calculation error. [00:12:18] Speaker 00: In that case, it was the district court went above, made a finding of drug quantity above what the jury had found. [00:12:24] Speaker 02: If we were to agree with you, does the government think that's an unfair result here? [00:12:31] Speaker 00: I don't know about unfair. [00:12:33] Speaker 00: It's certainly unfortunate and regrettable, as the district court admitted, but I think it is a result that is required by the statute, by the policy statement, and by the Supreme Court in Dillon. [00:12:43] Speaker 00: And I would also point out this arises in the context of a plea agreement with an appellate waiver. [00:12:48] Speaker 00: So as this court knows, of course, defendants take on the risk that there may indeed be a calculation error or some other error at sentencing, but they [00:12:56] Speaker 00: taking on that risk in order to get significant benefits under the plea agreement and in this case Mr. Castro Camacho got out from under his 10-year mandatory minimum sentence. [00:13:07] Speaker 04: How does it serve the government's interests to pursue the decision that or pursue the application in this instance of a decision that is now acknowledged to have been incorrect? [00:13:22] Speaker 00: You know, I don't know that it, all I can speak to in terms of the government's interest is the government is bound to uphold the law the way we read the statute, the policy statement, and binding decisions by the Supreme Court and this court. [00:13:36] Speaker 00: There is no way, you know, I understand the equities of this case are sympathetic, but there is no way under existing binding law to get to this result. [00:13:46] Speaker 02: Is there really no way, I mean, couldn't, [00:13:50] Speaker 02: Again, if hypothetically we were to agree with your reading of Dylan, couldn't the director make a motion or couldn't the director suggest a further reduction for extraordinary and compelling circumstances? [00:14:04] Speaker 00: So I think that motion would still fall under the new policy statement because the Sentencing Commission has said that the policy statement that was promulgated in November of 2023 now governs both defendant and director raised [00:14:24] Speaker 00: So, you know, I did spend some time thinking, you know, was there any way that this mistake could have been corrected, understanding that there's an appellate waiver. [00:14:33] Speaker 00: One circumstance that perhaps on the unique facts of this case could have been done is a rule 35A motion within 14 days of the judgment. [00:14:41] Speaker 00: On the strange facts of this case where all the parties agreed that there was you know this five-point reduction would have been proper assuming the court correctly gave mitigating role perhaps the defendant could have filed a motion pointing out application note 6 to 3b 1.2 to the district court that nobody was able to direct the court to in that moment and Asking the court to correct its clear error now unfortunately that was not done here, but perhaps that would have been a route to correct it well I [00:15:06] Speaker 02: You know, again, hypothetically, we're the panel to agree with your reading. [00:15:13] Speaker 02: Perhaps the district court might view something followed by the director, since all we're talking about here is three or four months in a different light, but that's an executive department, not a judicial department decision. [00:15:26] Speaker 00: I'm not sure if that would be the case. [00:15:43] Speaker 00: I think that's a good point. [00:15:47] Speaker 00: I think that's a good point. [00:15:51] Speaker 00: I think that's a good point. [00:15:57] Speaker 00: I think that's a good point. [00:16:02] Speaker 00: I think that's a good point. [00:16:05] Speaker 00: I think that's a good point. [00:16:08] Speaker 04: We're caught in a mechanism that grinds on. [00:16:12] Speaker 04: I suspect you've had the feeling, in at least some cases, this isn't the first case where I've had the feeling, but I get the feeling that, okay, the mechanism grinds on and we're standing back and saying it shouldn't have gone that way, but it did, and then shrug our shoulders and there's nothing to be done. [00:16:30] Speaker 00: I think, I mean, that arises certainly in cases, especially with plea agreements with appellate waivers. [00:16:36] Speaker 00: So I do want to remind the court of that. [00:16:38] Speaker 04: Yet your office continues to extract appellate waivers. [00:16:43] Speaker 00: That is true, Your Honor, because it is a contract where we are bargaining. [00:16:45] Speaker 04: And our court continues to enforce them. [00:16:46] Speaker 04: I get that. [00:16:47] Speaker 04: That's part of the mechanism that's distressed me. [00:16:49] Speaker 04: And to be honest, in this circumstance, although any time behind bars is an unpleasant situation, [00:16:58] Speaker 04: I've seen cases far more egregious than this and we sit and watch it happen. [00:17:03] Speaker 04: And that's not a comfortable situation to be in for us or I suspect for you or anybody else involved in the system. [00:17:10] Speaker 00: That's right, Your Honor. [00:17:11] Speaker 00: And as I said, we all acknowledge this is a regrettable circumstance. [00:17:14] Speaker 00: Even the judge acknowledged that. [00:17:17] Speaker 00: I would say you talk about sort of more egregious examples. [00:17:20] Speaker 00: And perhaps under B-5, that would be something that was similar in gravity. [00:17:24] Speaker 00: But here, the nine months... Here, it wasn't quite bad enough. [00:17:27] Speaker 00: As the district court said, you know, and it was within the district court's discretion to make that finding. [00:17:34] Speaker 04: people my age are familiar with the craze uh... phrase catch twenty two and i begin to have the feeling that we're in one the panel has no further questions okay thank you we ask that you affirm the judgment all right we'll give you uh... we'll give you a minute your honor ask what do we know what the sentence would have been in the record we do because if we look at the plea agreement paragraph eleven the government agrees to recommend the low end of the range [00:18:04] Speaker 01: the government would have been as determined by the court. [00:18:06] Speaker 01: So the government would have been asking for 51 months. [00:18:09] Speaker 01: So that is, I think, undisputed. [00:18:13] Speaker 01: One of the questions I've raised in my brief is what exactly does the first prong of the right decision mean, which is the determination of what is extraordinary and compelling. [00:18:21] Speaker 01: The problem in this case, I think, is the district court looks to the guidelines to answer that question. [00:18:26] Speaker 01: And that renders the first prong of right superfluous. [00:18:29] Speaker 01: I think instead what the court should do is tell the district court [00:18:33] Speaker 01: It can consider what it determines on its own to be extraordinary and compelling, and then determine whether it's inconsistent with the policy statements. [00:18:41] Speaker 01: Your Honor raised the prospect of having the director step in. [00:18:44] Speaker 01: And of course, that's why we amended the statute, because the director was not stepping in at all. [00:18:49] Speaker 01: So I think that is highly unlikely, because the director, I think, did 23 cases, something like that, a year prior to the enactment of the changes. [00:18:56] Speaker 01: Your Honors, we think this is a grave injustice. [00:18:58] Speaker 01: And whether it's a reduction in sentence or a CR motion, we ask that it be remanded. [00:19:03] Speaker 02: All right, thank you. [00:19:04] Speaker 02: We thank counsel for their arguments and the case just argued is submitted.