[00:00:04] Speaker 04:
Good morning and welcome to the Ninth Circuit.

[00:00:07] Speaker 04:
We're happy to welcome you here to Phoenix and happy to be sitting here.

[00:00:13] Speaker 04:
We are also grateful to have Judge Fisher visiting with us from the Third Circuit.

[00:00:18] Speaker 04:
We're grateful for his assistance in getting our caseload done and Judge Hawkins and I are glad to welcome all of you here.

[00:00:27] Speaker 04:
We will go ahead, we've got four cases set for argument.

[00:00:30] Speaker 04:
So just pay attention to your time.

[00:00:32] Speaker 04:
Let us know if you want to reserve time for rebuttal and then watch it and try and conclude as time's winding down.

[00:00:40] Speaker 04:
We'll go ahead and hear our first case set for argument, which is Castro versus United States, case number 24-2702.

[00:00:50] Speaker 04:
And we'll hear from Ms.

[00:00:54] Speaker 04:
Elm.

[00:00:58] Speaker 05:
Before I start, where do we have the time shown?

[00:01:04] Speaker 05:
Right there.

[00:01:06] Speaker ?:
OK.

[00:01:10] Speaker 05:
May I please the court, and may I preserve two minutes?

[00:01:15] Speaker 05:
I've had tons of cases with the Honorable Stephen McNamee.

[00:01:19] Speaker 05:
I greatly respect him.

[00:01:21] Speaker 05:
He supported me to become the defender in Florida.

[00:01:25] Speaker 05:
When my son was killed, he stood in line 25 minutes to hug me.

[00:01:29] Speaker 05:
This has been a painful appeal.

[00:01:32] Speaker 05:
However, the record just shows that the court missed a number of things the law requires, and that is clear law.

[00:01:40] Speaker 05:
The defense laid it out in his objections to the PSR, which was the three steps required by Dominguez-Caseta and the five factors from the guidelines.

[00:01:52] Speaker 05:
He also cited the on-point examples from the guidelines, and I pointed out in my 28-J letter that the court still strongly reaffirms the need for following this procedure.

[00:02:05] Speaker 04:
But counsel, I guess before we get there, don't we have the appellate waiver issue?

[00:02:09] Speaker 04:
Your client signed an appellate waiver.

[00:02:12] Speaker 04:
There's no argument he didn't know.

[00:02:15] Speaker 04:
So what is your basis for getting past that?

[00:02:18] Speaker 04:
We see these arguments all the time where appellate waivers

[00:02:20] Speaker 04:
aren't really appellate waivers, as it turns out, but maybe they should be.

[00:02:26] Speaker 05:
They shouldn't be in this case for four good reasons.

[00:02:30] Speaker 05:
Let me just start by saying the court did not enforce an appellate waiver in either Quintero or Leyva or the 2018 Diaz case, which we're also on point to this issue.

[00:02:41] Speaker 05:
But there are four good reasons not to dismiss.

[00:02:44] Speaker 05:
Waiver of the manner the sentence is determined contemplates such things as the 3553A factors or how much credit to give for cooperation.

[00:02:54] Speaker 05:
If the court had gone through the proper analysis here, we would not have an appellate leg to stand on.

[00:03:01] Speaker 05:
Second.

[00:03:02] Speaker 04:
But wait, wait, I don't understand.

[00:03:04] Speaker 04:
How does that get you past the appellate waiver?

[00:03:07] Speaker 04:
We don't do appellate waivers for any error that the district court made.

[00:03:12] Speaker 05:
Not for any error.

[00:03:13] Speaker 05:
But this was, second, a significant error.

[00:03:18] Speaker 05:
If any manner in which a court determines how procedurally determines a sentence is OK.

[00:03:26] Speaker 05:
My example of a Ouija board or this is my No Roll Friday would completely evade review.

[00:03:34] Speaker 05:
And that could not be.

[00:03:36] Speaker 01:
that passed the notion of the idea or the concept of a plea waiver.

[00:03:44] Speaker 01:
The client signed a plea agreement in which he agreed to plead guilty, correct?

[00:03:50] Speaker 05:
Yes, Your Honor.

[00:03:51] Speaker 01:
And that plea agreement set a sentencing range of 57 to 71 months, correct?

[00:03:59] Speaker 05:
Correct, with an allowance for the defendant to raise role issues.

[00:04:06] Speaker 01:
the end of, and the PSR recommended 57 months, right?

[00:04:11] Speaker 05:
Yes.

[00:04:11] Speaker 01:
If Judge McNamee had said absolutely nothing at sentencing, but imposed the sentence he did, 46 months, below the low end of the plea agreement, would we even be here?

[00:04:28] Speaker 05:
We would still be here, Your Honor.

[00:04:30] Speaker 01:
Why?

[00:04:31] Speaker 05:
We would still be here because the procedure used was wrong and he should have gotten

[00:04:36] Speaker 05:
the greater role reduction, at least the minor role.

[00:04:41] Speaker 01:
He did get some role reduction.

[00:04:44] Speaker 05:
None.

[00:04:46] Speaker 02:
He got a reduction.

[00:04:48] Speaker 05:
He got a variance, but no role adjustment.

[00:04:53] Speaker 05:
And that's why we are here.

[00:04:55] Speaker 02:
So even assuming that the district court judge was wrong on his calculation of the guidelines,

[00:05:07] Speaker 02:
How does that get you past the plea agreement unless you can establish that his error was so deficient that it constituted a violation of due process.

[00:05:21] Speaker 05:
Your honor.

[00:05:22] Speaker 05:
Let me move to the fourth point, which is decisively one of the factors the judge considered here was citizenship nationality, which is a constitutionally impermissible factor in a due process mandatory reversal factor.

[00:05:39] Speaker 05:
That is particular to this case, but because that was one of the things that the judge said he ought to be punished for, we have to go back.

[00:05:49] Speaker 05:
However, we also have

[00:05:51] Speaker 05:
Another due process concern, which is notice.

[00:05:55] Speaker 05:
There was no notice given that he was going to face a illegal, a contrary to law procedure in sentencing.

[00:06:08] Speaker 05:
The notice he was, no party would have expected that.

[00:06:12] Speaker 05:
And so that is a notice issue, which would be a due process issue.

[00:06:16] Speaker 05:
And both of those due process things

[00:06:19] Speaker 05:
put us in here today.

[00:06:20] Speaker 02:
So that any mistake, any mistake in the calculation of the guidelines would be contrary to law and would be a constitutional violation.

[00:06:29] Speaker 02:
Is that what you're saying?

[00:06:30] Speaker 05:
No, Your Honor.

[00:06:31] Speaker 05:
How you calculate the guidelines and what you do with it is one thing, but if you did not find most of the guidelines don't have a mandatory procedure that is

[00:06:42] Speaker 05:
written out in case law and in the guidelines.

[00:06:47] Speaker 05:
Most of them don't.

[00:06:48] Speaker 05:
This does.

[00:06:50] Speaker 05:
And by violating this here, we're in a position where he needs to go back and have the correct procedure put in place.

[00:06:59] Speaker 05:
That's all we're asking for.

[00:07:02] Speaker 05:
To see if the court, if it used the correct procedure, it did not even identify all the participants.

[00:07:09] Speaker 05:
It was looking at him,

[00:07:10] Speaker 05:
and the two people in his car.

[00:07:12] Speaker 05:
It did not identify the person who organized it, the go-between who took him there, the person who was going ahead, who was directing everything, and the person in court.

[00:07:25] Speaker 04:
Council, we have case law that says you don't need to walk through every participant.

[00:07:31] Speaker 04:
We assume that the district court

[00:07:33] Speaker 04:
knows this stuff.

[00:07:35] Speaker 04:
So it's your burden to come forward and say, not just, well, he didn't mention all these, but that he disregarded them.

[00:07:43] Speaker 04:
What's your evidence that he disregarded or was not aware of those other factors?

[00:07:49] Speaker 05:
Your Honor, the case law is very clear.

[00:07:53] Speaker 05:
He doesn't have to say, I have considered.

[00:07:56] Speaker 05:
Expressly say it.

[00:07:57] Speaker 05:
I know that.

[00:07:59] Speaker 05:
But a reading of what he was doing and what he was concluding shows that he was not considering those things.

[00:08:08] Speaker 05:
When you read all of that, he was rejecting them.

[00:08:12] Speaker 05:
He did not mention the recipient in court site.

[00:08:15] Speaker 05:
He did not bring anything up about it.

[00:08:18] Speaker 05:
And what he was saying he based the role finding on was basically just responding to what other people said.

[00:08:25] Speaker 05:
He said,

[00:08:27] Speaker 05:
He based the minor role finding, this is in my opening brief at 11, on the court denied any minor role adjustment, rejecting it because, quote, he did too many things and was aware of the things he was doing and the horrible effects of fentanyl, not a permissible thing.

[00:08:44] Speaker 05:
That he committed the crime to live the good life of making easy money.

[00:08:49] Speaker 05:
All of that, what, $550?

[00:08:52] Speaker 05:
He's going to have a good life.

[00:08:54] Speaker 05:
And he's willing to further the cartel's aims in a way that's more deceptive than most.

[00:09:01] Speaker 05:
And he drove normally.

[00:09:03] Speaker 05:
That's not deceptive.

[00:09:06] Speaker 05:
I think what we have here, and what is very compelling, although I don't have enough evidence to raise it as a standalone issue, is that he based some of the sentencing on some of the wrong.

[00:09:19] Speaker 05:
facts.

[00:09:21] Speaker 05:
And it's that confusion.

[00:09:23] Speaker 05:
If nothing else, we have to return it for re-sentencing to make clear.

[00:09:31] Speaker 05:
Because he is talking about things that don't seem to apply here.

[00:09:36] Speaker 05:
And those findings don't suggest that he was comparing the roles at all.

[00:09:43] Speaker 03:
Okay.

[00:09:43] Speaker 03:
Do you want to reserve?

[00:09:45] Speaker 05:
If I could reserve the rest.

[00:09:46] Speaker 03:
Thank you.

[00:09:56] Speaker 00:
May it please the court, Parker Stanley on behalf of the United States.

[00:10:00] Speaker 00:
The defendant's appeal fails to establish due process violation, which would be sufficient grounds to overcome the knowingly and voluntarily entered appellate waiver that was part of the plea agreement.

[00:10:13] Speaker 00:
Prior to even getting into the record or any factual analysis in Atherton, the court indicated that there must first be an allegation of some kind of due process violation sufficient to even begin that review of the record.

[00:10:26] Speaker 00:
In Atherton, the court clarified that it could be the procedure or the substance wherein the due process violation occurs that would have to be sufficient enough to overcome that appellate waiver.

[00:10:40] Speaker 00:
In Atherton, the court pointed to several examples of the kind of due process violations they were considering, such as a judge's anti-immigration bias, discriminatory animus, unconstitutionally vague provisions in the sentencing guidelines,

[00:10:56] Speaker 04:
a condition of supervision being unconstitutionally vague, as well as an Eighth Amendment challenge to... So, counsel, can I just ask you, if we're going to get into the appellate waiver issue, which I guess we have to decide initially, what role do the merits play in that?

[00:11:14] Speaker 04:
We're not deciding whether there's a claim, but we're deciding whether the claim that's brought even would fit within any of the exceptions that Atherton would create.

[00:11:26] Speaker 00:
That's my understanding of Atherton, Your Honor, is that even prior to that factual analysis, there's a look at whether the claim on its face is even sufficient to establish that due process violation, which here the allegation is essentially that the judge did not follow the proper process in applying the five factors or the three steps in determining someone's relative culpability and whether that role reduction is appropriate.

[00:11:56] Speaker 00:
And that's one that in, for example, United States versus King or Fenga, the court has held that that waiver does apply to role enhancements.

[00:12:04] Speaker 00:
And so in that case, this seems to be in line with that, where it's clear that whether the judge grants that or not is part of the appellate waiver, is sufficiently covered, and therefore the case law does not support the argument that that would rise to a due process violation sufficient to overcome that appellate waiver.

[00:12:22] Speaker 00:
So even prior to any kind of factual analysis,

[00:12:25] Speaker 00:
the due process violation simply is not established even in the allegations in the defense's appellate brief.

[00:12:32] Speaker 04:
Do we have many cases after Atherton interpreting that applying due process?

[00:12:39] Speaker 04:
Atherton is a little vague on its face.

[00:12:43] Speaker 04:
I'm somewhat sensitive to the arguments that are being raised here because Atherton seems to open up a door for some of these things, but it doesn't seem to fit within what

[00:12:54] Speaker 04:
Atherton contemplated, but do we have other cases that have made that clear?

[00:12:58] Speaker 00:
Not yet, Your Honor.

[00:12:59] Speaker 00:
There, I know there are some arguments that are or decisions that are still pending, but it is in this kind of gray area where it's unclear exactly what would constitute a due process violation.

[00:13:11] Speaker 00:
And all we have to go on is essentially cases that have said the waiver applies to this.

[00:13:16] Speaker 00:
And then Atherton, which says due process violations such as, and then it gave a list of those examples, which are far more egregious,

[00:13:23] Speaker 00:
and constitutionally relevant than what defense has essentially argued.

[00:13:27] Speaker 00:
So it is in a rather nebulous position.

[00:13:31] Speaker 00:
However, based on the case law, we do have the defense, their argument simply does not rise to the same level as what's being contemplated in Atherton.

[00:13:39] Speaker 02:
When we look at what parts of the record, if we're looking at the record, provides us with the assurance that the district court

[00:13:51] Speaker 02:
was well aware of the factors for applying the mitigating rule adjustment.

[00:13:55] Speaker 02:
In other words, what if the district court just ignored the mitigating rule adjustment or didn't consider it at all?

[00:14:05] Speaker 02:
What shows us in the record that the court was familiar with the steps that needed to be taken?

[00:14:11] Speaker 00:
And that's an analysis of the record has to start, I believe, with what the court has set forth in United States versus Clench, where we are to assume the district court knows the law and understands their obligation.

[00:14:24] Speaker 00:
So in the record, we have, first of all, the PSR, which mentioned the other parties that were involved.

[00:14:33] Speaker 00:
It mentioned who the defendant recruited, that someone had recruited the defendant, someone named Chewie, that that was to be taken to

[00:14:40] Speaker 00:
exlocation to be given to someone else.

[00:14:43] Speaker 00:
So there was a discussion of those parties as well as the defendant's participation.

[00:14:48] Speaker 00:
Additionally, defense had a chance to not only file their memorandum for sentencing, but also to argue in front of the court, as did the United States.

[00:15:00] Speaker 00:
And the United States, as the record shows, was even in favor

[00:15:03] Speaker 00:
or at least not objecting to a role reduction to minor role.

[00:15:07] Speaker 00:
So there was quite a bit before the court to consider those factors.

[00:15:11] Speaker 00:
We don't have anywhere where the sentencing judge explicitly said, here's this factor, here's this factor, I'm applying this, this is the average.

[00:15:20] Speaker 00:
However, as made clear by, again, both Clench and Diaz, those two cases, that's not required.

[00:15:27] Speaker 00:
So if we start at a place that the sentencing judge knows what they're doing, that they have read the record in front of them, that they know the law, there's nothing in the record to overcome that presumption.

[00:15:38] Speaker 00:
In order to prevail on their argument, defense would have to start essentially from the other side, where the only thing we can assume is that the judge knows nothing until and unless they demonstrate in the record that they read the PSR or that they considered those memorandums.

[00:15:52] Speaker 02:
Well, since both sides said

[00:15:55] Speaker 02:
I don't I don't I don't I don't I don't I don't I don't I don't

[00:16:13] Speaker 00:
agree with that.

[00:16:15] Speaker 00:
The PSR did not recommend a role recommendation, or rather the PSR stated that this person was an average participant.

[00:16:22] Speaker 00:
As opposed to a minor participant?

[00:16:23] Speaker 00:
Correct, Your Honor.

[00:16:24] Speaker 00:
They suggested no reduction in the role in that they were an average participant.

[00:16:32] Speaker 00:
And again, the parties had a chance to argue that.

[00:16:35] Speaker 00:
So the fact that not only the defense, but in this rare case, the United States as well,

[00:16:40] Speaker 00:
were in favor or at least not opposed to that rule reduction and they both argued some facts to that nature shows that the sentencing judge did not take that lightly or did not come to that conclusion by simply going along with what the United States was recommending, that they were actually considering these factors and simply were not convinced with those arguments based on the record in front of them.

[00:17:02] Speaker 00:
Now, defense in their appeal has mentioned what they essentially labeled as 11 factors which the sentencing court took into consideration that were inappropriate.

[00:17:13] Speaker 00:
However, the sentencing judge is allowed to consider other factors outside of the five, but most of the 11 factors mentioned by defense are more appropriately labeled as facts that were considered.

[00:17:29] Speaker 00:
For example,

[00:17:30] Speaker 00:
the quantity of the drugs, the nature of the drugs, that the defendant knew it was fentanyl, all goes to one of the five factors of the degree to which the defendant understood in the scope and structure.

[00:17:42] Speaker 00:
The sentencing judge talked about the fact that the defendant recruited someone to ride along with him, he was going to pay that person, and then that person recruited another person to ride along.

[00:17:53] Speaker 00:
And again, while defense has argued that that doesn't show that

[00:17:57] Speaker 00:
the defendant is a recruiter and that's an overstatement, these are facts that go to the level of culpability the defendant has in the overall scheme.

[00:18:05] Speaker 04:
There was another allegation that the district court just mixed up defendants and if that were true, would that be a structural claim or a procedural claim that would fit within Atherton or not?

[00:18:27] Speaker 00:
If the case were to be that there was sufficient evidence to show the sentencing judge was essentially looking at the wrong file or was considering the wrong person, I do believe the case law supports that that would be, or at least that claim would be a sufficient due process violation to overcome the appellate waiver or supersede that.

[00:18:46] Speaker 00:
However, to do that, case law has established that a defendant must establish the challenge information is false

[00:18:52] Speaker 00:
were unreliable and demonstrably made the basis for the sentence, and that's United States versus Hill.

[00:18:59] Speaker 04:
But that goes back to my initial question on Atherton, because on one level, you're saying, well, we just need to look at the type of claims that are being made.

[00:19:07] Speaker 04:
But at least as to this one, whether the district court was relying on false information, we actually have to do a little bit more than that.

[00:19:14] Speaker 04:
They're claiming that it's false information, but we actually have to dig into the record and say, well, was it or was it not?

[00:19:20] Speaker 04:
Because if it was,

[00:19:21] Speaker 04:
then it sounds like it might be an Atherton waiver, or the exception to the waiver, and then we have to deal with the merits of it.

[00:19:31] Speaker 04:
Is there any difference between the waiver and the merits on that particular claim?

[00:19:37] Speaker 00:
I agree it certainly gets to be in a gray area and unfortunately I don't have a clear answer about when we can, apologize, get into the facts to establish whether there was a due process violation.

[00:19:48] Speaker 00:
They do seem to be rather co-mingled and it gets to be a rather circular argument.

[00:19:53] Speaker 00:
to establish that due process without looking at the facts of the case.

[00:19:57] Speaker 00:
And I will say that in this very particular case, defense in their appeal stated that it's not abundantly clear the judge relied on misinformation.

[00:20:05] Speaker 00:
So right off the bat by their own admission, there really wasn't a due process violation for that.

[00:20:10] Speaker 04:
And you're over, but I'll ask one final question.

[00:20:13] Speaker 04:
It sounds like if we were under this kind of analysis, we would look claim by claim and say only this particular claim or only these particular facts would have gone to an Atherton exception to the appellate waiver.

[00:20:32] Speaker 04:
So we could say the others don't and then we would have to get into that.

[00:20:38] Speaker 04:
It wouldn't get passed an appellate waiver on all issues, I guess is what I'm saying.

[00:20:42] Speaker 00:
Yes, it would be claim by claim whether they establish that due process violation.

[00:20:47] Speaker 00:
Okay, thank you.

[00:20:48] Speaker 00:
We'll give you time for rebuttal.

[00:20:58] Speaker 05:
One of Atherton's factors is nationality or citizenship.

[00:21:04] Speaker 05:
And the judge made very clear during the role discussion that the fact that Mr. Castro is an American citizen, he should be sanctioned for that.

[00:21:15] Speaker 05:
Right there, we are into Atherton, just there.

[00:21:18] Speaker 05:
But also, I think we're into Atherton because we don't know and can't tell from the record.

[00:21:25] Speaker 05:
what the judge was relying on when he was mixing all these things up and that would require remand for clarification.

[00:21:32] Speaker 04:
The problem I have with, and I understand why you're making the argument, but if we were to adopt that argument, it would almost obliterate

[00:21:41] Speaker 04:
appellate waivers because any defendant can make those arguments almost.

[00:21:47] Speaker 04:
We see them all the time where a district court doesn't walk through all the factors and under your theory that would immediately get you out of an appellate waiver.

[00:21:56] Speaker 05:
The case law says that as long as the record shows the court was considering it and that close reading of that record and I pointed it out along the way shows that he was not.

[00:22:10] Speaker 05:
And there is no indication that he was actually considering those factors.

[00:22:14] Speaker 05:
And when he was asked, or when he stated, when he came to his conclusion on role, I read those things that he was relying on.

[00:22:24] Speaker 05:
There's only like one that even seems to come within the ambit of the factors that he's relying on that is a legitimate factor.

[00:22:34] Speaker 05:
And the fact that we have that reliance on nationality

[00:22:38] Speaker 05:
We're in due process land.

[00:22:41] Speaker 04:
OK.

[00:22:42] Speaker 04:
You're over.

[00:22:42] Speaker 04:
So thank you very much.

[00:22:44] Speaker 04:
Thank you to both counsel for your arguments in the case.

[00:22:47] Speaker 04:
The case is now submitted.