[00:00:00] Speaker 02: Okay. [00:00:09] Speaker 03: Thank you, Your Honor. [00:00:10] Speaker 03: May it please the court? [00:00:11] Speaker 03: Elizabeth Daly on behalf of the appellant, Matthew Craig. [00:00:15] Speaker 03: The error in this case is the district court's failure to consider the defendant's prison conditions, a relevant 3553A factor, when deciding whether to reduce the defendant's sentence following a retroactive guideline amendment. [00:00:27] Speaker 03: I want to start with the issue raised in this court's focus order and the application note to 1B110, which directs district courts to consider the nature and seriousness of the danger that may be posed by a reduction in the defendant's term of imprisonment. [00:00:41] Speaker 03: By its terms, that application note identifies one factor that the court should guide the court's discretion, but it's just one factor. [00:00:50] Speaker 03: It's not a criterion for eligibility. [00:00:52] Speaker 03: It doesn't give that factor any special weight, and it doesn't trump any other factors. [00:00:57] Speaker 03: The legal standard that applies is still that the court has to consider all relevant 3553A factors, and it has to select a sentence that is sufficient but not greater than necessary to serve the purposes of sentencing. [00:01:11] Speaker 02: What was the error? [00:01:12] Speaker 02: I'm sorry. [00:01:13] Speaker 03: Forgive me, I was just asking what is it was the court's error? [00:01:15] Speaker 03: The error here is the district court's failure to consider the 3553 a factor related to the defendant's prison conditions. [00:01:22] Speaker 02: Why do you think he didn't consider? [00:01:24] Speaker 02: I'm going to call your attention to page five of the order and ask you to respond to the part that causes me to think otherwise. [00:01:32] Speaker 02: This is the sentence that has to do with him saying that what I took into account at the original time of the original sentencing, those conditions have not changed. [00:01:40] Speaker 03: Yes, Your Honor. [00:01:42] Speaker 03: And at the beginning of that sentence, the court says the court does not evaluate defendants' current circumstances in prison. [00:01:48] Speaker 02: Well, we can't read that in isolation, right? [00:01:50] Speaker 02: No, Your Honor, you can't. [00:01:50] Speaker 02: Read the whole sentence. [00:01:51] Speaker 02: Sure. [00:01:51] Speaker 03: And so what we believe in that sentence, and I think what the court is telling the reader, is that the current circumstances are not part of the court's evaluation. [00:02:01] Speaker 03: Because if you look at the next sentence, a 3582 resentencing evaluation is circumscribed and considers only the effect of their related amendment to the sentencing guidelines. [00:02:13] Speaker 03: And so the court's not telling us why it's finding that the prison conditions [00:02:17] Speaker 03: don't merit relief. [00:02:19] Speaker 03: It's saying why the court is not evaluating those circumstances. [00:02:23] Speaker 02: I think you can read it that way. [00:02:25] Speaker 02: I'm wondering if it's capable of being read another way, too. [00:02:28] Speaker 02: But let's hear what Judge Horwitz has to say. [00:02:30] Speaker 05: Well, I'm interested in the premise of your argument, which is that conditions of confinement are a relevant 3553A factor. [00:02:42] Speaker 05: There seems to be no Ninth Circuit case saying that. [00:02:47] Speaker 05: Normally, of course, normally when you're sentencing somebody at the beginning, you're only looking at pre-sentencing conditions of confinement. [00:02:55] Speaker 05: But the circuit seemed to be split on that. [00:02:57] Speaker 05: The Seventh Circuit basically says that's not a relevant 3553A factor at all. [00:03:03] Speaker 05: Other courts say, well, maybe it might be. [00:03:06] Speaker 05: So let's assume for a moment that the judge didn't consider it. [00:03:13] Speaker 05: Tell me why it's a relevant 3553A factor. [00:03:17] Speaker 03: Thank you, Your Honor. [00:03:18] Speaker 03: The government here has never raised the argument that it's not. [00:03:20] Speaker 05: I am. [00:03:22] Speaker 05: Respond to me, not to them. [00:03:24] Speaker 03: Yes, and Your Honor, we did cite several cases in a footnote in our brief that indicate that prison conditions are irrelevant 3553. [00:03:31] Speaker 05: All district court [00:03:33] Speaker 03: Yes, and I want to discuss why the prison conditions here were relevant to three specific 3553A factors. [00:03:41] Speaker 03: This court has made comments in the past about the 3553A factors being extremely broad and basically requiring the court to consider anything that could bear on the purposes of sentencing. [00:03:51] Speaker 03: So what we have here is the fact that in the five years since Mr. Craig was sentenced, the Bureau of Prisons has been unable to provide him with a safe or a stable environment in which he can pursue his rehabilitative goals. [00:04:04] Speaker 05: Do you think the judge knew that at the time of sentencing? [00:04:07] Speaker 05: That because of your client's, I don't want to say history, but because of your client's history is probably the better way to put it, he would likely not face an easy time in prison. [00:04:21] Speaker 03: No, Your Honor, that was not a factor that was raised by either party in their joint recommendation. [00:04:26] Speaker 05: That's not what I asked. [00:04:27] Speaker 03: And I don't think that it would be proper for a district court to assume that the Bureau of Prisons is going to be unable to keep somebody safe, to provide a stable environment. [00:04:35] Speaker 03: This is an extraordinary Bureau of Prisons record, where this defendant has been shuffled between nine different institutions in five years. [00:04:42] Speaker 03: That's not something I've seen in my career. [00:04:45] Speaker 03: No, these weren't conditions that would be anticipated when sentencing somebody to imprison, and certainly if they were considered, [00:04:51] Speaker 03: one would expect that to be raised. [00:04:53] Speaker 03: I wanted to go back to your point about... Can you finish that thought? [00:04:56] Speaker 02: You don't think that this judge, experienced trial court judge, would have anticipated, due to the nature of the offense, that this person would have needed to be in protective custody and transferred? [00:05:06] Speaker 03: No, Your Honor, there are Bureau of Prisons environments that are safe for people with that history, but Mr. Craig was not placed in them, possibly because the current offense was a carjacking and not, it was his prior offense that's caused the problems here. [00:05:21] Speaker 03: That's the history that Judge Hurwitz is referring to. [00:05:22] Speaker 03: Oftentimes, going back to the point of the original sentencing not including prison conditions, I don't think that's accurate because oftentimes we go to court, for example, with an older defendant and discuss the Bureau of Prisons' reported failure to be able to provide significant medical care. [00:05:38] Speaker 03: So that's something that sometimes we anticipate and we call to a judge's attention and we show them this is going to be a hard time in custody if they need these diabetes care or hypertension care that's often not provided. [00:05:49] Speaker 02: I'll get out of your way, but I'm just distracted that you keep referring to what counsel raised and what counsel anticipated, and I'm looking to see what the sentencing judge says he anticipated, and that's what I think matters for purposes of this, whether it's something new or different that he did or did not consider at the time of sentencing. [00:06:08] Speaker 03: So two points I want to raise. [00:06:09] Speaker 03: The court said that it does not evaluate prison conditions. [00:06:12] Speaker 03: And it says, because 3582 is circumscribed, if there's ambiguity there, then the court should remand, because that's what they did in Lazararis Chacon, where it was a failure to consider 3553 AI factors. [00:06:25] Speaker 03: The government said, no, they did consider it. [00:06:27] Speaker 03: This is how they considered it. [00:06:28] Speaker 03: I think we have, at best, a similar record here. [00:06:31] Speaker 03: This is, in my view, expressed that the court does not evaluate. [00:06:36] Speaker 03: in contrast to how the court handled the other 3553A factors that were raised by defense. [00:06:42] Speaker 03: So the court addresses head on the Idaho detainer and whether the purposes of Amendment 821 were called in favor of a sentence reduction and explained why they didn't. [00:06:55] Speaker 03: But with respect to the prison conditions, it's different. [00:06:57] Speaker 03: It says the court does not evaluate those circumstances. [00:07:00] Speaker 05: Let me ask you a question that your last statement sort of makes me concerned with. [00:07:06] Speaker 05: I know what your answer will be, but I want to lay this out for you so you can address my concern. [00:07:12] Speaker 05: The judge says your client is likely to be a danger to the community if released. [00:07:18] Speaker 05: The judge says, yeah, Amendment 822, I guess it is, really doesn't move me very much in this case because your client has a record that wasn't reflected in the original sentence because of the enhancement. [00:07:34] Speaker 05: And nothing else has changed. [00:07:37] Speaker 05: None of the other 3553A factors have changed. [00:07:43] Speaker 05: Is it possible in a case like, and so looking at this record, it seems to me almost 100% certain that if we were to send it back to the trial judge, you would get precisely the same result. [00:07:57] Speaker 05: Does harmless error analysis come into play here at all? [00:08:01] Speaker 03: I do want to answer that question and hopefully reserve a bit of time for rebuttal after I'm done with that. [00:08:05] Speaker 03: Take your time. [00:08:05] Speaker 03: We'll give you a little more time. [00:08:06] Speaker 03: I appreciate that, Your Honor. [00:08:07] Speaker 03: I don't think that this was a one-sided record with respect to dangerousness. [00:08:13] Speaker 03: The prison conditions would have given context to what the government was arguing was repeated criminality, misconduct in prison that showed that he remained a danger today, five years after he was sentenced, six years after his original crime. [00:08:26] Speaker 05: But that argument was made to the judge [00:08:28] Speaker 05: Those arguments were made to the judge. [00:08:32] Speaker 05: in the motion for sentence reduction. [00:08:35] Speaker 05: And the judge said, no, this guy's not a good candidate for it, assuming that he made an error not looking at prison conditions. [00:08:41] Speaker 03: But that's the error, that he did not consider what the prison conditions mean with respect to dangerousness. [00:08:46] Speaker 03: And so when he says the sentence remains appropriate under the 3553A factors, if he hasn't considered the prison conditions, then he can't make an educated decision about dangerousness. [00:08:56] Speaker 05: Well, can he? [00:08:56] Speaker 05: No, Your Honor. [00:08:57] Speaker 05: I mean, he's educated his decision about dangerousness. [00:09:01] Speaker 05: seems to me in this record to have been based on your client's extensive criminal record and the facts of the case that led to this sentence. [00:09:10] Speaker 05: So I think a judge could make a very educated decision about dangerousness, even if somebody was subjected to the worst prison conditions. [00:09:21] Speaker 03: Could the judge have done that? [00:09:23] Speaker 03: Yes, the judge could have denied. [00:09:25] Speaker 05: I'm asking you a different question. [00:09:26] Speaker 03: But the harmless error question. [00:09:27] Speaker 05: Sort of has experienced people in this process. [00:09:30] Speaker 05: I must tell you that I think there is no chance whatsoever that if we send this case back, your client will get a sentence reduction. [00:09:38] Speaker 05: So I'm trying to figure out how my reading under the, if I were applying harmless error review, is it more probable than not that the error affected the outcome? [00:09:48] Speaker 05: I would say no. [00:09:49] Speaker 05: So my question is, can I apply harmless error review? [00:09:53] Speaker 03: Your Honor, I think you can, but in similar context, what we've required is a record where the court would say, had I considered this factor, I would have reached the same conclusion. [00:10:03] Speaker 03: And we don't have anything like that here. [00:10:05] Speaker 03: A court could reasonably find that the goals of sentencing would be better served by releasing Mr. Craig to his Idaho state detainer where he might receive the rehabilitative resources that he's being denied in Bureau of Prison's custody. [00:10:19] Speaker 03: I do want to make the point that his criminal record, those uncounted convictions, were not uncounted because they were tribal convictions. [00:10:26] Speaker 03: They were over 10 years old and they were stale. [00:10:28] Speaker 03: They were all committed between his ages of 21 and 24. [00:10:32] Speaker 03: And so they don't hold the same... Now you are out of time. [00:10:35] Speaker 02: I appreciate that, Your Honor. [00:10:36] Speaker 05: Can I ask one factual question? [00:10:37] Speaker 05: Of course. [00:10:39] Speaker 05: As I understand it, your client's release date is in... [00:10:42] Speaker 05: March or April? [00:10:44] Speaker 05: April. [00:10:44] Speaker 03: Okay, thank you. [00:10:45] Speaker 02: And because he has a deteriorative, he'll continue. [00:10:47] Speaker 02: So what we'll do is I'm going to ask you to stop, and when we come back, we'll put two minutes on the clock. [00:10:51] Speaker 02: How's that? [00:10:52] Speaker 03: Thank you, Your Honor. [00:10:53] Speaker 03: You bet. [00:11:08] Speaker 00: Good morning, Your Honors. [00:11:09] Speaker 00: May it please the Court, Sarah Barr appearing on behalf of the United States. [00:11:13] Speaker 00: The defendant carjacked his victim and slashed him across the face with a knife, which capped 14 convictions, 13 of which were unscored and almost all of which involved violence. [00:11:24] Speaker 00: The district court focused on the extent, nature and seriousness of that criminal history in both denying discretion under the 3553A factors and in finding defendant to be a danger. [00:11:37] Speaker 00: Both of those reasons give this court an independent basis to affirm. [00:11:40] Speaker 05: Do they? [00:11:41] Speaker 05: So let's go back to your friend's argument. [00:11:44] Speaker 05: Your friend's argument is he should have considered the prison conditions. [00:11:49] Speaker 05: And let's assume that's right. [00:11:53] Speaker 05: The weighing may have come out differently. [00:11:55] Speaker 05: He may have said, what the heck? [00:11:58] Speaker 05: You're going to be sent to Idaho in any event. [00:12:02] Speaker 05: You're not going to get out. [00:12:03] Speaker 05: And you're only within six months or a year of the end of your thing. [00:12:07] Speaker 05: And so if the prison conditions are really that bad, [00:12:12] Speaker 05: God bless you. [00:12:12] Speaker 05: I'll move you on to your next set of confinement. [00:12:17] Speaker 05: So even with those other factors, quite strong, they would support this outcome. [00:12:22] Speaker 05: But my question is, assuming he made an error with respect to saying I'm not going to consider your current circumstances, what should we do? [00:12:31] Speaker 00: Harmlessness error applies in a 3582C2 decision. [00:12:35] Speaker 00: We know that from Wright and Wilson. [00:12:38] Speaker 00: Here, any error in the 3553A analysis is harmless because... Well, but those are cases where the courts said... They did the belt and suspenders. [00:12:48] Speaker 05: They said, I don't think you're eligible. [00:12:51] Speaker 05: In my discretion, I'm not going to do it. [00:12:54] Speaker 05: and then also went on to another thing. [00:12:57] Speaker 05: Here, the judge never says, gee, even if I consider these factors, these conditions of confinement, it wouldn't make any difference to me. [00:13:06] Speaker 00: I disagree with you on that, Your Honor. [00:13:08] Speaker 00: You are correct. [00:13:09] Speaker 00: He didn't use the phrase even if, but he considered the totality of what the statute requires, 3582C2. [00:13:17] Speaker 00: It requires a sentence based on a subsequently reduced guideline range, [00:13:22] Speaker 00: It requires consideration of the 3553A factors, and it requires that any reduction be consistent with the policy statement. [00:13:30] Speaker 00: And the court cited that, that any reduction must be consistent with the policy statement at 1ER3. [00:13:37] Speaker 00: The court then went on to conduct an analysis that tracks exactly that policy statement. [00:13:44] Speaker 00: The policy statement requires a court to consider the nature and seriousness of any danger posed by the defendant upon release to any person in the community. [00:13:52] Speaker 00: The court again noted that the reduction must be consistent with the policy statement. [00:13:57] Speaker 00: He went on to cite the unscored criminal history and the extent of it. [00:14:01] Speaker 00: He highlighted the violent nature of that history. [00:14:04] Speaker 00: He found that the criminal history score [00:14:07] Speaker 00: does not accurately capture the recidivism risk, and he concluded explicitly the serious violent nature of his conduct and the danger he poses to the community does not warrant a sentence reduction. [00:14:23] Speaker 02: He could have relied on the latter fact, I think, the latter judgment. [00:14:28] Speaker 02: No question in my mind. [00:14:30] Speaker 02: Do you not see any [00:14:32] Speaker 02: concern that opposing counsel raises regarding the paragraph, the two sentences on page five that were called out at the top of the argument. [00:14:40] Speaker 02: Can you remind me exactly which portion of this? [00:14:42] Speaker 02: The one that says that he does not consider, court does not evaluate defendant's current circumstance in prison because the considerations of court-based defendant's original sentence on have not changed. [00:14:52] Speaker 02: And then 3582, re-sentencing evaluation is circumscribed and not plenary. [00:14:56] Speaker 02: Those two sentences. [00:14:58] Speaker 00: We do not see error in that. [00:15:00] Speaker 00: This is not a cannot case like Liz Araras was. [00:15:02] Speaker 00: This is a do not case. [00:15:04] Speaker 00: In Liz Araras, the court said, I cannot consider this post-sentencing factor. [00:15:09] Speaker 00: It does not, quote, fit within the 3553A framework. [00:15:13] Speaker 00: Those are not the words that this district court used. [00:15:16] Speaker 00: This district court used the words do not evaluate because the original considerations have not changed. [00:15:23] Speaker 02: So how do you just, if you could just take that first sentence, how do you think we ought to interpret it? [00:15:29] Speaker 00: can interpret it by the same way that the court did, the same way that the court himself is asking you to interpret it, which is by reference to Stydel. [00:15:38] Speaker 00: The court did not use those words in a vacuum. [00:15:41] Speaker 00: It cited Stydel and it exerted an extensive block quote why it thought Stydel was significant and appropriate to rely on in this case. [00:15:51] Speaker 00: Stydel was also a status points case. [00:15:53] Speaker 00: It is a case that this court has affirmed. [00:15:56] Speaker 00: And in that case, the district court was presented with a post-sentencing conduct consideration. [00:16:03] Speaker 00: And the court said, I acknowledge that consideration. [00:16:07] Speaker 00: I acknowledge your good conduct. [00:16:09] Speaker 00: But it doesn't move the ball for me. [00:16:10] Speaker 00: It doesn't override the original sentencing considerations that are still in effect. [00:16:16] Speaker 00: And so. [00:16:16] Speaker 02: Counsel, you're just alighting the problem here. [00:16:19] Speaker 02: The language the court uses, I don't consider it because. [00:16:23] Speaker 02: It's one thing to say. [00:16:25] Speaker 02: I'm considering it doesn't change my mind. [00:16:27] Speaker 02: He said I don't consider it because. [00:16:29] Speaker 02: Now he did say, and this is what I was trying to discuss with the opposing counsel, that he's not considering it because that condition hasn't changed since the time of original sentencing. [00:16:38] Speaker 02: So there's a bit of a nuance there that may be significant. [00:16:41] Speaker 02: Would you address that? [00:16:43] Speaker 00: Yes. [00:16:45] Speaker 00: What this court found in Steidl is that there was no error because what the court was doing in Steidl was [00:16:53] Speaker 00: weighing the various factors. [00:16:54] Speaker 00: It was saying, I don't have to give every factor persuasive weight. [00:16:59] Speaker 00: Some factors carry more persuasive weight than others. [00:17:01] Speaker 05: Seidel does that very well. [00:17:03] Speaker 05: The judge says, this isn't terribly important to me. [00:17:06] Speaker 05: I've considered it, but it's not of much weight. [00:17:10] Speaker 05: I still need you to respond to Judge Christen's question, which is that this judge seems to have said, I'm not even going to consider it. [00:17:18] Speaker 05: That seems to me the most reasonable reading of what he said. [00:17:21] Speaker 05: And so is Seidel, what you're really, I think what you're saying is although he said that, he didn't mean it because he cited Seidel? [00:17:31] Speaker 00: Seidel informs his meaning insofar as I am not giving persuasive weight to the post-sentencing condition [00:17:41] Speaker 00: because the persuasive weight for me lies in all of those original considerations that have not changed. [00:17:47] Speaker 01: As I read that key sentence, moreover, the court does not evaluate Dee's current saying, well, I already considered that. [00:17:54] Speaker 01: Nothing's changed. [00:17:56] Speaker 01: So why should I reconsider it? [00:17:58] Speaker 00: That is another way to read it, Your Honor, absolutely. [00:18:02] Speaker 00: So I'm sorry I said is there anything further if there's nothing if there are no further questions. [00:18:08] Speaker 00: I would rest on the briefing I don't think we have further questions. [00:18:11] Speaker 02: Thank you for your argument madam. [00:18:12] Speaker 02: Could you please put two minutes on the clock? [00:18:20] Speaker 02: We're going to try to interrupt you less. [00:18:22] Speaker 03: And I think I understand better now what you were discussing about the original circumstances. [00:18:26] Speaker 03: So I appreciate that. [00:18:28] Speaker 03: There's nothing in the record that this terrible, terrible course of circumstances that has happened to Mr. Craig was anticipated at sentencing. [00:18:38] Speaker 03: It's a changed circumstance. [00:18:39] Speaker 03: That's how we re-raised it to the district court and the government never said it wasn't a change, like that it was anticipated that it wasn't changed. [00:18:45] Speaker 03: It's the court's obliga- I'm sorry, I'm speaking very fast. [00:18:48] Speaker 03: It's the court's obligation to consider changed circumstances under 3553A. [00:18:53] Speaker 03: It doesn't have to believe that they moved the needle, but it has to consider them, and the court didn't do that here. [00:18:59] Speaker 03: I understand Judge Hurwitz's point that we could guess we may be able to predict that the court may impose the same sentence, but the weighing of the 3553A factors has to be done by the district court. [00:19:12] Speaker 03: Unless it says, I would have weighed it less, I don't think we can find it harmless. [00:19:19] Speaker 05: I know you have something else you want to say, but this is a sentence reduction proceeding. [00:19:24] Speaker 03: Yes. [00:19:25] Speaker 05: And so why can't the judge say it's not a resentencing? [00:19:33] Speaker 05: I'm going to take out the enhancement now because it's no longer applicable. [00:19:39] Speaker 05: And I'm going to go back to the time when I was sentencing you and look at the 3553A factors at the time. [00:19:47] Speaker 05: Is there what case says in the context of a sentence reduction proceeding that we have to consider change circumstances? [00:19:56] Speaker 03: Well, Lizararis Chacon is directly on point for that. [00:19:59] Speaker 03: Lizararis Chacon said both post-defense rehabilitation is relevant, but also changes in the law that occurred after sentencing that have nothing to do with the guideline amendment. [00:20:07] Speaker 05: He considered the change in the law here, obviously. [00:20:09] Speaker 03: I'm sorry? [00:20:10] Speaker 05: He considered the change in the law. [00:20:12] Speaker 03: consider the change in the law, but not just the guideline amendment, things that have nothing to do with that. [00:20:16] Speaker 03: So there's no boundary on the 3553A factors that a court has to weigh at that second step. [00:20:23] Speaker 05: There is no boundary, then doesn't it become a plenary resentencing, which everybody tells us the judge shouldn't be doing? [00:20:30] Speaker 03: No, because it's the step one that curtails it. [00:20:33] Speaker 03: And so that plenary resentencing, and I see that I'm over time. [00:20:37] Speaker 03: I was just going to give a bit of context. [00:20:39] Speaker 03: That came up in cases where a defendant who was sentenced pre-booker came back after a guideline amendment and said, I want, it would be a sixth amendment violation. [00:20:46] Speaker 04: I think that goes to eligibility at step one. [00:20:48] Speaker 03: It does. [00:20:49] Speaker 04: Not to the 3553A factors. [00:20:50] Speaker 03: But the court has clearly said 3553A factors, fullest information possible. [00:20:56] Speaker 03: Thank you very much. [00:20:57] Speaker 03: Thank you both. [00:20:57] Speaker 03: We'll take that case under advisement.