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

[00:00:03] Speaker 00:
Good morning.

[00:00:03] Speaker 00:
My name is Mina Chang and I represent the United States.

[00:00:07] Speaker 00:
Your honors, I'd like to reserve two minutes of my time and I will monitor the clock.

[00:00:12] Speaker 00:
The sole issue in this case is whether Paul Engstrom is qualified for safety relief.

[00:00:17] Speaker 00:
And the answer to that three times over is no.

[00:00:21] Speaker 00:
The district court erred in three independent and dispositive ways when its suesponte conducted essentially a do-over of its decision under Rule 35 a week after sentencing.

[00:00:32] Speaker 00:
The district court incorrectly credited Mr. Engstrom with a safety valve reduction despite being disqualified by his criminal history and lack of full disclosure, and then amended its judgment to a sentence below the mandatory minimum that was set by Congress.

[00:00:46] Speaker 00:
As an initial matter, the District Court did not have authority under Rule 35A of the Federal Rules of Criminal Procedure to reconsider its criminal sentencing decision when there is no error to correct.

[00:00:57] Speaker 00:
Second, Mr. Engstrom did not fully disclose all the information and evidence that he had regarding his criminal conduct to the government, and nor did the District Court make that determination as was necessary under the requirement.

[00:01:10] Speaker 00:
And lastly, as the Supreme Court's decision in Pulsifer makes evident, Mr. Engstrom has a prior three-point offence that disqualifies him for relief under the relevant statute.

[00:01:22] Speaker 00:
Taking first, rule 35, the district court plainly erred by improperly using rule 35A as a vehicle to reconsider its sentencing decision.

[00:01:31] Speaker 00:
As a general principle, the district court can't modify a term of imprisonment after judgment, and that is only an exception in very limited circumstances.

[00:01:42] Speaker 03:
Does your argument on this one hinge on whether he actually made a determination on whether the safety valve

[00:01:51] Speaker 03:
Uh, provision applied because I, I was sort of a little sympathetic to the district court to say, look, I, you know, I asked the question, I was told that it didn't, but I never actually said whether it applied or it didn't apply.

[00:02:03] Speaker 03:
So I need to go back and fix that.

[00:02:04] Speaker 00:
Your Honor, based off of the record, it appears that the district court did accept and make that determination that the safety valve provision didn't apply.

[00:02:13] Speaker 00:
But moreover, during its rule 35 hearing, what was evident is that the district court then went back to reconsider its sentencing enhancements to then give Mr. Engstrom a further negative four reduction on the original sentence.

[00:02:27] Speaker 02:
That was a downward variance?

[00:02:29] Speaker 00:
Yes, Your Honor.

[00:02:30] Speaker 02:
Not a guideline adjustment.

[00:02:32] Speaker 00:
Yes.

[00:02:32] Speaker 02:
Can I ask?

[00:02:36] Speaker 02:
If I had been the district judge and read a transcript of the original sentencing, I think I'd want to go back too.

[00:02:44] Speaker 02:
The explanation was vague, ambiguous, contradictory.

[00:02:50] Speaker 02:
And one of the things that I guess is an open question for me is what do you think the standard of review should be for a district judge's choice to say, I want to have a Rule 35 hearing and revisit some things?

[00:03:06] Speaker 00:
Your honor, I think there are two parts to this question.

[00:03:09] Speaker 00:
The first being whether the district court made a clarification on something that it deemed ambiguous.

[00:03:16] Speaker 00:
And in this case, the district court, if it had indeed been simply to clarify whether it had or had not applied the safety valve reduction and to make that clear, then ultimately the numbers of that sentence for Mr. Engstrom would not have changed.

[00:03:31] Speaker 04:
So your objection is not to the Rule 35 hearing.

[00:03:34] Speaker 04:
It's just the substance of what was done at the hearing.

[00:03:39] Speaker 00:
It's to both, Your Honor, because... Well, what's wrong with the hearing in itself?

[00:03:42] Speaker 04:
If it was unclear whether or not safety vial applied, then to clarify that seems proper under Rule 35A.

[00:03:49] Speaker 00:
The issue is that because the district court then re-sentenced Mr. Engstrom to a different custodial time, that would also- Right.

[00:03:56] Speaker 04:
Well, that's what I'm saying.

[00:03:57] Speaker 04:
It's not an objection to the hearing itself.

[00:03:59] Speaker 04:
It's what she then did at the hearing.

[00:04:02] Speaker 00:
If indeed the case had been merely to clear up an ambiguity, then she would have been entitled through Rule 35 to clarify that, and she could have done that through a written order as well.

[00:04:11] Speaker 03:
Oh, I see.

[00:04:12] Speaker ?:
Yeah.

[00:04:13] Speaker 03:
But you don't have to win on this argument, right, to prevail in the case?

[00:04:19] Speaker 00:
Yes, Your Honor, that's correct.

[00:04:21] Speaker 00:
Under the United States versus Pulsifer decision, because Mr. Engstrom had a prior conviction from 2017, he had a prior three-point offense that neither probation, the district court, and the parties contest.

[00:04:32] Speaker 03:
So let me ask you if you... Go ahead, go ahead.

[00:04:37] Speaker 03:
If we agreed with you on Pulsifer, would we still need to reach whether the district court just erred on the safety valve relief at all, or would we just go to Pulsifer and say, now it's clear?

[00:04:52] Speaker 00:
your honor, the panel need not conduct any further analysis in order to find reversal.

[00:04:59] Speaker 00:
But at the same time, for rule 35, the government believes that because it had called a rule 35 hearing improperly and then resentenced Mr. Engstrom to a different sentence, rather than just vacating and resentencing,

[00:05:11] Speaker 02:
We would ask that the amendment judgment be reversed and that the original sentence that mr. Enstrom received 70 months be imposed I understand why you want that mr. Where I was was going to go as well which but So do you think that difference between?

[00:05:27] Speaker 02:
reinstating the original sentence and remanding for a resentencing and

[00:05:34] Speaker 02:
consistent with Pulsifer, how do we make that choice?

[00:05:38] Speaker 02:
Does that turn on the procedural niceties of whether the 35A invocation was proper?

[00:05:44] Speaker 00:
Your Honor, I believe that the panel has multiple bases for reversal.

[00:05:48] Speaker 00:
In this case, we believe, procedurally speaking, because the district court had no authority under Rule 35 to be sentenced, that it should impose the original sentence of 70 months.

[00:06:00] Speaker 02:
So no authority under Rule 35 to re-sentence.

[00:06:04] Speaker 02:
Let's suppose the district judge had sentenced say to 58 months originally instead of the 60 month mandatory minimum.

[00:06:21] Speaker 02:
and then realized, oops, I blew that.

[00:06:25] Speaker 02:
I need to fix this.

[00:06:27] Speaker 02:
I'm going to do a Rule 35 correction of this plain error.

[00:06:33] Speaker 02:
Could she then go in and put in, at the Rule 35 hearing, put in a 60-month sentence?

[00:06:39] Speaker 00:
Your Honor, because Mr. Engstrom in this case did not qualify, he did not fully... I'm sorry.

[00:06:46] Speaker 02:
Please just go with my hypothetical.

[00:06:50] Speaker 02:
Could a district judge who has given an improperly low sentence, below a mandatory minimum, use Rule 35 to correct that mistake?

[00:07:03] Speaker 00:
Yes, Your Honor.

[00:07:04] Speaker 02:
Okay, so substantively you can change the sentence in a Rule 35 hearing, right?

[00:07:09] Speaker 00:
Yes, Your Honor.

[00:07:09] Speaker 02:
I understand you think this was wrong, but it was wrong in your view on the substance as opposed to saying you were never entitled to use Rule 35 at all.

[00:07:18] Speaker 00:
That's correct, Your Honor.

[00:07:20] Speaker 03:
Okay.

[00:07:20] Speaker 03:
And maybe I'm asking the same question, but it seems like your argument is the district court applied F5 and just used the completely wrong legal standard to do so.

[00:07:32] Speaker 00:
That's correct, Your Honor.

[00:07:34] Speaker 03:
So should we reach that?

[00:07:35] Speaker 03:
I mean, is there enough need to clarify that, or should we just focus on the Pulsifer issue?

[00:07:44] Speaker 00:
I believe that there are two equally valid reasons for why this court should reverse.

[00:07:51] Speaker 00:
I understand that the panel is asking whether we should prioritize one or the other.

[00:07:56] Speaker 00:
In this case, we believe that because the district court had originally

[00:08:00] Speaker 00:
provided a correct sentence that that sentence should still stand.

[00:08:04] Speaker 04:
Can I ask a quick question?

[00:08:05] Speaker 04:
If we go the Pulsifer route, do we have to engage in any fact-finding?

[00:08:10] Speaker 04:
Are we just judicially noticeable, the facts of his conviction, prior convictions?

[00:08:17] Speaker 00:
Yes, Your Honor, I believe so.

[00:08:18] Speaker 00:
The district court had adopted the calculations that probation had provided, had agreed with the findings in the PSR as well.

[00:08:26] Speaker 04:
So on that basis, because the parties... And there's no discretion under Pulsifer that he's just ineligible?

[00:08:33] Speaker 04:
There's no discretionary... nothing... you know, what if we were to remand to the district court to say, you know, apply Pulsifer, you know, instead of finding it ourselves, is there any discretion for the district court to say that Pulsifer doesn't apply?

[00:08:47] Speaker 00:
Not in this case.

[00:08:49] Speaker 03:
Okay.

[00:08:49] Speaker 03:
Okay.

[00:08:49] Speaker 03:
Thank you.

[00:08:50] Speaker 03:
We'll give you time for a bottle.

[00:08:51] Speaker 00:
Thank you, Your Honor.

[00:09:04] Speaker 01:
Good morning, Your Honors.

[00:09:05] Speaker 01:
I'm Houston Goddard.

[00:09:06] Speaker 01:
I'm here on behalf of Paul Engstrom.

[00:09:09] Speaker 01:
I want to begin where we left off discussing Pulsifer.

[00:09:13] Speaker 01:
And the government's, what I really want to focus the court's attention on is the fourth prong of plain error review for the pulse for the purported pulse for error.

[00:09:21] Speaker 01:
Even if this court were to determine that there were error and it was plain given pulse for, the government still needs to establish that that error affected the, satisfied the fourth prong of plain error.

[00:09:30] Speaker 01:
The government in its briefing essentially treats the fourth prong as an afterthought.

[00:09:34] Speaker 01:
It says if there's error and it's plain, then it automatically essentially satisfies the fourth prong.

[00:09:40] Speaker 01:
The government is going off of Justice Sotomayor's majority decision in Morales, where she said in the ordinary sentencing case, where a defendant received a sentence higher than he otherwise would have due to an error, the fourth prong is generally satisfied.

[00:09:54] Speaker 01:
Sure.

[00:09:55] Speaker 01:
What Judge Thomas, let me say importantly, this is not your ordinary sentencing case.

[00:10:00] Speaker 01:
And what Judge Thomas makes clear in his dissent in Morales,

[00:10:03] Speaker 01:
is that outside of this subset of cases that Justice Sotomayor has taken off the table, your ordinary sentencing cases, outside of those cases, the fourth prong has real bite, it has real force, that this court should, circuit courts generally, should very rarely correct errors that were not preserved.

[00:10:22] Speaker 01:
And there are three reasons that I'd like to highlight why Mr. Engstrom's case is not your ordinary sentencing case.

[00:10:27] Speaker 03:
Well, but when you say correct errors that were not preserved, because this specific, the Pulsifer argument was not specifically made.

[00:10:34] Speaker 03:
I mean, clearly they challenged whether the safety valve applied.

[00:10:38] Speaker 01:
Correct, Your Honor, but the government did not make any arguments on Pulsifer.

[00:10:41] Speaker 01:
Of course, Pulsifer didn't exist at the time, but it was before the Supreme Court.

[00:10:45] Speaker 01:
The arguments were well known.

[00:10:46] Speaker 01:
I believe the Ninth Circuit's decision in Lopez by the time of Mr. Engstrom's sentencing was a minority

[00:10:52] Speaker 01:
It was controlling law, absolutely, but the government could very easily have said, we recognize that Lopez is controlling... But I thought that's how you got to plain error.

[00:10:59] Speaker 03:
I mean, back up, I hadn't focused on this before.

[00:11:04] Speaker 03:
Are you making a forfeiture argument or a waiver argument?

[00:11:08] Speaker 01:
No, Your Honor, I'm making a fourth-pronged plain error.

[00:11:10] Speaker 01:
The parties agree we're on plain error for the pulse bearer.

[00:11:12] Speaker 01:
The government has to satisfy all four prongs, including the last and final fourth prong, which Judge Thomas has made clear, citing Supreme Court precedent, has real bite and real force outside of these ordinary sentencing cases that Morales removed.

[00:11:27] Speaker 01:
And the reasons this is not your ordinary sentencing case are, number one, Mr. Engstrom has served his time in prison.

[00:11:34] Speaker 01:
He is at a halfway house.

[00:11:35] Speaker 01:
He's in the process of reintegrating into the community.

[00:11:37] Speaker 01:
This is not your ordinary case where this court's decision will affect

[00:11:41] Speaker 01:
how much more time an inmate needs to serve.

[00:11:43] Speaker 03:
Is that the basis for your judicial notice?

[00:11:46] Speaker 03:
Yes, Your Honor.

[00:11:47] Speaker 01:
Yeah.

[00:11:47] Speaker 03:
The second reason is, as the court is aware in this case, so what would happen if we if we adopt Pulsifer, he would go back into prison?

[00:11:56] Speaker 01:
Yes, Your Honor.

[00:11:57] Speaker 01:
He is currently living in a halfway house, reintegrating into the community.

[00:12:00] Speaker 01:
It's my understanding he is taking classes at UNLV.

[00:12:02] Speaker 01:
He's doing very well.

[00:12:04] Speaker 01:
If this court were to reimpose the sentence of 70 months or remand a district court with, you know, where the district court could only impose the lowest possible sentence would be 60 months, Mr. Engstrom would be plucked out of the community and sent back to prison, which would work against the goal of Mr. Engstrom's rehabilitation in the community, which I'm sure is what we all ultimately want here.

[00:12:25] Speaker 04:
But if the safety valve finding was inappropriate, how does that meet the fourth prong?

[00:12:34] Speaker 04:
Because he's not eligible for safety valve.

[00:12:37] Speaker 01:
Sure.

[00:12:38] Speaker 01:
And in every case where we're talking about fourth prong, there is error in his plane.

[00:12:42] Speaker 01:
The sentence is incorrect.

[00:12:44] Speaker 01:
Right.

[00:12:44] Speaker 04:
But there's no substantial unfairness to finding error here, where he should have been under the mandatory minimum in the first place.

[00:12:53] Speaker 01:
Right, but the question and the burdens on the government here is to show that noticing this error, you know, is important to the integrity and public reputation of the judicial proceedings.

[00:13:03] Speaker 03:
But isn't it, I mean, if you came up here and there was a case that said he should have, let's say it went the other way, let's say Poulsenford had gone the other way, you'd be up here arguing, no, the safety valve was correct in the Supreme Court, and I'm sure you'd be saying,

[00:13:19] Speaker 03:
Well, that's unjust, and I wouldn't get the benefit of that.

[00:13:22] Speaker 01:
And I'd be arguing that this was the ordinary case that Justice Sotomayor was mentioning, where a defendant's liberty interests are at stake, where a defendant is an individual serving more time than he should have because of the error.

[00:13:35] Speaker 01:
And that's different than a defendant serving less time.

[00:13:38] Speaker 01:
I think it is especially in a case where the defendant is already out of prison.

[00:13:41] Speaker 01:
If this was, OK, you know, he's just going to have to stay in the US penitentiary several more months,

[00:13:47] Speaker 02:
That's one thing that seems to suggest that the bigger the error, the less cause there is to fix it in terms of, you know, because he was released earlier.

[00:13:56] Speaker 01:
Well, I mean, it depends on it's a case by case determination.

[00:13:59] Speaker 01:
And if there was a case where someone got a, you know, a 300 month windfall, it would be a different argument.

[00:14:04] Speaker 01:
I would be in a worse position here.

[00:14:06] Speaker 01:
The difference between Mr. Engstrom's 46 month sentence and the mandatory minimum is 14 months.

[00:14:12] Speaker 01:
Um, he would be sent back to prison for 14 months or if 24 or 70 months were imposed, that's 24 months.

[00:14:17] Speaker 01:
This is not a massive amount of time that Mr. Ringstrom would have to go back to prison.

[00:14:20] Speaker 01:
Do you have any cases applying this?

[00:14:21] Speaker 03:
Because I'd understood your argument.

[00:14:23] Speaker 03:
Are you abandoning your argument of you'd said, look, you can't apply it retroactively because of, I think, the Bowie case exception.

[00:14:32] Speaker 03:
You aren't focusing on that.

[00:14:34] Speaker 03:
I'm not sure.

[00:14:34] Speaker 03:
I don't want to say you're abandoning it.

[00:14:35] Speaker 01:
I am certainly not abandoning it.

[00:14:37] Speaker 01:
That is an argument on prongs one and two.

[00:14:39] Speaker 01:
And this is a separate argument on prong four.

[00:14:41] Speaker 01:
If this court were to find there were error, that satisfies prong one.

[00:14:44] Speaker 01:
If it was plain, it was plain.

[00:14:45] Speaker 01:
but you still have to get through three and four.

[00:14:47] Speaker 01:
So this is a prong four argument.

[00:14:50] Speaker 01:
The second reason, this is sort of the outside of the ordinary.

[00:14:53] Speaker 03:
My question was, are there cases on this prong four that you could point us to that have adopted this argument you're making?

[00:15:01] Speaker 03:
I mean, I don't want to say it's without fours, that he's out of jail.

[00:15:06] Speaker 03:
Sure.

[00:15:06] Speaker 03:
What's the point?

[00:15:07] Speaker 03:
But has any court actually bitten on this argument?

[00:15:11] Speaker 01:
I'm not sure about precisely the out of jail point.

[00:15:13] Speaker 01:
You know, in Mr. Engstrom's briefing, it mentions a case, Gorsuch, out of the First Circuit, I believe, where it's the same situation, where there was a mandatory minimum.

[00:15:20] Speaker 01:
And the court said because it didn't, it opted not to, Prongfor was discretionary, it opted not to notice the error under Prongfor and allowed a sentence below the mandatory minimum that otherwise would have applied to stand.

[00:15:34] Speaker 01:
So there is precedent for this, Your Honor.

[00:15:35] Speaker 04:
doesn't the government have some interest in having ensuring that it's you know it's convictions are properly followed in the sentence following the conviction is properly followed certainly there are considerations on both sides of the government so the government has to show is that

[00:15:51] Speaker 01:
noticing this error, you know, not noticing this error would seriously affect the fairness, integrity, and public reputation of judicial proceedings.

[00:15:57] Speaker 01:
And my argument here is that there are considerations on both sides.

[00:16:00] Speaker 04:
There is a windfall where the safety valve should, I mean, sorry, mandatory minimum should apply to other defendants, you know, are facing mandatory minimums, and this one defendant all of a sudden gets a random windfall.

[00:16:11] Speaker 04:
Isn't that in government's interest to defend against that?

[00:16:15] Speaker 01:
Absolutely.

[00:16:15] Speaker 01:
That's the argument the government has made.

[00:16:17] Speaker 01:
And the argument on the other side is that Mr. Engstrom

[00:16:20] Speaker 01:
has served the time in prison.

[00:16:21] Speaker 01:
He is out in the community.

[00:16:23] Speaker 01:
And the other reasons that make this case extraordinary are, number one, Mr. Engstrom served 16 months in pre-trial detention solely because of misrepresentations made by government counsel.

[00:16:32] Speaker 01:
This is in the supplement record filed by Mr. Engstrom.

[00:16:35] Speaker 01:
You can read the magistrate judge's blistering release order.

[00:16:39] Speaker 01:
Taking government council, and I should note is not credited for that he was credited for that, but he served 16 months in Pre-trail custody which is the hardest custody you can serve there's no programming and it was time He should not have been in prison.

[00:16:52] Speaker 01:
I mean it was due solely to misrepresentations from government council So this is my argument here is that this is not an ordinary case so that does it I'm just thinking through this prong for argument does it

[00:17:03] Speaker 03:
Matter that he was that this was sort of a resentencing under 35 meaning if the initial mistake had been made and everybody always thought hey 46 is the answer you know That might be a different scenario than hey you got 70 you were expecting 70 you went in you got some relief that relief that you got from 70 turns out not to be right does that play a role here well I appreciate your honor's question because it leads right into the final point on this but

[00:17:31] Speaker 01:
I'm

[00:17:46] Speaker 01:
He was not eligible for safety valve, which, at least in Judge Trump's opinion, under the law at the time, was wrong.

[00:17:50] Speaker 01:
He was eligible for safety valve.

[00:17:51] Speaker 01:
He shows up.

[00:17:52] Speaker 01:
He asks for a 60-month sentence.

[00:17:55] Speaker 01:
Judge Trump gives him 70.

[00:17:56] Speaker 01:
He doesn't ask for reconsideration.

[00:17:58] Speaker 01:
He doesn't ask for any error to be corrected.

[00:18:00] Speaker 01:
He doesn't appeal.

[00:18:01] Speaker 01:
What happens is, Judge Trump, Swiss sponte, corrects the sentence.

[00:18:05] Speaker 01:
The government then moves to reconsideration, and the government then appeals.

[00:18:09] Speaker 01:
Mr. Engstrom didn't ask for any of this.

[00:18:11] Speaker 01:
He just did what he was told to do.

[00:18:13] Speaker 01:
He showed up and he asked for the sentence he had agreed to ask for.

[00:18:16] Speaker 01:
He reported to prison.

[00:18:18] Speaker 01:
He served the time he was told to serve.

[00:18:19] Speaker 01:
He's now in the community.

[00:18:20] Speaker 01:
He didn't seek any of this.

[00:18:22] Speaker 01:
And if this court agrees with the government, he's going to be plucked out of the community and thrown back into prison.

[00:18:26] Speaker 01:
And I would submit that that would not advance the interests of fairness or the integrity and public reputation of judicial proceedings.

[00:18:34] Speaker 04:
Are you defending at all the granting of safety valve based off of the debrief requirement?

[00:18:38] Speaker 04:
I mean, have you ever seen

[00:18:41] Speaker 04:
the granting of the debrief requirement based off of statements made in open court?

[00:18:45] Speaker 01:
I have not, Your Honor, but the statements made in open court were before the time of the resentencing, which very clearly, in my submission, falls within what Judge Traum was entitled to take into consideration.

[00:18:56] Speaker 01:
The Rule 35 hearing was, I mean, the government itself in its briefing describes it as a resentencing.

[00:19:01] Speaker 01:
In Mejia, a case before this court,

[00:19:05] Speaker 01:
where there was a resendencing, the court looked to anything that had come before that.

[00:19:09] Speaker 01:
And Mr. Engstrom's allocution at the first hearing was certainly before the time of the second hearing, which is where the statute sets the cutoff.

[00:19:18] Speaker 04:
Well, even that, is there any case that allows open court hearings to count as a debrief where you tell everything openly and honestly about your involvement in the crime?

[00:19:27] Speaker 01:
No, but what the statute says is that the defendant must provide complete information, which Judge Trump found that he did.

[00:19:35] Speaker 02:
Where's the clear finding that he did and for example did he disclose the the cyber?

[00:19:45] Speaker 01:
Currency transactions the methods that were used and so on I'm not sure you identify the cyber currency that was being used I mean he talked about the exchange was on I don't know the full extent of mr. Engstrom's knowledge, but what judge Trump found and this is on 1 er 31 to 32 she sets out the correct standard he needs to provide truthful and complete information and

[00:20:05] Speaker 01:
That's an absolutely correct statement of law.

[00:20:07] Speaker 01:
Then she goes on to run through everything that he said out, and then she concludes, that is enough to satisfy paragraph A5.

[00:20:13] Speaker 01:
That is a finding that Mr. Engstrom has provided truthful and complete information, which is what safety valve requires.

[00:20:18] Speaker 04:
So isn't the problem, you said that he'd asked for none of this, it's the district court that kind of...

[00:20:23] Speaker 04:
boxed this up and it will maybe result in him being yanked back into trial, right?

[00:20:29] Speaker 01:
I'm not sure I would say that the district court bogged it up.

[00:20:31] Speaker 01:
That wouldn't be my characterization here.

[00:20:32] Speaker 01:
And I think the district court properly identified that it had not made a finding at the first sentencing and needed to correct that.

[00:20:38] Speaker 01:
Yeah, that's fair.

[00:20:40] Speaker 04:
But then, beyond that, then she then went much further.

[00:20:45] Speaker 01:
I see I'm past my time.

[00:20:46] Speaker 04:
Yeah, thank you.

[00:20:57] Speaker 00:
Your honors, enforcing an incorrect sentence based off of the safety valve relief, which Mr. Engstrom himself willingly negotiated and stated would not apply, would affect the government's rights to have defendants correctly sentenced and implicate the judicial fairness of the criminal system, particularly in this instance where Congress mandated that the crimes such as Mr. Engstrom's would warrant a mandatory minimum

[00:21:19] Speaker 03:
And to which repeat offenders such as Mr.. Engstrom would not be eligible for a sentence below that mandatory minimum So can I just ask on the on the prong for is the test that we're applying I'm looking at Gonzales Zotello from 2009 it says that the government show There's a reasonable probability that the defendant would have received a different sentence But for the district court's air is that all I mean is the government's position that that's all you have to do to satisfy prong for

[00:21:48] Speaker 00:
In this instance where the issue was that the district court re-sentenced Mr. Engstrom, it's clear that that is what in this case.

[00:21:56] Speaker 03:
What about the idea that he is out and we'd be putting him back in?

[00:22:00] Speaker 03:
I mean, do we take any of that into account?

[00:22:04] Speaker 00:
I believe that in this case the government's interest to have defendants correctly sentenced and to have district courts also follow rules of the court is an equal if not greater interest in this case.

[00:22:14] Speaker 02:
Should we give any weight to

[00:22:16] Speaker 02:
The district courts finding concerning the pretrial detention and the reasons for it Yes, your honor to the extent that the district court gave a variance to provide for that Yes But if the district court was restricted in terms of the safety valve and dipping below congressionally mandated statutory minimum Well, yeah, the district court has that binding minimum on it But but this court has discretion right on that fourth prong.

[00:22:41] Speaker 00:
Yes, your honor.

[00:22:42] Speaker 02:
So should we consider that?

[00:22:44] Speaker ?:
I

[00:22:44] Speaker 00:
In this case, Your Honor, because there was significant error in this case, we believe that the government's interest is greater than a sentence that Mr. Engstrom received based off of the safety valve relief, which he himself did not argue for and did not agree applied to him.

[00:23:01] Speaker 03:
Thank you.

[00:23:02] Speaker 00:
Thank you, Your Honor.

[00:23:03] Speaker 03:
Thank you.

[00:23:03] Speaker 03:
Thank you to both counsel for your arguments in the case.

[00:23:05] Speaker 03:
The case is now submitted.