[00:00:00] Speaker 00:
Please court counsel.

[00:00:02] Speaker 00:
My name is Greg Sylvie, and I represent mr.. Casildo so I Know nobody wants to see a career offender case you weren't back in chamber saying oh boy We get to do a categorical analysis, but I want to put the positive spin on this I'm excited to bring you this case so

[00:00:24] Speaker 00:
In trying to, there's a lot going on here.

[00:00:26] Speaker 00:
We had a pro se petitioner and a 2255.

[00:00:31] Speaker 00:
But if we just drill down to what really matters in this, we get to whether the actus reus of the Nevada controlled substance statute is divisible or not.

[00:00:46] Speaker 00:
And just for quick reference, I have it in my brief at page 22.

[00:00:50] Speaker 00:
The government has it in their brief at page 14.

[00:00:54] Speaker 00:
And so I'll just kind of summarize it.

[00:00:58] Speaker 00:
But what we have is in A, we have import, transport, sell, exchange, barter, supply, prescribe, dispense, give away, or administer a controlled substance.

[00:01:08] Speaker 00:
In B, we have manufacture or compound, counterfeit substance.

[00:01:16] Speaker 00:
And in C, we have offer or attempt to do any act.

[00:01:19] Speaker 00:
So basically in A, we have doing things with a substance.

[00:01:25] Speaker 00:
In B, we have making things and in C, we have trying to do things.

[00:01:31] Speaker 00:
So when we're looking at these subsections and we're looking to see are they elements or are they just alternative means, we have like three groups.

[00:01:42] Speaker 00:
So in A, we have a big group and they're all based

[00:01:47] Speaker 00:
they're all doing stuff with things.

[00:01:53] Speaker 00:
And so basically, it is our argument that A is indivisible and these are just means and not elements.

[00:02:03] Speaker 00:
So when we go to the case law, we have nothing controlling.

[00:02:09] Speaker 00:
The government

[00:02:10] Speaker 00:
And the district court here, they used Riviera Esquivel, which is just a non-binding panel decision, which says that it is divisible.

[00:02:22] Speaker 00:
That's my elephant in the room.

[00:02:24] Speaker 00:
And I say for what I just said is the structure of the statute, so there is a suggestion

[00:02:33] Speaker 00:
in looking at the statute, that its means are not elements.

[00:02:37] Speaker 00:
But then, more interesting is, that case went to three old Nevada state cases and said, this is binding precedent.

[00:02:46] Speaker 00:
But when you look at those old cases, it's not.

[00:02:48] Speaker 00:
Number one, they're pre-guidelines.

[00:02:50] Speaker 04:
Well, I read those cases.

[00:02:51] Speaker 04:
Whether binding or not, they say nothing about the question in front of us.

[00:02:55] Speaker 04:
Exactly.

[00:02:56] Speaker 00:
I mean, there's nothing there.

[00:02:57] Speaker 00:
Right.

[00:02:58] Speaker 00:
It just says, you know, drug dealer said, here's some heroin.

[00:03:01] Speaker 04:
That doesn't necessarily mean Revere is wrong, but the cases they rely on are neither here nor there.

[00:03:05] Speaker 00:
Exactly.

[00:03:06] Speaker 00:
Okay.

[00:03:06] Speaker 04:
Tell me about Via Vicencio.

[00:03:12] Speaker 04:
Because that one may be more helpful to you.

[00:03:15] Speaker 00:
Exactly, that's much more helpful.

[00:03:17] Speaker 00:
So it's a different statute, but it's still a Nevada controlled substance statute.

[00:03:22] Speaker 00:
And that says that the different ways of doing things are means and not elements, because in Nevada, generally speaking, the jury does not have to pick one of the means.

[00:03:34] Speaker 00:
And so that's why we know that they're means and not elements.

[00:03:39] Speaker 00:
And that is what Turner 2,

[00:03:41] Speaker 00:
made its ruling on that it is indivisible and therefore not a categorical match.

[00:03:49] Speaker 00:
So yes, that is the case that I rely on, the one that the actual district court sitting in Nevada, dealing with Nevada, picked.

[00:03:58] Speaker 00:
And it's actually a published Ninth Circuit decision.

[00:04:00] Speaker 00:
So shockingly enough, that's the one that I like, and I think that that's basically dispositive of the categorical analysis.

[00:04:08] Speaker 01:
So... Tell me what the harm is.

[00:04:11] Speaker 00:
harm okay, so This is interesting or maybe not interesting, but it's at least the answer to that question so This district judge for a long long time You know been on the bench for 25 years and went from meth being from seven percent pure to everything's a hundred percent pure and so as you can tell from the the sentencing discussion with the prosecutor

[00:04:42] Speaker 00:
The judge would first kind of average and then just use the mixture guideline over the peer guideline.

[00:04:50] Speaker 00:
And that's where he was discussing with the codefendant.

[00:04:54] Speaker 00:
He did that.

[00:04:54] Speaker 00:
It made some difference.

[00:04:56] Speaker 00:
And in this case, he said, oh, I don't need to do that because it's career offender.

[00:05:01] Speaker 00:
There's enough in the record there to show that there was probably going to be, if it wasn't a career offender case, a variance based on that, or could just be using the mixture guideline, which would change things.

[00:05:15] Speaker 00:
Also, the codefendant who was the source of supply, and it's somewhere in the record, and I know because I

[00:05:23] Speaker 00:
footnoted something I think it said he had I think the judge said that he had less than mr. Casildo and no he didn't he had a pound when he was caught and he got you know the 10-year sentence and Casildo's getting the 20-year sentence so if if if the career offender wasn't floating around there that the judge thought that he needed to apply you know I believe that the sentence would have been lower and then how much lower that's why this needs a remand and

[00:05:51] Speaker 01:
So is any potential amount lower sufficient for us to remand it or does it have to be significant?

[00:05:59] Speaker 01:
And I mean, this is you're just kind of throwing it out there.

[00:06:01] Speaker 01:
We don't know that the judge would have really.

[00:06:04] Speaker 05:
And was it was it the same judge who did the sentencing and handle the habeas?

[00:06:08] Speaker 05:
Yes.

[00:06:10] Speaker 05:
And he was the one who determined that there would be no prejudice.

[00:06:14] Speaker 04:
Unfortunately, yes.

[00:06:15] Speaker 04:
So on the other hand, in sentencing,

[00:06:18] Speaker 04:
The district judge said, and I'm just quoting the judge at sentencing, were it not for those two prior convictions, or if there had been only one prior judge conviction, we will be talking about a very, very different case, a very, very different sentence, probably something on the order of what Mr. Rican received, maybe even less.

[00:06:37] Speaker 04:
That's the district judge at sentencing.

[00:06:39] Speaker 04:
Exactly.

[00:06:39] Speaker 04:
I think he might have forgotten when he got to the 2255 what he had said at sentencing.

[00:06:44] Speaker 04:
Right.

[00:06:44] Speaker 05:
The district judge does never forget those things.

[00:06:48] Speaker 00:
So I adopt that argument.

[00:06:54] Speaker 00:
And then the interesting thing is, and I'll also make a comment to the district judge,

[00:07:02] Speaker 00:
So the judge actually did very downward even with the career offender and as district judges always say the best indicator of future behavior is past behavior So the district judge did it once why wouldn't he do it again?

[00:07:15] Speaker 00:
I think it's certainly worth the remand for that and then we have these other things floating around so the inchoate

[00:07:23] Speaker 00:
The inchoate charge thing is interesting, but yes, it was brought up in a reply brief.

[00:07:27] Speaker 00:
You don't get to bring up things in a reply brief, but this case has enough going on.

[00:07:32] Speaker 00:
I mean, I, of course, want it reversed outright, but at the very least, I think it deserves a remand and counsel appointed to get through these thorny issues.

[00:07:42] Speaker 05:
So let's assume that the court erred on divisibility, that the career offender enhancement doesn't apply.

[00:07:51] Speaker 05:
So there's prejudice there.

[00:07:53] Speaker 05:
The guidelines have to be recalculated.

[00:07:57] Speaker 05:
My question goes to ineffective assistance of counsel.

[00:08:02] Speaker 05:
Given the failure

[00:08:04] Speaker 05:
to apply, to raise the guideline question.

[00:08:07] Speaker 05:
Isn't that ineffective assistance?

[00:08:09] Speaker 05:
Is there any point in asking the district court to go back through that question?

[00:08:14] Speaker 05:
Can't we just remand this for re-sentencing?

[00:08:16] Speaker 00:
I believe so, and that's what I'm asking for, because if you find that the career offender didn't apply, and I think I make this argument, and this law predated this case, Turner and Turner II,

[00:08:35] Speaker 00:
The binding Ninth Circuit case, it's all predated the case.

[00:08:39] Speaker 00:
And the attorneys, you know, the attorney did nothing at the sentencing.

[00:08:44] Speaker 00:
So, yes, I mean, that obviously was ineffective, so I think it just goes back.

[00:08:51] Speaker 00:
It doesn't have to, but if for some reason this court were not to just reverse and remand,

[00:08:57] Speaker 00:
Believe if it could just be remanded so these thorn council appointed so these thorny issues could be plucked so to speak And you you're running low on time if you want to save any I'm gonna save time.

[00:09:13] Speaker 00:
Okay.

[00:09:13] Speaker 00:
Thank you.

[00:09:14] Speaker 01:
Thank you counsel Miss crane

[00:09:21] Speaker 02:
Good morning, Your Honors.

[00:09:22] Speaker 02:
May it please the court, Darcy Crane of the United States.

[00:09:25] Speaker 02:
This court should affirm the district court's denial of the defendant's 2255 motion in this case because there was no, because it is procedurally defaulted.

[00:09:34] Speaker 02:
There was no prejudice and there was no excuse.

[00:09:37] Speaker 04:
So how can you say no prejudice given the sentence I just read to you, quoting the district judge at sentencing, where he says, listen, if it had been only one, you'd have a very different sentence.

[00:09:47] Speaker 04:
How can you say there's no prejudice?

[00:09:49] Speaker 02:
I view that quote differently, Your Honor, because whether or not the career offender enhancement applied with the district court was referring to there was the defendant's prior convictions, and the defendant's two prior convictions remain whether or not they're predicate offenses for the career offender enhancement.

[00:10:03] Speaker 02:
So the district court's focus on the defendant's prior criminal history still remains a factor in his sentencing.

[00:10:10] Speaker 02:
And that is how the government looks at what that statement is.

[00:10:17] Speaker 02:
The district court in this case is the judge who considered the 2255 motion was the trial judge and was the sentencing judge in this case and Work when we're considering whether or not there's prejudice Let's begin with whether or not there would be a different sentence applied and in this case the defendants

[00:10:34] Speaker 02:
offense level would be a 34 whether he's a career offender or not the 34 he had a 32 base offense level with the amount of drugs in this case and he received a two level enhancement so even without the career offender he would be at a 34 the difference between career offender and where the defendant's guideline range would be would be his criminal history category so he would be a criminal history category five without the career offender enhancement and

[00:11:00] Speaker 02:
Meaning that even if we were to look at that his guideline range without the career offender enhancement would be 235 to 293 months and the defendant in this case received a sentence of 235 months Importantly the district court when considering this case in full view of its prior comments made a sentence Indicated that there would not have been there would not be prejudice based on a different sentence The government does believe that

[00:11:30] Speaker 02:
The Nevada Revised Statute is divisible as the Actus Reus and the career offender enhancement was appropriately applied.

[00:11:38] Speaker 01:
Counsel, let me ask you about the guideline range.

[00:11:42] Speaker 01:
What was the actual guideline range spread for what Mr. Casilda being labeled a career offender?

[00:11:51] Speaker 02:
It was 262 to 327 months.

[00:11:54] Speaker 01:
And yet the judge sentenced him to 235?

[00:11:56] Speaker 01:
Yes.

[00:11:57] Speaker 01:
So why wouldn't it be reasonable for us to believe that if the starting point was 235, the judge may have gone lower?

[00:12:06] Speaker 02:
During the district court's comments at sentencing, it talked about a variety of things.

[00:12:10] Speaker 02:
It touched on all the 3553A factors.

[00:12:13] Speaker 02:
It talked about how they were applicable to this defendant.

[00:12:16] Speaker 02:
And it discussed whether or not and made clear that it wasn't providing a trial tax, for lack of a better phrasing, to this defendant for proceeding.

[00:12:24] Speaker 02:
And so the district court considered all the appropriate information and chose to give a sentence of 235 months.

[00:12:32] Speaker 02:
And at sentencing, the district court noted,

[00:12:35] Speaker 02:
made a comment about how that this sentence would have been within the guideline range, I believe, if the defendant had not proceeded to trial.

[00:12:44] Speaker 02:
And so this change in the career offender to not career offender doesn't change those same characteristics of the defendant.

[00:12:52] Speaker 02:
It doesn't change his outstanding career, his criminal history.

[00:12:56] Speaker 02:
It doesn't change the fact that this was his third drug offense in 15 years.

[00:13:00] Speaker 02:
All of those remain the same.

[00:13:02] Speaker 02:
And the district court at that point thought the sentence of 235 months was appropriate The government does in its brief site to the Esquivel case which is unpublished that the actus reus is divisible for the Nevada revised statute of 453 point three two one It does cite two three albeit very brief Nevada Supreme Court cases from the 70s

[00:13:31] Speaker 02:
One of those cases ward does note that there was insufficient evidence in that case to sustain the conviction for sale of controlled substance That is relevant in this court's consideration because there were other options under the nevada revised statute of 453.321 available for the court's consideration if it wanted to consider them to be alternative Will say if the court wanted to

[00:14:00] Speaker 02:
evaluate if this the government thinks that that case is appropriate because it sets forth elements in that case there was insufficient evidence to support how the government had charged that case mainly that there was a sale of controlled substances in the ward case what happened was that there was involved in undercover and that the defendant was arrested prior to the actual exchange of drugs for money in that case

[00:14:27] Speaker 02:
Prior to that arrest, though, there had been a transaction discussions about how much money would be paid in exchange for drugs.

[00:14:35] Speaker 04:
Yeah, boy, it sure has nothing to do with divisibility.

[00:14:38] Speaker 04:
I don't think the word had been invented when those cases were decided.

[00:14:42] Speaker 02:
Which leads, I guess, to concern about divisibility overall and its difficulty in determining elements versus means, which was somewhat cited

[00:14:53] Speaker 02:
by the Nevada Supreme Court in considering its prior cases in Figueroa Alvarez.

[00:14:59] Speaker 05:
We don't get to deal with that.

[00:15:01] Speaker 05:
We just have to apply what we've got now, for which I'm very sympathetic to the district judge, by the way.

[00:15:12] Speaker 02:
I do want to note that even if we set aside the divisibility issue, there is also no cause to excuse procedural default in this case.

[00:15:19] Speaker 02:
help us with that yeah this was a pro se 2255 and construing the petition liberally the government briefed whether or not there was an effective assistance of counsel claim in its response brief at the district court level in the reply brief and this is at year 22

[00:15:39] Speaker 02:
The defendant noted in his reply brief that the government had urged the court to reject an ineffective assistance of counsel claim that Casildo never actually presented.

[00:15:52] Speaker 02:
So in an interesting way, the ineffective assistance of counsel claim was presented in an abundance of caution by the government to the district court.

[00:16:02] Speaker 02:
And the defendant himself in his reply brief made it clear that he was not raising an ineffective assistance of counsel claim.

[00:16:10] Speaker 04:
And so the ineffective assistance... So it might be ineffective assistance of counsel.

[00:16:16] Speaker 05:
Well, didn't he raise this issue to his appellate counsel several times and the appellate counsel declined to raise it to the court for whatever reasons?

[00:16:31] Speaker 05:
And isn't that just, if we find that the district court erred with respect to divisibility and so that the guideline calculation is going to be incorrect, isn't that just ineffective assistance and can't we just send it right back down to the district judge and the district judge might agree with you and say, no, I would have done this regardless, but he might take a look at and decide that it ought to be something different.

[00:17:00] Speaker 02:
The way that the 2255 motions work, defendants are not entitled to counsel.

[00:17:06] Speaker 02:
And so when you look at how that process plays out, it is oftentimes a pro se defendant who is briefing the matter, which is why this court has indicated that those briefs are to be construed liberally.

[00:17:20] Speaker 02:
And in doing that, the issue of ineffective assistance of counsel was put squarely before the defendant in this case.

[00:17:26] Speaker 02:
And he indicated that he had not raised that issue with the district court.

[00:17:31] Speaker 02:
And so that issue, habeas is an extraordinary remedy and understanding that, but given essentially an invitation from the government to raise an ineffective assistance of counsel, the defendant declined.

[00:17:43] Speaker 04:
You know, I understand fully what you're saying here.

[00:17:47] Speaker 04:
Sometimes, it might be just easier, send it back to the district judge.

[00:17:52] Speaker 04:
If Judge Windmill, who's a very good judge, says, you know, I met it the first time, I met it again, same sentence, game's over.

[00:18:01] Speaker 04:
I'd prefer to just let Judge Windmill have another look.

[00:18:09] Speaker 05:
You don't need an extra.

[00:18:09] Speaker 02:
I respectfully disagree, Your Honor.

[00:18:12] Speaker 02:
Of course.

[00:18:12] Speaker 02:
The district court in this case, as you noted and as has been noted here, is the district court throughout this case.

[00:18:20] Speaker 03:
And I want to say he's a very good judge.

[00:18:25] Speaker 02:
I think so as well.

[00:18:26] Speaker 02:
And certainly in this case, and

[00:18:31] Speaker 02:
Providing the defendant with the opportunity to claim ineffective assistance of counsel when he specifically stated that that is not what he is claiming goes above and beyond the 2255 motion in this case.

[00:18:44] Speaker 02:
In addition, even if this court finds that that statute as the actus reus is not divisible, the government still doesn't believe that prejudice has been shown.

[00:18:53] Speaker 02:
The district court opinion makes pretty clear in this case that the defendant would not have received a different sentence

[00:19:01] Speaker 02:
The district court considered the defendant's criminal history in the 3553 a factors appropriately in this case That's what went up on direct appeal and was upheld and so the sentence of 235 months Would not be prejudicial in this case and so we ask you to affirm Thank you.

[00:19:18] Speaker 00:
Thank you counsel Mr.. Sylvie The district court also founded a qualifying predicate which

[00:19:28] Speaker 00:
We're all believing that that's incorrect.

[00:19:30] Speaker 00:
So it should go back to Judge Windmill, who I have great respect for.

[00:19:33] Speaker 00:
But quickly, the District of Idaho does not appoint counsel in habeas unless there's an evidentiary hearing, or it's very rare.

[00:19:41] Speaker 00:
And we have a pro se petitioner here who thinks that he is actually innocent of the sentence.

[00:19:47] Speaker 00:
Which you know you learn that from some jailhouse lawyer.

[00:19:51] Speaker 00:
I mean he doesn't understand the nuances of this so Again, we'd at least like it's not reversed outright But by my math if judge windmill did the same thing in this case if it started at the 34 in a category five and went down three levels the trial penalty he'd be at 168 to 210 which is a lot less than the 235 so I think that's the prejudice and

[00:20:16] Speaker 00:
Finally, in ward, the correct charge was attempt, which is the sub C, not the sub A. That's why it doesn't show that it is divisible.

[00:20:28] Speaker 00:
And I'm done.

[00:20:29] Speaker 01:
Okay.

[00:20:30] Speaker 01:
Thank you to both counsel.

[00:20:31] Speaker 01:
This matter is now submitted.