[00:00:00] Speaker 02:
We'll proceed to the next case on our argument docket.

[00:00:09] Speaker 02:
Thank you both.

[00:00:15] Speaker 02:
The next case on our docket is United States versus

[00:00:23] Speaker 02:
Gordon, but counsel can take a little time getting to the stand and then we'll hear from appellant first.

[00:00:37] Speaker 02:
Appellant is the United States.

[00:01:18] Speaker 03:
Shall I begin?

[00:01:20] Speaker 00:
If you wait one minute, that's going to get picked up on the recording.

[00:01:46] Speaker 00:
Are we set?

[00:01:49] Speaker 02:
Counsel, please proceed.

[00:01:51] Speaker 03:
Thank you, your honor.

[00:01:54] Speaker 03:
My name's David Ness with the Federal Defenders of Montana on behalf of the Appellant, Brandon Gordon.

[00:01:59] Speaker 03:
As the Court is aware, the argument today actually involves two separate appeals.

[00:02:04] Speaker 03:
I think I'd like to first start on the second or successive issue.

[00:02:10] Speaker 03:
It seems to me like that's the more complicated issue that needs to be resolved.

[00:02:15] Speaker 04:
The big problem you've got is the recent issuance of the Duarte decision, the in-bank decision upholding the constitutionality of 922G.

[00:02:28] Speaker 03:
You know, Judge, I guess I would disagree with that.

[00:02:32] Speaker 03:
I don't have sight on the tip of my tongue right now, but I believe both this Court and other circuit courts of appeals have basically held that when you're looking at that second provision in 2255H,

[00:02:48] Speaker 03:
that the court isn't necessarily supposed to go into looking at the actual merits of the claim that's to be raised.

[00:02:56] Speaker 03:
They look at the procedural issues, and that's whether or not it's a new rule of constitutional law that's been made retroactively applicable by this new court.

[00:03:07] Speaker 04:
But the rule prior to Duarte was that it was constitutional.

[00:03:12] Speaker 04:
So Duarte basically overturned the

[00:03:17] Speaker 04:
three-judge panel decision that recognized it and that decision has now been vacated.

[00:03:24] Speaker 04:
So there has been no change in the law.

[00:03:28] Speaker 03:
Well, I agree.

[00:03:32] Speaker 03:
If he's allowed to bring his Bruin claim in the Ninth Circuit, he will lose.

[00:03:37] Speaker 03:
Right.

[00:03:38] Speaker 04:
So why wouldn't that then lead the court to conclude?

[00:03:42] Speaker 04:
I guess what I'm saying is I agree there may have been an error procedurally in not allowing the amendment.

[00:03:50] Speaker 04:
But as a practical matter, we're going to end up in exactly the same place in light of Duarte.

[00:03:57] Speaker 04:
And so why shouldn't we affirm on the alternative ground that any amendment to the judgment would have been futile?

[00:04:06] Speaker 03:
Well, we do if the United States Supreme Court, Your Honor, and there is a split in the circuits on this issue.

[00:04:12] Speaker 00:
You're kind of losing me because I think the issues are getting kind of conflated and it's almost

[00:04:18] Speaker 00:
You know what I'm going to call Judge Tom is referring to is sort of amendment would be futile.

[00:04:23] Speaker 00:
That's what he's, I think, talking about when we look at what happened in Duarte.

[00:04:28] Speaker 00:
And I think you're suggesting, but I want to make sure that I'm following you, because I think you two are speaking in shorthand or code a little bit, is that there's a procedural issue, an antecedent procedural issue about his ability to amend his complaint.

[00:04:48] Speaker 00:
I think that's what Judge Tomlin was just referring to, right?

[00:04:50] Speaker 00:
That there was a, by operation of Rule 59, that there, this should not be deemed a second or successive.

[00:04:56] Speaker 00:
And I certainly appreciate that's a separate point.

[00:04:58] Speaker 00:
But what's your best argument that we should go ahead and decide that if, what I'm going to call it, you know, if amendment will be futile, if the underlying claim is doomed?

[00:05:11] Speaker 03:
I guess I'd fall back on what I just told Judge Tolman.

[00:05:14] Speaker 03:
I agree.

[00:05:15] Speaker 03:
It's doomed in front of this court.

[00:05:17] Speaker 00:
Okay, so if that's your concession, because you can't distinguish from Duarte, then why did we reach the procedural issue?

[00:05:26] Speaker 03:
Well, you could, I guess, you know, that this court certified the issue.

[00:05:31] Speaker 03:
I think it is important to sort out the certified, the procedural issue.

[00:05:37] Speaker 00:
Because it needs to be answered, because is that, so would you have us resolve, we've done this a lot this week.

[00:05:45] Speaker 00:
Ask counsel, how would you have us draft your DREAM ruling?

[00:05:49] Speaker 00:
Because you've conceded that the Duarte issue is now foreclosed.

[00:05:55] Speaker 00:
It sounds like what you're suggesting is that there's a procedural issue that needs to be decided.

[00:06:00] Speaker 00:
You're encouraging us to decide it even if we then say, you know, but in this case, council's conceded that the Duarte issue is, the Bruin issue is not viable.

[00:06:11] Speaker 03:
I think that's correct.

[00:06:12] Speaker 03:
Yes.

[00:06:13] Speaker 03:
I think that the procedural issue here is kind of top and foremost.

[00:06:18] Speaker 03:
And that was the issue that was certified.

[00:06:22] Speaker 00:
Okay, so what's your best argument that the issue needs?

[00:06:24] Speaker 00:
We did certify that we've identified that that was an important issue.

[00:06:29] Speaker 00:
What's your best argument that we should take it up here rather than waiting for another case where it might matter?

[00:06:40] Speaker 03:
It's been certified here.

[00:06:44] Speaker 03:
I think it's a good time to try to answer this question, given the pendency of the Lumpkin case as well.

[00:06:54] Speaker 03:
Once Lumpkin comes out, then there may be other questions involving when

[00:07:05] Speaker 03:
you know, when a 2255 petition is an SOS petition, when it can be amended, things of that nature.

[00:07:11] Speaker 03:
So I think that this issue is...

[00:07:15] Speaker 03:
here, although it's different than, you know, Lumpkin's a little cleaner.

[00:07:19] Speaker 03:
There was no Rule 59E motion interposed in the middle of the litigation.

[00:07:24] Speaker 03:
But I think that this case, together with the United States Supreme Court and Lumpkin, I think will add a lot of guidance to the courts on, under these circumstances, when is an application for relief second or successive?

[00:07:41] Speaker 03:
When is it merely second in time?

[00:07:43] Speaker 04:
So you would like to see an opinion that says when a Rule 59E motion is filed, the mere filing of the motion renders the original judgment now non-final until the court resolves the Rule 59E motion.

[00:08:05] Speaker 04:
And in this case, the court could resolve it by refusing to permit the amendment because to do so would be futile.

[00:08:14] Speaker 04:
Once that is disposed of, the judgment returns to a final judgment.

[00:08:22] Speaker 04:
and then anything after that point would be a second or successive petition.

[00:08:27] Speaker 03:
I think so.

[00:08:29] Speaker 03:
Relying on Bannister, what we're saying is that the judgment that had originally been filed had been suspended.

[00:08:38] Speaker 03:
It was no longer final.

[00:08:39] Speaker 03:
Right.

[00:08:40] Speaker 03:
Okay.

[00:08:40] Speaker 04:
We're saying the same thing.

[00:08:41] Speaker 03:
Okay, so yes, I would say that Mr. Gordon, second in time petition raising his Bruin claim.

[00:08:58] Speaker 03:
should have been treated as an amendment, as this court said, in Goodrum, in Beatty, Woods, and Kerry.

[00:09:06] Speaker 03:
All of those, you know, say that when there's an actual application that's still pending, if someone comes along and files a second application, it's just treated as an amendment.

[00:09:17] Speaker 04:
But why couldn't the court then take the next step and say, but as so construed,

[00:09:24] Speaker 04:
This motion is denied because it is moot in light of the in-bank decision in Duarte.

[00:09:34] Speaker 04:
There is no effective relief the court can grant in light of that in-bank decision.

[00:09:41] Speaker 03:
No, but again, Judge, I guess I just, and my friend and I were talking earlier, you know, about these gun cases and maybe I'm...

[00:09:56] Speaker 03:
somewhat optimistic, but I think that it's moot before this court, but the issue hasn't been fully decided.

[00:10:04] Speaker 00:
Excuse me, when you say the issue right there, are you talking about the Bruin issue, or are you talking about suspending the entry of the judgment?

[00:10:12] Speaker 03:
The Bruin issue, I think, is how his answer and judge told me.

[00:10:17] Speaker 00:
Now I'm confused, because I understood you conceded a minute ago that in this case, relief couldn't be granted on the Bruin issue.

[00:10:23] Speaker 03:
Oh, well, I don't think that, obviously, this court is not going to do that, because this court has an outlawed decision.

[00:10:30] Speaker 03:
So yes, moot is the wrong word.

[00:10:32] Speaker 00:
So you're just holding out hope.

[00:10:33] Speaker 00:
You mean for, I'm not trying to give you a bad time.

[00:10:36] Speaker 00:
I'm trying to understand.

[00:10:36] Speaker 00:
No, that's fine.

[00:10:37] Speaker 00:
Give me a bad time.

[00:10:37] Speaker 00:
I thought I understood your concession.

[00:10:39] Speaker 00:
But you're indicating that it theoretically would be possible if something were to flip on Supreme Court review?

[00:10:46] Speaker 00:
Is that what you're saying?

[00:10:48] Speaker 03:
Could be, possibly, yes.

[00:10:50] Speaker 00:
Am I missing?

[00:10:50] Speaker 00:
Is there any other option here?

[00:10:52] Speaker 00:
No.

[00:10:52] Speaker 00:
They're not trick questions.

[00:10:53] Speaker 00:
I really am trying to understand yours.

[00:10:54] Speaker 03:
No, no, no.

[00:10:55] Speaker 00:
OK, so your concession is just that it's foreclosed in this circuit, but you want to preserve that for a Supreme Court review.

[00:11:02] Speaker 03:
That would be correct, yes.

[00:11:02] Speaker 00:
OK.

[00:11:03] Speaker 00:
All right.

[00:11:04] Speaker 00:
So back to my effort to understand how you would have this opinion written, you think there's an important rule that you'd like to see publication on that has to do with the procedural issue, that the Rule 59 suspends imposition

[00:11:18] Speaker 00:
finality for purposes of whether a petition is going to be amended or SOS, right?

[00:11:23] Speaker 03:
Correct, yes.

[00:11:24] Speaker 00:
Okay.

[00:11:25] Speaker 00:
And then in this case, you've conceded that relief is foreclosed on the Bruin issue unless the Supreme Court changes something.

[00:11:33] Speaker 03:
Right.

[00:11:34] Speaker 03:
It would allow Mr. Gordon to effectively amend his original petition.

[00:11:41] Speaker 03:
Okay.

[00:11:41] Speaker 03:
And this court will deny it, and then I would presume he would go to the Supreme Court.

[00:11:46] Speaker 00:
I see.

[00:11:47] Speaker 00:
Thank you for the clarification.

[00:11:50] Speaker 03:
And then I guess, unless there's any other questions regarding that particular issue, I just move on to the second two issues that are, I think, simpler.

[00:12:05] Speaker 03:
The first issue is whether or not the court wrongfully

[00:12:13] Speaker 03:
denied Mr. Gordon's Sixth Amendment plea agreement claim.

[00:12:19] Speaker 03:
I think that's adequately spelled out in the briefs.

[00:12:23] Speaker 03:
What I would say, although I have to concede there's

[00:12:29] Speaker 03:
certainly evidence on the other side that he hadn't been misinformed, but there is that statement that counsel made during the sentencing hearing where he specifically states he could have gotten 24 days.

[00:12:44] Speaker 03:
I don't think that Mr. Gordon's argument is so conclusively wrong.

[00:12:50] Speaker 03:
that he should have been denied further proceedings, whether in the form of some sort of discovery or ideally some sort of very short evidentiary claim.

[00:13:00] Speaker 04:
But we've upheld variances as great as 60 months and found no ineffective assistance of counsel.

[00:13:09] Speaker 03:
Yes.

[00:13:10] Speaker 04:
And we don't have that greater gap here, do we?

[00:13:15] Speaker 03:
We have about 60 months.

[00:13:17] Speaker 03:
16?

[00:13:19] Speaker 03:
No, about 60 I think.

[00:13:21] Speaker 04:
But we've upheld much longer sentences, despair, differences than 60 months is what I meant to say.

[00:13:29] Speaker 03:
You have.

[00:13:30] Speaker 04:
And we've said that wasn't an effective assistance with regard to potential sentencing penalties.

[00:13:36] Speaker 03:
That's, and I, you know, I have arguments against that, but I don't think that the panel, obviously, can overrule those.

[00:13:44] Speaker 03:
It's those pesky precedents that are always getting.

[00:13:47] Speaker 03:
You guys are just terrible to me.

[00:13:50] Speaker 03:
I will note, however, that there, again, is a split in the circuits on this.

[00:13:55] Speaker 03:
I think the Fifth Circuit doesn't take quite as hard a line as the Ninth Circuit does.

[00:14:02] Speaker 03:
And, I mean, it just seems to me that if

[00:14:06] Speaker 03:
sensing prognostication is so wrong.

[00:14:10] Speaker 03:
I mean, some of the cases cited in the government's brief, you're talking 10 years, you know, life as opposed to 30 years, that those should be analyzed under the performance prong of Strickland.

[00:14:28] Speaker 03:
And I would just respectfully submit that even though this panel can't do it,

[00:14:32] Speaker 03:
that the Ninth Circuit should reevaluate that issue.

[00:14:38] Speaker 02:
Council, on the Strickland ineffective assistance claim, could you just review for me your position on prejudice?

[00:14:50] Speaker 02:
Assuming there was some deficiency, what's your prejudice position?

[00:14:57] Speaker 03:
I think prejudice is one day.

[00:14:59] Speaker 03:
I take that from the Glover decision.

[00:15:01] Speaker 03:
I mean, one day in jail is too much.

[00:15:04] Speaker 03:
It's too prejudicial.

[00:15:06] Speaker 03:
So if we're looking at, you know, the Ninth Circuit cases deal with the performance prong, the Glover case dealt with the prejudice prong, but I think even one day in jail, I would argue... What do we do with the fact that at the initial appearance at the arraignment and

[00:15:26] Speaker 04:
at sentencing, the defendant was advised of the statutory maxima.

[00:15:34] Speaker 04:
I guess I should add the plea as well.

[00:15:40] Speaker 03:
Federal statutes, you can look at the fraud statutes for example, I think some of those carry

[00:15:45] Speaker 03:
you know, maximums of 30 years or something.

[00:15:48] Speaker 03:
But, you know, when you run the guidelines, which are kind of the load star of sentencing, right?

[00:15:53] Speaker 03:
That's what trial judges are supposed to... But they're not mandatory.

[00:15:55] Speaker 04:
They are not mandatory.

[00:15:56] Speaker 04:
And we go out of our way to make sure the defendant understands they're not mandatory.

[00:16:01] Speaker 03:
Right.

[00:16:02] Speaker 03:
But, you know, if the guidelines on a crime come out 12 to 18 months, but there's a...

[00:16:12] Speaker 03:
a maximum of 30 years and someone gets 30 years.

[00:16:16] Speaker 03:
I'm not so sure that when counsel meets with the client and says, I've run your guidelines, you're going to get 12 to 18 months.

[00:16:24] Speaker 03:
Turns out he's wrong, he or she is wrong, and the client gets 30 years.

[00:16:30] Speaker 04:
Would your position be the same if the court was careful in the plea colloquy of pointing out that the guidelines are not binding on the court, the court is free to sentence

[00:16:42] Speaker 04:
Outside the guideline range and the statute provides for a maximum of 20 years You don't think that would be sufficient to cure the problem I I would argue no judge.

[00:16:56] Speaker 03:
I just you know I think and I don't do a whole lot of trial work anymore, but you know I

[00:17:06] Speaker 03:
I would show my clients the guidelines, tell them courts go with the guidelines almost all the time, and this is probably what you can expect.

[00:17:15] Speaker 03:
I can't be certain.

[00:17:16] Speaker 03:
If it goes up a little bit, maybe not, but when you're talking about going up to the statutory maximum, and that's not a problem with counsel's performance, yes, I would disagree with that, I think.

[00:17:38] Speaker 03:
The other issue has to do with whether or not what other issues should have been considered with regard to Mr. Gordon's claim number one.

[00:17:59] Speaker 03:
They identified only the motion to suppress that should have been considered along with the first claim I'm looking at it more is what happened everything that happened pretrial so I would include claim two which is the defective indictment claim claim three that failing to prepare by Interviewing witnesses and whatnot as well as the stipulation the council entered into a

[00:18:26] Speaker 03:
Along with the motion to suppress so I believe that those three things should have also been considered And with that unless there's any other questions.

[00:18:35] Speaker 02:
I don't have anything.

[00:18:36] Speaker 01:
Thank you Thank you May it please the court Tim to Tarka of the district of Montana on behalf of the United States I

[00:18:53] Speaker 01:
I'll start with the second and successive question.

[00:18:55] Speaker 01:
I do think, just as an opening point, of course, this court can't affirm on any grounds supported by the record.

[00:19:05] Speaker 01:
The court can address the fact that any amendment would be futile on the merits, regardless of whether it was second or successive.

[00:19:21] Speaker 01:
But I do disagree with my colleague as to whether or not there was procedural error at all here.

[00:19:27] Speaker 01:
Why?

[00:19:29] Speaker 01:
Because whether this was considered a second and successive petition or it was considered a rule 15 motion, it was not in order in either case.

[00:19:44] Speaker 01:
So Bannister makes clear that a

[00:19:49] Speaker 01:
Rule 59e motion does suspend the finality of judgment with respect to the claims That were raised on in the first petition, and I would recommend the court's attention At page 516 of banister of the court clearly says That that is tied only to the claims that that are at issue, and I want to be clear what happened in this case Mr.. Gordon filed a

[00:20:17] Speaker 01:
He had a full adjudication of his claims and a judgment He filed the rule 59e motion Addressing those claims then he separately filed an amendment a new claim unrelated to those claims There is nothing in banister that indicates that that sec that

[00:20:46] Speaker 01:
filed after judgment of the first 2255 is not a second and successive petition even again if the court had considered it a a rule 15 motion a motion to amend that would have been out and out of order under the this court's Lindar case which is cited in our briefs which says that once judgment is entered a rule 15 motion isn't in order and unless and until

[00:21:15] Speaker 01:
The rule 59 a rule 59e or a rule 60 motion is granted So it isn't a matter simply of futility It's a matter of the fact that the rule 15 motion would be out of order And so there is no opportunity to amend at that point.

[00:21:36] Speaker 04:
I assume the ed pistachioed had run Otherwise if it were if they were trying to relate back it

[00:21:46] Speaker 01:
To the filing of the original that it was over that it was over a year.

[00:21:50] Speaker 01:
Yeah Yes, I'm I I'm 90% sure of that and so I again I think this is I think This isn't a case where the court needs to go down this road this would have been feudal or not just feudal but out of order and and

[00:22:13] Speaker 01:
Considering it as a second and successive petition was appropriate Moving to the Unless there's any more questions on that I would move to the original petition issues with the original petition

[00:22:32] Speaker 01:
as Mr.. Ness is always a model of candor to the court you know acknowledges here this court's president is that the difference has to be excessive and There's good reason for that, and I'll point out just two quick examples from this case The PSR in this case calculated Mr..

[00:23:01] Speaker 01:
Gordon's guideline range or offense category at 24, trial counsel effectively argued that that should be against one of the enhancements and he ended up with a final offense category of 20.

[00:23:19] Speaker 01:
That's a difference of three years

[00:23:21] Speaker 01:
In terms of the guideline range right there I would also point out that and this we note this in our brief on page 30 that when counsel process the prosecutor and defense counsel were discussing this issue they were looking at him with as a criminal history category of five by the time that he got to the time of the PSR the defense or the

[00:23:50] Speaker 01:
the criminal history included crimes that he had committed after this offense.

[00:23:55] Speaker 01:
And so he moved from a category five to a category six.

[00:23:58] Speaker 01:
Again, it would be, as this court said in Turner, it would be inappropriate to ask counsel to have a crystal ball when there are so many things in play when it comes to sentencing.

[00:24:17] Speaker 01:
That is sufficient grounds for the court to affirm.

[00:24:23] Speaker 01:
I think the court can affirm on prejudice as well because the question for prejudice at the plea stage is can the

[00:24:40] Speaker 01:
counsel say he would or can the defendant show that he would have accepted the plea but for but for the advice and here Both because we know it was only the advisory guideline and even even if you take Gordon at face value he claims that it was just the

[00:25:01] Speaker 01:
advisory guideline he doesn't claim that he was told that he couldn't be sentenced to more than that amount and There's nothing in the record that indicates that he would accept the plea offer that was actually offered which was not 24 months There's no evidence in the record that he was ever offered a plea of 24 months We have the plea it's at excerpts of the record page supplemental excerpts of the record page 211

[00:25:28] Speaker 04:
Would also point out with respect to prejudice that and that was the one where the district court said there There isn't a 21 anywhere in the guidelines.

[00:25:36] Speaker 01:
Yeah, there's not a 20 no guideline range that was 20 to 24 months and And I would also point out that and this is its supplemental excerpts to the record page 11 Mr.. Gordon maintains his innocence

[00:25:57] Speaker 01:
And he claims that he would have accepted an Alford plea.

[00:26:03] Speaker 01:
But that was, again, not the plea that was offered.

[00:26:07] Speaker 01:
So again, he can't show that he would have accepted the plea that was offered.

[00:26:11] Speaker 01:
So he fails on prejudice as well.

[00:26:14] Speaker 01:
Although I would acknowledge that the deficient performance is the easier way that the court can get to that answer.

[00:26:27] Speaker 01:
Finally.

[00:26:28] Speaker 01:
With respect to the browning issue.

[00:26:31] Speaker 01:
I would just say that we think that the court accurately Captured this court captured the the coa at the appropriate level of generality and that those other Ineffective assistance council claims represent a different phase of the

[00:26:56] Speaker 01:
The trial and we know that because again the question of prejudices is entirely different right for a claim with respect to the plea colloquy the The prejudice that you have to show is that that he would have accepted the plea but for the advice That just doesn't intersect with the question of whether or not for example he filed a rule rule 29 motion um

[00:27:29] Speaker 01:
The court has no further questions.

[00:27:32] Speaker 01:
I don't have to rest on our briefs.

[00:27:35] Speaker 01:
Thank you very much.

[00:27:36] Speaker 02:
Thanks Thank you, and I'll say the same thing unless the court has any further questions Safe travels back to Montana yeah, that case will now be submitted

[00:27:58] Speaker 04:
And you know we have space here if you need to wait for to work while you're waiting for your plane.

[00:28:04] Speaker 04:
Yeah, the court security officer show you where it is.

[00:28:08] Speaker 02:
So I thank counsel for their excellent arguments and the.

[00:28:15] Speaker 04:
Oh, okay.

[00:28:17] Speaker 04:
Well, you can stay here all day if you want.

[00:28:19] Speaker 04:
It's basically designed for council from out of town, so they can.

[00:28:24] Speaker 04:
Okay.

[00:28:27] Speaker 02:
To finish my sentence, we thank council for the excellent arguments that you will hear from us in due course.

[00:28:43] Speaker 02:
Okay, so.

[00:28:45] Speaker 02:
Travel safely.

[00:28:48] Speaker 02:
Court is now adjourned.