[00:00:00] Speaker 02:
Good morning and may it please the court.

[00:00:02] Speaker 02:
Nick Mir, Federal Defenders, on behalf of Mr. Howard, I will endeavor to reserve about two minutes for rebuttal.

[00:00:07] Speaker 01:
Please keep track of your own time.

[00:00:08] Speaker 01:
Thank you.

[00:00:08] Speaker 02:
Thank you.

[00:00:09] Speaker 02:
We're asking this court to find that the district court clearly aired when it found that Mr. Howard specifically by a preponderance of the evidence was in possession with intent to distribute methamphetamine.

[00:00:20] Speaker 02:
And therefore the district court abused its discretion when it applied the four point enhancement under 2K2.1B6B.

[00:00:28] Speaker 02:
I think it's very important from the outset to establish our baseline here.

[00:00:32] Speaker 02:
That when law enforcement surrounded the hotel room on May 9th of 2023, there were four occupants inside.

[00:00:38] Speaker 02:
And so just from there, we start, I think, at a 25% chance that that methamphetamine is attributable to Mr. Howard.

[00:00:46] Speaker 02:
But looking at the undisputed facts, I think it becomes all the more clear that the government was unable to meet their burden to show by a preponderance that it was specifically Mr. Howard that possessed an intent to distribute that methamphetamine.

[00:00:57] Speaker 02:
While the hotel room was paid for by Mr. Howard, again, there were undisputedly four occupants inside.

[00:01:02] Speaker 01:
Is this a bench pin of your claim such that the House of Cards falls if they haven't, the government does not meet its burden to establish that Mr. Howard was the person who was intending to sell the drugs, then the gun that was located in the room that had his fingerprints on it also cannot be used for an enhancement related to possession of a weapon?

[00:01:26] Speaker 01:
in connection with the distribution of drugs.

[00:01:30] Speaker 01:
I'm just trying to understand how those two arguments work together.

[00:01:34] Speaker 02:
So I'm not sure I completely understand your question, but I think, yes, I mean, the percentage chance is the linchpin, right?

[00:01:42] Speaker 02:
They can't meet the preponderance as to specifically Mr. Howard possessing with intent to distribute drugs.

[00:01:48] Speaker 00:
We have Mr. Howard's gun.

[00:01:50] Speaker 02:
Correct.

[00:01:51] Speaker 00:
Under the mattress.

[00:01:53] Speaker 02:
Correct.

[00:01:53] Speaker 00:
With drugs.

[00:01:54] Speaker 00:
Correct.

[00:01:56] Speaker 00:
paraphernalia together.

[00:01:58] Speaker 00:
Correct.

[00:01:59] Speaker 00:
And how is this case distinguishable from United States v. Parler, where you had the gun under them?

[00:02:05] Speaker 00:
I think there also was under the mattress, and the drugs were even elsewhere.

[00:02:09] Speaker 00:
They were in proximity, but they weren't there.

[00:02:11] Speaker 00:
But you have here gun, drugs, paraphernalia.

[00:02:16] Speaker 02:
I think they're very distinguishable, Your Honor.

[00:02:18] Speaker 02:
In Parler, my understanding is that that was a single family residence where Mr. Parler was the sole occupant.

[00:02:25] Speaker 02:
And in Parler, there was actually testimony at the sentencing hearing that he had been observed distributing drugs in the recent history.

[00:02:31] Speaker 02:
And I believe it was Mr. Parler that was actually on supervision for a distribution offense at the time.

[00:02:37] Speaker 02:
Here, Mr. Howard's case, we have a hotel room that's occupied by four people.

[00:02:41] Speaker 02:
Those four people were there prior to law enforcement arriving.

[00:02:44] Speaker 02:
We have no idea how long they were there.

[00:02:46] Speaker 02:
It could have been a very long time.

[00:02:48] Speaker 02:
And very importantly, Mr. Howard comes out first when called out.

[00:02:52] Speaker 04:
What's the significance of that?

[00:02:53] Speaker 02:
There was a 15 to 20 minute time period where the three occupants remained inside that room.

[00:02:58] Speaker 04:
You make a point of that several times.

[00:03:00] Speaker 04:
He came out first.

[00:03:02] Speaker 02:
Correct.

[00:03:02] Speaker 02:
And there's three other occupants in there who are surrounded by paraphernalia and methamphetamine and also law enforcement.

[00:03:10] Speaker 00:
So the inference is that they may have put the drugs under the mattress with the gun.

[00:03:18] Speaker 02:
Correct, Your Honor.

[00:03:19] Speaker 02:
And the district court even acknowledges that in sentencing.

[00:03:22] Speaker 02:
He says that we don't know who hid the baggies under the bed.

[00:03:25] Speaker 02:
It could have been Mr. Howard.

[00:03:26] Speaker 02:
It could have been one of the other three occupants.

[00:03:28] Speaker 02:
And I think

[00:03:30] Speaker 02:
There's 15 to 20 minutes in which three people are surrounded by law enforcement.

[00:03:35] Speaker 02:
I think we can assume there was drug use occurring that day based on the paraphernalia.

[00:03:39] Speaker 02:
It would be exceptionally short-sighted for those individuals to take those 15 to 20 minutes and not rid themselves of any contraband that they were in possession of before turning themselves into law enforcement.

[00:03:49] Speaker 02:
It's also in the record that two of those individuals had active arrest warrants that day and were almost certainly going to be taken into custody.

[00:03:56] Speaker 02:
I think it defies credulity to

[00:04:00] Speaker 02:
assume that someone who is trafficking methamphetamine would voluntarily turn themselves into law enforcement while literally holding the bag.

[00:04:08] Speaker 04:
And I think that's the issue here, is that we have that- The other thing you make a big point about is that they found the baggie at the jail in his shoe.

[00:04:16] Speaker 04:
Correct.

[00:04:17] Speaker 04:
And I think... What does that tell us, if anything, other than that he may have bought it or he may have obtained it for his own use?

[00:04:26] Speaker 02:
I think that's exactly what it tells us.

[00:04:27] Speaker 02:
I think there's an inference that can be drawn that based on the undisputedly user quantity of methamphetamine found in a shoe in a baggie consistent with those found under the bed, that if anything, Mr. Howard purchased methamphetamine that day.

[00:04:40] Speaker 02:
And as I said, he came out first within a few minutes.

[00:04:43] Speaker 00:
Why is that the inference as opposed to it's just part of the...

[00:04:47] Speaker 00:
stash that he's selling because there's equal, there's a larger number under the mattress.

[00:04:53] Speaker 00:
He just happened to have one for himself or maybe he was going out to sell it.

[00:04:59] Speaker 02:
I think that inference is also fairly plausible, Your Honor, but I think looking at the rest of the totality of the evidence there, what we lack is a direct connection between Mr. Howard and Indisha of distribution.

[00:05:10] Speaker 02:
If you recall, his private vehicle was searched in addition to the hotel room, and inside I think we found nothing that was consistent with distribution of methamphetamine.

[00:05:19] Speaker 02:
We found no ledgers.

[00:05:20] Speaker 02:
We found no additional paraphernalia.

[00:05:22] Speaker 02:
We found no scales.

[00:05:23] Speaker 02:
We found no baggies.

[00:05:24] Speaker 02:
And most importantly, no large sum of money.

[00:05:27] Speaker 02:
And I think that's the big issue throughout this case is that there's no sum of money recovered at any point mentioned in the record.

[00:05:34] Speaker 02:
That was, you know, something that was present in many of the cases we cited and decided earlier this year unpublished.

[00:05:41] Speaker 02:
There was money recovered in the driver's seat near the driver.

[00:05:44] Speaker 02:
along with the initial distribution in Hector and Parler, which are cited in briefing, large sums of money recovered, and Hamilton decided earlier this year on his person, large sum of money, scale, drugs, and a firearm.

[00:05:56] Speaker 02:
We don't have any money here, and specifically in Mr. Howard's private vehicle that is uncontestedly his, no money.

[00:06:04] Speaker 02:
Now, there were two cell phones found in that car, and the government, I think, places great weight on that.

[00:06:09] Speaker 02:
But the problem is, we don't know what was in those cell phones.

[00:06:12] Speaker 04:
Did they do a search of the cell phones?

[00:06:13] Speaker 02:
Your Honor, it's not in the record at this point in time to answer your question.

[00:06:16] Speaker 02:
I believe there was a search.

[00:06:18] Speaker 02:
It's not in the record.

[00:06:20] Speaker 02:
And I think that undercuts the government's ability to prove life upon itself.

[00:06:24] Speaker 00:
So there's no money.

[00:06:25] Speaker 00:
But let's say we didn't have the other three people.

[00:06:29] Speaker 00:
Would the gun and the amount of drugs and paraphernalia have been enough in your view without money if it was only your client?

[00:06:39] Speaker 02:
Your Honor, I think that's a completely different case.

[00:06:41] Speaker 00:
Of course it is.

[00:06:42] Speaker 00:
I understand the question.

[00:06:44] Speaker 02:
And I think, yes, to be fair, the quantity of methamphetamine, about 40 grams, and baggies, would be in disha of distribution.

[00:06:53] Speaker 02:
And in a case where it's just one person, like we see in Parler, in Hector, in Hamilton,

[00:06:59] Speaker 02:
Yes, I think the court could fairly find by preponderance that that specific individual person in those circumstances Was in possession with intent to distribute but again that the waters have been muddied so greatly by the fact that there are four total occupants three of whom are in the room for 15 to 20 minutes unobserved having every single motive to rid themselves of contraband and the district court even acknowledges we don't know who hid those baggies under the bed and

[00:07:25] Speaker 02:
And I think that sort of encapsulates the issue with the government's inability to meet their burden to show by a preponderance that specifically it was Mr. Howard who possessed with intent to distribute.

[00:07:35] Speaker 02:
I think the court could fairly find that one of those four people was perhaps in possession with intent to distribute, but that again leaves us with that 25% chance.

[00:07:44] Speaker 04:
What do you think is the best case that supports your argument?

[00:07:47] Speaker 02:
I think that the cases that I've cited here, Hector, Hamilton, Detrant, which is unpublished, but I think is perhaps most on point,

[00:07:56] Speaker 02:
There there was a lot stronger indicia of distribution associated specifically with the driver of the vehicle, Mr. Detroit, because of how close it was.

[00:08:03] Speaker 02:
And we don't have that 15 to 20 minute window of unobserved time.

[00:08:08] Speaker 02:
I'm running into my rebuttal.

[00:08:09] Speaker 02:
I did want to address briefly the substantive unreasonableness issue

[00:08:13] Speaker 02:
Your honors, I think the court there abused its discretion when it failed to rule on the objection to paragraph 75A.

[00:08:20] Speaker 02:
That was clearly objected to.

[00:08:21] Speaker 02:
The parties both spent tremendous amounts of time and effort weaving that into both their arguments and evidence presented at sentencing.

[00:08:28] Speaker 02:
The district court did not resolve that objection.

[00:08:30] Speaker 02:
That's a clear violation of rule 32.

[00:08:32] Speaker 02:
This court has held that strict compliance with 32 is mandatory and is reversible here not to do so.

[00:08:38] Speaker 02:
And I think most crucial in that is that Judge Bastion specifically questioned Mr. Howard as to whether or not he was present at that Econolod shooting in his allocution and still declined to rule on it.

[00:08:49] Speaker 02:
I think it was top of mind and that it was an abuse of discretion when he imposed sentence without resolving that objection.

[00:08:55] Speaker 01:
Does it matter that that issue wasn't raised in the opening brief?

[00:08:58] Speaker 02:
It could have been raised perhaps better in the opening brief, but I think it was addressed in our third point specifically, the objection to paragraph 75A, and it was cleaned up in the reply brief.

[00:09:10] Speaker 01:
Can you point me to where in the record you're looking for having raised the issue in your opening brief?

[00:09:16] Speaker 02:
I don't have the page site but I do believe that there's a specific discussion in that third subsection of our opening brief discussing the shooting at the Econolodge and the objection to that activity and in the break I can find a page site for you.

[00:09:41] Speaker 03:
May it please the court.

[00:09:42] Speaker 03:
My name is Ian Gerricks.

[00:09:43] Speaker 03:
I'm an assistant United States attorney for the Eastern District of Washington.

[00:09:47] Speaker 03:
I did not handle the case below.

[00:09:48] Speaker 03:
This court should affirm the district court because the district court did not err and did not abuse its discretion in applying the four-level enhancement for possession of a firearm in connection with another felony offense.

[00:10:02] Speaker 03:
And the issue is waived or withdrawn as to the discovery issue, but also imposing a substantively reasonable sentence.

[00:10:11] Speaker 03:
Addressing the sentencing issue first, which Judge Desai just raised, the defendant did waive this issue regarding Rule 32.

[00:10:20] Speaker 03:
The defendant's opening brief specifically on a sentencing appeal, there are two means by which to attack the sentence in federal court.

[00:10:28] Speaker 03:
One, by way of a procedural attack for procedural reasonableness, following the guidelines, applying the guidelines or the rules.

[00:10:36] Speaker 03:
And after the district court finds the appropriate range, we have the substantive reasonableness.

[00:10:40] Speaker 03:
Those are separate challenges.

[00:10:43] Speaker 03:
In the defendant's opening brief, if the court looks closely at that, he only challenges substance of reasonableness.

[00:10:50] Speaker 03:
He never raises Rule 32 of the Federal Rules of Criminal Procedure, so therefore it's waived, and that would be under this court's precedent in ROM 455 F.3.990.

[00:11:01] Speaker 03:
The government's already addressed the substance of reasonableness, and I believe that is adequately

[00:11:10] Speaker 03:
resolved in the briefs, but in addition, even if the court gets to the merits of this Rule 32 argument, defendant objected below to PSR Paragraph 75, which is that econo-lawed shooting, but actually stated at ER 23 that the district court can consider the testimony and exhibits, including that Exhibit 1, which dealt with the econo-lawed shooting.

[00:11:36] Speaker 03:
He said,

[00:11:38] Speaker 03:
The defendant said at that ER 23, the court should exclude if the government doesn't show the defendant was involved in that incident, but not exclude if they do.

[00:11:48] Speaker 03:
The court considered the testimony and reports in exhibit one indicating that the defendant was a shooter.

[00:11:56] Speaker 03:
And the court specifically at ER 115, 116 said, the government presented a preponderance of evidence that defendant was involved in several other incidents in April 2023,

[00:12:08] Speaker 03:
involving illegal drugs and possession of guns.

[00:12:12] Speaker 03:
I realize there's a dispute that was as to who the shooter was.

[00:12:16] Speaker 03:
I'm not finding that beyond a reasonable doubt, because the district court did not need to.

[00:12:21] Speaker 03:
This is sentencing, not a trial.

[00:12:23] Speaker 03:
But the defendant was clearly involved in activity he should not have been involved.

[00:12:28] Speaker 03:
Also, the defendant did not object, did not make a Rule 32 claim at this point, nor did not object at the end of sentencing.

[00:12:39] Speaker 03:
And additionally, the defendant doesn't show under Petrie, the case cited by the defendant, how this, whether or not he actually did the shooting, actually affected the Judge Bastian's sentence imposed.

[00:12:52] Speaker 03:
And in fact, as stated with regard to substantive reasonableness, District Judge Bastian

[00:12:58] Speaker 03:
said he was basically imposing the sentence because of his recidivism.

[00:13:02] Speaker 03:
He kept committing crimes, going to prison, kept committing more crimes, more egregious, so it didn't have to do with the shootings.

[00:13:09] Speaker 03:
Therefore, with regard to that procedural reasonable claim, it's waived, and even if the court considers it, it lacks merit.

[00:13:18] Speaker 03:
In regard to the four-level enhancement,

[00:13:21] Speaker 03:
This court should also affirm the district court's reasonable decision and on a clearly erroneous standard, its findings of fact.

[00:13:31] Speaker 03:
The preponderance of evidence showed that the defendant had paid for and occupied the hotel room.

[00:13:38] Speaker 03:
Under the bed was a loaded firearm with his DNA on it.

[00:13:42] Speaker 03:
Numerous baggies, there were about 30 to 40 baggies.

[00:13:45] Speaker 03:
There was a distribution quantity of methamphetamine, about 40 grams.

[00:13:50] Speaker 03:
somewhat unclear where his phone was, but my gathering from the testimony of the phone was on top of the bed, and it was his phone.

[00:13:56] Speaker 03:
There was actually a call made to that phone that officers answered, and they were asking for a defendant.

[00:14:06] Speaker 03:
As counsel my colleague has stated that evidence that is not in the record and I I understand I understand I don't actually know I don't believe so but I don't have that information actually personally of whether or not the phone was searched Worthy information on his phone

[00:14:33] Speaker 03:
certainly could be that in many cases there are but unfortunately the record in this case and we're not relying what was on the phone it was just more the fact that he had that phone and multiple other phones in his vehicle outside the room as well as another mock firearm which the judge found was disguised to make it look even more dangerous.

[00:14:56] Speaker 03:
He had multiple.

[00:14:58] Speaker 03:
He had at least three.

[00:15:00] Speaker 03:
Well, you have testimony in combination with the testimony from an experienced detective, Moore, who stated in his experience, drug traffickers have multiple cell phones.

[00:15:10] Speaker 03:
It's part of what they do.

[00:15:13] Speaker 03:
It's not standing alone, Your Honor, that having cell phones makes you multiple cell phones.

[00:15:18] Speaker 03:
I have multiple phones myself, but it doesn't make me a drug dealer.

[00:15:21] Speaker 03:
but in combination with all the other facts that were heard and based on the exhibits.

[00:15:28] Speaker 01:
What about the fact of the three individuals who left the hotel room for a period of 15 minutes?

[00:15:34] Speaker 03:
The government would say that the district judge understood that and as my colleague stated, the district judge said that we didn't know exactly who

[00:15:48] Speaker 03:
this is what the district judge said, who put the drugs under there, but we know a number of other things that tie him to methamphetamine distribution.

[00:15:59] Speaker 03:
And it's all these other factors that make him involved in the offense.

[00:16:05] Speaker 00:
What's under the bed because we don't know and there's three other people and the fact that when he does

[00:16:13] Speaker 00:
Check into the jail.

[00:16:14] Speaker 00:
He's only got a user quantity of the drugs.

[00:16:18] Speaker 00:
What are the other facts?

[00:16:20] Speaker 00:
That would tie it to him Those are the facts as stated and I said you I thought you just told me that The drugs under the bed didn't necessarily tie to him and

[00:16:35] Speaker 03:
It didn't have his fingerprints or DNA on the drugs, but it was next to his firearm with his DNA.

[00:16:45] Speaker 03:
It was next to a bunch of baggies.

[00:16:47] Speaker 00:
We know that the gun was his, or at least had evidence or indicia of being related to him.

[00:16:56] Speaker 00:
But we don't know who put those drugs there, right?

[00:16:59] Speaker 03:
that there was no testimony as to it as to that but we have to look at the totality of the circumstances is and this is not as judge bastion said i'm not he actually said a jury if had to look at these facts based on a reasonable doubt that would struggle with it but judge bastion said based on a preponderance of evidence and a standard of review on appeal

[00:17:23] Speaker 03:
on appeal, well, with regard to the preponderance of evidence, it's more likely than not, and that's under this court's recent case of Lucas, so we're talking 51%.

[00:17:32] Speaker 03:
We're not talking preponderance of evidence for all sentencing determinations.

[00:17:38] Speaker 01:
But we're reviewing that for an abuse of discretion, correct?

[00:17:40] Speaker 03:
reviewing his findings of facts for clear error, and the findings that he made, it's whether or not they were clearly erroneous, and that goes to whether or not they were, excuse me.

[00:17:59] Speaker 01:
What I'm trying to get at here is if there is some indicia that the drugs belong to him or that because of the firearm, because the hotel room was in his name and he paid for it, if all of these other factors at least can suggest that the drugs belonged to him, the cell phone, et cetera, is that enough to satisfy the standard not only that the district court needed to make a finding for but as we review it on appeal?

[00:18:28] Speaker 03:
Yes, that is enough because the finding for clearly erroneous has to be illogical or implausible or without support in the record to say that defendant's gun, his finger, his DNA on it, he has a baggie of methamphetamine, meth that matches the baggies that are actually used.

[00:18:49] Speaker 03:
There's like 30 or 40 baggies right there so we know he's connected.

[00:18:53] Speaker 03:
It's methamphetamine.

[00:18:55] Speaker 03:
We know he has a firearm drug traffickers.

[00:18:58] Speaker 03:
That's why there's testimony from the officer saying they have firearms either to trade them for drugs or to protect themselves from from danger.

[00:19:08] Speaker 04:
We know that the district court didn't didn't find it that he the drugs were his.

[00:19:17] Speaker 03:
The district court did not make that specific finding.

[00:19:20] Speaker 03:
The district court found that he was involved in methamphetamine distribution or possession with intent to distribute methamphetamine.

[00:19:29] Speaker 03:
And based on their answer and judge decides question, the first issue is whether or not the district court's findings, factual findings, are clearly erroneous or not.

[00:19:40] Speaker 03:
And then the district court, or this court, reviews

[00:19:45] Speaker 03:
the district court's application of the guideline to the facts under the abusive discretion standard.

[00:19:50] Speaker 03:
So even under, so clearly erroneous, that's a high bar, and even under the fallback of abusive discretion, there is great deference to those findings.

[00:19:59] Speaker 04:
Your time is almost up, but I wanted to ask you, what significance do you place in the fact that he came out first and the other three remained in the unit for about 20 minutes?

[00:20:12] Speaker 03:
That is,

[00:20:14] Speaker 03:
The government doesn't believe that changes the fact that he gets the four-level enhancement because there's so much other indicia showing that he is tied to the drugs there with the firearm having the room.

[00:20:29] Speaker 03:
The fact that he comes out first doesn't mean anything.

[00:20:32] Speaker 03:
Maybe he didn't want to be caught holding the bag of meth, literally, the big bag, and perhaps he forgot about the small bag.

[00:20:41] Speaker 03:
The government believes that this court should affirm.

[00:20:44] Speaker 03:
And finally, on the second issue, that discovery claim is withdrawn and abandoned by the defendant.

[00:20:50] Speaker 01:
Thank you, Counsel.

[00:20:51] Speaker 03:
Thank you, Your Honor.

[00:20:55] Speaker 01:
Mr. Mayor, we'll put two minutes on the clock for your rebuttal.

[00:20:59] Speaker 02:
Thank you, Your Honor.

[00:21:02] Speaker 02:
Your Honor, I want to just follow up a little bit on the four-level enhancement here.

[00:21:07] Speaker 02:
I think it's important to note that

[00:21:09] Speaker 02:
Mr. Howard's DNA was found on the firearm, but it was not found.

[00:21:13] Speaker 02:
And he was actually excluded as a potential contributor of DNA on the large bag of methamphetamine.

[00:21:18] Speaker 02:
I think that's a very important fact here.

[00:21:21] Speaker 02:
Further, Your Honor, I think made a very good point about the cell phones.

[00:21:25] Speaker 02:
Cell phone standing alone is not in diship distribution when we have nothing found on them in the record to support any distribution activities.

[00:21:33] Speaker 02:
The phone was, in fact, searched, the one found in the hotel room.

[00:21:36] Speaker 02:
As you can see, none of that evidence made it into the sentencing argument for the government.

[00:21:40] Speaker 02:
I don't think it would be supportive of their case.

[00:21:42] Speaker 02:
As to the possession of the firearm that the government notes is supportive of distribution activity, I think it's very important to remember that uncontestedly, there was an attempted murder on Mr. Howard about two weeks prior to his arrest at this hotel room.

[00:21:57] Speaker 02:
20 shots were fired at him, approximately.

[00:22:00] Speaker 02:
He was grazed by a bullet.

[00:22:01] Speaker 02:
He was beaten and is bleeding from his face and put in an ambulance by law enforcement.

[00:22:06] Speaker 02:
uh... he was not found to be in possession of a firearm during that event and this is in our sentencing argument

[00:22:12] Speaker 02:
The motivation for possessing the firearm I think could be very clearly attributed to the recent attempt on his life.

[00:22:17] Speaker 02:
It does not excuse his possession, we didn't argue that, but I think that is important for this court to consider when looking at the presence of a firearm.

[00:22:25] Speaker 02:
I think the district court placed far too much weight on just the mere proximity of that firearm to the drugs without taking into appropriate consideration that 15 to 20 minute time period in addition to the attempt on his life just about two and a half weeks prior.

[00:22:39] Speaker 02:
As to the substantive reasonableness argument, I apologize, I didn't have a copy of the brief handy.

[00:22:45] Speaker 02:
I couldn't find the page site.

[00:22:47] Speaker 02:
I do believe we raised it in our opening brief that's mentioned.

[00:22:49] Speaker 01:
I have an opening brief in front of me, and I can't find any reference to the Rule 32 argument under Section 3, which is challenging paragraph 75A.

[00:22:59] Speaker 02:
Correct.

[00:23:00] Speaker 02:
It wasn't specifically raised as a Rule 32 objection in the opening brief, but I do believe this court could still find abusive discretion in imposing the sentence.

[00:23:09] Speaker 02:
Abusive discretion can occur when the district court misapplies the law.

[00:23:12] Speaker 02:
There's an incorrect application of the law.

[00:23:14] Speaker 02:
And so if it's not preserved here as a procedural type error, I think you can still get to it under that substantive reasonableness because the district court clearly failed to rule on that very clear and important objection to paragraph 75A during sentencing.

[00:23:28] Speaker 02:
Thank you, Your Honor.

[00:23:29] Speaker 01:
Thank you very much.

[00:23:31] Speaker 01:
Appreciate counsel's argument in that case.

[00:23:33] Speaker 01:
Very hopeful that case will now be submitted and we will move to the second case on our calendar for argument.