[00:00:00] Speaker 02: Good morning, counsel. [00:00:02] Speaker 02: Good morning, your honor. [00:00:08] Speaker 02: Good morning and may it please the court. [00:00:10] Speaker 02: Amy Pomerantz on behalf of the United States. [00:00:13] Speaker 02: I'll be reserving three minutes of time and I will try to watch the clock. [00:00:16] Speaker 02: All right, thank you, counsel. [00:00:17] Speaker 02: Thank you. [00:00:19] Speaker 02: The district court in this case held the long-standing sentencing framework passed by Congress in the mid-1980s [00:00:27] Speaker 02: violated the defendant's rights to equal protection under the Fifth Amendment. [00:00:32] Speaker 02: This holding was not only incorrect, but it was premised on a serious legal error with potentially profound consequences. [00:00:42] Speaker 02: Now, there is no dispute that rational basis review applied in this case. [00:00:47] Speaker 02: Prisoners are not a suspect class, and there is no fundamental right to compassionate release. [00:00:54] Speaker 02: And under an ordinary rational basis standard, [00:00:57] Speaker 02: the statutory scheme should have easily passed constitutional muster. [00:01:02] Speaker 02: As this court probably knows, rational basis is a highly deferential standard to the legislature. [00:01:09] Speaker 02: A statutory scheme is presumed to be valid, and it's upheld as long as there is any conceivably rational relationship between the classification and a legitimate government purpose. [00:01:21] Speaker 01: Counsel, in the prior appeal, didn't we already uphold the statute against constitutional challenge? [00:01:27] Speaker 02: In the prior appeal in the first case, the defendant argued that he should have been allowed to file a compassionate release motion on his own behalf under the new law regime. [00:01:39] Speaker 02: What the court held is that no, he was subject to the old law regime and therefore he could not bring such a motion. [00:01:44] Speaker 01: And we held that, I thought we held that the statute had a rational basis at that point. [00:01:50] Speaker 02: In United States v. King, this court explicitly held that there was a rational basis for Congress's decision not to extend the availability of compassionate release towards these old law defendants. [00:02:02] Speaker 02: And it said, essentially, that old law defendants have a separate avenue to seek early release in the parole system. [00:02:09] Speaker 01: But here's the problem with that is that the BOP has, by regulation, determined that it will not [00:02:18] Speaker 01: seek compassionate release on the part of any prisoner who is in prison for life without the possibility of parole. [00:02:26] Speaker 01: So do they really have an avenue? [00:02:28] Speaker 02: Well, yes, Your Honor. [00:02:30] Speaker 02: I mean, the question is whether the statutory classification or government action is rational. [00:02:36] Speaker 02: And so if we're going to construe defendant's equal protection claim as challenging just that particular BOP regulation, [00:02:43] Speaker 02: then yes, it is absolutely rational. [00:02:47] Speaker 02: It is rational that we would preclude BOP from exercising discretionary authority to seek early release for a prisoner who by definition received a sentence precluding him from early release. [00:03:03] Speaker 02: You know, a sentence of life without parole or an LWOP designation, if you will, that is intended to be final, is intended to be terminal. [00:03:12] Speaker 02: It's a feature, not a bug. [00:03:16] Speaker 02: where Congress or a sentencing judge has decided that a particular prisoner should stay in prison for the remainder of his life, it's entirely rational that we would not allow BOP to second-guess that decision. [00:03:31] Speaker 02: So that concerns that... Well, it's not that we wouldn't allow them to do it. [00:03:35] Speaker 01: They've elected not to second-guess it because they could still [00:03:40] Speaker 01: follow motion, but they've elected not to do it through the regulation. [00:03:44] Speaker 01: So they're not prohibited from doing it. [00:03:46] Speaker 01: They have elected not to do it. [00:03:48] Speaker 02: That's true. [00:03:49] Speaker 02: I mean, Congress could have chosen a different policy. [00:03:53] Speaker 02: BOP could have chosen a different regulation. [00:03:55] Speaker 02: But in this particular case, that's not the right question. [00:03:58] Speaker 02: The question is not whether Congress or BOP chose the most fair, most perfect policy, although I do think that the policies in this case [00:04:08] Speaker 02: are fair. [00:04:10] Speaker 02: The question is whether they're irrational. [00:04:11] Speaker 03: You think they are fair, even though someone in Mr. Matalopes' situation is, you know, the reason in King that the scheme was rational was that old law prisoners could still get parole, but Mr. Matalopes and people in his situation will never be able to get parole. [00:04:33] Speaker 03: I understand that. [00:04:33] Speaker 03: So is there not any unfairness there? [00:04:37] Speaker 02: Your Honor, I think the statutory scheme that Congress enacted and designed is fair. [00:04:41] Speaker 02: Now, just to back up, that's not the question. [00:04:44] Speaker 03: But you would agree he doesn't, the rational reason, finding in King, doesn't apply to this particular defendant. [00:04:52] Speaker 02: That is true, but that's also that goes to the district court's fundamental error. [00:04:57] Speaker 02: The district court got, answered the question wrong because it [00:05:01] Speaker 02: asked the wrong question. [00:05:02] Speaker 02: On rational basis review, we do not ask whether Congress's rational basis applies to a particular claimant. [00:05:10] Speaker 02: That approach actually contravenes Supreme Court precedent, which says that we don't consider what Congress's actual purposes are in passing a certain statute. [00:05:21] Speaker 02: And this court has repeatedly said that on- I'm asking a fairness question. [00:05:26] Speaker 03: Is it fair? [00:05:28] Speaker 02: I think it is fair. [00:05:29] Speaker 02: Mr. Manuel Lopez received two life sentences without parole because he was one of the largest drug traffickers in the world. [00:05:39] Speaker 02: He was one of the first people to connect the South American cocaine producers with the Mexican drug cartels. [00:05:47] Speaker 02: He imported [00:05:49] Speaker 02: tons of cocaine worth hundreds of millions of dollars on fleets of private jets that he commandeered. [00:05:56] Speaker 02: The magnitude of his crimes is honestly a little bit hard to wrap our heads around. [00:06:03] Speaker 03: He was one of the... Can I ask you, the district court said that the government had waived its challenge to the similarly situated. [00:06:12] Speaker 03: And did you waive that point? [00:06:16] Speaker 03: You don't discuss it in your reply brief, so are you abandoning that issue? [00:06:21] Speaker 02: I don't think we waive that point. [00:06:23] Speaker 02: I think that the fundamental point is that an LWOP designation reflects a judgment that the crime committed is more serious, more egregious, that this defendant deserves to stay in prison for the remainder of his life. [00:06:37] Speaker 02: Now, I don't think the court has to [00:06:39] Speaker 02: decide the similarly situated issue. [00:06:41] Speaker 02: That's a threshold question as far as equal protection analysis concern. [00:06:46] Speaker 03: I think this court... Was the district court wrong in its order when it found that? [00:06:51] Speaker 02: I think it probably was, but I think that in this case, there is so obviously a rational basis for the statutory classification that this court could resolve it in the same way that the Anbanke Court did in Olson, where it said that even if we're just going to assume that these two groups are similarly situated, but there's a rational basis regardless. [00:07:14] Speaker 02: And you don't address it in your reply brief here? [00:07:17] Speaker 02: I don't, except to the extent that [00:07:19] Speaker 02: It goes to the reasonableness, the rationality of excluding prisoners without a life without parole because they are fundamentally worse. [00:07:31] Speaker 01: Under NOVA review, we can of course analyze all of the elements. [00:07:36] Speaker 01: Absolutely, Your Honor. [00:07:37] Speaker 01: Absolutely. [00:07:39] Speaker 02: And if you look at ER 11, I can pinpoint the exact point where the district court's analysis got off track. [00:07:48] Speaker 02: The district court actually identifies two rational bases for the cutoff date and the statutory scheme. [00:07:55] Speaker 02: It talks about how the November 1, 1987 effective date was based on ex post facto concerns, avoiding litigation over retroactivity issues. [00:08:08] Speaker 02: But then it says, defendant's argument is persuaded because as applied to him, 18 United States Code section 3582C does not increase any punishment for him. [00:08:21] Speaker 02: Now, this sentence is actually wrong on its face. [00:08:24] Speaker 02: 3582 doesn't increase sentences for anyone. [00:08:27] Speaker 02: It's a sentencing modification statute. [00:08:29] Speaker 02: But saying that aside, the point district court, I think, is trying to make is that the ex post facto rationale didn't apply [00:08:36] Speaker 02: in defendant's particular case. [00:08:38] Speaker 02: And again, this is the wrong question to ask on rational basis review. [00:08:44] Speaker 02: And the court does it again at the bottom of this page. [00:08:46] Speaker 02: It says he was sentenced to life without the possibility of parole and therefore he does not benefit from the rational basis reason [00:08:54] Speaker 02: for the cutoff date recognized in King. [00:08:57] Speaker 02: The court cites no authority for this personal benefit test, and none exists. [00:09:02] Speaker 02: It is inconsistent with a doctrinal framework. [00:09:06] Speaker 02: And the reason this is so concerning is that what the court is actually doing is upending kind of the tiers of scrutiny that have guided federal courts in evaluating [00:09:18] Speaker 02: constitutional claims for half a century. [00:09:20] Speaker 02: What it's saying here is that even though rational basis exists, we're going to ask another question just because... But that has been done before, right? [00:09:30] Speaker 03: The as applied analysis. [00:09:32] Speaker 02: The only case I'm aware that is even kind of remotely similar is City of Cleburne, which I think is an opposite for several reasons we discussed in the reply brief, but I'm happy to address here as well. [00:09:43] Speaker 02: What's your best, what you think is rational reason? [00:09:47] Speaker 03: For the cutoff date? [00:09:51] Speaker 03: To deny relief here to Mr. Matal Lopez on his equal protection claim. [00:09:56] Speaker 03: What's the best rational reason? [00:10:00] Speaker 02: I think the statutory scheme is rational no matter how you slice it. [00:10:04] Speaker 02: Congress rationally decided to create a new improved sentencing regime in the Sentencing Reform Act, and it rationally decided to apply it prospectively by setting a cutoff date at November 1st, 1987, separating old law prisoners who could largely continue to get early relief through the parole system from new law prisoners. [00:10:25] Speaker 02: Congress also rationally decided in 2018 [00:10:29] Speaker 02: in passing the First Step Act to expand the opportunity for compassionate release to new law prisoners sentenced under the SRA, who did not have this parole avenue for early release, by allowing them to file motions on their own behalf. [00:10:44] Speaker 02: That was a rational choice. [00:10:46] Speaker 02: And to the extent that what we're talking about is this regulation, which I think is, you know, Mr. Manolopis's real hurdle in getting the compassionate release motion he seeks, [00:10:57] Speaker 02: That, too, was rationally based. [00:11:00] Speaker 02: You know, I've discussed this already a little bit, but you can also think of it from a separation of powers lens. [00:11:05] Speaker 02: You know, it is rational that a regulation would disallow an executive branch actor, like the BOP, from essentially second-guessing the LWOP designation, which reflects a judgment vested in the either judicial, legislative branches, or both. [00:11:23] Speaker 02: But doesn't that date assumes [00:11:28] Speaker 03: that individual sentenced before November 1, 1987 are eligible for parole. [00:11:33] Speaker 03: So it almost doesn't account at all for someone like Mr. Montalopez and people in his situation. [00:11:40] Speaker 02: I understand that, Your Honor, but on rational basis review, the Supreme Court has been very clear in a number [00:11:47] Speaker 02: of cases, Vance v. Bradley is an example, the Railroad Retirement Board v. Fritz is another example, Congress can draw hard lines. [00:11:56] Speaker 02: It does not have to think about every constituency that might be affected by that line drawn. [00:12:02] Speaker 02: And the Supreme Court has repeatedly held that even if legislative line drawing isn't [00:12:08] Speaker 02: Perfect, even if it's over-inclusive or under-inclusive. [00:12:12] Speaker 02: As long as it is rational, it survives rational basis review. [00:12:17] Speaker 01: The Supreme Court has told us, even if the results are harsh, if there's a rational basis for it, it must be upheld. [00:12:24] Speaker 02: That's right. [00:12:25] Speaker 02: We do not require a perfect fit between means and ends on rational basis review. [00:12:31] Speaker 02: a very consistent principle that has been held by the Supreme Court in numerous cases and affirmed by this court repeatedly. [00:12:38] Speaker 02: And the district court's opinion flies in the face of all of that precedent. [00:12:46] Speaker 02: So I think I'm going to reserve the remainder of my time for rebuttal unless the court has any further questions. [00:12:50] Speaker 02: Thank you, counsel. [00:12:51] Speaker 02: Thank you. [00:13:03] Speaker 00: Good morning, Your Honor. [00:13:04] Speaker 00: It's Mark Windsor on behalf of Mr. Mata on his behalf and on behalf of Mr. Mata's family. [00:13:11] Speaker 00: I thank the court for bringing this case to where it is right now so quickly. [00:13:15] Speaker 00: May it please the court. [00:13:17] Speaker 00: There is a fundamental difference between the analysis in King and Mata 1 and an equal protection analysis, and this is why those two cases do not control here. [00:13:28] Speaker 00: Statutory analysis, as it was conducted in those two cases, [00:13:34] Speaker 00: In those cases, it's all about the language of the statute. [00:13:38] Speaker 00: And they come to the conclusion in both those cases that the language is plain. [00:13:41] Speaker 00: That the language is what? [00:13:43] Speaker 00: Is plain and clear. [00:13:45] Speaker 01: Well, isn't that the law of the case for Mr. Motta then? [00:13:48] Speaker 01: If he had a prior appeal and we determined that the statute was rationally based, can we revisit that determination here? [00:13:59] Speaker 00: I am not asking this court to revisit that determination, because that determination is quite specific. [00:14:06] Speaker 00: There is plain language to the statute, according to these courts. [00:14:09] Speaker 00: And if we follow that plain language, it is not absurd, because there is some reason for it, as it applies to someone. [00:14:21] Speaker 00: In this way, that analysis, if it's similar at all to equal protection, it's similar to a facial challenge to a statute. [00:14:29] Speaker 00: which is not what's happening here. [00:14:31] Speaker 01: Because... That was an as-applied challenge. [00:14:35] Speaker 01: The prior appeal wasn't an as-applied challenge. [00:14:37] Speaker 01: It wasn't a facial challenge. [00:14:39] Speaker 00: Yes, but it was a challenge couched in statutory construction, and the absurd analysis is basically... That's the same thing as saying whether or not it's rationally based. [00:14:50] Speaker 00: I would submit, Your Honor, that it is not. [00:14:52] Speaker 00: And I think every case cited by the government shows that. [00:14:56] Speaker 00: Because if you look to the analysis in King and Mata, they acknowledged that the reason they had come up with for it not being absurd did not apply to Mr. Mata. [00:15:11] Speaker 01: So what case supports the proposition that a determination [00:15:18] Speaker 01: Using the word absurd is different than determining whether or not there is a rational basis for the statute. [00:15:25] Speaker 00: You can look to the analysis. [00:15:27] Speaker 01: No, I want you to give me a case because you're making a distinction between whether or not a statute has absurd results and whether or not it has a rational basis. [00:15:39] Speaker 01: And I don't think there is a distinction. [00:15:41] Speaker 01: Well, so the case is King. [00:15:43] Speaker 01: So what does King say? [00:15:44] Speaker 00: And Mata 1 even. [00:15:46] Speaker 00: And Mata 1 controls here. [00:15:47] Speaker 00: It's not published. [00:15:48] Speaker 00: But yes, there's the case. [00:15:49] Speaker 00: This is the law of the case. [00:15:51] Speaker 01: But OK. [00:15:53] Speaker 00: Well, no, let me try to make it clear for you. [00:15:55] Speaker 00: Because I agree there's a lot of confusion on many sides here. [00:16:01] Speaker 00: In Mata 1, the court says there is some reason for following the plain language of this. [00:16:10] Speaker 00: of the statutes. [00:16:12] Speaker 00: Statute language is plain, and there's a reason for it if we follow... That equals rational basis, correct? [00:16:17] Speaker 00: No, because what happens... And if you look at every case here, Olick, Olson, even beach communications, it's all about the specific classification that is formed by the part of the statute that is challenged. [00:16:33] Speaker 00: And it's almost always a specific as applied challenge. [00:16:37] Speaker 01: But our charge is to determine whether or not the statute is constitutional. [00:16:43] Speaker 01: Yes. [00:16:43] Speaker 01: Correct? [00:16:44] Speaker 01: And the way we do that, if it's not a suspect class, which it's not here, is determine whether or not there's a rational basis for the statute. [00:16:54] Speaker 00: That is connected to a legitimate government purpose. [00:16:57] Speaker 00: Yes. [00:16:58] Speaker 00: Correct. [00:16:58] Speaker 00: That's an equal protection. [00:17:00] Speaker 00: And the way that the analysis is done in every one of these cases, [00:17:04] Speaker 00: and in the district court opinion. [00:17:06] Speaker 00: If you look at the district court opinion, it is meticulously reasoned. [00:17:11] Speaker 00: Mr. Judge Kronstadt, the Honourable Judge Kronstadt shows his work as my 10th grade math teacher like to say. [00:17:17] Speaker 00: It's all there. [00:17:19] Speaker 00: the reasons for his conclusion. [00:17:22] Speaker 00: But the framework of the analysis is exactly the same as beach communications that the government relies on so heavily. [00:17:28] Speaker 00: It's the same as OLEC. [00:17:30] Speaker 00: It's the same as Olson. [00:17:31] Speaker 00: They look to the classification, the nature of that classification, and whether there is a rational basis for that classification, that specific classification that's connected reasonably [00:17:46] Speaker 00: to a legitimate government purpose. [00:17:48] Speaker 00: In the statutory analysis that is exercised in MATA 1, the only question they asked after finding the language was plain, there's no ambiguity there, the only question we have to ask is if we follow that plain language, does it lead to an absurd result? [00:18:07] Speaker 00: And the finding in MATA was there is some reason for it as it applies to someone out there. [00:18:15] Speaker 00: So sorry. [00:18:17] Speaker 01: No, not as applies to someone out there, as applied to this person that we're talking about in the case. [00:18:23] Speaker 00: But the court knew and I pointed out to them. [00:18:27] Speaker 00: that it did not apply to Mr. Mata. [00:18:29] Speaker 00: That court, the court in Mata, was well aware of the BOP regulation. [00:18:33] Speaker 00: And I made that argument to them. [00:18:35] Speaker 00: That was the basis of why it was absurd. [00:18:38] Speaker 00: That's not the basis. [00:18:39] Speaker 00: That's not the part I'm challenging here, by the way. [00:18:41] Speaker 00: And I want to make that clear. [00:18:42] Speaker 01: But the court, the point of it was that they were ruling on Mr. Mata's case. [00:18:49] Speaker 01: They weren't ruling on a facial challenge. [00:18:51] Speaker 01: They were ruling on Mr. Modus' case specifically. [00:18:54] Speaker 00: Yes, I understand that, but the analysis they used, because it's statutory construction, [00:19:00] Speaker 00: was, if it's similar to equal protection at all, is similar to a facial challenge where if you find any justification as to anyone, you can uphold the language of the statute. [00:19:14] Speaker 00: You don't have to strike down the whole statute, which is what a facial challenge does. [00:19:19] Speaker 00: That's not what we're asking here. [00:19:20] Speaker 01: Counsel, tell me the language in Olson specifically that you're relying upon. [00:19:25] Speaker 00: I don't rely on the language, I rely on the framework. [00:19:28] Speaker 00: I think the government's main argument is that the district court used the wrong framework, asked the wrong question. [00:19:35] Speaker 00: That's not true. [00:19:36] Speaker 00: Look at Olson. [00:19:37] Speaker 00: What they do there is they analyze [00:19:41] Speaker 00: the actual distinction and whether it's fair, whether there's a reason for it. [00:19:46] Speaker 00: And they're very specific in their analysis. [00:19:49] Speaker 00: The analysis is specific to Uber. [00:19:51] Speaker 00: They decided that Uber was the main problem, and so it makes sense for them to cordon off Uber in that case under that analysis. [00:20:05] Speaker 00: They use the same analysis as the district court here. [00:20:08] Speaker 00: the fact that they came to a different conclusion was entirely due to the specific facts of that case, not the framework of the analysis. [00:20:18] Speaker 03: So let me ask you, the government says you have a lot of theories and it's not clear exactly [00:20:24] Speaker 03: what you're challenging. [00:20:25] Speaker 03: Are you challenging the November 1, 1987 cutoff date? [00:20:28] Speaker 00: Yes. [00:20:28] Speaker 03: Are you challenging that the First Step Act broaden the group of people who are eligible for compassionate release? [00:20:35] Speaker 03: Or are you challenging the BOP regulation that says we're not going to move on behalf of anyone who has a life without parole sentence for compassionate release? [00:20:44] Speaker 00: What is it? [00:20:45] Speaker 00: Thank you for that question, Your Honor. [00:20:46] Speaker 00: It is the first, and only the first. [00:20:48] Speaker 00: I am challenging the part of the law that creates the distinction. [00:20:53] Speaker 00: The rest of it does not create the distinction. [00:20:56] Speaker 00: It's part of the circumstantial analysis. [00:20:58] Speaker 03: Okay, but then how are those people similarly situated? [00:21:01] Speaker 03: Because anyone who gets a life sentence after November 1, 1987 is eligible for supervised release, potentially. [00:21:09] Speaker 03: So they're not in the same position as anyone who has life without parole? [00:21:12] Speaker 00: Life under new law is life. [00:21:16] Speaker 00: You are not eligible for supervised release if you get a life sentence. [00:21:20] Speaker 00: It's just like life without parole. [00:21:23] Speaker 00: Those of you who are familiar with old law, and of course we're all familiar with new law, know that there's no practical difference. [00:21:31] Speaker 00: There is none. [00:21:31] Speaker 03: But that's not even, I was confused by the district judge's decision because the district judge defines the comparators as somebody who commits the same offense both before and after the date. [00:21:43] Speaker 03: Why was the comparator defined that way in that decision? [00:21:48] Speaker 03: Because I don't think those are necessarily the same, right? [00:21:50] Speaker 03: As we know with criminal sentencing, you have to look at the nature and characteristics of the offense, as well as the history and characteristics of the defendant. [00:21:58] Speaker 03: There are a lot of issues there that does not make someone get the same sentence just because they committed the same statutory offense. [00:22:06] Speaker 00: Well, if you want to limit the class to just CCE defendants, [00:22:10] Speaker 00: So just continuing criminal enterprise defendants, which that's how Mr. Amata was sentenced to life, was under that. [00:22:18] Speaker 03: This case shows quite- But that's not, but you agree with me. [00:22:20] Speaker 03: The district judge's comparator by just saying, I want to look at people who committed the same offense before and after this November 1, 1987 date, those are not similarly situated people in my mind. [00:22:33] Speaker 03: So to be clear- They didn't even necessarily get the same sentence, even if you commit the same offense. [00:22:40] Speaker 00: Well, you can narrow the class if you want to, Your Honor, but I don't think the district court is creating the class under those terms. [00:22:45] Speaker 03: Well, listen, I mean, that's the way I read it when I kept looking at who is he saying are the similarly situated people. [00:22:52] Speaker 03: He kept saying, committed the same conduct or same offense. [00:22:56] Speaker 03: And that didn't even reference the sentence. [00:22:59] Speaker 03: So I didn't see how those people were similarly situated. [00:23:02] Speaker 00: Well, first of all, in the context of a continuing criminal enterprise, there's a mandatory life sentence. [00:23:08] Speaker 00: So it doesn't matter what your conduct is or the specific circumstances of your case. [00:23:12] Speaker 00: You're getting life. [00:23:14] Speaker 00: because it's mandatory by statute. [00:23:16] Speaker 00: So none of those nuances matter. [00:23:18] Speaker 00: So if you want to limit the class to continuing current criminal. [00:23:21] Speaker 03: That's not our role. [00:23:23] Speaker 03: Our role is not to come up with new comparators and do a new equal protection analysis. [00:23:26] Speaker 03: We're just looking at this decision, and this decision defines it as conduct. [00:23:31] Speaker 03: I'm sorry I can't find the language right now, but I remember reading it thinking these are not even the same sentence that's being compared. [00:23:38] Speaker 00: Okay, so the class actually, [00:23:44] Speaker 00: What I'm contending, and I think what the district court couched it as, is the two classes are those sentenced to life without parole under old law, and those sentenced to life under new law. [00:24:03] Speaker 03: Or the same crime that occurred on or after November 1, 1987. [00:24:07] Speaker 00: Well, you can limit it to that. [00:24:10] Speaker 03: But why? [00:24:10] Speaker 00: OK. [00:24:10] Speaker 00: You can limit it to career criminal if you want to. [00:24:14] Speaker 01: It's not what we want to do. [00:24:15] Speaker 01: It's how we determine this under the law. [00:24:19] Speaker 00: Well, either way, either way, there are similarly situated inmates on both sides of the line here. [00:24:25] Speaker 01: Well, if you're sentenced under a different sentencing regime, are you similarly situated? [00:24:33] Speaker 00: as far as everything but that. [00:24:36] Speaker 00: Yes, for instance, the Underwood case, which I highlight in my answering brief, involves an inmate who committed most of his CCE crimes before November 1st, 1987. [00:24:48] Speaker 00: at sentencing, he argued that he should be sentenced under old law, because he thought that would give him a better sentence. [00:24:55] Speaker 00: The district court said, nah, you know, at least one or two of the things you did happened after November 1st, 1987. [00:25:02] Speaker 00: So you're getting the new law, okay? [00:25:06] Speaker 00: Exact same crime. [00:25:08] Speaker 00: Most of it committed before November 1st, and yet he's sentenced under new law, and he's holding up. [00:25:15] Speaker 01: Doesn't that beg the question? [00:25:16] Speaker 01: If it makes a difference, [00:25:19] Speaker 00: I think it shows there's no difference between these people because Underwood could have fallen into either category. [00:25:26] Speaker 00: He's the same guy. [00:25:28] Speaker 00: OK, so I'm not getting through to you guys. [00:25:30] Speaker 03: I want to do that. [00:25:30] Speaker 03: I'm confused. [00:25:32] Speaker 01: Well, let me just ask you. [00:25:33] Speaker 01: I want to go back to Olson and what the conclusion in Olson was. [00:25:39] Speaker 01: After they went through all the analysis you rely on, here is the bottom line that the panel said. [00:25:45] Speaker 01: In evaluating the constitutionality of the statute under the Equal Protection Clause, we ask whether plausible reasons exist for the law. [00:25:58] Speaker 01: Yes, under the specific facts of that case, of the distinction. [00:26:02] Speaker 01: But that's not the holding of the case. [00:26:04] Speaker 01: It says whether plausible reasons exist for the law. [00:26:09] Speaker 01: And that's consistent with what all of the other cases say. [00:26:14] Speaker 01: They go through the analysis, of course, and we have to look at the facts. [00:26:20] Speaker 01: But the bottom line is we look at whether or not there is a plausible reason for the law. [00:26:26] Speaker 00: OK, I'm running out of time. [00:26:27] Speaker 00: Let me just make this brief. [00:26:29] Speaker 00: The whole analysis is, do we have a classification? [00:26:33] Speaker 00: Yes. [00:26:34] Speaker 00: Is there a similarly situated group on the other side of this? [00:26:38] Speaker 00: Yeah, I would assert yes. [00:26:40] Speaker 00: District court correctly found yes. [00:26:42] Speaker 00: And I think if you look closely at my paper. [00:26:43] Speaker 01: We have to determine if it was correct then. [00:26:45] Speaker 00: Yes, right. [00:26:46] Speaker 00: So if yes, then the whole thing is, is there a rational basis for that distinction? [00:26:53] Speaker 00: And here's the distinction. [00:26:54] Speaker 00: And why isn't it rational? [00:26:56] Speaker 03: Congress and the Bureau of Prisons to say for an individual who's sentenced to life without parole, they should serve a sentence of life without parole. [00:27:09] Speaker 00: Under the circumstances of old law, that's not irrational. [00:27:14] Speaker 00: They can do that. [00:27:16] Speaker 00: But now they've created a benefit because they've seen, as we all see, and compassionate release, by the way, exists for this reason, things change. [00:27:26] Speaker 00: What a person is in 1987 is not necessarily who they are in 2025. [00:27:34] Speaker 03: One of the key factors... But then the Bureau of Prisons can file a motion for compassionate release on behalf of those individuals. [00:27:40] Speaker 03: So what you're really challenging is the Bureau of Prison regulation that says we're not going to file a compassionate release motion on someone who's been sentenced to life without parole. [00:27:49] Speaker 00: No, Your Honor. [00:27:49] Speaker 03: That's really what you're challenging, right? [00:27:51] Speaker 00: It is not at all what I'm challenging. [00:27:54] Speaker 00: I'm not challenging the legality or applicability of that. [00:27:57] Speaker 00: I am running out of time. [00:27:58] Speaker 00: I would request more time to answer that question. [00:27:59] Speaker 00: Please. [00:28:01] Speaker 00: What I'm really challenging is the classification here. [00:28:06] Speaker 00: That's what equal protection is all about. [00:28:08] Speaker 00: And the thing that makes the classification, the only thing that makes it, is that cutoff date. [00:28:13] Speaker 00: Because this law, this first step act, is not just proactive like the government has said. [00:28:20] Speaker 00: It is proactive and it is retroactive way into the past. [00:28:26] Speaker 00: It incorporates tens, probably hundreds of thousands of inmates that they bring into the courtroom, okay? [00:28:33] Speaker 00: And then it slams shut the courthouse doors. [00:28:36] Speaker 00: at November 1st, 1987 for no reason. [00:28:39] Speaker 00: But counsel, we've said that harsh lines can be drawn. [00:28:44] Speaker 00: If there's a reason for it, if there's a rational basis that's connected to a legitimate purpose. [00:28:50] Speaker 03: The government has cited... Why isn't the availability of parole a rational reason for that date versus supervised release? [00:28:58] Speaker 00: Because it does not apply to this classification. [00:29:00] Speaker 00: which is old law inmates sentenced to life without parole. [00:29:05] Speaker 01: That's the line drawing. [00:29:07] Speaker 01: That's the line drawing function of the legislature that you're challenging then. [00:29:16] Speaker 00: No, I mean, I'm challenging the fact that there is no rational basis for this particular line drawing. [00:29:22] Speaker 00: Because you're taking 100,000s of inmates, you're suddenly stopping short and leaving, I believe, 19 inmates nationwide out in the cold. [00:29:31] Speaker 00: So this is not an incremental argument or something like that. [00:29:34] Speaker 03: We understand your argument. [00:29:35] Speaker 03: Can I ask one question? [00:29:36] Speaker 03: Sure. [00:29:36] Speaker 03: So you're not making this as applied challenge just as to Mr. Matalopes. [00:29:41] Speaker 03: You're making it on behalf of all old law, life without parole, [00:29:45] Speaker 00: Yes, they're all in the same position. [00:29:50] Speaker 00: And as we can see from this case, if they get a chance to be heard by a judge, they will get compassionate release. [00:29:57] Speaker 01: They may or may not. [00:29:58] Speaker 01: We can't decide what the judge is going to do. [00:30:00] Speaker 00: But Mr. Mata would. [00:30:02] Speaker 01: We know that. [00:30:04] Speaker 01: Before this judge, he would. [00:30:06] Speaker 01: We don't know that before every judge, it would be the same thing for all of the people that you're advocating for. [00:30:11] Speaker 00: Well, this is the sentencing judge for purposes of that. [00:30:14] Speaker 01: Exactly. [00:30:14] Speaker 01: But that's the point. [00:30:15] Speaker 01: You're saying that you're talking for everyone in that category, and that wouldn't necessarily be the case for everyone. [00:30:23] Speaker 01: Well, they might not get it, but they certainly should get the opportunity. [00:30:27] Speaker 01: We understand your argument. [00:30:28] Speaker 01: Thank you, counsel. [00:30:29] Speaker 01: Thank you, your honors. [00:30:30] Speaker 01: Thank you for your time. [00:30:35] Speaker 03: Can I just clarify something? [00:30:36] Speaker 03: So then, and I apologize, I don't know the answer to this. [00:30:39] Speaker 03: So for the individuals post-November 1, 1987, who get sentenced to life sentences, they have no possibility of supervised release. [00:30:49] Speaker 03: Is that correct? [00:30:50] Speaker 02: There is a supervised release component of that sentence, but they would have to complete the life sentence before they would be eligible for . [00:30:57] Speaker 01: . [00:30:57] Speaker 02: . [00:30:58] Speaker 01: How could you complete a life sentence if there is no possibility . [00:31:03] Speaker 02: . [00:31:03] Speaker 02: . [00:31:03] Speaker 02: It's a fair point. [00:31:04] Speaker 02: If I may, I'd like to kind of pick up where we just left off with Judge Coe's question about the scope of this holding, because I know that it seems though [00:31:13] Speaker 02: My friend over here is defining the class on behalf of all LWAPs. [00:31:17] Speaker 02: If you look at the district court's holding, it seems to be very specifically limited to this defendant. [00:31:23] Speaker 02: I think that Judge Raulston actually has the right idea in how we're analyzing these claims. [00:31:28] Speaker 02: This is not a civil class action where we get to define the class the way we want. [00:31:34] Speaker 02: What we are doing here is asking whether a statutory classification, a government [00:31:40] Speaker 02: action is constitutional. [00:31:42] Speaker 03: And so now Mr. Windsor's clarified... Why aren't those comparators actually similarly situated? [00:31:48] Speaker 03: I think I've come around on that then. [00:31:50] Speaker 02: Well, I don't believe they're similarly situated. [00:31:53] Speaker 02: Why? [00:31:53] Speaker 02: Because the punishment was definitionally meant to be worse, based at the time. [00:31:59] Speaker 02: It is entirely appropriate to have two different fundamentally different sentencing systems. [00:32:06] Speaker 02: And within that framework of the old law defendants, [00:32:09] Speaker 02: People like Mr. Mata Lopez were deemed to have been more dangerous or more grievous. [00:32:16] Speaker 03: And you don't think someone who today, post November 1, 1987, gets a sentence of life with no possibility of supervised release is in the same boat? [00:32:29] Speaker 02: I don't necessarily, Your Honor, but the point I want to make here is that when you're looking at the rationale, what we're doing is assessing the rationality of a particular government action, which now Mr. Windsor has clarified is that November 1st cutoff date. [00:32:45] Speaker 02: And so the only question that matters is whether Congress had a rational reason for implementing the sentencing law changes, prospectively, for that cutoff date. [00:32:56] Speaker 01: Otherwise, we're just second-guessing the legislation. [00:32:59] Speaker 02: Otherwise, we're second-guessing. [00:33:00] Speaker 02: That November 1st cutoff date has nothing to do with LWOPs, right? [00:33:04] Speaker 02: I mean, it was a decision that was made probably to avoid the retroactivity litigation, which is a rational basis. [00:33:12] Speaker 02: And on rational basis review, the claimant has the burden of disproving any rationale. [00:33:19] Speaker 03: Wouldn't it have been more fair [00:33:21] Speaker 03: to require the BOP to make the motion on behalf of an individual with a life sentence under the new law. [00:33:29] Speaker 03: So they would have been more comparable? [00:33:32] Speaker 03: Possibly, yes. [00:33:33] Speaker 02: It could have done so. [00:33:34] Speaker 02: But the question is whether the policy it chose is irrational, is arbitrary, it's unconstitutional violation of equal protection. [00:33:43] Speaker 02: Equal protection does not require perfect parity between different sentencing regimes. [00:33:48] Speaker 02: Congress is [00:33:49] Speaker 02: allowed to draw hard lines. [00:33:52] Speaker 02: It is allowed to address problems incrementally. [00:33:55] Speaker 02: That is what it did in Olson. [00:33:57] Speaker 02: That's what this court held. [00:33:58] Speaker 01: Counsel, I think part of the confusion is that this is just one part of the statute. [00:34:03] Speaker 01: There are other parts [00:34:04] Speaker 01: of the statute that could affect sentencing, and that's why the ex post facto issue was raised. [00:34:12] Speaker 02: Absolutely, Your Honor. [00:34:13] Speaker 02: I completely agree with that. [00:34:16] Speaker 02: But the Constitution permits Congress to treat different sentencing errors differently, even if that results in some disparity between post-conviction procedures. [00:34:25] Speaker 02: Now, the district court believed that Congress's line drawing didn't make sense for this specific person, but that is not the test. [00:34:33] Speaker 02: The question is whether the statutory scheme that was designed by Congress in the 1980s is irrational. [00:34:41] Speaker 03: And for all of the reasons that we've discussed today... Let me ask you, you said the district judge only made the as-applied challenge as to Mr. Matalopes. [00:34:48] Speaker 03: Is that because the defense only argued it as to him and not as to all old law and law [00:34:55] Speaker 02: You know, that's a good question, Your Honor. [00:34:57] Speaker 02: I don't know if it's because the district court's holding was rooted in some sympathy it felt for Mr. Madelopes and his medical conditions. [00:35:06] Speaker 02: I don't know if it just reflects it. [00:35:08] Speaker 03: Were you the AUSA below? [00:35:10] Speaker 02: I was not, but I was at the hearing. [00:35:14] Speaker 02: I don't know. [00:35:14] Speaker 02: Maybe it reflects some lack of confidence in its constitutional analysis. [00:35:17] Speaker 02: I am not sure why he wrote the cutoff date as applied to defendants violates his Fifth Amendment right to equal protection. [00:35:23] Speaker 02: But certainly, on rational basis review, we do not look at a claimant's particular circumstances. [00:35:30] Speaker 02: That is what this court held in Russell v. Hug. [00:35:32] Speaker 02: That is what this court held in United States versus Navarro, and I would urge the panel to revisit that decision if it hasn't yet, because I think it forecloses defendants' arguments here. [00:35:42] Speaker 02: You know, the as-applied facial distinction, that is a First Amendment concept, a Second Amendment concept. [00:35:49] Speaker 02: It doesn't have a meaningful basis in equal protection jurisprudence, because for the most part, [00:35:56] Speaker 02: Claims are both facial and as applied. [00:35:58] Speaker 02: That's what standing rules is. [00:35:59] Speaker 02: If you challenge a statute, generally it applies to you and it would be facially unconstitutional. [00:36:05] Speaker 02: What Mr. Windsor was talking about in Olson, that probably has to do with how the statute is defining the characterization. [00:36:14] Speaker 02: You're looking at the government action. [00:36:16] Speaker 02: We're not defining the class our own way based on a group of people that might have been excluded from Congress's rational basis. [00:36:23] Speaker 02: That is not the inquiry. [00:36:25] Speaker 01: All right. [00:36:25] Speaker 02: Thank you, counsel. [00:36:27] Speaker 01: Thank you. [00:36:27] Speaker 01: You've exceeded your time. [00:36:28] Speaker 01: Thank you both, counsel, for your helpful arguments. [00:36:30] Speaker 01: The case just argued is submitted for decision by the court. [00:36:33] Speaker 01: That completes our calendar for the morning. [00:36:35] Speaker 01: We are in recess until 9.30 AM tomorrow morning.