[00:00:01] Speaker 01: good morning may please the court robin tackle with the federal public defender representing defendant appellant anthony myers and i'd like to reserve two minutes for rebuttal uh... this the court prefers otherwise i'd like to start with our jurisdictional issue uh... that's where i want to start [00:00:21] Speaker 03: Thank you. [00:00:23] Speaker 01: The government's argument is that the district court did not have jurisdiction to decide Mr. Myers' motion for reduction of his sentence. [00:00:34] Speaker 01: And it's pretty plain to me from the facts that the district court did. [00:00:39] Speaker 01: Mr. Myers filed his motion in the district court [00:00:43] Speaker 01: Northern District of California that had imposed the 151-month sentence on him. [00:00:51] Speaker 01: It was on the same docket that that sentence was imposed, that he filed his motion. [00:00:56] Speaker 01: It was the same judge who sentenced him, who decided his motion for compassionate release or for reduction of his sentence. [00:01:05] Speaker 01: And I think this is where the real sticking point is. [00:01:08] Speaker 01: At the time he filed his motion in January of 2024, and at the time the district court decided it in September of 2024, he was within the maximum term of that 151-month sentence that that district court had imposed. [00:01:27] Speaker 01: And I think that settles, as a factual matter, the question of jurisdiction. [00:01:34] Speaker 03: Well, but now we're sitting here well after Heath had that maximum sentence, so what relief could we order? [00:01:44] Speaker 01: So I think that question, and the district court, sorry, just to note that the government did not, in its opposition, argue mootness, which is, I think, what we're really talking about. [00:02:00] Speaker 01: Right. [00:02:00] Speaker 01: I think you're right. [00:02:00] Speaker 03: This is a mootness question, an Article III mootness question. [00:02:02] Speaker 01: And I think this court's opinion in YPEZ, Y-E-P-E-Z, [00:02:07] Speaker 01: gives the instructions on how to deal with mootness in the context of a compassionate release motion. [00:02:15] Speaker 01: And what Ipez says, first of all, is that it's the party arguing for mootness, the government in this case, that bears a heavy burden. [00:02:23] Speaker 01: And that the standard is, could the court [00:02:27] Speaker 01: grant any effective release. [00:02:30] Speaker 05: Well, I agree with the second part, and that's my concern. [00:02:32] Speaker 05: And part of it's driven by the fact that I just don't understand how compassionate release works in practice. [00:02:40] Speaker 05: Is the sentence actually changed, or is the sentence remain and they're just released early? [00:02:50] Speaker 01: So the language of the statute, and we're talking about 18 U.S.C. [00:02:56] Speaker 01: specifically. [00:02:57] Speaker 05: It says modify the terms of the sentence. [00:03:00] Speaker 01: So 18 USC 3582, C1A1 says reduce. [00:03:07] Speaker 01: It's reduce the term of imprisonment is the language of the statute, the specific. [00:03:12] Speaker 05: Oh yeah, may reduce. [00:03:14] Speaker 01: C1A1. [00:03:14] Speaker 05: It says may not modify a term of imprisonment. [00:03:17] Speaker 05: The court may reduce the term of imprisonment. [00:03:20] Speaker 05: And I guess I'm not clear what the term of imprisonment is. [00:03:23] Speaker 05: Does the order come down, or do you say, no, you still have a 60-month sentence, but we're just going to let you out early? [00:03:30] Speaker 01: So what the court's authority to do is to reduce its term of imprisonment. [00:03:36] Speaker 01: So in Mr. Myers's motion before the district court about challenging or asking it to reduce, and that was a relief he requested, is a reduction of his term of imprisonment. [00:03:49] Speaker 01: The court, the district court in the Northern District of California that had imposed that sentence could say, yes, we grant your motion. [00:03:57] Speaker 01: We're going to reduce your term of imprisonment to, let's say, 100 months. [00:04:02] Speaker 01: I'm probably going to get myself into some difficult math here. [00:04:05] Speaker 01: But then once the court issues that order, [00:04:11] Speaker 01: on the motion for a compassionate release. [00:04:15] Speaker 01: It is up to the Bureau of Prisons to figure out how to carry out that order, how to administer the sentence. [00:04:23] Speaker 01: And in this case, because Mr. Myers was serving a consecutive sentence from a different district court, the District Court of Virginia, and he had not been, ever been released [00:04:41] Speaker 01: from his total term of imprisonment, he still remains there today, it becomes the Bureau of Prisons responsibility to figure out what to do. [00:04:52] Speaker 05: Your point is it may not be set in stone, but there's at least enough discretion that it could provide some relief. [00:04:59] Speaker 01: Exactly. [00:05:02] Speaker 03: What could BOP do? [00:05:04] Speaker 01: So what BOP could do, and I think the Seventh Circuit's opinion in Von Vader. [00:05:09] Speaker 05: The problem with the Seventh Circuit opinion, the holding is great. [00:05:13] Speaker 05: I can't make it, with all due respect to our visiting colleague's colleague, it doesn't really help in the analysis. [00:05:20] Speaker 01: So I think I agree that it's not a complete model of clarity. [00:05:26] Speaker 01: But I think what they said, and I think the dissent in the Second Circuit opinion and Martin, which dealt with a different compassionate release provision. [00:05:34] Speaker 01: That was a statutory question, right? [00:05:35] Speaker 01: Yes, that was a different. [00:05:37] Speaker 01: But talking about the relief, talking about mootness, once the district court [00:05:44] Speaker 01: issues the order. [00:05:44] Speaker 01: The district court sets the term of imprisonment, reduces the term of imprisonment. [00:05:50] Speaker 01: The Bureau of Prisons, and this is also in 18 USC 3585B, the Bureau of Prisons can, if you want to think of it as [00:06:02] Speaker 01: moving up the date of the consecutive sentence or crediting towards the consecutive sentence what is now sort of the over served time on the now reduced sentence. [00:06:16] Speaker 01: So the result is a reduction of his term of imprisonment. [00:06:19] Speaker 02: Could it, counsel, does the moodness answer depend at all on the specific mechanism of the reduction? [00:06:26] Speaker 02: Suppose you had somebody with just, let's say, a series of three consecutive sentences and one gets knocked out. [00:06:33] Speaker 02: One of the convictions is set aside. [00:06:35] Speaker 02: Then BOP goes back in and figures, well, person probably gets re-sentenced, but you go figure it out, right? [00:06:41] Speaker 01: That's correct. [00:06:43] Speaker 01: And I believe that there's a dividing line that's clear, statutorily at least, between [00:06:49] Speaker 01: imposing sentences, reducing sentences, which is the responsibility of the court, and administering sentences for, or aggregating sentences for administrative purposes. [00:07:00] Speaker 02: And I'll just note that Von Vader, while it may be terse, is eminently practical. [00:07:04] Speaker 01: Absolutely. [00:07:05] Speaker 01: I have no substantive issue with Von Vader. [00:07:09] Speaker 03: Okay, so say that we reverse the district court issues order saying compassionate relief should have been granted. [00:07:17] Speaker 03: You then take that judgment to BOP and then they will administratively figure it out and that's all you ask? [00:07:23] Speaker 03: Okay. [00:07:24] Speaker 01: That is exactly. [00:07:24] Speaker 01: We are asking the district court in the Northern District of California to reduce its own term. [00:07:30] Speaker 03: And if the BOP does nothing, what if the BOP did nothing with that judgment, that new judgment, then you would sue on that? [00:07:36] Speaker 01: Yeah, I think we'd have a, yeah, he'd have to exhaust his administrative remedies, Mr. Myers, in terms of that, and then we might be back here. [00:07:43] Speaker 05: But the easiest way out of this, it seems, and we'll hear from the government, is to say, look, we don't know exactly how this works, but there's at least some avenue of relief. [00:07:52] Speaker 05: And that's enough to satisfy the mootness. [00:07:54] Speaker 01: That's correct. [00:07:55] Speaker 01: It's a pretty high bar, I think, yet PES sets in this very context for finding mootness. [00:08:02] Speaker 01: And I think the government has not satisfied it. [00:08:05] Speaker 01: I think I need to save my time for rebuttal. [00:08:08] Speaker 05: Thank you. [00:08:08] Speaker 05: Thank you. [00:08:19] Speaker 00: May it please the court, Elizabeth Beringer for the United States. [00:08:22] Speaker 00: And this court's decision in Bryant resolves the merits. [00:08:27] Speaker 00: What is remaining is the jurisdictional issue. [00:08:29] Speaker 05: And one is can... I wondered whether Bryant also spoke unintentionally perhaps to the mootness question. [00:08:38] Speaker 05: Because in Bryant, we said, compassionate release is not sentencing or resentencing. [00:08:43] Speaker 05: The focus of compassionate release proceedings is not on what sentence is most appropriate. [00:08:48] Speaker 05: It's on whether new circumstances warrant discretionary relief. [00:08:53] Speaker 05: Does that suggest that this case is moot because it's not, I mean, is it that it's discretionary relief that isn't actually formalized in a way? [00:09:04] Speaker 00: Well, I disagree that 3582 doesn't give a new term of imprisonment. [00:09:09] Speaker 05: Well, then doesn't that answer the question? [00:09:11] Speaker 00: So it is a new term of imprisonment, but I'd like to separate this mootness issue. [00:09:14] Speaker 00: There's sort of two swirling mootness issues that are at issue here, and one is the first, which the government argued all along, that at the time the defendant filed his motion, and we can talk about the factual issue in a second, but assuming the sentence had run out, at the time he filed his motion in the Northern District of California, the district court had no authority [00:09:36] Speaker 00: to reduce a sentence that had already been served. [00:09:39] Speaker 00: And we know this from the text. [00:09:41] Speaker 03: So that's your statutory mootness question. [00:09:43] Speaker 03: Statutory theory. [00:09:44] Speaker 03: But we're mostly focused on Article 3 mootness question. [00:09:47] Speaker 00: But I think there's two Article 3 mootness issues here. [00:09:51] Speaker 00: And the first one is whether there is an injury or some sort of [00:09:56] Speaker 00: you know collateral consequence in the first place not look that's what the court's deciding the district court he she had to decide is there an injury there's no sentence so is there a collateral consequence so whether the sentence being moved up or down is a collateral consequence the government says no because [00:10:16] Speaker 00: A collateral consequence is something that arises from the sentence, and a later-in-time event is not a collateral consequence. [00:10:25] Speaker 00: That is a non-collateral consequence. [00:10:27] Speaker 03: Can you address the Article 3 mootness question for now? [00:10:29] Speaker 03: Because now, could we order any relief below? [00:10:34] Speaker 00: Well, the question of redressability mootness is maybe perhaps what this court is confronting. [00:10:39] Speaker 00: And our position is that the sentence has expired. [00:10:44] Speaker 00: And so there is nothing that this district court can do on its sentence now that it has run. [00:10:49] Speaker 03: So if we were saying the district court got it wrong, that compassionate relief should have been ordered and that his sentence should have been reduced, and there's a judgment or order that says that, [00:11:00] Speaker 03: Couldn't that be presented to BOP to then do something with the remaining sentence? [00:11:05] Speaker 00: That's concerning redressability mootness. [00:11:08] Speaker 00: And maybe that is dealt with in Ypez. [00:11:10] Speaker 00: That's dealt with in Chapin. [00:11:11] Speaker 00: But I'm talking about Martin. [00:11:13] Speaker 00: I know. [00:11:13] Speaker 03: I'm talking about this question. [00:11:14] Speaker 03: I know. [00:11:14] Speaker 03: I'm talking about Ypez right now. [00:11:16] Speaker 03: Is there effective relief that could happen right now? [00:11:20] Speaker 00: I guess I would say that the case law is unclear on that point as far as the redressability mootness. [00:11:24] Speaker 00: But the mootness, it's a different prong of Article III. [00:11:28] Speaker 05: But what's your position on it? [00:11:30] Speaker 00: Our position on the mootness is that... On redressability. [00:11:34] Speaker 05: Could we issue an order? [00:11:36] Speaker 05: Maybe we won't because we read Bryant the way you read Bryant. [00:11:41] Speaker 05: Could we order and say, you got it wrong on compassionate release, and that would have some actual practical effect? [00:11:48] Speaker 00: The problem is that the district court did not have authority in the first place. [00:11:52] Speaker 03: Let's just assume all that. [00:11:54] Speaker 03: Assuming the court had authority? [00:11:55] Speaker 03: Because we want to know if we have authority now. [00:11:58] Speaker 03: If it's moot now, is there Article III matter on redressability? [00:12:02] Speaker 00: I would be hesitant, because this issue has not been briefed, to take a firm stand, and I haven't been really authorized to [00:12:08] Speaker 00: The Seventh Circuit opinion addresses the type of the Seventh Circuit. [00:12:14] Speaker 00: So the Seventh Circuit decision is not inconsistent with the government's position. [00:12:18] Speaker 00: It didn't necessarily say that. [00:12:23] Speaker 00: It said it didn't hold that C1A authorizes the court to retroactively do it. [00:12:28] Speaker 00: So it didn't provide relief. [00:12:29] Speaker 00: It just said, and it didn't delve into it very deeply. [00:12:32] Speaker 00: It just said that it was a merits question and not a jurisdictional question. [00:12:37] Speaker 05: So I don't think that Von Vader... I don't disagree that the analysis isn't, you know, entirely clear, but it had to have said there... I mean, the implicit holding is that it was redressable because it would have an effect [00:12:52] Speaker 05: on the second sentence. [00:12:53] Speaker 00: Perhaps. [00:12:54] Speaker 05: You don't disagree with that. [00:12:55] Speaker 00: I don't take a position on that issue because we have not briefed that. [00:12:59] Speaker 00: Okay. [00:12:59] Speaker 03: Our position is that- Well, at the very least, then you're suggesting the government's not meaning its burden of proving mootness. [00:13:04] Speaker 00: Well, in the mootness issue as far as the Martin and Spencer v. Kent, that's the defendant's burden. [00:13:09] Speaker 00: There's a great line in Spencer v. Chemna, the burden of the party who seeks the exercise of jurisdiction in his favor [00:13:15] Speaker 00: has to allege the facts and so his burden was to establish that he had an injury or collateral consequence at the time that he filed his motion and that is the mootness that Martin is looking to is that injury or collateral consequence. [00:13:32] Speaker 00: So [00:13:34] Speaker 00: as far as whether a court can retroactively modify a sentence that has already been served. [00:13:40] Speaker 05: I thought that was the Martin question. [00:13:43] Speaker 00: That is the Martin question and it's not only the Martin question, it's five circuits that have agreed and no circuit has decided otherwise in the C1B context which is very similar to [00:13:54] Speaker 00: the C1A context. [00:13:55] Speaker 05: But why are they right? [00:13:56] Speaker 05: I mean, go ahead. [00:13:58] Speaker 00: Well, they're right for several reasons, based on the text, based on the history of the statute, and based on policy reasons. [00:14:05] Speaker 00: And the first is the text. [00:14:06] Speaker 00: If we look at C1A, and I'm taking this analysis from Fauer, our Ninth Circuit decision, the combination of may reduce the term of imprisonment with the parenthetical that [00:14:18] Speaker 00: and may impose a term of supervised release that does not exceed the unserved portion, that presupposes that there is an unserved portion. [00:14:27] Speaker 00: And that's from Faur. [00:14:29] Speaker 00: It's consistent with the view that there is an unserved. [00:14:32] Speaker 03: I don't know if textually you get there that that means that there has to be and may impose, you know, [00:14:38] Speaker 00: I mean, it presupposes, at least, that's what Bauer heard. [00:14:41] Speaker 03: I mean, it presupposes that there is a possibility of an unserved portion. [00:14:44] Speaker 03: Yeah, that's true. [00:14:45] Speaker 03: But it doesn't mandate there be an uncertain. [00:14:47] Speaker 00: It certainly isn't 100% clear-cut. [00:14:50] Speaker 00: But it definitely indicates that the government's reading is correct here. [00:14:54] Speaker 00: Every court that has interpreted this in this 35A12C1A, B context has agreed that the court cannot modify an already served sentence. [00:15:06] Speaker 05: Not Judge Sack, though. [00:15:08] Speaker 00: Is that the dissenter? [00:15:09] Speaker 05: That's yes. [00:15:11] Speaker 00: I mean, every court may have, but not every judge has. [00:15:14] Speaker 00: Yes, he's alone in that. [00:15:15] Speaker 00: Or he or she, I'm not sure. [00:15:17] Speaker 00: And then as far as the history of the statute, as this court recognized in Fauer, the nothing changed in 3582C1A by the First Step Amendment, other than it allowed prisoner motions. [00:15:28] Speaker 00: So it wouldn't make sense for Congress to authorize a statute for BOP to file motions for defendants who are no longer serving, which is [00:15:36] Speaker 00: the case in most of the cases. [00:15:37] Speaker 03: So what do you do with C1A2 where that says that, you know, for the offense or offenses for which the defendant is currently in prison? [00:15:45] Speaker 03: So it seems like two has a limitation of being currently in prison where, you know, one just doesn't have such a limitation. [00:15:53] Speaker 00: I agree with that, but C1A applies to both of those provisions with the parenthetical that talks about the unserved portion. [00:16:00] Speaker 03: The parenthetical is pretty weak. [00:16:02] Speaker 00: Let me give you some policy reasons, because that's another really good reason. [00:16:04] Speaker 00: I don't like policy reasons. [00:16:06] Speaker 00: In addition to the structure and the history is that it doesn't make sense from a policy. [00:16:11] Speaker 03: Can you just address that textual problem? [00:16:14] Speaker 03: Subsection two says currently in prison and subsection one doesn't. [00:16:18] Speaker 03: Isn't that, you know, the practical implication is Congress didn't require under one the defendant to be currently imprisoned? [00:16:26] Speaker 00: I don't know it should necessarily be read that way because it's addressing a different type of prisoner, a prisoner that's 70 years of age and has served 30 years in prison for the offense for which he's currently in prison. [00:16:38] Speaker 00: I think they're sort of addressing lifetime prisoners and they want to talk about like if he served [00:16:42] Speaker 00: 50 years before his five-year drug sentence, we want to talk about the 30 years that he served on this sentence. [00:16:48] Speaker 00: So I don't think they're necessarily inconsistent with reading it the way that the government has said. [00:16:55] Speaker 00: And the court would be alone in reading it that way. [00:16:57] Speaker 03: Well, I mean, it's a pretty big statutory, like, canon that if it says it once placed, you know, and it doesn't in the other place, that Congress meant what it said, and it only applies to that one place. [00:17:08] Speaker 00: Well, then you also have to consider the parenthetical in C1A, which applies to both provisions in talking about this unsure question. [00:17:14] Speaker 03: So your strongest textual argument is the parenthetical. [00:17:17] Speaker 00: Certainly. [00:17:17] Speaker 00: And the policy reasons and as this court askew is a great decision for this the district court in the grand You can't reduce a sentence below zero what courts are doing when they're we're reducing a sentence based on a consecutive sentence is They're allowing a court to indirectly interfere with another court sentence It's allowing forum shopping as the case here despite the defendant. [00:17:39] Speaker 00: This is case 41 seconds left despite the [00:17:43] Speaker 00: opportunity for the defendant here to file in both places. [00:17:47] Speaker 00: He has never sought to file a motion in the Western District of Virginia. [00:17:51] Speaker 00: Never, not one time in all these years. [00:17:53] Speaker 00: He's filed three in the Northern District of California. [00:17:56] Speaker 04: Yeah, but he didn't know that the Bryant case was coming out. [00:17:58] Speaker 04: Maybe now he'd like to switch. [00:18:01] Speaker 00: Perhaps. [00:18:03] Speaker 00: And also just the principles of comedy to not interfere with other courts' sentencing decisions. [00:18:10] Speaker 03: I don't get that part. [00:18:12] Speaker 03: Why would it interfere with the West Virginia sentence if we said that the Northern District of California needed to be reduced? [00:18:17] Speaker 00: So there would be no point to reducing an already served sentence in this case. [00:18:24] Speaker 00: If it's already served, it's already served. [00:18:26] Speaker 00: There'd be no point other than to indirectly interfere with a consecutive sentence. [00:18:30] Speaker 00: What would be the point of reducing that? [00:18:32] Speaker 05: It doesn't make any sense. [00:18:33] Speaker 05: Yeah, there's consequences from it. [00:18:35] Speaker 00: Not for 151 versus 149. [00:18:37] Speaker 03: But I forget, what was he says, five years in the West Virginia? [00:18:41] Speaker 03: That doesn't, if he still has to serve five years for the West Virginia conviction, right? [00:18:45] Speaker 03: Even if we reduce. [00:18:47] Speaker 00: Right, but he'll get credited for his time is what he's wanting. [00:18:51] Speaker 00: He's wanting that sentence to start earlier. [00:18:53] Speaker 03: Yeah, but he's still going to serve five. [00:18:55] Speaker 03: I just don't understand how we're affecting the West Virginia. [00:18:57] Speaker 00: Because it's no longer a consecutive sentence. [00:18:59] Speaker 00: It's turning it into a concurrent sentence. [00:19:01] Speaker 05: It's still a consecutive sentence. [00:19:03] Speaker 00: If you're moving the start date up, I just respectfully disagree with that. [00:19:06] Speaker 00: If you're moving a start date up, you are interfering with the length of sentence that sentence. [00:19:16] Speaker 05: You've got a lot of other good arguments though. [00:19:24] Speaker 01: On the jurisdiction issue, very quickly, I'd just like to point out the courts I think already identified some of the contrasting language in other sentence reduction provisions, compassionate release provisions, but 3582C2 and 1B1.10 of the sentencing guidelines [00:19:45] Speaker 01: Do provide that the reduced term of imprisonment may not be less than what the defendant already served That is absent from guidelines section 1b 1.13, which is the one that governs our compassionate release so moving on [00:20:00] Speaker 01: You probably want to hear what I have to say about Bryant First of all, I'm sorry before you get there real quickly you agree that this court cannot modify the West Virginia court under We are not we are not asking this court or the district court in the Northern District of California to modify the Virginia Well, you didn't you make an argument about why the West Virginia conviction should have been reduced? [00:20:25] Speaker 01: I think that that could be construed in terms of the facts about that conviction and his sentence. [00:20:31] Speaker 01: And it actually was tied to the Northern District of California sentence because it was because he was convicted of a crime of violence, this fake stash house robbery, that he ended up in the highest [00:20:46] Speaker 01: almost highest tier of USPs that were the violent environment that led to that. [00:20:54] Speaker 01: So I think the California court [00:20:57] Speaker 01: properly could have considered those facts about what happened subsequent to its sentence in deciding whether to reduce its sentence. [00:21:05] Speaker 01: Okay, that makes sense. [00:21:06] Speaker 01: Thank you. [00:21:06] Speaker 01: So about Bryant, first of all, we asked the district court, sorry, we asked this court to remand to the district court to make [00:21:17] Speaker 01: consider Bryant in the fact to this case. [00:21:21] Speaker 01: I mean district courts are properly... Why? [00:21:24] Speaker 05: What needs to be decided? [00:21:25] Speaker 01: Well, Bryant addressed youth and it addressed disparity with co-defendants. [00:21:31] Speaker 05: That was not what Mr... I mean, I read Bryant to say more than just youth. [00:21:39] Speaker 05: It's anything that comes up after the fact. [00:21:43] Speaker 01: I think that is a broad reading of Bryant. [00:21:45] Speaker 01: I think it is proper to remand to the district court to consider the facts that were presented to that court in this case in light of Bryant. [00:21:54] Speaker 01: I believe a petition for rehearing on Banca is going to be filed tomorrow, so Bryant is not yet filed. [00:22:00] Speaker 01: But I think the courts make it clear, the Supreme Court, this court, it is the district court that properly should be given the authority to consider, especially in the compassion release case, [00:22:12] Speaker 01: especially when it was the district court that imposed that sentence. [00:22:16] Speaker 01: And I do note that a number of other courts, Illinois, Florida, have granted compassionate release under guidelines provision B5, the similar in gravity, in similar circumstances, the stash house robbery where the defendant was a relatively minor participant. [00:22:38] Speaker 01: There are no further questions. [00:22:40] Speaker 01: I ask the court to remain. [00:22:41] Speaker 01: Thank you. [00:22:41] Speaker 01: Thank you, Your Honor. [00:22:42] Speaker 05: Thank you to both counsel. [00:22:44] Speaker 05: You were very helpful in helping us understand the case, and the case is now submitted.