[00:00:06] Speaker 00:
Good morning, your honors.

[00:00:08] Speaker 00:
Sydney Rush with the law offices of David Sildorf.

[00:00:11] Speaker 00:
May it please the court, I am appearing on behalf of the appellant, Mr. Willie Mickey.

[00:00:16] Speaker 00:
I would please like to reserve two minutes for rebuttal and I will keep an eye on my time.

[00:00:21] Speaker 01:
Thank you.

[00:00:23] Speaker 00:
It was improper for the district court to deny Mr. Mickey's motion to reduce his sentence based solely on policy statement 1B1.10.

[00:00:34] Speaker 00:
This policy statement should not have been treated as binding.

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To do so, unconstitutionally stripped the district court judge, in this case, Judge Moskowitz, at Mr. Mickey's resentencing hearing, of any discretion to evaluate a defendant as an individual under the standard 3553A factors.

[00:00:53] Speaker 00:
The district court seemingly recognized his own lack of discretion and called out this precise issue.

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And although Judge Moskowitz ultimately denied Mr. Mickey's motion to reduce his sentence, finding that it was barred by policy statement 1B1.10, Judge Moskowitz's actions and the record essentially opened the door for this issue on appeal.

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And just to give the court a few examples of that, as the record reflects, Mr. Mickey originally submitted a letter requesting compassionate release, and Judge Moskowitz

[00:01:26] Speaker 00:
decided to interpret that letter as a motion to reduce his sentence under 18 United States Code 3582C2.

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Mr. Mickey originally appeared pro se.

[00:01:36] Speaker 00:
Judge Moskowitz ultimately reappointed his original attorney and then appointed a new attorney, finding there to be a conflict, and even stated on the record, perhaps your lawyer can come up with an argument here.

[00:01:48] Speaker 02:
So, Mistretta said that this whole regime where you have the Sentencing Commission, they adopt some guidelines and policy statements and then more of it was binding, but now it's only binding in certain circumstances, that that regime was constitutional.

[00:02:10] Speaker 02:
You have a particular application of that, but why isn't your challenge basically resolved by Mistretta?

[00:02:19] Speaker 00:
Mr. Mickey's argument here is about the language in the statute and the inherent restrictions on the agency's authority.

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We argue that in Mistretta it offered a much more comprehensive scheme for the Sentencing Commission, whereas here the language of the statute essentially creates an ambiguous question as to which policy statements are consistent with their own policy statements.

[00:02:44] Speaker 02:
But it's all, I mean, we said recently in pheasant that when you're considering a non-delegation challenge, you have to look at the whole, not just the particular provision that's being applied, but the entire statutory scheme.

[00:02:58] Speaker 02:
And we have a statutory scheme that prescribes some principles for what the commission is supposed to be trying to do.

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And the policy statement adopted here was adopted in pursuance of those broader principles.

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So why is that not enough?

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We argue under Loper now that discretion as to determine an ambiguous language in a statute should be up to the court, not so much to the agency itself, in this case the Sentencing Commission.

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And so under the new standard under Loper, it should be up to the court to determine whether or not the language policy statement is consistent with policy statements.

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is ambiguous or not, and they should be binding.

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And so Minstrata did not consider the new holding under Loper that that discretion should lay with the court and not with the agency in itself to determine its own level of discretion.

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And we argued that the issue that was recognized by the district court is the same issue that's now before your honors today.

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Weather Policy Statement 1B1.10 is the product of an unconstitutional delegation of legislative power given to the Sentencing Commission that now infringes on the judiciary sentencing powers.

[00:04:15] Speaker 00:
This argument is based on two main points.

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The first is that the underlying statute here, 18 United States Code 3582C2, is ambiguous.

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It provides no intelligent principle for policy statements like 1B1.10 to be binding on the district court.

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And the second is that recent Supreme Court decisions like Loper limit an agency's power to reinforce the argument that policy statements like 1B1.10 are binding.

[00:04:43] Speaker 02:
And why is the intelligible principle not the principles of sentencing articulated in section 3553?

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The intelligent principle holds that delegation of such legislative authority must clearly define the scope, purpose, and limits.

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And we hold that the statute at issue here does not define the scope, purpose, and limits of who may receive, not how many reductions may be applied

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and the extent of how much they can be applied, but essentially to who may receive them.

[00:05:17] Speaker 02:
But why doesn't 3553 illuminate that?

[00:05:24] Speaker 02:
When the commission sets out to write a policy statement defining who's eligible for reduction, it should try to define a class of people such that giving them reductions will advance the purposes of reflecting the seriousness of the offense, etc.

[00:05:44] Speaker 02:
Why isn't that, I mean that's a principle that's in the statute.

[00:05:50] Speaker 00:
Yes, and we believe that the policy statement at issue here essentially conflicts with 3553A because under 3553A the

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essence behind that is to treat the defendant as an individual and to look at the circumstances of their offense, what would be a just punishment here, whereas policy statement 1B1.10 essentially conflicts with that in saying that if they received a sentence that was below the amended guideline range, they can no longer be considered under 3553A factors, which is what the court ruled here in denying the motion, is that because it was barred by 1B1.10, it could not go further and consider the 3553A factors.

[00:06:31] Speaker 02:
There there we I guess we have not considered this specific argument that you're making but a number of other courts of appeals have and Has any of them accepted it?

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There is a circuit split right now that is before the Supreme Court on this issue and

[00:06:52] Speaker 01:
Have they granted cert on the issue?

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They've granted cert on several cases.

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There's Rutherford v. United States, Carter v. United States, and Bricker.

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And these all concern the issue as to whether the guideline here can direct a change in law and is essentially binding.

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And so it is an issue before the court, and we argue that the interpretations under Loper now show that an agency should not be able to determine the limits of its own discretion and interpret an ambiguous statute.

[00:07:25] Speaker 02:
But has any court of appeals accepted the argument that the statute is an unconstitutional delegation?

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I didn't think that there was a case that said that.

[00:07:39] Speaker 00:
Yeah, I cannot think of one on the top of my head.

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And so we agree here that Congress gave the Sentencing Commission limited authority.

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And under the guidelines, that limited authority allows them to decide revisions, whether they should be retroactive or not.

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But that authority here is limited.

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And at some point, there must be a limit to the commission's level of discretion as to not allow it to simply create its own rules.

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And we believe that's exactly what the policy statement at issue is doing here, is creating a binding rule on district courts at sentencing.

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And with that, I would like to reserve my time.

[00:08:19] Speaker 01:
All right, thank you, Councillor.

[00:08:20] Speaker 01:
Thank you.

[00:08:38] Speaker 03:
Good morning, Your Honors.

[00:08:39] Speaker 03:
May it please the court, Mark Rahe, for the United States.

[00:08:42] Speaker 03:
Your Honors, the district court did not err here.

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As Judge Miller pointed out, the test is whether there's an intelligible principle when Congress delegates authority.

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And it's an exceedingly modest limitation under this court's precedent.

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The government would submit 28 USC 994.

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There's three separate subsections, A2, O, and U,

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more than provide that intelligible principle.

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Specifically, 994A2 says that the policy statements that specifically govern sentence modification, which is what's at issue in this case, must be consistent with 3553A2.

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And those are very specific, has to reflect seriousness of the offense, promote respect for the law, just punishment, adequate deterrence.

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That is a cabin

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limit on the discretion of the Commission.

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And then subsection O of 994 directs the Commission to periodically review and revise the guidelines based on input from criminal justice system stakeholders.

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And finally, 994U specifically gives the Sentencing Commission the power to specify in what circumstances and by what amount sentences may be reduced by the guideline amendments.

[00:10:00] Speaker 03:
As Judge Miller pointed out earlier, in Mistretta

[00:10:04] Speaker 03:
the entire sentencing, the SRA was under that kind of a scope.

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And what the Supreme Court basically held was that even exceeded the intelligible principle because you're building an entire commission and it has all levels of specificity.

[00:10:20] Speaker 03:
What we are saying here is this is just one subset of that same statutory scheme that was already approved.

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And I know the defense raises questions whether these policy statements can be binding.

[00:10:35] Speaker 03:
Not only is that evident from 3582 C2's language, the Supreme Court in Dillon, which was after Booker, specifically held as much that these policy statements are binding.

[00:10:46] Speaker 03:
Now, one argument that the defense has brought up is with Loper-Bright.

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And as we all know, that was a seat change case that upended or ended Chevron deference.

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The government's position today,

[00:11:00] Speaker 03:
To make it absolutely clear, this is not a Chevron-Deferron case.

[00:11:04] Speaker 03:
Chevron-Deferron comes into play when there is a gap in the statutory scheme, an ambiguity, and it used to be the rule that Congress would presume to the agency the right to fill that in.

[00:11:14] Speaker 03:
This is an express delegation, even Loper-Bright itself,

[00:11:19] Speaker 03:
separates that out, and it says in cases of express delegation, the court should uphold that delegation as long as it's within the cabinet authority.

[00:11:29] Speaker 03:
And here, again, I know Judge Miller, you asked, the government's not aware.

[00:11:33] Speaker 03:
I did another Westlaw search.

[00:11:36] Speaker 03:
We're not aware of any other circuit, and we cited eight circuits in our brief that have gone the government's way on this issue.

[00:11:41] Speaker 03:
We're not aware of any other one that has reached a contrary conclusion.

[00:11:45] Speaker 03:
One thing I do want to mention is the Sixth Circuit Bricker case, which the defense mentioned in their presentation.

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It's also in their reply brief.

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That's 3582C1.

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That's compassionate release.

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And that was a situation where you have to have an extraordinary and compelling reason for early release.

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What the Sixth Circuit had held in a case called McCall

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They said the non-retroactivity of subsequent changes in the law is not extraordinary and not a compelling reason.

[00:12:21] Speaker 03:
And then what happened was that a different policy statement than the one that's issued in this appeal, the Sentencing Commission went contradictory to that.

[00:12:30] Speaker 03:
So basically the Sixth Circuit in Bricker

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or the Sixth Circuit had said that particular policy statement means X, and then the Sentencing Commission came out with a policy statement that said not X. And what Bricker said then was that when you have a prior judicial construction,

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And it is unambiguous.

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The Sentencing Commission cannot contradict that.

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And again, that's all under a different policy statement for 3580CC1.

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We're talking about C2 here.

[00:12:57] Speaker 03:
There is no allegation that the policy statement is contradictory to any language in the statute.

[00:13:04] Speaker 03:
There is no prior court that has held as much.

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So the government's position would be that Bricker

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does not control for that reason.

[00:13:12] Speaker 03:
And I know that defense counsel mentioned the case.

[00:13:15] Speaker 03:
The Supreme Court just heard an argument in a case called Rutherford.

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That was the 3582C1 compassionate release issue.

[00:13:22] Speaker 03:
That, again, is just different.

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It's not the same statute of issue in this appeal.

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And so the reasoning of the court there should not give this panel pause to bring the Ninth Circuit in line with the other Eight Circuits that have ruled this way.

[00:13:39] Speaker 03:
You know, the last thing I wanted to point out, too, is just I know that the defense's position is that the Sentencing Commission shouldn't be given the right to exclude an entire class of defendants from subsequent changes to the law, but even they recognize in the reply brief that the Sentencing Commission has the ability in the first instance to determine

[00:14:00] Speaker 03:
if an amendment guideline will be retroactive or not.

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The government would point out that is the ultimate determination of an entire, like the only reason we're here is because 821, the commission said we find it retroactive.

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Had they chosen not to make it retroactive, we wouldn't be standing here there be no dispute and the defense concedes that the sentencing commission has that authority.

[00:14:22] Speaker 03:
So unless the court has any other questions.

[00:14:26] Speaker 01:
I just find this whole area really,

[00:14:28] Speaker 01:
bizarre because when the Sentencing Commission first issued the sentencing guidelines and and made them mandatory the district courts across the nation said no we know you're intruding into our core judicial role brought it up to the Supreme Court that was mistreat a right upheld the binding mandatory nature of the sentencing guidelines then we get come to Booker and then I think Justice Scalia led the way and saying

[00:14:58] Speaker 01:
It has to be, they can only be advisory because you're right.

[00:15:02] Speaker 01:
And now we come to the present day and the sentencing guidelines are advisory, but Congress has seemed to allow policy statements to be binding.

[00:15:15] Speaker 01:
And it just seems anonymous to me that this would be the case.

[00:15:21] Speaker 01:
This is where we are.

[00:15:22] Speaker 01:
I think it's likely to change, you know, because it's just inconsistent.

[00:15:28] Speaker 01:
And I don't know if our court is the one who's going to change it, but it seems likely that this isn't going to stand up.

[00:15:37] Speaker 03:
And the government takes your point, Your Honor.

[00:15:39] Speaker 03:
It is a little unusual.

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And if I didn't have a president like Dillon basically already holding, agreed that this one aspect of the law is binding.

[00:15:49] Speaker 03:
But the only thing I would just point out, to assuage the court's concerns again,

[00:15:54] Speaker 03:
Without a doubt, individualized sentencing is a court judicial function, but this is not a sentencing proceeding.

[00:16:00] Speaker 03:
It's not even a full re-sentencing.

[00:16:01] Speaker 01:
Why shouldn't the district judge?

[00:16:03] Speaker 01:
I mean, he's got the defendant before him.

[00:16:05] Speaker 01:
He knows the history of the case.

[00:16:06] Speaker 01:
If it's relative that the sentence should be lowered X amount, why shouldn't the district court judge be able to exercise its full authority in considering all the factors and go below the low end of the guidelines, which are not mandatory?

[00:16:23] Speaker 01:
in considering this particular person, especially after they've already been serving time and you can take into account how they behave during prison and what kind of character they've shown, if they're marching toward rehabilitation or not.

[00:16:43] Speaker 01:
It just doesn't seem right.

[00:16:48] Speaker 01:
I mean, I understand what the state of the law is, but.

[00:16:52] Speaker 03:
But again, that's not an unreasonable observation, John.

[00:16:55] Speaker 03:
The only thing I would note as well is that, you know, this defendant, I mean, his original sentence of 206 months was substantially below... Yeah, I thought it was 204.

[00:17:06] Speaker 01:
Or 204.

[00:17:07] Speaker 01:
It was a downward variance of 88 months.

[00:17:10] Speaker 03:
But I think maybe what the commission might think, because the original guideline range was 292 to 365, then amended, it's 262 to 327.

[00:17:19] Speaker 03:
But he basically got the incredible break front-ended.

[00:17:24] Speaker 03:
But I agree, Your Honor, those statements are not unreasonable, but we stand on the law as it is.

[00:17:31] Speaker 01:
Right, right.

[00:17:31] Speaker 01:
OK, well, thank you.

[00:17:34] Speaker 01:
Nice to see you again.

[00:17:35] Speaker 03:
I appreciate it.

[00:17:43] Speaker 00:
Thank you.

[00:17:46] Speaker 00:
To repeat what the government just said, we stand on the principle that the law is what it is, but the law is changing.

[00:17:51] Speaker 00:
And I believe that's what the panel's comments reflect, is that 3553A, essentially the core of that is that sentencing should be an individual decision left to the judges.

[00:18:04] Speaker 00:
And I think that that's reflected here in the record as to Judge Moskowitz and what actually happened at sentencing.

[00:18:13] Speaker 00:
Looking back, the government is correct that he received a sentence of 204 months that was substantially below the guideline range.

[00:18:21] Speaker 00:
However, it is critical that his criminal history score was higher, and perhaps Judge Moskowitz took that criminal history score into consideration when not giving him the mandatory minimum 180 sentence.

[00:18:33] Speaker 00:
And to note, probation in Mr. McKee's case did ask for a sentence lower, closer to that mandatory minimum, 188.

[00:18:41] Speaker 00:
And the difference now that his guideline range has been amended is the difference of 24 months, which is essentially two years in custody.

[00:18:53] Speaker 00:
And one's liberty, one's freedom and length of incarceration is a highly protected constitutional right that should be left in the power of the judiciary.

[00:19:03] Speaker 00:
And we do believe that the commission is exceeding its legislative authority here.

[00:19:09] Speaker 00:
Thank you.

[00:19:10] Speaker 01:
Thank you very much, council.