[00:00:00] Speaker 01:
Good morning, Your Honor.

[00:00:01] Speaker 01:
May it please the court?

[00:00:03] Speaker 01:
My name is Maysoon Fletcher, and I represent the appellant Trevian Mitchell in this case.

[00:00:08] Speaker 01:
At the outset, I'd like to withdraw issue one, which was asking the court to consider whether his guilty plea was knowingly and intelligently entered.

[00:00:18] Speaker 01:
Instead, I am focusing on his sentencing, and I'm asking the court to find that the judge abused his discretion in two ways.

[00:00:26] Speaker 01:
and handed down a substantively unreasonable... I'm confused.

[00:00:30] Speaker 04:
On issue one, you're abandoning the arguments made in the briefing.

[00:00:33] Speaker 04:
You want us to just pretend you didn't make them?

[00:00:36] Speaker 01:
Correct, Your Honor.

[00:00:37] Speaker 01:
I'm withdrawing that issue, and I have already apprised the government that we would be doing that today.

[00:00:41] Speaker 03:
So meaning we don't... I guess in whatever disposition, we just say,

[00:00:45] Speaker 03:
has been withdrawn.

[00:00:47] Speaker 01:
It's withdrawn.

[00:00:48] Speaker 01:
Okay.

[00:00:48] Speaker 01:
Issue one is withdrawn.

[00:00:49] Speaker 04:
Okay.

[00:00:49] Speaker 04:
You don't want the plea to be undone?

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

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

[00:00:54] Speaker 01:
He has pled guilty, he has accepted responsibility, and he wants to keep it that way.

[00:00:59] Speaker 01:
So I'm asking the court today to remand his case for resentencing.

[00:01:05] Speaker 03:
On the enhancement?

[00:01:06] Speaker 01:
On the guideline enhancements.

[00:01:08] Speaker 01:
And the first argument is that the court abused its discretion

[00:01:12] Speaker 01:
When at the change of plea hearing, it said it would not bring in his state charges and cut off his Sixth Amendment right to trial on those issues, which were pending trial in state court, and would just focus his sentencing on the federal violation.

[00:01:27] Speaker 01:
The government then said it does not object and that it understood that the outcome of those state charges would affect

[00:01:36] Speaker 01:
his sentencing, and it went further to say that if he was convicted on those state charges, then the guideline enhancement for related charges might apply.

[00:01:48] Speaker 03:
I was just trying to figure out, and this is helpful, your theory is that the district court, by making those statements, said, absent the state conviction, we cannot apply the enhancements.

[00:02:04] Speaker 01:
That is correct.

[00:02:06] Speaker 01:
the outset of his change of plea before he pled guilty.

[00:02:10] Speaker 03:
Does that I mean is there any basis in the law for that?

[00:02:14] Speaker 03:
I mean because I'm not sure whether what the district court said you know whether your interpretation of that is reasonable or not but even if the district court said that it wouldn't

[00:02:28] Speaker 03:
I mean, in a way, in a weird way, that almost goes to the argument you've given up, which is the knowing and a waiver or whatever.

[00:02:38] Speaker 03:
But setting that aside, I don't understand why that makes it a Sixth Amendment, because it's very clear that a federal district court can make findings

[00:02:51] Speaker 03:
under a preponderance of the evidence standard for enhancements.

[00:02:55] Speaker 03:
And so you're kind of making a weird argument that the district court somehow gave up that right and that you, your client, took advantage of that and pled guilty with the understanding that these enhancements would be off the table, which seems unusual.

[00:03:15] Speaker 01:
It is very unusual, Your Honors, and acknowledge that this is a very unusual case.

[00:03:21] Speaker 01:
where that is exactly what happened at his change of plea.

[00:03:25] Speaker 01:
The judge said, I'm not going to bring those things in.

[00:03:28] Speaker 04:
But if the plea is valid, then when we get to sentencing, the judge is obligated to apply and follow the sentencing guidelines.

[00:03:37] Speaker 04:
And if the sentencing guidelines call for an enhancement to be applied if particular facts exist,

[00:03:44] Speaker 04:
And, you know, the government asks for that and the probation office recommends it, then the judge has to apply it if the facts are established.

[00:03:54] Speaker 04:
And whether or not the state convicted them just doesn't matter.

[00:03:57] Speaker 04:
So I don't understand how this, I mean, I understand the merits argument that, well, I don't think that it was correctly

[00:04:04] Speaker 01:
Applied on the facts, but I don't understand an argument that the district court was somehow dis entitled It was obligated to apply the guidelines and your honor I agree that under more ledge under those circumstances where the judge in that case Said I'm not going to consider

[00:04:21] Speaker 01:
uh... related conduct at the time of sentencing he made that announcement in this case your honor this was an announcement that was made an assurance that was made as part of his guilty plea and the government affirmed that those guideline enhancements would not apply if he's not convicted

[00:04:39] Speaker 03:
But let's, yeah, that's interesting.

[00:04:41] Speaker 03:
We'll hear from the government.

[00:04:43] Speaker 03:
If the judge had gone the way you're saying, I think the government would be up here saying, wait a second, you didn't apply these enhancements that should have been there.

[00:04:52] Speaker 03:
I mean, the government clearly didn't have the same understanding because they advocated for the enhancements, didn't they?

[00:04:58] Speaker 01:
They did advocate for those enhancements 11 months later at sentencing, but that's not what they said would happen before he entered his guilty plea.

[00:05:06] Speaker 01:
That's where this is unique.

[00:05:07] Speaker 03:
Let's throw out another hypothetical.

[00:05:09] Speaker 03:
What if the district court judge said, look, I understand that the statutory minimum is five years, but I'm not going to apply that.

[00:05:17] Speaker 03:
I'm just going to pretend that the statutory minimum is two years.

[00:05:22] Speaker 03:
And based on that representation, your client says, OK, I'll plead guilty then.

[00:05:26] Speaker 03:
I mean, we wouldn't say, oh, well, you get the benefit of some misstatement by the district court that was unlawful, and you get to rely on that, and it's a Sixth Amendment violation not to be able to rely on it.

[00:05:40] Speaker 03:
So it's just when I'm really struggling on this Sixth Amendment argument.

[00:05:45] Speaker 01:
Understand your logic there your honor.

[00:05:47] Speaker 01:
I think the distinction is that if the court said I'm not going to give you the mandatory Statutory minimum that's a statute.

[00:05:54] Speaker 01:
He'd be violating This is a situation where they're talking about guideline enhancements that are discretionary now He does have discretionary, but you yeah, but you still have requirement has to calculate them But I think the remedy would have been well not only does he have to calculate him, but he would have to explain a deviation

[00:06:11] Speaker 01:
And the deviation would be explained very easily that at the time that you changed your plea, we all agreed these enhancements are not going to apply to you because you are still pending trial on those issues.

[00:06:23] Speaker 01:
So he should have varied down to remedy what he said would happen.

[00:06:27] Speaker 03:
I don't think we could uphold that.

[00:06:29] Speaker 03:
I don't think that a district court can say, I mean, because that would be an unlawful statement.

[00:06:34] Speaker 03:
That's the problem here, is that the condition that you were saying you relied upon was unlawful.

[00:06:40] Speaker 03:
The district court couldn't do what you claim you relied on.

[00:06:44] Speaker 01:
Well, I believe he could do it by giving him the guideline calculations and then saying, OK, because when you entered your plea, we said we were not going to count this stuff against you.

[00:06:58] Speaker 04:
None of that is actually in the plea transcript because all that the prosecutor said is that the outcome of the state case obviously would have an impact on the appropriate sentence in this matter, and we believe it would be appropriate essentially to hold off on sentencing in this case until that matter is adjudicated because Mr. Mitchell might be entitled to seek a concurrent sentence as opposed to a consecutive sentence.

[00:07:23] Speaker 04:
If he's found guilty of charges that relate to the possession of the firearm, the enhancement might apply.

[00:07:28] Speaker 04:
but that is best adjudicated in that separate criminal manner in the state.

[00:07:31] Speaker 04:
None of that says that if they don't go in that order, that he's somehow been carved out of the guidelines and is free to ignore the guidelines.

[00:07:42] Speaker 04:
That doesn't say it.

[00:07:43] Speaker 04:
That just correctly says that if the state court goes first,

[00:07:47] Speaker 04:
a lot of those findings may be problematic for him at sentencing.

[00:07:50] Speaker 04:
And then later the court says, you also understand that any relevant conduct of yours, whether charged in the indictment or not, might still be considered in the pre-sentence report and might increase the sentence to be imposed by the court.

[00:08:02] Speaker 04:
Yes, sir.

[00:08:03] Speaker 04:
So I know you've given up the argument, but

[00:08:06] Speaker 04:
on the way, but he didn't make this whole notion that there was a promise not to apply this is all a fiction on this record as I see it.

[00:08:15] Speaker 04:
Am I wrong?

[00:08:15] Speaker 04:
I don't see the promise that you're claiming.

[00:08:18] Speaker 01:
I understand, Your Honor, and I can understand how you can interpret it that way.

[00:08:21] Speaker 01:
It's my impression that they were talking about what would happen at sentencing, and as long as he still had charges pending,

[00:08:28] Speaker 01:
that those enhancements were not applied.

[00:08:30] Speaker 04:
But this can't reasonably be read as a, I'm promising you that I'm going to defy the guidelines.

[00:08:35] Speaker 04:
I'm going to ignore what they tell me to do.

[00:08:37] Speaker 04:
I'm going to give you a break that the guidelines say I can't do.

[00:08:41] Speaker 04:
None of that is in here.

[00:08:43] Speaker 01:
I understand, Your Honor.

[00:08:45] Speaker 01:
The other way, however, that the court did abuse its discretion is by expanding the scope of 2K2.1b6b.

[00:08:53] Speaker 01:
where the court enhanced him four extra guideline points, finding that his mere knowledge of the presence of the firearm emboldened him to commit the state felony charges.

[00:09:05] Speaker 03:
But I'm not sure that it was just the knowledge.

[00:09:07] Speaker 03:
I mean, the language says used or possessed any firearm, right?

[00:09:13] Speaker 01:
Correct.

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

[00:09:14] Speaker 03:
I mean, how is this not a use?

[00:09:18] Speaker 03:
I mean, first of all, there was possession.

[00:09:20] Speaker 03:
I mean, he didn't brandish it, but it doesn't require brandishing.

[00:09:24] Speaker 03:
It says use or possess.

[00:09:26] Speaker 03:
We know that there was possession.

[00:09:27] Speaker 03:
You're not contesting possession, right?

[00:09:30] Speaker 01:
No.

[00:09:30] Speaker 01:
There was constructive possession.

[00:09:33] Speaker 01:
It's undisputed that the firearm at all times, at all relevant times, with a top shelf of a bedroom closet, never touched, never brandished.

[00:09:41] Speaker 01:
Did he threaten to shoot her?

[00:09:43] Speaker 01:
She alleged in her statements that- The district court found that he

[00:09:46] Speaker 04:
threatened to shoot her.

[00:09:47] Speaker 01:
Yes, your honor.

[00:09:49] Speaker 01:
However, the problem is he couldn't rebut that testimony.

[00:09:53] Speaker 01:
He could not testify on his own behalf because he was still pending charges in state court.

[00:09:59] Speaker 01:
So he couldn't get up and tell you what he did or did not say.

[00:10:02] Speaker 01:
So we have this one statement from the Miss Muhano who says that he threatened at some point.

[00:10:08] Speaker 03:
So your argument is basically an insufficiency of the evidence because of this technicality.

[00:10:14] Speaker 01:
Yes, Your Honor.

[00:10:15] Speaker 03:
Because you agree that if we accept her testimony, that satisfies preponderance of the evidence standard to impose the enhancement.

[00:10:25] Speaker 01:
It might satisfy it if you accept her testimony without his ability to rebut it.

[00:10:31] Speaker 01:
However, my concern is that the Rutan case, which is a Ninth Circuit case, which provided the emboldening provision under that guideline provision, said that

[00:10:41] Speaker 01:
If in the event that the government is relying on physical possession of a firearm use or possession, then it may facilitate or potentially facilitate another felony offense.

[00:10:55] Speaker 01:
The judge in this case took it one step further and said that his knowledge of the possession, not the possession itself, but the knowledge of the possession was sufficient to enhance him.

[00:11:08] Speaker 01:
And I think that's taking it a step further.

[00:11:12] Speaker 01:
Knowledge of the presence of the firearm was enough.

[00:11:16] Speaker 02:
But the judge also said he threatened the shooter, so why wouldn't we take... It's true that he said knowledge of the presence of the gun, but he also said he threatened the shooter.

[00:11:25] Speaker 02:
So you put those two things together, he knows there's a gun, he's threatening to use it.

[00:11:30] Speaker 02:
I think you're asking us to read this one statement in isolation from what the rest of the judge

[00:11:35] Speaker 02:
said, I think.

[00:11:37] Speaker 02:
Why am I wrong on that?

[00:11:38] Speaker 01:
Well, Your Honor, I agree that the court did find under these circumstances, without his ability to testify on his own behalf, that her hearsay statement was that at some point he said he would shoot her.

[00:11:51] Speaker 02:
And then you add to that, and there's a gun that he knows about and is available to him.

[00:11:57] Speaker 01:
Correct.

[00:11:58] Speaker 02:
So that's a lot more than just some, he knew there was a gun, which I think is what you were arguing.

[00:12:06] Speaker 02:
That's a tough argument to make when you add in that the judge specifically found that he threatened the shooter.

[00:12:13] Speaker 01:
I understand, Your Honor.

[00:12:14] Speaker 02:
I agree that that is what... Your argument kind of reduces to the point you're making about the fact that he couldn't rebut that he had threatened a shooter.

[00:12:25] Speaker 01:
That is a big part of it, because he had pending state charges.

[00:12:28] Speaker 01:
There's no way he could rebut what was being said, and it's undisputed that firearms on the top shelf never touched

[00:12:35] Speaker 01:
and we're just taking one person's statements out of court for his extra four points.

[00:12:43] Speaker 01:
Ultimately, he got an extra five years of time for this related state conduct.

[00:12:49] Speaker 04:
Can I ask you about your 5G 1.3 argument?

[00:12:53] Speaker 01:
Absolutely.

[00:12:54] Speaker 04:
So is your argument that you were entitled to a different result under the terms of that provision?

[00:13:01] Speaker 04:
You weren't arguing for some kind of a departure for a case not covered by that position.

[00:13:06] Speaker 04:
Your argument was that the terms of that provision required a different outcome, correct?

[00:13:10] Speaker 01:
That is correct, Your Honor, yes.

[00:13:12] Speaker 01:
That he should have given him credit for the time he'd already been sitting in custody on the related case.

[00:13:19] Speaker 01:
where he's giving him an extra five years, but not credit him for the time that he's sitting in custody on that case.

[00:13:24] Speaker 04:
Is it correct, the government says it's not on the record, but they do highlight it in their brief, that the BOP has in fact given him that credit?

[00:13:35] Speaker 01:
The BOP has given him some of that credit.

[00:13:38] Speaker 01:
at the moment but the BOP could change its mind at any time because genuinely they shouldn't have given him that credit and it should have been provided by the court.

[00:13:48] Speaker 01:
Certainly White v. US Supreme Court's case says that the purpose behind that provision... Do you worry there's a risk that the BOP will realize that... Correct.

[00:13:58] Speaker 04:
It has been credited against another sentence and therefore doesn't fit the Wilson case and the statute cited within it?

[00:14:06] Speaker 04:
Is that the risk?

[00:14:07] Speaker 01:
Yes, the risk is that the BOP is going to correct what it's done and he's not going to get that credit anymore.

[00:14:13] Speaker 01:
And I'd like to reserve the remaining time, Your Honors.

[00:14:16] Speaker 01:
Thank you so much.

[00:14:30] Speaker 00:
Thank you.

[00:14:30] Speaker 00:
Good morning.

[00:14:31] Speaker 00:
May it please the court, Melanie Smith, appearing for the United States.

[00:14:35] Speaker 00:
Your Honors,

[00:14:36] Speaker 00:
Mr. Trevion Mitchell's, neither his fifth nor his Sixth Amendment rights were affected in any way or violated in any way by either what happened at the change of plea hearing or at the sentencing hearing.

[00:14:48] Speaker 03:
Can you address, I mean, feel free to address it all, but this idea that he couldn't contest her testimony and therefore that creates a Sixth Amendment violation?

[00:15:02] Speaker 00:
Yes, Your Honor.

[00:15:02] Speaker 00:
So as the case law is clear, even in cases cited by the defendant, defendants have to make difficult decisions all the time when it comes to their Fifth Amendment rights of when to say silent, when to speak up.

[00:15:15] Speaker 00:
But the courts have been very clear that nothing that happens at a federal sentencing hearing affects the defendant's Sixth Amendment right to trial, which, as Your Honors have pointed out,

[00:15:27] Speaker 00:
is a specific trial right, so that would have been what happened in the state, or his due process Fifth Amendment rights.

[00:15:35] Speaker 00:
The judge in this case took great pains to make sure that he never required the defendant to admit to anything, any facts that would have affected the charges that were pending in the state.

[00:15:50] Speaker 00:
And under Alsante, which I recognize is a sixth district circuit case, but was cited by the defendant, that court said the same thing.

[00:15:59] Speaker 00:
Those facts were very similar as to the case in front of us.

[00:16:03] Speaker 00:
Yes, the defendant has to make a difficult choice at the sentencing hearing as to what to say, but it's his choice to make.

[00:16:09] Speaker 04:
Can I ask about this 5G 1.3 issue?

[00:16:13] Speaker 04:
Because looking at this, I had exactly the same question that counsel just raised, which is that I understand and you say in your brief that BOP is giving them the credit and you put a CF to the Wilson case.

[00:16:27] Speaker 04:
But I mean, if you look at 3585 and Wilson,

[00:16:32] Speaker 04:
It seems that

[00:16:33] Speaker 04:
The BOP was wrong to do that because 3585 says that you're only eligible if the sentence has not been credited against another sentence, and it was credited against the state sentence.

[00:16:48] Speaker 04:
So why isn't council correct that the BOP may decide after we rule the next day?

[00:16:54] Speaker 04:
Well, actually, no, that's wrong.

[00:16:58] Speaker 04:
We're going to take away the credit because it's been credited.

[00:17:00] Speaker 04:
See the Wilson case.

[00:17:02] Speaker 04:
Why isn't that a real risk, so that that should just be set aside, the fact that they've given them that credit?

[00:17:10] Speaker 00:
Yes, Your Honor, and first I want to make note, that was a misstatement in the government's brief, that it's not in the record before the court.

[00:17:18] Speaker 00:
It is completely within the record before the court.

[00:17:20] Speaker 00:
And if you look at page one of the defendant's brief, it notes that the defendant was brought into federal custody on March 13th of 2024, which was when he was sentenced.

[00:17:31] Speaker 00:
And then if you go to their citation to the BOP website, his current projected release date is September 27th of 2029.

[00:17:39] Speaker 00:
So that's about five and a half years.

[00:17:41] Speaker 04:
Clearly, the release date that's on the BOP website reflects the credit.

[00:17:47] Speaker 04:
But the question is,

[00:17:49] Speaker 04:
Was the BOP wrong?

[00:17:52] Speaker 04:
I mean, legally wrong to give the credit, and they're worried that they'll take it away tomorrow.

[00:17:59] Speaker 00:
The BOP was not wrong, Your Honor, and the reason being the court correctly under 5G 1.3 subsection C, which clearly states in an anticipated state sentence for relevant conduct, the judge must run the federal sentence concurrent, which he did.

[00:18:17] Speaker 00:
So when the state sentenced him,

[00:18:19] Speaker 00:
The state then credits, determines all the credit he gets, which included that pretrial detention period of nearly three years.

[00:18:28] Speaker 00:
And then the state gives him his sentence.

[00:18:31] Speaker 00:
And then because the BOP has been directed to run the federal sentence concurrent, it takes out all of the state time that he has served as calculated by the state.

[00:18:41] Speaker 00:
And that's exactly what happened here.

[00:18:43] Speaker 00:
The state credited him that nearly three years that he was in pretrial detention.

[00:18:49] Speaker 00:
So then when the BOP calculates his federal sentence, it deducts all of the state time.

[00:18:55] Speaker 00:
So that five and a half years, you add that three years credited from the state, that's eight and a half years, which is approximately 85% of the 10-year federal sentence.

[00:19:05] Speaker 00:
So that's what subsection C is intended to do under 5G 1.3, and that's exactly what happened.

[00:19:12] Speaker 00:
It worked as intended.

[00:19:14] Speaker 00:
He's required to run it concurrent to an anticipated sentence, which he did.

[00:19:18] Speaker 00:
The state gave him credit for all of that.

[00:19:22] Speaker 00:
And then the BOP took all of the state time.

[00:19:26] Speaker 04:
and to subtracted it from his federal sentence and that's what he ended up with so I don't I don't know you know okay but you represent the Department of Justice which includes the Bureau of Prison and you are representing to the court that the BOP is not going to take away this credit after we rule that that credit is going to stand

[00:19:46] Speaker 00:
Your Honor, I can certainly not predict or any other agency's behavior.

[00:19:51] Speaker 04:
Because if we rule based on this premise and then the BOP changes, he's going to have a 2255 for something to undo because we ruled on a premise that was not correct.

[00:20:03] Speaker 00:
Your Honor, what I can represent is as noted in the government's brief, the AUSA who wrote the brief did reach out to the Bureau of Prisons to get clarity on this issue.

[00:20:16] Speaker 00:
And they said they do exactly how I've represented, that when it's run concurrent to the anticipated state sentence, they take all the time the state has credited, which include his time in pretrial detention, and they subtract... Even if that time precedes the federal custody?

[00:20:32] Speaker 04:
Correct.

[00:20:33] Speaker 03:
Correct.

[00:20:34] Speaker 03:
But are you also representing that if the BOP backtracked on that at a future date, two years from now, three years from now, whatever, and they changed their mind,

[00:20:43] Speaker 00:
Then that would that would make their argument meritorious If that in the event that were to happen, I believe there could be an argument then Because our understanding right now is as the facts are before us Which is the BOP has credited that time based on the state crediting that time and the sentence is running concurrently

[00:21:04] Speaker 00:
He has a projected release date completely in line with crediting him all the way back to the very first day he was in custody, either with the state or the federal government.

[00:21:18] Speaker 00:
I would also like to address what I think is the big issue that was discussed prior to me coming up here, which was this idea of importing the state case and the judge saying,

[00:21:30] Speaker 00:
And I think it's very important to put that into context, because clearly we have different- You didn't have that understanding.

[00:21:36] Speaker 03:
You didn't have the same understanding.

[00:21:38] Speaker 03:
And as Judge Collins read, maybe rightfully so, you didn't have that same understanding.

[00:21:42] Speaker 03:
But you never went in.

[00:21:46] Speaker 03:
And you still argued for the enhancements, right?

[00:21:48] Speaker 00:
Yes, that's correct, Your Honor.

[00:21:49] Speaker 00:
And the reason we didn't have that understanding is if you look at the sequence of events,

[00:21:54] Speaker 00:
The defendant said to the court, hey, I want to plead guilty.

[00:21:57] Speaker 00:
Here's my memorandum in support of my guilty plea, which included facts only to the very specific elements of felon in possession of a firearm.

[00:22:06] Speaker 00:
The government attorney submitted a memorandum in support, which included an expansive amount of facts that would have required him to admit to conduct that was being charged in this state.

[00:22:17] Speaker 00:
And so the judge came in and said, hey, I'm not going to do that because that might affect your right to a fair trial in the state.

[00:22:23] Speaker 00:
I am only going to have you admit to the facts in the defendant's memorandum, which only applies very specifically to felon in possession of a firearm.

[00:22:33] Speaker 00:
And that is what that statement was towards, just as to what he was going to have to admit to in court.

[00:22:40] Speaker 00:
Nothing else.

[00:22:42] Speaker 00:
Judge Collins pointed out, the court very clearly said at his change of plea, I have to consider all relevant conduct at your sentencing.

[00:22:52] Speaker 00:
And the defendant said, yes, I understand.

[00:22:54] Speaker 00:
I agree that you do.

[00:22:56] Speaker 00:
The court also said, and your attorney has explained how the guidelines work, how they're calculated, how they might apply.

[00:23:03] Speaker 00:
Yes, absolutely.

[00:23:05] Speaker 00:
So when you look at those statements together,

[00:23:07] Speaker 00:
with the broader sequence of facts, at no point did the court promise, nor did the government agree, that none of that information would be taken into account when determining what guidelines are appropriate to his sentence.

[00:23:23] Speaker 00:
And so at the sentencing hearing, the judge painstakingly went through the base offense level, each enhancement

[00:23:31] Speaker 00:
what evidence he was relying on.

[00:23:33] Speaker 00:
He actually applied the greater clear and convincing standard, even though he was only required to apply the preponderance.

[00:23:39] Speaker 00:
He said, I find by clear and convincing why each of these enhancements apply.

[00:23:44] Speaker 00:
He was very detailed in that pronouncement when determining the guidelines.

[00:23:50] Speaker 00:
The guidelines after he calculated them would have been 110 to 137 months, but he capped it at 120 months, as that's the statutory maximum sentence for this charge, and then pronounced sentence based on this very detailed recitation and what the government argued for in his sentencing memo and the

[00:24:14] Speaker 00:
Submissions that included with it.

[00:24:15] Speaker 03:
What about this last argument?

[00:24:17] Speaker 03:
She didn't touch on it in opening argument, but that the 120 months that the district court misstated when he said 120 months was at the low end.

[00:24:29] Speaker 03:
It's a low end guideline sentence.

[00:24:32] Speaker 03:
First of all, was it a misstatement?

[00:24:33] Speaker 03:
And second of all, does it even matter whether it was?

[00:24:35] Speaker 00:
Your Honor, it was a misstatement.

[00:24:37] Speaker 00:
And it was a clear misstatement, because as I've said, the judge very painstakingly threw in a lengthy sentencing hearing

[00:24:44] Speaker 00:
went through the guideline calculations, then pronounced the guidelines on the record as being 110 months to 120 months.

[00:24:52] Speaker 00:
Both parties, the defense and the government's arguments- Well, the guidelines would have gone above 120 months.

[00:24:58] Speaker 03:
It was 137?

[00:25:00] Speaker 00:
That's correct, Your Honor.

[00:25:01] Speaker 00:
But he even pronounced, I have to stop at 120 because that's the statutory maximum.

[00:25:07] Speaker 00:
He made that clarification.

[00:25:10] Speaker 00:
Both parties, when they were arguing for an appropriate sentence, were very focused on this number of 120 months, the defense arguing why it was too high, the government arguing why it was appropriate.

[00:25:21] Speaker 00:
The judge said multiple times, 120 months will be the sentence.

[00:25:26] Speaker 00:
So at the very end, he did make this misstatement as to the low end.

[00:25:30] Speaker 00:
I don't think one slip of the tongue when misstatement nullifies

[00:25:35] Speaker 00:
the 30, 40 minute hearing that had just occurred where he was very detailed and very painstaking in going through the guidelines and what the sentence would be.

[00:25:45] Speaker 00:
If there are no further questions, I will submit the rest of my time.

[00:25:53] Speaker 00:
Okay.

[00:25:53] Speaker 00:
Thank you.

[00:25:54] Speaker 03:
Thank you.

[00:26:05] Speaker 01:
Thank you, Your Honors.

[00:26:06] Speaker 04:
So I'd like to just... I just had a question.

[00:26:08] Speaker 04:
Yes.

[00:26:09] Speaker 04:
So in light of what the government counsel said,

[00:26:13] Speaker 04:
Is the 5G 1.3 issue sort of, I'm trying to understand whether there's any issue left there.

[00:26:25] Speaker 04:
Is there some portion of the credit that you think wasn't correctly calculated or has he in fact been given credit for the entirety of the time he spent in state custody under the current BOP calculation?

[00:26:41] Speaker 01:
So the calculation,

[00:26:42] Speaker 01:
It doesn't cover the entire time he was in state custody because he was in state custody from February 6, the date of the offense, until the date of his federal sentencing in March of 2024.

[00:26:54] Speaker 01:
The BOP has apparently given him credit until January instead of March of 2024.

[00:27:02] Speaker 01:
I do not know how the BOP has calculated this, but I can tell you that I also spoke to the same BOP representative that the AUSA shared with me.

[00:27:12] Speaker 01:
And he was not confident that this would remain that way.

[00:27:16] Speaker 01:
And he said, when this outcome of this case is done, to send it over to him, and they'll figure out how the credit, what credits would apply, and so forth.

[00:27:25] Speaker 04:
So I'm not- There's a fairly clear concession from government counsel that if the BOP essentially double crosses on this, that maybe this is going to come back to the courts.

[00:27:36] Speaker 01:
And it may have to, Your Honors.

[00:27:38] Speaker 03:
My concern- Well, but if we issue a disposition that just says, look, you've got to do it this way, if you don't, it's error, and that was conceded, I mean, isn't that enough for you that you could then take our disposition, send it over to them, and say, hey, the court said you got to do it this way?

[00:27:54] Speaker 01:
I honestly think that might remedy a potential failure from the BOP and the court in this particular situation.

[00:28:02] Speaker 03:
Everybody seems to agree on that.

[00:28:04] Speaker 03:
I mean, that's the oddity here is, at least counsel, there's really no disagreement on how this should work.

[00:28:10] Speaker 03:
You have a justifiable concern that it either hasn't totally worked that way or might not in the future.

[00:28:17] Speaker 03:
If we just clarify that in an order, I think you get what you want.

[00:28:20] Speaker 01:
Potentially, Your Honor, that might be sufficient for both the BOP and the court.

[00:28:25] Speaker 01:
But the BOP definitely has not given him credit for that full amount of time.

[00:28:29] Speaker 01:
And I do think that the court misinterpreted that guideline.

[00:28:33] Speaker 01:
If you're going to give him five extra years of time, you need to give him credit for the time he's already been sitting on that contract.

[00:28:38] Speaker 03:
I think you have a concession that you're right about that from the United States, I think.

[00:28:47] Speaker 01:
Thank you, Your Honors, for the time to be before you.

[00:28:49] Speaker 01:
It's really been an honor.

[00:28:50] Speaker 03:
Thank you.

[00:28:51] Speaker 03:
Thank you to both counsel.

[00:28:52] Speaker 03:
The case is now submitted.