[00:00:00] Speaker 00:
We'll call the next matter on calendar United States versus Noble.

[00:00:44] Speaker 03:
There's more seats up front.

[00:00:47] Speaker 00:
Yeah.

[00:00:48] Speaker 00:
Don't be shy.

[00:00:49] Speaker 00:
Just grab a seat.

[00:00:50] Speaker 00:
This is like Southwest Airlines.

[00:00:51] Speaker 02:
Yeah.

[00:00:53] Speaker 02:
And we don't bite.

[00:00:54] Speaker 00:
Yeah.

[00:00:54] Speaker 00:
Well, no, they're still doing that.

[00:00:55] Speaker 00:
They haven't switched yet.

[00:00:56] Speaker 00:
For those of us who flew yesterday, we got the full Southwest experience.

[00:01:03] Speaker 02:
Another reason I fly.

[00:01:05] Speaker 02:
Yeah, I'm flying after that.

[00:01:13] Speaker 00:
All right, is everyone?

[00:01:14] Speaker 00:
Everyone's good?

[00:01:16] Speaker 00:
All right.

[00:01:16] Speaker 00:
Mr. Hermanson, good to see you.

[00:01:18] Speaker 04:
You may proceed.

[00:01:19] Speaker 04:
It's good to see you as well, Your Honor.

[00:01:21] Speaker 04:
Kurt Hermanson on behalf of Mr. Noble.

[00:01:24] Speaker 04:
For three interrelated reasons, this court should reverse and remand for resentencing.

[00:01:30] Speaker 04:
First, to enforce Rule 32H.

[00:01:34] Speaker 04:
This court should hold that the district court erred by not giving notice of the legal ground for its upward departure, 5K 2.8.

[00:01:46] Speaker 04:
Second, for guidance on remand, this court should hold that the district court erred by invoking Section 5K 2.8 by expanding 5K 2.8 to animals.

[00:01:59] Speaker 04:
Third, this court should reverse because the district court's statement of reasons contradicts its oral judgment.

[00:02:06] Speaker 02:
Counsel, can you help me with the second point on this is an animal crushing statute.

[00:02:13] Speaker 02:
So it's essentially a cruelty to animals statute.

[00:02:16] Speaker 02:
How can there be any other victim but the animal in an animal cruelty statute?

[00:02:23] Speaker 04:
That's a great point.

[00:02:24] Speaker 04:
The statute itself includes the fact that animals are going to be tortured, abused, and so that's already part of the statute.

[00:02:35] Speaker 04:
And that sentencing guideline that applies has that baked in.

[00:02:44] Speaker 04:
And on top of that, when we look at what the parties recommended,

[00:02:51] Speaker 04:
The parties recommended four-level increase under 2G3.1B4.

[00:02:56] Speaker 04:
That four-level increase is for sadistic and masochistic conduct.

[00:03:01] Speaker 04:
So not only is it already part of the statute, it was contemplated by the parties.

[00:03:08] Speaker 04:
The parties agreed that it was duly accounted for with a four-level increase for sadistic.

[00:03:15] Speaker 02:
Let me ask you this.

[00:03:18] Speaker 02:
K2 did not, the policy statement did not exist.

[00:03:24] Speaker 02:
Would the district court be entitled to vary from the guideline range because it determines that the conduct here is so egregious?

[00:03:37] Speaker 02:
that even the four level enhancement is not sufficient punishment for the offense?

[00:03:45] Speaker 04:
Yes, the court could vary and so that's the legalistic interesting part of this case is that

[00:03:52] Speaker 04:
courts can depart or they can vary.

[00:03:54] Speaker 04:
And as my friend's 28-J letter shows, the Sentencing Commission has decided to get rid of almost every single departure.

[00:04:03] Speaker 04:
So instead of a three-step process of figuring out the base fence level

[00:04:10] Speaker 04:
figuring out the guideline range and then looking at possible departures and then moving on to the 3553A factors, which we call variances.

[00:04:20] Speaker 04:
So yes, the first step and the most important step in sentencing is figuring out what the guideline range is.

[00:04:26] Speaker 02:
So does this case turn on the fact that the district court should have said what I'm doing here is varying, I'm not departing?

[00:04:33] Speaker 04:
Yes.

[00:04:34] Speaker 02:
Okay.

[00:04:35] Speaker 02:
So it's a semantics issue.

[00:04:40] Speaker 04:
Except that there's clearly established United States Supreme Court law and Ninth Circuit law saying that it makes a big difference.

[00:04:45] Speaker 02:
I think you'd have a much stronger argument, and I'm not saying you have a weak argument, I think you'd have an even stronger argument if the guidelines were still mandatory and not advisory.

[00:04:56] Speaker 02:
But I'm struggling with, the district court made it very clear on the record that in however many years Judge McShane has been on the bench, this is the most egregious conduct that he's ever encountered.

[00:05:11] Speaker 02:
So clearly he was motivated by the cruelty and the actions of Mr. Noble and the people that make and solicit these kinds of videos.

[00:05:25] Speaker 04:
Correct, and it's so after, so I'm going to say the name wrong, but Izakiri is the United States Supreme Court case that says that when you vary upward, you don't need to give notice.

[00:05:35] Speaker 04:
So I don't agree with that opinion, but we're all bound by it because it comes from the United States Supreme Court.

[00:05:41] Speaker 04:
It seems inherently unfair for a notice.

[00:05:43] Speaker 02:
What I'm really asking is how is he prejudiced under these circumstances by the failure to give the notice that 32-H requires?

[00:05:53] Speaker 04:
So that question goes to my friend.

[00:05:57] Speaker 04:
I'm going to ask him.

[00:06:00] Speaker 02:
Right.

[00:06:00] Speaker 04:
Well, it goes to him because he has the burden.

[00:06:04] Speaker 04:
To establish harmlessness, the government must show that is, quote, more probable than not that the error did not affect the sentence.

[00:06:12] Speaker 02:
And you think, based on what the court said at sentencing, you don't think I can clearly discern what the court was thinking and fashioning an appropriate sentence in this case?

[00:06:24] Speaker 04:
This court has never done that.

[00:06:26] Speaker 04:
So the cases that this court would have to somehow distinguish, we have clearly established law in the circuit.

[00:06:33] Speaker 04:
Evans versus Martinez and Jena-Josa versus Gonzalez are just two of them.

[00:06:37] Speaker 04:
So Evans versus Martinez and Jena-Josa versus Jena-Josa hyphen Gonzalez.

[00:06:42] Speaker 04:
So sorry, it's not Evans versus Martinez.

[00:06:44] Speaker 04:
It's Evans Martinez and Jena-Josa Gonzalez control, and they require that this court reverse and remand for resentencing.

[00:06:51] Speaker 04:
And the reason is clear, and it comes from United States Supreme Court law.

[00:06:54] Speaker 04:
And it goes back to the basics of sentencing.

[00:06:58] Speaker 02:
You don't think there's a harmless error component in the analysis at all?

[00:07:03] Speaker 04:
I don't.

[00:07:04] Speaker 04:
And I think at the very best, if this court decides that it's going to apply a harmless error in this context.

[00:07:09] Speaker 02:
Essentially making a structural error.

[00:07:12] Speaker 02:
Correct.

[00:07:13] Speaker 02:
And it is.

[00:07:14] Speaker 02:
And if you look at the Supreme Court case.

[00:07:17] Speaker 02:
I'm not sure it is.

[00:07:18] Speaker 02:
It's error.

[00:07:19] Speaker 02:
There's no question about that.

[00:07:21] Speaker 02:
But the question is, how bad is the error?

[00:07:24] Speaker 02:
And is there prejudice?

[00:07:25] Speaker 04:
Right.

[00:07:25] Speaker 04:
Fair enough.

[00:07:26] Speaker 04:
So I see.

[00:07:27] Speaker 04:
I'm going to try to reserve two minutes.

[00:07:30] Speaker 04:
The United States Supreme Court cases we cite talk in terms of plain error.

[00:07:35] Speaker 04:
And they talk about the importance of how the sentencing guideline range is an anchor in the sentence.

[00:07:42] Speaker 04:
And if it's not correct, you reverse and remand for re-sentencing.

[00:07:47] Speaker 02:
You don't think that under a plain error analysis, we still retain the authority to decide that we're not going to recognize the error on the facts of this case?

[00:07:58] Speaker 02:
No, here the parties agree the plane there on on on the fourth manifest injustice, we can decide it would not be manifestly unjust to impose a 48 month sentence on Mr. No.

[00:08:10] Speaker 04:
As Alex Kozinski said, the court would have to do a Miller versus Gammie analysis because we have clearly established, we have Supreme Court law and Ninth Circuit law that says, no, it's plain error.

[00:08:22] Speaker 04:
The error is plain.

[00:08:23] Speaker 02:
And the parties agree that it's... Am I wrong?

[00:08:26] Speaker 02:
We don't have to notice the error, do we?

[00:08:29] Speaker 02:
We still have the discretion, as I understand the plain error doctrine, to conclude at step four, we're not going to recognize the error.

[00:08:38] Speaker 04:
I don't think that's right.

[00:08:41] Speaker 02:
We have to decide that if we don't address it, it will result in a miscarriage of justice.

[00:08:47] Speaker 02:
And I'm having a hard time

[00:08:49] Speaker 04:
Well, it's de novo, though, Your Honor.

[00:08:51] Speaker 04:
The parties agree it's de novo.

[00:08:53] Speaker 04:
So I'm just pointing to the de novo review here, and I'm just pointing to the United States Supreme Court law that talks about when the sentencing guideline range is incorrectly calculated, which we have here, then you remand for resentencing because it is an anchor and it pulls the court.

[00:09:14] Speaker 04:
So it may feel like fate are complete to remand for re-sentencing, but that's the appropriate remedy.

[00:09:21] Speaker 04:
So I ask to reserve.

[00:09:22] Speaker 00:
Yes, please.

[00:09:23] Speaker 00:
Give him two minutes.

[00:09:24] Speaker 00:
He was one second off, but I'll give him two.

[00:09:35] Speaker 01:
May it please the court, Will McLaren for the United States.

[00:09:38] Speaker 01:
I'm going to pick up where my colleague left off, and that was about error and whether there was error here.

[00:09:45] Speaker 01:
I think to the court's point about application of 32-H, strict application of 32-H seems to predate in this circuit Booker.

[00:09:54] Speaker 01:
Hinojosa Gonzalez, Evans Martinez, those were cases that weren't informed by a post-Booker sentencing regime.

[00:10:02] Speaker 01:
Once the courts were granted the significant discretion afforded in Booker, we see different outcomes.

[00:10:10] Speaker 01:
I'd point this court to Cruz Perez.

[00:10:11] Speaker 01:
I spent quite a bit of time in the brief talking about Cruz Perez.

[00:10:14] Speaker 01:
That was a situation like this one where garden variety sentencing considerations, this court's words, were known to all involved and ultimately informed the sentence, which may have been a departure in this court's analysis.

[00:10:29] Speaker 01:
That's what we have here.

[00:10:30] Speaker 01:
The garden variety sentencing considerations underlying Judge McShane's sentence were both the deterrent value, which he spoke to at length, the need for a significantly deterrent sentence, as well as the nature and conduct of the offense itself, the extreme torture that underlied the videos in Mr. Noble's group.

[00:10:51] Speaker 01:
These were argued at length, litigated at length in the party's pre-hearing submissions.

[00:10:58] Speaker 01:
So whether there's a clear 32-H violation, I think should be more closely inspected.

[00:11:05] Speaker 01:
And the government's position is there was not a clear 32-H violation.

[00:11:09] Speaker 01:
turning now to the harmlessness of error.

[00:11:12] Speaker 02:
You can see though that it would have been preferable for the court to say at the outset, I am contemplating a departure under policy statement 5K2.

[00:11:22] Speaker 01:
Absolutely, Your Honor.

[00:11:23] Speaker 01:
I will note that prior to the party's sentencing arguments at the time of sentencing, the court did say, Mr. Hermanson, I want you to be aware that I am considering departing.

[00:11:33] Speaker 01:
Now, that was at the sentencing hearing itself.

[00:11:36] Speaker 01:
And 32-H speaks to pre-hearing submissions.

[00:11:39] Speaker 01:
But had the court notified the parties of his awareness of 5K 2.8, that would be far preferable, of course, Your Honor.

[00:11:48] Speaker 01:
It may obviate the need for us to be here in the first place.

[00:11:50] Speaker 01:
But as the court acknowledged when my friend and colleague was arguing, Judge McShane made such a clear record, specifically most calculated cruelty I've seen in my 37 years on the bench, including state time, including murder, that leaves very little to the imagination about what may happen upon remand.

[00:12:16] Speaker 01:
And then I would say the other thing that leaves very little to the imagination is what was noted in the government's 28-J letter submitted last week.

[00:12:25] Speaker 01:
That is a relatively recently adopted guidelines amendment.

[00:12:30] Speaker 01:
The commission is doing away with departures altogether, except for some very specific departures.

[00:12:35] Speaker 01:
But this one, 5K 2.8, that will not be in Chapter 5 anymore as of November 1st of this year.

[00:12:42] Speaker 01:
And that is the commission acknowledging something very fundamental that happened post-Booker, which is courts tend to vary largely for these strictures imposed by Rule 32.

[00:12:58] Speaker 01:
Those strictures don't apply for purposes of variances.

[00:13:01] Speaker 02:
Well, I guess the best example of that would be where the court says, look, I just think this case is outside the heartland of the types of cases that the commission had in mind when it established the range for this type of an event.

[00:13:15] Speaker 01:
which is precisely what this court said here.

[00:13:17] Speaker 01:
I forget his exact words, but it was something to the effect of the sentencing guidelines simply do not contemplate an action like this.

[00:13:25] Speaker 01:
And I will note, the guidelines here are the obscenity guidelines, not the torture or extreme cruelty guidelines.

[00:13:32] Speaker 01:
They have a sadistic and masochistic component, but I would argue that there is a spectrum of sadistic and masochistic conduct.

[00:13:39] Speaker 01:
And this is on the far outside of that, as acknowledged by the court.

[00:13:42] Speaker 01:
So I think that's exactly right.

[00:13:43] Speaker 01:
And I would note,

[00:13:44] Speaker 01:
that in this amendment that the commission has proposed, they fold in a kind of final statement that says, we intend this to be outcome neutral.

[00:13:54] Speaker 01:
We would like the courts to continue considering these policy statements when applying variances, including the extreme conduct.

[00:14:01] Speaker 01:
It's going to make its way into some sort of guidelines appendix.

[00:14:05] Speaker 01:
So I think to your honor's point, that's exactly the intention of this amendment, and it's far more eloquent than anything I could say here.

[00:14:12] Speaker 01:
If the court had any question about whether 5K 2.8 could apply to the victim in this case, in this case a juvenile monkey and other animals depicted in these videos, I do not think it is a clear-cut argument that a victim can never be an animal, again, picking up off of what was discussed prior to me standing up here.

[00:14:34] Speaker 02:
And I know the parties have parsed the language of the policy statement itself, but I read that language to focus on the conduct of the defendant.

[00:14:42] Speaker 02:
More than on the impact on the victim.

[00:14:45] Speaker 01:
And your honor's reading is consistent with 90s era law in this circuit, and that was Quintero.

[00:14:52] Speaker 01:
I pointed to that in the brief as well, which says precisely that.

[00:14:56] Speaker 01:
The focus is not on the characteristics of the victim.

[00:15:00] Speaker 01:
Quintero involved a deceased individual, so abuse to a corpse.

[00:15:05] Speaker 01:
But instead, on the actions of the defendant themselves,

[00:15:08] Speaker 01:
And the 10th Circuit has since agreed with that in Hanson.

[00:15:12] Speaker 01:
I think that's a very clear reading.

[00:15:14] Speaker 01:
I also don't think the term victim should be narrowly construed.

[00:15:18] Speaker 01:
It should be the focus on the damaged or harmed entity as a result of the crime, which here it's hard to find anything but in the context of a 18 USC 48 violation, this animal crushing statute.

[00:15:32] Speaker 01:
So unless the court has additional questions as to the definition of victim, I don't intend to take all my time.

[00:15:38] Speaker 04:
all right thank you very much counsel thank you try to talk quickly so uh...

[00:15:51] Speaker 04:
5K 2.8 was never litigated below.

[00:15:53] Speaker 04:
So there's legal error.

[00:15:55] Speaker 04:
And the error is plain.

[00:15:57] Speaker 04:
Judge Tallman ruled this court has said that strict compliance is required with Rule 32.

[00:16:06] Speaker 04:
So we do have error.

[00:16:07] Speaker 04:
In Herrera Rojas, the Ninth Circuit vacated the sentence because the district court, because this court's precedence requires strict compliance with Rule 32.

[00:16:21] Speaker 04:
And what I'm hearing saying as far as harmless error, this court's precedent also would, if the court thinks that it's a fait accompli and that the judge is going to give the exact same sentence, then remand to a different judge is appropriate.

[00:16:37] Speaker 02:
And for that... Why do you think that?

[00:16:40] Speaker 02:
Under Garden Shire.

[00:16:41] Speaker 02:
The fact that the court was particularly moved by the facts of this case doesn't mean that if we remand it with directions, that the judge isn't going to comply with the direction.

[00:16:53] Speaker 04:
I just heard the government argue he's going to give the same sentence on remand.

[00:16:56] Speaker 02:
I'd be surprised if he did, based on what he said.

[00:16:59] Speaker 02:
But I don't think that that's necessarily a basis for disqualification.

[00:17:04] Speaker 04:
I would cite the court to Gardenshire 784, F3, 1277, at jump site 1283 through 84 for the appropriate remedy.

[00:17:14] Speaker 04:
Whether the court remands to Judge McShane or a different judge, I think Gardenshire supports remanding to a different judge because of that anchoring effect of applying the guideline incorrectly.

[00:17:25] Speaker 04:
And as far as my friend's citation to Quintero, Quintero is a dicta.

[00:17:32] Speaker 02:
I'm not sure the guideline was incorrectly applied.

[00:17:35] Speaker 02:
The question was whether you had adequate due process notice that the court was going to consider it.

[00:17:41] Speaker 04:
And we argue at length the statutory, the correct statutory interpretation makes clear that, and if this court... I don't think it's all that clear and there's not much case law interpreting it, is there?

[00:17:54] Speaker 04:
There isn't, but if the court looks to Edling, Edling shows the proper.

[00:18:00] Speaker 04:
In Edling, they found that physical injury has to be physical injury to a human.

[00:18:04] Speaker 04:
And the statutory analysis they went through there is perfect.

[00:18:07] Speaker 04:
So here first we start with the plain text.

[00:18:09] Speaker 04:
It doesn't say animal.

[00:18:11] Speaker 04:
It says human.

[00:18:11] Speaker 04:
So my friend is asking that it be expanded to include humans.

[00:18:16] Speaker 04:
No court has ever, in the 40 years that 5K 2.0 has existed, has ever applied it to animals.

[00:18:22] Speaker 04:
Every single guideline that refers to 5K 2.0 does not refer to animals, and the cross-references in 5K 2.0 have nothing to do with animals.

[00:18:36] Speaker 04:
So there are a number of co-defendants in this case who've been prosecuted.

[00:18:39] Speaker 04:
Not a single one of those has had an increase under 5K 2.8.

[00:18:42] Speaker 02:
This group of actors came to the attention of the authorities.

[00:18:46] Speaker 02:
There aren't that many cases.

[00:18:48] Speaker 02:
Are there under 40?

[00:18:49] Speaker 04:
I don't know how many cases there are, but there isn't a single one in the entire country where any judge has ever applied 5K 2.8 to an animal.

[00:18:56] Speaker ?:
All right.

[00:18:57] Speaker 04:
Thank you.

[00:18:58] Speaker 04:
I appreciate the court's time.

[00:18:59] Speaker 00:
Thank you so much.

[00:19:00] Speaker 00:
Thank you to both of you for your briefing and your argument in this case.

[00:19:03] Speaker 00:
It's submitted.