[00:00:08] Speaker 01: Welcome back for round two this week. [00:00:11] Speaker 00: Thank you. [00:00:11] Speaker 00: Good morning, Your Honors. [00:00:13] Speaker 00: Jesse Agostin, round two. [00:00:15] Speaker 00: Federal Defenders of San Diego on behalf of Ms. [00:00:17] Speaker 00: Rabin. [00:00:18] Speaker 00: So there were a number of issues during Ms. [00:00:21] Speaker 00: Rabin's sentencing. [00:00:22] Speaker 00: This court can only address one, which is when the district court announced the original underlying guideline range, it got it wrong. [00:00:33] Speaker 00: So that issue alone, this court could remand for resentencing, even if it assumes plain error review applies. [00:00:39] Speaker 00: So I'll start with what the district court said after Ms. [00:00:42] Speaker 00: Rabin's counsel objected to the sentence. [00:00:45] Speaker 00: It said, quote, so the 24 months that I've imposed is an extraordinary variance from the low end of 57 months. [00:00:53] Speaker 00: That's at year 26. [00:00:54] Speaker 00: The problem was that when the district court had actually calculated the guidelines step by step the year before, [00:01:00] Speaker 00: It had come to a 20-month lower, low end of 37 months. [00:01:05] Speaker 00: And that error alone meets all four prongs of the plain error review standard. [00:01:12] Speaker 00: I'll point this court to its case Vargam. [00:01:15] Speaker 00: That's a case where the district court started with [00:01:19] Speaker 00: a low end of 70 months and then varied down to a sentence of 30 months. [00:01:25] Speaker 00: On plain error review, this court found the guidelines, the low end should have actually been 57 months. [00:01:31] Speaker 00: Even though the court ultimately had imposed a sentence that was below both the incorrect and the correct guidelines, this court still reversed for plain error because starting with the lower guideline range set the incorrect framework. [00:01:45] Speaker 00: And had it started with the lower range, there's a chance the court could have varied further down. [00:01:51] Speaker 00: That's consistent with the Supreme Court's later cases, Molina Martinez and Rosales Morelos. [00:01:58] Speaker 00: I'm also happy to briefly address Olubonji. [00:02:01] Speaker 00: I'll start by saying Olubonji's status really doesn't affect the outcome of this case. [00:02:07] Speaker 00: So this court doesn't need to touch it if it doesn't want to. [00:02:11] Speaker 00: Putting it aside, the district court was still allowed to consider the underlying guidelines. [00:02:17] Speaker 00: That's under this court's previous case plunket. [00:02:21] Speaker 00: So that, which is where we are now, the problem is when you consider those underlying guidelines, you have to get them right. [00:02:29] Speaker 00: That said, I don't think Olubonje is clearly irreconcilable with Booker. [00:02:33] Speaker 00: Booker obviously cites Olubonje, so that's a tough one. [00:02:39] Speaker 00: Finally, the last errors, the court never calculated or announced the underlying chapter 7, 3 to 9 month range. [00:02:48] Speaker 00: This court's case Hammons holds on plain error review that a failure to calculate the guideline range clearly satisfies the first two prongs of plain error. [00:02:58] Speaker 01: On that one, I mean, we don't need the district court to spell out every little step. [00:03:03] Speaker 01: I mean, here, I think we can infer district court thought the three to nine month was just too lenient given the fact that district court is very lenient the first time, right? [00:03:13] Speaker 00: So it is an error to fail to announce the three to nine month range. [00:03:18] Speaker 00: That's what Hammond says, and it controls this case. [00:03:20] Speaker 00: That was also a revocation sentencing. [00:03:22] Speaker 01: Didn't Hammond also say we need to look at the full record and, you know, we can infer things? [00:03:27] Speaker 00: So Hammond's reversed for a failure to calculate the guideline range. [00:03:31] Speaker 01: There they couldn't tell. [00:03:32] Speaker 01: I think there was that, you know, we couldn't tell what the district court was thinking, whether this court even actually calculated. [00:03:40] Speaker 01: Here, I mean, it seems like we can infer what happened here. [00:03:43] Speaker 01: I mean, she was... [00:03:45] Speaker 01: was transporting drugs with her child. [00:03:47] Speaker 01: The sentencing guideline ranges, whatever, 37 to 46 months. [00:03:52] Speaker 01: And he's very lenient and just gives probation. [00:03:55] Speaker 01: And then within months, another drug violation. [00:03:58] Speaker 01: And so he, I think, goes to the original sentence and not for the punishment for violating. [00:04:05] Speaker 01: It seems like we can kind of figure out what happened here. [00:04:07] Speaker 01: Whereas Hammond, it wasn't clear what the district court was doing here. [00:04:10] Speaker 01: It seems, at least on that point, it's kind of clear what the district court is trying to do here. [00:04:15] Speaker 00: I don't think it's clear what the district court was trying to do in relation to the guidelines. [00:04:20] Speaker 00: The district court did explain some of this 3553A analysis, absolutely. [00:04:24] Speaker 00: But whether the district court was considering the three to nine and then saying, actually, I want to almost triple the high end of that, whether the district court was saying, actually, I want to look at the underlying and very down, whether it was considering both of those or it's... Whether it's following the probation officer's comment about how much time [00:04:46] Speaker 04: of the home confinement she had yet to serve and convert that to an incarceration term. [00:04:54] Speaker 04: And there are lots of alternatives. [00:04:56] Speaker 04: What's for me strange about this case is that he could go to either range and they're like goal posts and he goes between them. [00:05:08] Speaker 04: And it's not hard to understand the logic behind why the district court did what it did. [00:05:16] Speaker 04: particularly if we're talking a plain air standard, was it, I almost have to ask, does your client really want the possibility of being sentenced and have the district court say, well then, we got vindictive and so forth, but well then, she really didn't serve what she was supposed to serve, so I'm not going to treat this like probation. [00:05:39] Speaker 04: I'm going to treat this and go back to the original offense for which the range is way over here. [00:05:45] Speaker 04: And is she potentially at risk of getting a heavier sentence? [00:05:48] Speaker 04: I mean, how uncertain are we as to what the district court did and how probable it is that we'd get a different result on remand? [00:05:57] Speaker 00: So the errors were failure to announce the three to nine and then announcing an incorrectly high underlying offense. [00:06:04] Speaker 00: So my client's not concerned about being resentenced under a 20-month lower underlying offense range. [00:06:11] Speaker 00: I think so we have a number of plain errors and then the Supreme Court says in Melina Martinez that there's no need to show prejudice under the plain error standard beyond the fact that the erroneous and higher guidelines range set the wrong framework. [00:06:25] Speaker 00: So, you know, if Judge Clifton, I take your point, it's possible that the sentencing judge was sort of using these two guidelines as goalposts and coming to the middle. [00:06:34] Speaker 00: The problem is he used an incorrectly high goalpost. [00:06:38] Speaker 04: Well, but what would the correct goalpost, the one that he calculated at the first sentencing hearing, and I've got too many numbers here, so I'm not finding it, but it wouldn't have been [00:06:51] Speaker 04: dramatically beneficial to your client, would it? [00:06:53] Speaker 00: Yes, it would have been 20 months lower. [00:06:55] Speaker 00: 20 months lower? [00:06:55] Speaker 00: So nearly two years. [00:06:58] Speaker 01: So in the transcript here, it's one year, 26, the judge says, quote, he's after he's imposed 24 months. [00:07:05] Speaker 01: He says, quote, so the 24 months that have been imposed is an extraordinary variance from the low end of 57 months. [00:07:12] Speaker 01: I understand he got that wrong. [00:07:14] Speaker 01: So it seems like he is saying, I'm imposing 24 months pursuant to [00:07:20] Speaker 01: his mistaken calculation of the guidelines. [00:07:22] Speaker 01: So it seems like he already rejected the three to nine months, so he's going back to the original sentence. [00:07:28] Speaker 01: But I mean, your point still stands about, you know, 36 versus 57 months. [00:07:34] Speaker 00: Yeah, and I do think it would have been helpful for the district court to explain what it was doing in relation to the probation revocation guidelines, saying, you know what, I don't think those are relevant at all. [00:07:42] Speaker 00: But regardless, because of the wrong 57 month, that's... But if the right range [00:07:50] Speaker 04: Was it 37 to 46? [00:07:53] Speaker 04: Again, I'm not sure. [00:07:55] Speaker 04: And what sentence did he impose? [00:07:56] Speaker 00: 24 months. [00:07:58] Speaker 04: So it's still well below what you tell us is the correctly calculated range. [00:08:04] Speaker 00: That's correct. [00:08:04] Speaker 04: So he's splitting the uprights. [00:08:07] Speaker 04: Do we have any real reason to believe it would be different? [00:08:10] Speaker 00: Yes. [00:08:11] Speaker 00: So this court explained in Vargam that when the court starts from an incorrectly high guideline, and it varies down a bunch, even if the sentence he chose is lower than the correct guideline, it's possible it could have varied even a month lower. [00:08:23] Speaker 00: And that's enough on plain error. [00:08:25] Speaker 00: Particularly given that Ms. [00:08:27] Speaker 00: Rabin is, I think, about five months away from serving the complete 24-month sentence. [00:08:32] Speaker 00: and that she's done very well in custody, it is possible here that the court could have imposed one month shorter. [00:08:40] Speaker 00: Unless the court has further questions, I'll reserve the remainder of my time. [00:08:45] Speaker 01: Thank you. [00:08:56] Speaker 02: Good morning, Your Honors, and may it please the court. [00:08:59] Speaker 02: Interchain for the United States the government has a different interpretation of the record and let me try to persuade the court Why the court the district judge below did not commit plain error? [00:09:11] Speaker 02: the record of this case shows that what the judge did was it considered the lower replication range of three to nine months varied up to a 24-month sentence and then explained why that 24-month sentence was proper and [00:09:24] Speaker 02: Now, I will be the first to admit that the record is not a model of clarity. [00:09:29] Speaker 02: And there are some ways it's not clear. [00:09:32] Speaker 02: But I think it is very clear in the most important respect, which was that the judge was varying up from a lower range and not varying down from a higher range. [00:09:41] Speaker 02: And the reason I say that is this. [00:09:43] Speaker 02: If you just look at what the judge said to Ms. [00:09:46] Speaker 02: Rabin as he was imposing sentence, he said, you know, I'm very disappointed to see you back again. [00:09:52] Speaker 02: And that's an understatement. [00:09:53] Speaker 02: You've squandered this extraordinary opportunity I've given you. [00:09:56] Speaker 02: The things you told me before were not true. [00:09:59] Speaker 02: And also, it's now time for me to punish you. [00:10:01] Speaker 02: And he said one more thing that I think is important, and that's in ER 21. [00:10:06] Speaker 02: And what he said was, I'm not going to give you the benefit that I gave you before. [00:10:11] Speaker 02: And the benefit that he gave her before was a lenient, below-guidelines sentence. [00:10:17] Speaker 02: And what he's telling Ms. [00:10:18] Speaker 02: Rabin is, I'm not going to give you another lenient below-guidelines sentence. [00:10:23] Speaker 02: And that only makes sense if the judge was going up from a lower range. [00:10:28] Speaker 04: But then we've got the problem of he never actually articulated what the lower range was, did he? [00:10:34] Speaker 04: I mean, it's referenced arguably in the report that's in the record, but did he ever say three to nine months? [00:10:45] Speaker 04: He never said that, Your Honor, but... Well, isn't that the problem? [00:10:50] Speaker 04: Things have evolved. [00:10:51] Speaker 04: Since we got hit with this, when Booker came along and made the guidelines advisory, not mandatory, Justice Breyer, wanting to save as much of his work in the sentencing reform effort as he could, helped lead the court to a regime whereby you've got to calculate the guidelines, announce them, and start from there. [00:11:15] Speaker 04: And that's perhaps the edge is a little off that with the passage of time, but that was clearly stated in several Supreme Court cases. [00:11:25] Speaker 04: And so if we apply those standards, which concededly are on original sentencing, not on a probation violation, we never have that articulation by the district court or even articulated adoption of what the range that applies to the revocation of probation [00:11:46] Speaker 04: is, which we all agree is three to nine months. [00:11:50] Speaker 02: I will agree, Your Honor, that the district judge did not explicitly say three to nine months, but I think you can look at the record, and as Judge Lee indicated in furor, that that's what he did. [00:12:02] Speaker 02: This court in Micbel has recognized that if a judge looks at the probation report, it can be presumed that he considered the guidelines in that probation report. [00:12:13] Speaker 02: And I think the record really supports that that's what he did in this case. [00:12:16] Speaker 01: But here, I mean, I can't get away from what he said here in 1 ER 26 when he says, so the 24 months that I've imposed is an extraordinary variance from the low end of 57 months, which he thought was the earlier sentence. [00:12:31] Speaker 01: To me, it clearly seems like he decided he's going to go back to the original sentence, which wasn't accurate. [00:12:38] Speaker 01: And true, he didn't say 39 months, but I mean, [00:12:42] Speaker 01: Part of the problem sometimes, this judge here, he was a career prosecutor for like 30 years before going on the bench. [00:12:47] Speaker 01: So if you've done things so many times, sometimes you make the mistake of not spelling everything out. [00:12:54] Speaker 01: I think that's what he did. [00:12:54] Speaker 01: But it's clearly, to me, he's going back to the original sentence. [00:12:58] Speaker 01: Now then the issue comes to, it wasn't 57 months, it was 37. [00:13:05] Speaker 01: And it seems like the probation officer led him astray because I think she says 57 months, 57 to 71. [00:13:13] Speaker 01: Sure, 24 is lower than 57 and 37, but I mean, how do we know? [00:13:16] Speaker 01: Maybe he was lenient before, maybe he'll go below 24. [00:13:20] Speaker 01: I mean, shouldn't we remand that? [00:13:23] Speaker 01: And just assuming that it's, you know, he's starting from the 57 to 71 month. [00:13:30] Speaker 02: I want to go off the sort of assumption that you are saying, but if I could just push back one more time and just, you know, I want to urge the court to try to not divorce what he said from the context of the overall sentencing. [00:13:45] Speaker 02: If the court can accept the government's premise that he initially started at the lower range and then went up, when he mentioned that higher range, he was responding to an objection. [00:13:57] Speaker 02: that was made by the defendant about substantive reasonableness. [00:14:01] Speaker 02: And I think what he was really saying was, look, my sentence is substantively reasonable because it's lower. [00:14:09] Speaker 02: It's lower than the original guideline range. [00:14:12] Speaker 02: And yes, he used the word variance and he used the word departure, but I think you can interpret that as more of a rhetorical flourish in what he was saying. [00:14:20] Speaker 02: The point that he was trying to make was, [00:14:22] Speaker 02: My sentence is reasonable because it's lower than the original guideline range. [00:14:27] Speaker 02: And I think if you look at it through that lens, then it doesn't really matter if he used the right guideline range or the wrong guideline range, because his overall point was that it's just lower. [00:14:38] Speaker 02: And that would have been the same, regardless of whether the correct or incorrect guideline was used. [00:14:44] Speaker 01: Let's just assume I take your point. [00:14:46] Speaker 01: Assuming that he relied on the original sentence. [00:14:49] Speaker 01: Shouldn't we remand it? [00:14:51] Speaker 01: It could make a difference, 57 months low end versus 37 months. [00:14:55] Speaker 02: I don't think it would make a difference, Your Honor. [00:14:57] Speaker 02: First, you know, I don't think it's plain error because I think if there's competing interpretations of what happened, you know, is the interpretation that he was going off of a higher guidelines range, was that obvious? [00:15:07] Speaker 03: uh... that was happening i don't think it was but assume it is he he he says twice on the page that judge lee has cited you to that but it looks like he was misled by uh... by officer uh... pearson [00:15:20] Speaker 03: because on on no one here nineteen uh... she says she's looking at the time of sentencing i'd believe it was fifty seven to seventy one months on the court takes it all in the mitigating factors time of sensing gives her probation case so that we've got the officer who's miss cited to the court and the court looks like it's just is just got it fixed in his head [00:15:39] Speaker 03: took it from there. [00:15:40] Speaker 02: The probation officer did state that, but I really don't think that the district judge had sort of the original guidelines in mind when he was imposing the sentence. [00:15:52] Speaker 02: Because if you look at what he was saying, he struggled to remember what those guidelines were. [00:15:57] Speaker 02: He asked counsel to correct him if he was misremembering. [00:16:01] Speaker 02: No one corrected him. [00:16:02] Speaker 04: He's done lots of cases since the first time this was in front of him. [00:16:05] Speaker 04: It's very easy to understand [00:16:09] Speaker 04: his uncertainty and how he could have been easily misled by the comment of the probation officer. [00:16:16] Speaker 04: But in this murky area, the problem is well, you know, how do we say good enough for government work or do we say no under the regime that the Supreme Court established for the voluntary or advisory guidelines that we really need to have the district court say it and how does it differ and this is the part that I've really struggled with and I'll be appreciative of guidance from both of you. [00:16:39] Speaker 04: This is not the same as original sentencing. [00:16:41] Speaker 04: The rules aren't quite the same for revocation. [00:16:45] Speaker 04: And should that make a difference here on what we require the district court to articulate as part of the sentencing process? [00:16:55] Speaker 02: Let me respond to your question, Judge Clifton, and then let me get to, I think, where the court is trying to take me, which is, is this really prejudicial? [00:17:04] Speaker 02: I think it is different in a probation revocation context. [00:17:08] Speaker 02: It's a much more streamlined process. [00:17:11] Speaker 02: And there really aren't that many calculations that are involved in a probation revocation. [00:17:16] Speaker 02: And so I think if a judge is relying on a probation report that accurately sets forth the revocation range, everyone is relying on it. [00:17:28] Speaker 02: No one disputes it. [00:17:29] Speaker 02: I don't think it's plain error in that context. [00:17:32] Speaker 02: sort of regime from when you're doing a routine sentencing, when there's a lot of calculations are involved, I think you want the judge to be able to mechanically follow the calculation. [00:17:43] Speaker 02: But it's just a different regime when you're doing probation replication. [00:17:47] Speaker 02: But I really want to get to, I think Judge Lee's question, which is, you know, is this prejudicial? [00:17:52] Speaker 02: And I don't think that it was. [00:17:55] Speaker 02: The defendant would still have to show a reasonable probability that if the judge was thinking about the correct guideline that she would have received a lower sentence, and I don't think that she can show that. [00:18:07] Speaker 02: The 24-month sentence was still well below both the correct and incorrect range of the original guideline range, and there was nothing that the judge said that indicated that it was tethered. [00:18:19] Speaker 02: His sentence was tethered to the guideline range at all. [00:18:22] Speaker 02: I mean, he said that it was tethered to the need to punish her, her numerous violations of probation, [00:18:28] Speaker 02: the things that she told him were not true. [00:18:32] Speaker 02: He also characterized it as woefully inadequate. [00:18:35] Speaker 02: And so I think just common sense would indicate that if a judge is thinking about applying a guideline, he's not going to call it woefully inadequate. [00:18:46] Speaker 02: So I just don't think that that higher range was really doing all that much work in the analysis. [00:18:54] Speaker 02: And I want to very quickly, I know I'm out of time, but if I could just really get out why the court, if it does find prejudicial error, why it should not correct it under prong four of plain error review. [00:19:09] Speaker 02: This is a defendant that had received break after break from the judge, the prosecutor involved, the probation officer. [00:19:18] Speaker 02: You know if the judge had just imposed custodial time at the very beginning at the original sentencing The defendant wouldn't have been able to appeal because there would have been an appellate waiver But she violated probation, and then there are some technical violations technical allegations of how the judge may have aired But the judge asked you know a defense counsel. [00:19:39] Speaker 02: You know am I miss miss remembering it might have I done anything wrong and [00:19:43] Speaker 02: Council said nothing. [00:19:45] Speaker 02: So I just don't think that this is a case that would promote or increase the public reputation of sentencing if the court exercises discretion to correct it. [00:19:55] Speaker 02: Thank you. [00:19:56] Speaker 02: Thank you. [00:20:04] Speaker 00: So Judge Clifton, I'll start with the part of the case you're struggling with about the unusual role that revocations play in this overall scheme. [00:20:13] Speaker 00: So this court in Hammons addressed this exact point and that was a supervised release revocation case under this very same guideline policy statement as issued here. [00:20:24] Speaker 00: And it said there were two plain errors there. [00:20:27] Speaker 00: The first was the district court did not calculate the guideline range. [00:20:31] Speaker 00: And the second was that it looked like the court had relied on the wrong criminal history. [00:20:36] Speaker 00: And then this court said that, quote, both of these errors clearly satisfy the first two prongs of the plain error analysis. [00:20:42] Speaker 00: That's at 1105 of that case. [00:20:45] Speaker 00: And that's consistent with what this court clarified in Cardy on Bonk, which came after McVeil. [00:20:50] Speaker 00: which said, quote, all sentencing proceedings are to begin by determining the applicable guideline range. [00:20:56] Speaker 00: That's, you know, all. [00:20:58] Speaker 00: And that was interpreting 3553C, which applies to all sentencings, both revocation and underlying. [00:21:06] Speaker 00: I'll say the fundamental problem with the government's argument that the court was varying up is that the only thing the court said was that, [00:21:16] Speaker 00: It was imposing quote, an extraordinary variance from the low end of 57 months that was bearing down. [00:21:23] Speaker 00: So on this record, this court should remand for the district court to clarify. [00:21:26] Speaker 01: Thank you. [00:21:28] Speaker 01: Thank you both for the helpful argument. [00:21:30] Speaker 01: The case has been submitted and we are in recess for the day. [00:21:52] Speaker 00: This court for this session stands adjourned.