[00:00:09] Speaker 04:
Good morning, Your Honors.

[00:00:10] Speaker 04:
My name is Danny Yadrin with Federal Defenders of San Diego on behalf of Mr. Torres.

[00:00:14] Speaker 04:
I will try to keep track of my own time for rebuttal.

[00:00:18] Speaker 04:
The District Court failed to make Section 3C1.2's required finding that Mr. Torres put a specific person at a substantial risk of serious bodily injury, merely citing his speed is insufficient.

[00:00:30] Speaker 04:
100 miles an hour, right?

[00:00:31] Speaker 04:
Yes, your honor.

[00:00:32] Speaker 04:
At some point, we don't know for how long or where exactly on I-5, which is a six to eight lane highway in the San Diego area.

[00:00:40] Speaker 04:
The district court also punished Mr. Torres for declining to speak to prosecutors.

[00:00:45] Speaker 04:
So for those two reasons, this court should vacate and remand.

[00:00:48] Speaker 04:
I'm hearing interest in the guidelines issue, so I will begin with that.

[00:00:52] Speaker 04:
It's important to recognize what is not in dispute here.

[00:00:54] Speaker 04:
It is not in dispute that Mr. Torres, at some point, violated the standard of care.

[00:01:00] Speaker 04:
What is in dispute is whether those actions put a specific person at a substantial risk of serious bodily injury, a term of art under the guideline.

[00:01:09] Speaker 04:
That is a high bar that the district court did not even bother to consider.

[00:01:12] Speaker 04:
He hit a car, right?

[00:01:14] Speaker 04:
He made contact with a car.

[00:01:15] Speaker 04:
That was occupied, right?

[00:01:17] Speaker 04:
It was, Your Honor, but the occupant declined to seek restitution.

[00:01:20] Speaker 02:
So go on 100 miles an hour on I-5 and then later hitting an occupied car is not reckless conduct?

[00:01:28] Speaker 04:
As sort of the judge can't find that's reckless conduct The order was reversed your honor, so he there was contact with the vehicle on the way out of the parking lot and then yes Okay, at some point.

[00:01:39] Speaker 03:
I just want to be straight factual or legal The argument is legal so in Goskar reads this court sitting in bond you're accepting the facts in paragraph 37 the hit the speeding the police chase even the inference of bystanders and

[00:01:54] Speaker 03:
All the facts are accepted.

[00:01:55] Speaker 03:
Your argument is there was legal error?

[00:01:58] Speaker 03:
Not the inference of bystanders.

[00:02:00] Speaker 04:
But the rest of the facts you accept?

[00:02:02] Speaker 04:
As stated in the PSR, yes.

[00:02:04] Speaker 04:
And we objected below for the guidelines application.

[00:02:08] Speaker 04:
So in Gaspariz, this court held that when a district court announces a rule that doesn't engage with the facts of a case but merely says one commonly seen fact warrants a guidelines enhancement, that is a legal ruling that this court reviews de novo.

[00:02:21] Speaker 04:
And so it gave the example, in Gaspar Ruiz, of a defendant saying, I have a gun, and does that warrant the threat of death enhancement?

[00:02:30] Speaker 04:
as a very common fact pattern.

[00:02:32] Speaker 04:
And that's a legal ruling.

[00:02:33] Speaker 04:
That's interpreting the guideline.

[00:02:35] Speaker 04:
And so too here.

[00:02:37] Speaker 04:
The district court, instead of engaging with the facts of this case, and there really weren't any facts to engage with, unlike any of this other court's 3C1.2 jurisprudence, we have no dash cam video, we have no descriptions of changing lanes, we have no descriptions of how Mr. Torres made contact with this vehicle.

[00:02:54] Speaker 04:
We don't have any of those facts.

[00:02:57] Speaker 04:
And so the district court merely made an assumption

[00:02:58] Speaker 04:
if you make contact with a vehicle or if you hit 100 miles per hour at some point on I-5, this enhancement applies.

[00:03:07] Speaker 03:
But if you mentioned changing lanes as one that could justify it, why isn't 100 miles an hour equivalent to changing a lane?

[00:03:12] Speaker 03:
They're both reckless.

[00:03:15] Speaker 03:
It's not... How do you distinguish a vastly over speed limit drive from a changing of a lane?

[00:03:21] Speaker 04:
I did not mean to suggest that if changing lanes on its own justifies the enhancement.

[00:03:28] Speaker 04:
In cases like Brewster, Brewster actually provides a really helpful contrast.

[00:03:33] Speaker 04:
So in Brewster, the defendant also hit 100 miles per hour.

[00:03:36] Speaker 04:
He then proceeded to make several unlawful lane changes.

[00:03:41] Speaker 04:
Cars had to stop to avoid accidents.

[00:03:44] Speaker 04:
The defendant actually eventually crashed, and a car had to stop at an intersection to avoid hitting the defendant.

[00:03:50] Speaker 04:
And when this court held that the enhancement applied, it didn't even mention that the defendant hit 100 miles per hour.

[00:03:56] Speaker 04:
It cited all of this very reckless driving that impacted specific identifiable motorists.

[00:04:03] Speaker 00:
What about the fact that the police themselves judged they couldn't continue the chase because it would be too dangerous?

[00:04:10] Speaker 04:
That was an assumption that the district court made with no reference in the record.

[00:04:14] Speaker 04:
The PSR merely stated that

[00:04:15] Speaker 04:
At some point, Mr. Torres hit him 100 miles per hour and police gave up the chase.

[00:04:20] Speaker 04:
This is not a case like Brewster or Young or Luna where the officers were worried about the moves that they had to be making on the road.

[00:04:28] Speaker 04:
And what really set this record is so threadbare compared to cases where this court usually affirms the enhancement.

[00:04:34] Speaker 02:
What if it was 120?

[00:04:37] Speaker 04:
That actually gets to my point, Your Honor, is instead of the district court making findings about what motorists were impacted here, it creates this impossible line drawing situation.

[00:04:46] Speaker 02:
Well, is there any number that's big enough by itself?

[00:04:51] Speaker 02:
Merely assuming speed, no.

[00:04:54] Speaker 02:
So I'm just having trouble with that because I assume the speed limit on I-5, maybe it's in the record, is 55.

[00:05:01] Speaker 02:
That's not even in the record.

[00:05:03] Speaker 02:
Okay, well, it's got to be about that number.

[00:05:07] Speaker 02:
can take judicial notice of whatever it is.

[00:05:11] Speaker 02:
So he's going almost twice that speed limit just from common experience.

[00:05:17] Speaker 02:
Going on an interstate at 100 miles an hour is just inherently dangerous.

[00:05:23] Speaker 02:
It's just hard for me to understand, especially when combined with the police chase and hitting a car, how that isn't enough by itself.

[00:05:30] Speaker 02:
I mean, I could see a point if we were talking about

[00:05:34] Speaker 02:
60 miles an hour or 70 miles an hour, but 100 is just such a big number on an interstate.

[00:05:40] Speaker 04:
I hear your point, Your Honor, but you just gave my answer for me, and that is if 100 miles per hour without looking at anything else that's going on in the road is okay, why not 70 miles per hour if it's technically speeding?

[00:05:51] Speaker 02:
Well, I mean, I don't want to be facetious in an important case, but, you know, you could channel your inner Justice Stewart and say you know it when you see it when it's 100.

[00:06:03] Speaker 04:
It is a formalist argument, Your Honor, but again, instead of making these sorts of tough line drawing exercises on an appellate review, the simpler solution is just for the government to present evidence at sentencing.

[00:06:15] Speaker 03:
It may be a Ninth Circuit law, but the relief you ask for citing Young is to remand to have these facts elucidated.

[00:06:23] Speaker 03:
That's slightly surprising to me because that gives the government the second bite.

[00:06:27] Speaker 03:
If you're prevailing, the government can just get these extra facts, find out who the people were in the car that was hit, they get a second shot.

[00:06:34] Speaker 03:
That is the nature of sentencing appeals.

[00:06:36] Speaker 03:
There would be a remand for re-sentencing.

[00:06:38] Speaker 03:
If the government fails to prove the enhancement, the government gets another chance?

[00:06:45] Speaker 04:
This case is a little tricky, Your Honor, because the government actually cannot prove this enhancement up because it was barred by the plea agreement.

[00:06:52] Speaker 04:
So the district court would have to hold an evidentiary hearing.

[00:06:55] Speaker 04:
Officers would have to take the stand, and they could assess what conditions were on the road or how the contact was made with the vehicle.

[00:07:02] Speaker 03:
OK, remind me.

[00:07:04] Speaker 03:
So the plea agreement specified the government would stay silent or that the government would oppose the enhancement?

[00:07:09] Speaker 03:
It would stay silent.

[00:07:09] Speaker 04:
The government would only argue for certain enhancements that were specified in the plea agreement.

[00:07:13] Speaker 04:
And to the government's credit,

[00:07:15] Speaker 04:
It did not argue for this enhancement at sentencing.

[00:07:18] Speaker 04:
This was the district court acting suespante.

[00:07:21] Speaker 03:
Well, that leads sort of into the second issue, because that sort of explains why the judge was very skeptical and needed to probe the plea agreement, what you call a Mitchell violation.

[00:07:30] Speaker 03:
In fact, the court is thinking, wait, the government, you're not being truthful in sentencing here.

[00:07:34] Speaker 03:
You can't negotiate away facts.

[00:07:36] Speaker 03:
So if reckless endangerment is there, you've got to tell us what the facts were.

[00:07:40] Speaker 03:
That's how I read the second issue, was the court is beginning to get suspicious

[00:07:45] Speaker 03:
that the government is trying to induce a plea by denying facts that exist.

[00:07:49] Speaker 04:
That's not how that exchange came up in the record, Your Honor.

[00:07:53] Speaker 04:
So this is from ER 29 to 32.

[00:07:56] Speaker 04:
The district court was going through, beginning at 3553A analysis, and it mentioned offhand that it's unclear how long Mr. Torres had been involved in drug smuggling, but it must have been some amount of time.

[00:08:07] Speaker 04:
And the prosecutor, to his credit, then stood up and said, no, Your Honor, we actually don't know that as far, this was our only interaction with Mr. Torres.

[00:08:16] Speaker 04:
There was not some ongoing investigation here.

[00:08:19] Speaker 04:
And then that is when the district court, despite the government already telling the district court in its papers that Mr. Torres had not done a safety valve debrief, started to press the prosecutor.

[00:08:29] Speaker 04:
Well, was there a debrief?

[00:08:31] Speaker 04:
And repeatedly asked, was there not?

[00:08:33] Speaker 04:
Why not?

[00:08:33] Speaker 04:
And that echoes Mitchell, which was also a drug case.

[00:08:37] Speaker 02:
the district court later said that the reason he said about the debrief was because this premeditation was important to him and he wanted to find out if the defendant had said anything to the government that would inform him as to premeditation.

[00:08:55] Speaker 02:
I mean, that's what he said, right?

[00:08:57] Speaker 04:
He said, he did say that, but the district court also said in laying out the aggravating and mitigating factors,

[00:09:03] Speaker 04:
I have that in mind that Mr. Torres did not speak to prosecutors.

[00:09:06] Speaker 02:
Well, he had something in mind.

[00:09:10] Speaker 02:
I have the transcript, but he said I have something in mind.

[00:09:15] Speaker 02:
But when I read the transcript initially, it seemed to me that he was very annoyed at the AUSA.

[00:09:21] Speaker 02:
He was later very annoyed at the probation officer.

[00:09:25] Speaker 02:
And I'm not sure if this is what Judge Higginson was saying, but it struck me.

[00:09:29] Speaker 02:
that he was unhappy that a representative of the United States, in his view, was hiding the ball as to some facts here.

[00:09:38] Speaker 02:
And I thought he was telling the AUSA, you know, I have that in mind.

[00:09:43] Speaker 04:
That is not the most natural reading of the transcript where you have the district court balancing aggravating and mitigating factors.

[00:09:49] Speaker 03:
If we don't see an objection preserved as to the fifth amendment issue,

[00:09:52] Speaker 03:
Do you have a plain error reversal based on Mitchell case that you can cite where the circuit court reversed a sentencing for a Mitchell violation, even if it wasn't preserved?

[00:10:05] Speaker 04:
No, Your Honor, but under any standard of review, reversal would be required if this court finds a Mitchell violation.

[00:10:11] Speaker 04:
And that's because Mitchell has been the law of the land for decades.

[00:10:14] Speaker 04:
And under Tapia, this court's case, if the district court considers a factor that is unlawful at sentencing, that affects the defendant's substantial rights.

[00:10:23] Speaker 04:
And under Tapia, that consideration of an impermissible factor necessarily affects the integrity of the judicial proceedings.

[00:10:32] Speaker 02:
And we'll give you some extra time for rebuttal.

[00:10:34] Speaker 02:
Would it, is it at all relevant again if we find that there was no objection here to that statement but if there had been, then the district court could have said more what he meant.

[00:10:47] Speaker 02:
Does that matter that you have what you're contending as this obvious violation but there wasn't a specific objection but if there had been, the district court could have further explained what he did or didn't mean.

[00:11:02] Speaker 02:
Is that relevant at all?

[00:11:06] Speaker 04:
That's always an issue with sentencing appeals on plain error, but here the district court was very plain.

[00:11:11] Speaker 04:
Even if the district court, if given the chance, tried to put the genie back in the bottle, it can't undo a sentence he just imposed that was greater than anyone recommended.

[00:11:20] Speaker 02:
So if it was so plain, why wasn't there an objection by the defense counsel?

[00:11:23] Speaker 02:
Your Honor, you're punishing my client for deciding not to talk to the government.

[00:11:29] Speaker 02:
That's a violation of his constitutional rights.

[00:11:32] Speaker 02:
Can understand on the ground why somebody might not have wanted to say that to judge burns, but why why wouldn't?

[00:11:40] Speaker 02:
Why shouldn't the council council have said that I?

[00:11:43] Speaker 04:
Was not the council below I?

[00:11:46] Speaker 04:
Believe you gave my answer there all sorts of reasons why in the heat of a moment a trial counsel may not have objected right?

[00:11:53] Speaker 02:
We'll give you two minutes for rebuttal and we've taken up a lot of your time with questions.

[00:11:58] Speaker 02:
Thank you

[00:12:06] Speaker 01:
Morning, Honors.

[00:12:07] Speaker 01:
May it please the Court.

[00:12:08] Speaker 01:
Peter Horn, the United States.

[00:12:11] Speaker 01:
Taking the first issue first, the reckless flight enhancement.

[00:12:16] Speaker 01:
I want to first address what Torres calls a threadbare record.

[00:12:21] Speaker 01:
These are undisputed facts reported in the PSR.

[00:12:25] Speaker 01:
About a hundred mile per hour chase, where, as Judge Sung's question recognized, Torres actually made it away from agents.

[00:12:32] Speaker 01:
They had to give up the chase.

[00:12:34] Speaker 01:
and that included a collision with an occupied car before he even approached those speeds.

[00:12:40] Speaker 01:
Those are undisputed facts that were covered twice and where the district court twice made appropriate findings.

[00:12:50] Speaker 03:
Before you sort of focus on the district court, I'm curious about the government's behavior here.

[00:12:53] Speaker 03:
Just a few procedural questions.

[00:12:55] Speaker 03:
You did or didn't object to the PSR, which I assume gave an enhancement.

[00:12:59] Speaker 01:
There was no objection to the PSR made by the government.

[00:13:01] Speaker 01:
So the government agreed

[00:13:02] Speaker 03:
tacitly at least that he shouldn't get the reckless and does the government's position under the plea agreement was that it would not seek this seek this enhancement would not seek it would that allows you to oppose it but you didn't because the facts in the law support it but you also can't approve of it because you've bargained that away

[00:13:25] Speaker 03:
Is that basically where the position you're in?

[00:13:27] Speaker 01:
I think that's fundamentally right.

[00:13:29] Speaker 03:
So I mean, I don't mean to be folks on niceties, but these plea agreements are delicate.

[00:13:33] Speaker 03:
In other words, if you're here urging affirmance of the district courts, is that in any tension with the plea agreement that you would stay silent?

[00:13:41] Speaker 01:
In the government's view, no.

[00:13:43] Speaker 01:
And under the plea agreement, it's just silent on the enhancement.

[00:13:48] Speaker 01:
And so the government is not able to advocate for it.

[00:13:52] Speaker 03:
The enhancement is specified, and you say you'll stay silent.

[00:13:56] Speaker 03:
I've never quite understood that's a precarious position to be in when probation is properly informing the district court of facts.

[00:14:03] Speaker 03:
And then the government gets in this, I thought, somewhat evasive dialogue, like where we're not denying the facts, but we aren't saying that it actually supports it.

[00:14:12] Speaker 03:
But anyway, you're now here defending the enhancement, correct?

[00:14:15] Speaker 01:
In our position is that it wasn't an abuse of discretion for the court to apply it based on these facts, and I don't know that the plea agreement actually specifies No position on it, but it would rule of law any even just the speeding anything over the speed limit would justify it or you heard us asking opposing counsel What do you can you articulate a rule of law for the future?

[00:14:36] Speaker 03:
How much do you need for us to affirm?

[00:14:41] Speaker 01:
The high-speed chase alone, as this court's and other circuits' decisions make clear, can be enough.

[00:14:49] Speaker 01:
It can be enough.

[00:14:50] Speaker 01:
A high-speed chase.

[00:14:51] Speaker 01:
And there's cases like Torres Lopez, White, Hicks, and the Seventh and Fourth Circuits that make that clear.

[00:14:58] Speaker 01:
A high-speed chase alone can be enough.

[00:15:00] Speaker 01:
Now, what speed exactly?

[00:15:03] Speaker 01:
Our position here is just at 100 miles per hour.

[00:15:06] Speaker 01:
That's more than enough.

[00:15:08] Speaker 01:
Add to that the collision with an occupied car, that's another fact, and a particular person put in danger.

[00:15:14] Speaker 01:
And going towards his point on that, that there wasn't a finding about a specific other person put in danger, that's not required.

[00:15:22] Speaker 01:
Brewster makes this clear, where the court assumed without deciding.

[00:15:28] Speaker 01:
It's sufficient, but it's not necessary.

[00:15:32] Speaker 01:
In this case, there's not only the occupant of the car in the parking lot, but this is I-5.

[00:15:38] Speaker 01:
Now, the record is not clear exactly how much traffic there was that morning, how traveled the road was.

[00:15:44] Speaker 01:
There doesn't need to be.

[00:15:45] Speaker 01:
And there are several cases where courts have affirmed the application of this enhancement.

[00:15:50] Speaker 01:
where there is in particular evidence on that.

[00:15:52] Speaker 01:
And in any event, as I believe Judge Bennis' questions went to, it's a fair assumption that on I-5, a major highway in the San Diego area, at 10.30 in the morning, there's going to be other people put in harm because of this.

[00:16:06] Speaker 03:
So I guess I won't beat a dead horse, but a little bit.

[00:16:09] Speaker 03:
These plea agreements are a little tricky and he was upset because here you've just said there's just an overwhelming amount of evidence to support the enhancement.

[00:16:17] Speaker 03:
People hit, police chasing, 100 miles an hour bystanders and that the government to get a plea has said it'll stay silent and then you end up in this predicament here.

[00:16:28] Speaker 01:
The record doesn't show exactly that it was to get a plea that the government was silent on this.

[00:16:34] Speaker 01:
It may well be a matter of plea negotiations and the guidelines the government was able to agree on in any event that parties agreed that they wouldn't seek it.

[00:16:42] Speaker 01:
Now, the government, could it have objected?

[00:16:45] Speaker 01:
Maybe so.

[00:16:46] Speaker 01:
No objection to the PSR was noted.

[00:16:48] Speaker 01:
But I think what the record shows at sentencing, in taking Your Honor's point about the district court's view of the AOSA there, is the prosecutor, I think the record shows, was being diligent, mindful of the plea agreement, and was being cautious.

[00:17:03] Speaker 01:
Was being cautious not to say things that might be interpreted as a breach of it.

[00:17:08] Speaker 01:
And when asked direct questions,

[00:17:10] Speaker 01:
gave direct answers and gave the court the answers it was seeking, including about the debrief with or the lack of a debrief with Torres.

[00:17:20] Speaker 01:
I can address that point unless.

[00:17:23] Speaker 03:
Would you say that was a stray comment?

[00:17:25] Speaker 03:
I'll keep it in mind.

[00:17:27] Speaker 03:
Or would you say it's perfectly kosher?

[00:17:30] Speaker 03:
It doesn't implicate Mitchell at all.

[00:17:32] Speaker 03:
In other words, are we saying it's not reversible error, but it's a mistaken statement?

[00:17:37] Speaker 03:
Or can a district judge say point blank to the defendant, I'm going to keep in mind that you didn't talk to the government.

[00:17:44] Speaker 03:
How do we write this if you prevail?

[00:17:46] Speaker 01:
This is first going to the standard review, plain error.

[00:17:49] Speaker 01:
I can talk about the reasons for that.

[00:17:51] Speaker 03:
I'm trying to get at the rule.

[00:17:52] Speaker 03:
Can district courts say, looking at a defendant, I'll keep in mind that you didn't talk to the government.

[00:17:58] Speaker 03:
And therefore, we'd be saying, OK, well, maybe it doesn't rise to plain error.

[00:18:01] Speaker 03:
It's a stray comment.

[00:18:03] Speaker 03:
Or is that within the court's arsenal of clarifying and confirming context?

[00:18:09] Speaker 01:
I think a straight comment is a fair way to put it, and another way I think of it is a one-off comment.

[00:18:15] Speaker 01:
It does not approach, and to your honest question, a court saying that they will keep in mind the silence and hold that against a defendant.

[00:18:27] Speaker 01:
Now, that raises an issue under Mitchell, under Safferstein.

[00:18:31] Speaker 01:
That's not what happened here.

[00:18:33] Speaker 01:
What happened here, the record shows, is the court was trying to get the full information, was trying to get all the facts, both about safety valve to make the right determination, and as it turned to the 3553A factors, asked these questions, I think the record shows, to try to get a full understanding of Torres's involvement.

[00:18:52] Speaker 01:
to try to make sure it had all the facts.

[00:18:53] Speaker 01:
And once it got the answer about lack of debrief, it briefly acknowledged that.

[00:18:59] Speaker 01:
That's an acknowledgement.

[00:19:00] Speaker 01:
Acknowledgement, recognition, okay, I have that in mind, there wasn't a debrief.

[00:19:04] Speaker 01:
And then it moved on.

[00:19:05] Speaker 01:
And it immediately moved on to other facts about the case, the nature of the offense,

[00:19:11] Speaker 01:
and Torres' own conduct.

[00:19:13] Speaker 01:
And that is what ultimately, based on the record, animated the court's consideration and ultimate sentence here.

[00:19:23] Speaker 01:
There is no indication that there is any further consideration of the lack of a debrief as the court reached 80 months under the 3553A factors.

[00:19:32] Speaker 01:
Certainly no indication that the court enhanced what was a significantly below guideline sentence

[00:19:40] Speaker 01:
what appears to have made a difference, it's reflected in pages of the transcript and at page 36 in particular, that where the district court recognized it was 10 months over the government's recommendation and what might have made a difference is if Torres hadn't basically used drugs while on bond.

[00:19:58] Speaker 01:
The district court was displeased with his conduct on bond.

[00:20:00] Speaker 01:
A couple of times, right?

[00:20:02] Speaker 02:
Was it a couple of times?

[00:20:05] Speaker 02:
A couple of times that the court... No, I mean the use of the

[00:20:09] Speaker 00:
Violation of the conditions was it a couple of things that he failed or one yes, it was I believe three different times I see that them Council when I read the transcript ultimately it seems ambiguous What the district court was referring to when he said I'll keep that in mind.

[00:20:30] Speaker 00:
It's it just is nonspecific He could have been referring to the thing he just said the whole thing

[00:20:35] Speaker 00:
grilling of the USA about whether there was a debrief.

[00:20:40] Speaker 00:
Honestly, in my opinion, it's just ambiguous.

[00:20:46] Speaker 00:
I can't tell.

[00:20:48] Speaker 00:
I've tried to look for guidance from

[00:20:51] Speaker 00:
our precedent about what to do in that situation.

[00:20:54] Speaker 00:
We have some unpublished cases where we've just remanded to the district court to say, can you please tell us what you're talking about or clarify what you're considering?

[00:21:03] Speaker 00:
Complicated in this case because the district court judge is retired.

[00:21:09] Speaker 00:
Do you have any thoughts on what the appropriate consideration is to do when we just cannot tell what the district court had in mind?

[00:21:17] Speaker 01:
If the court believes, can't quite tell, that means it's subject to reasonable dispute.

[00:21:24] Speaker 01:
It is not an obvious error, as the plain error standard requires.

[00:21:27] Speaker 00:
It's not.

[00:21:28] Speaker 00:
You have, so normally you're used to thinking of, you know, we find there is error, but that it wasn't plain, that that was as a legal matter, error.

[00:21:38] Speaker 00:
I think the problem is here is if it was actually a consideration

[00:21:46] Speaker 00:
the defendant's decision not to debrief, I think there's a fair argument.

[00:21:51] Speaker 00:
That is a plain error.

[00:21:53] Speaker 00:
The problem is more of a factual ambiguity versus a legal ambiguity.

[00:21:57] Speaker 00:
Do you have precedents saying where it's a factual ambiguity that can't be plain error?

[00:22:06] Speaker 01:
The Yijin Zhou case cited in the government's brief, that reflects

[00:22:11] Speaker 01:
where there's a dispute about some factual issue, that cannot be an obvious error under plain error review.

[00:22:19] Speaker 01:
The case is cited setting forth the plain error standard, too, where there's some reasonable dispute about a fact.

[00:22:27] Speaker 01:
That can't be obvious.

[00:22:28] Speaker 01:
That cannot be a plain error.

[00:22:32] Speaker 01:
Even less can Torres show the third and fourth prongs that he there's some reasonable likelihood.

[00:22:37] Speaker 01:
He could have received a lower sentence There is no indication of that in the record in fact as I mentioned a moment ago What seems to have I see I'm over time, but if I could address you wanted to just finish answering judge that even less contours

[00:22:52] Speaker 01:
meet the third and fourth prongs of Plain Air Review.

[00:22:56] Speaker 01:
So even if the court were to see some issue and consider remand, the third and fourth prongs answer the court's question too.

[00:23:06] Speaker 01:
Thank you.

[00:23:13] Speaker 04:
Thank you for the additional time, Your Honors.

[00:23:15] Speaker 04:
I will try to be brief.

[00:23:17] Speaker 04:
Whether or not the district court violated Mr. Torres' Fifth Amendment rights is a legal issue under bar.

[00:23:24] Speaker 04:
It is not a factual inquiry into the district court's mind.

[00:23:28] Speaker 04:
No Fifth Amendment case that I'm aware of treats it as a factual matter.

[00:23:33] Speaker 04:
Um, similarly, under Kouchables, a case also cited in our briefing, this court, you were talking about Judge Sung, if there's ambiguity in the district court's comments.

[00:23:42] Speaker 04:
And Kouchables says this court must assure itself that the district court did not violate Mr. Torres's Fifth Amendment rights.

[00:23:49] Speaker 04:
Now, Kouchables did involve a more ambiguous comment about burden shifting.

[00:23:53] Speaker 04:
But here, again, if you look at the context of the district court, where he's addressing 3553A factors, saying, I have that in mind, along with the dirty drug tests and the speeding.

[00:24:04] Speaker 04:
But on the other hand, this wasn't a very big drug smuggling run for our district, so I have that in mind too.

[00:24:09] Speaker 04:
And that parallel where he uses I have that in mind when talking about aggravating factors and mitigating factors shows that the district court was balancing 3553A factors.

[00:24:21] Speaker 00:
So if I ask the same question, from what I can tell, normally the district court's comments are ambiguous and we have our duty to verify that the district court had only the proper factors in mind.

[00:24:34] Speaker 00:
We've remanded for the district court to clarify what they meant.

[00:24:40] Speaker 00:
What do we do here now that the district court judge is retired?

[00:24:43] Speaker 04:
It would be a remand and decided to a different district judge who would give Mr. Torres a new sentencing, but Mr. Torres can't be punished merely because his sentencing judge decided to retire.

[00:24:54] Speaker 04:
On the guidelines enhancement, two quick points.

[00:25:01] Speaker 04:
The government alludes to cases from other circuits.

[00:25:04] Speaker 04:
There is not a case, I'm aware of, with an exception from one case from the Fourth Circuit, where a court in a published opinion held speed standing alone as a matter of law warrants the enhancement and appoints a nun in its briefing.

[00:25:18] Speaker 04:
Mr. Torres does not dispute that he made some poor decisions here.

[00:25:22] Speaker 04:
He merely seeks to have his sentence conform with the guidelines in the U.S.

[00:25:26] Speaker 04:
Constitution.

[00:25:27] Speaker 04:
Thank you for the extra time.

[00:25:28] Speaker 02:
All right, thank you.

[00:25:28] Speaker 02:
We thank counsel for their arguments.

[00:25:31] Speaker 02:
The case just argued is submitted and with that we'll move to the second case on the argument calendar, United States versus Viana Hernandez.