[00:00:00] Speaker 01:
Good afternoon your honors and may it please the court Leah Spiro for Darryl Reynolds I'll watch the clock and try and reserve four minutes for rebuttal The condition that bans mr. Reynolds from associating with any past felons Fails to meet the statutory reasonableness requirements both facially and as applied to him it sweeps in more than 20 million people regardless of what their offense was or how long ago was committed and

[00:00:28] Speaker 01:
It sweeps in one-time offenders and not just career offenders.

[00:00:32] Speaker 01:
It sweeps in people with offenses that bear no relation to Mr. Reynolds' own drug and gun crimes, including people who have given false testimony, committed wire fraud, shoplifting, unlawful reentry.

[00:00:46] Speaker 04:
What do we do with the fact that it's a standard condition?

[00:00:50] Speaker 04:
That is, the commission, the Sentencing Commission said, hey, you know, this is, we think it's important.

[00:00:57] Speaker 04:
You know, they put it in the guidelines.

[00:01:01] Speaker 04:
It's one of the standard conditions.

[00:01:03] Speaker 01:
A few responses, Your Honor.

[00:01:04] Speaker 04:
What do you do with that?

[00:01:05] Speaker 01:
First, there are no standard conditions under the statutory scheme.

[00:01:09] Speaker 01:
Congress created mandatory conditions, and everything else is discretionary.

[00:01:14] Speaker 01:
And under the statute, the district court has to consider.

[00:01:18] Speaker 01:
Right.

[00:01:19] Speaker 04:
I saw that.

[00:01:20] Speaker 01:
Right.

[00:01:20] Speaker 04:
But the commission has some, you know, I call it a policy statement or whatever, they, in their infinite wisdom, said this is a permissible, you know, it should be a standard condition of revised release.

[00:01:37] Speaker 04:
I just can't figure out what to do with that.

[00:01:39] Speaker 01:
The sentencing commission has never justified this condition, and so the government has pointed to the probation office's report on this condition.

[00:01:49] Speaker 01:
And what it does is it conflates current criminals who are banned by the companion condition that says someone may not associate with anyone currently engaged in criminal activity.

[00:02:01] Speaker 01:
It conflates those individuals with people with past felony convictions.

[00:02:05] Speaker 01:
And it treats the two conditions, the current criminal condition and the past felon condition, as both addressing the same concern.

[00:02:15] Speaker 01:
that the defendant will be hanging out with people who will influence them to recidivate.

[00:02:21] Speaker 01:
We will admit that's true of the current criminal ban.

[00:02:24] Speaker 01:
Mr. Reynolds has not opposed that ban.

[00:02:26] Speaker 01:
But that is not true of the past felon ban.

[00:02:30] Speaker 01:
And it's contrary to what this court has already said in Napoli and in United States versus TM, both of which we've cited.

[00:02:38] Speaker 01:
And I think there are two important points from Napoli that go to

[00:02:44] Speaker 01:
the timing of a past felony and the type of a past felony.

[00:02:49] Speaker 01:
Those are two nexus problems.

[00:02:51] Speaker 01:
So the first point in Napoli is that a past crime has no indication of current criminality.

[00:03:00] Speaker 01:
The court said that in Napoli in terms of the ban on associating with misdemeanance, and then it said that in... Just one second, though.

[00:03:09] Speaker 04:
Let me just ask you about misdemeanors.

[00:03:12] Speaker 04:
You think misdemeanors are different than felonies?

[00:03:15] Speaker 01:
They are in several respects, but not in respects to determining whether someone poses a current risk of criminality.

[00:03:25] Speaker 01:
So misdemeanors are different in terms of they are less severe crimes.

[00:03:30] Speaker 01:
And so sentences are longer for felonies.

[00:03:33] Speaker 01:
Felonies can usually be counted at future sentencing hearings.

[00:03:38] Speaker 01:
Felonies carry

[00:03:40] Speaker 01:
punishment that is tied to the fact that the offense has been committed.

[00:03:44] Speaker 01:
So sometimes there's disenfranchement rights or other rescinding of rights based on the past conduct.

[00:03:51] Speaker 01:
But felonies are no different in terms of the fact that once they've become stale, they're no longer determinative of current risk.

[00:04:00] Speaker 01:
And that's what the court said in United States versus TM.

[00:04:05] Speaker 01:
the cases that have followed TM.

[00:04:07] Speaker 01:
We cited one, but there are others as well.

[00:04:10] Speaker 04:
Let me ask you this.

[00:04:11] Speaker 04:
Suppose that the district court said, yeah, I think you're right, but you know, he's got a terrible record.

[00:04:18] Speaker 04:
And I'm going to narrow this down to, we're going to say he can't associate with anybody who's been convicted of a felony within the past five years.

[00:04:29] Speaker 04:
Would that satisfy your concerns?

[00:04:34] Speaker 01:
that is closer, that's better tailoring, but it's our position that it still needs more tailoring, including the type of offense.

[00:04:42] Speaker 01:
The government has made no argument that someone who committed wire fraud or insider trading would be likely to influence Mr. Reynolds to recommit a drug or a gun crime or would lead him into a new path of white collar crime.

[00:04:58] Speaker 03:
What was Mr. Anderson's prior conviction?

[00:05:02] Speaker 01:
I believe it was a drug offense and he was arrested for a drug offense on the same night that mr. Reynolds was This wasn't a wire offense Right, right.

[00:05:14] Speaker 01:
Mr. Anderson was not a white-collar criminal and so we think there needs to be offense type taken into consideration there needs to be the timing because

[00:05:26] Speaker 01:
To your point, Judge Pai, as the government's only statistics at most show a recidivism risk for the first five years after release of a past felon, which is typically the time that they're on supervised release anyway.

[00:05:42] Speaker 02:
Is there any other circuit that's considered this particular discretionary condition in the US sentencing guidelines?

[00:05:52] Speaker 01:
No.

[00:05:53] Speaker 01:
This is the first time there has been a

[00:05:57] Speaker 01:
substantive statutory reasonableness challenge to this felon ban.

[00:06:04] Speaker 01:
This court considered a vagueness challenge in the King case, which it rejected, but that, of course, is very different grounds.

[00:06:12] Speaker 01:
But otherwise, there has not been this sort of challenge that's been considered and that's been addressed in any substantive way.

[00:06:22] Speaker 04:
So your argument is, as I understand it from reading the briefs and whatnot, is that

[00:06:26] Speaker 04:
You're not challenging a district court's sentencing authority to impose such a condition, but it just needs to be more specific, tailored to the particular defendant and his or her background, I guess.

[00:06:48] Speaker 04:
Is that right?

[00:06:48] Speaker 04:
You're not making a full-on assault, are you?

[00:06:53] Speaker 01:
No.

[00:06:54] Speaker 01:
Court is going to use a prior conviction as a proxy for the risk to the defendant then the court has to consider what time frame of of the you know a felon is really relevant and it has to consider the offense type and We think that the court should also take into consideration the overlap with the current criminal ban which does

[00:07:24] Speaker 03:
a lot of the work that the government says the past fell in band.

[00:07:36] Speaker 01:
Note, the possibility of exceptions to the ban does not narrow it in any meaningful way.

[00:07:45] Speaker 01:
And I would point the court to the decision in Wolfchild, which explains when the possibility of exceptions by a probation officer can be taken into consideration.

[00:07:56] Speaker 01:
And it said it only comes into play if the ban is reasonable and justified to begin with.

[00:08:03] Speaker 01:
And there's two decisions by this court that are very helpful to set out those parameters.

[00:08:08] Speaker 01:
So there's Lacoste and then the Reardon decision, and they both involve internet bans.

[00:08:15] Speaker 01:
And one found that it was impermissible despite possible exceptions, and the other upheld it.

[00:08:21] Speaker 01:
So in Lacoste, the court rejected an internet ban because the defendant's offense was only tangentially related to internet use.

[00:08:31] Speaker 01:
And so the court said that,

[00:08:33] Speaker 01:
And a ban against internet use was not reasonably related, and so the possibility of exceptions made no difference, and the ban had to be rejected as overbroad.

[00:08:44] Speaker 01:
But then in Reardon, the court upheld the ban because internet use was integral to the child pornography offense.

[00:08:54] Speaker 01:
And so the ban the court found was reasonable to begin with, especially because there was the possibility of exceptions.

[00:09:02] Speaker 01:
A felon ban against all felons, no matter what their crime, no matter how long ago it was committed, can't be rendered reasonable just because a probation officer could make a few exceptions to it.

[00:09:16] Speaker 03:
The facts in this case are that Mr. Reynolds was found with a substantial amount of methamphetamine and Mr. Anderson had been convicted for drug use and drug trafficking.

[00:09:31] Speaker 01:
I just want to get the facts straight.

[00:09:33] Speaker 01:
Yes, absolutely.

[00:09:35] Speaker 01:
Two points on that.

[00:09:36] Speaker 01:
First of all, Mr. Anderson was the only felon in the entire record who is identified as a problem to Mr. Reynolds' rehabilitation.

[00:09:45] Speaker 01:
The court could certainly ban Mr. Reynolds from associating with Mr. Anderson, but that's not what this felon ban does.

[00:09:53] Speaker 01:
It is so much broader than that.

[00:09:55] Speaker 01:
And then second... Well, you know, the district court said, well, wait a minute.

[00:09:58] Speaker 04:
He's got a terrible record.

[00:10:01] Speaker 04:
He's got just a history of one crime after another, other than drugs as well.

[00:10:07] Speaker 01:
That speaks to the need for close supervision.

[00:10:10] Speaker 01:
We do not argue against that.

[00:10:13] Speaker 01:
But there are 30 other conditions that do that.

[00:10:16] Speaker 01:
And so there's the special search condition, financial monitoring, reporting to probation, living in an approved location with an approved roommate.

[00:10:25] Speaker 01:
accepting unannounced visits from probation.

[00:10:28] Speaker 01:
The government has yet to explain how this fell in ban.

[00:10:33] Speaker 01:
Does anything additional that is needed on top of these 30 other conditions in order to monitor

[00:10:41] Speaker 01:
Mr. Reynolds and certainly we don't allow for conditions.

[00:10:46] Speaker 04:
I mean, I can't remember, you know, off the top of my head.

[00:10:49] Speaker 04:
I'd have to go back and look at the transcript.

[00:10:55] Speaker 04:
But the defense counsel say, you know, we, you know, in the second sentencing when it got sent back down, did the defense counsel say we object to this and it's just too broad, but we could live with something more narrow?

[00:11:11] Speaker 04:
And here's what we think would work.

[00:11:14] Speaker 01:
My response to that is we did argue that there were ways to narrow it.

[00:11:20] Speaker 01:
And we identified that in our briefing.

[00:11:22] Speaker 01:
And the burden is on the government to justify it.

[00:11:25] Speaker 01:
So it's our position that the defendant doesn't need to offer narrower conditions.

[00:11:32] Speaker 01:
That's what this court has said.

[00:11:34] Speaker 01:
In Wolfchild, in other, in Napolu, it's not on the defendant.

[00:11:38] Speaker 01:
to shape an over-broad condition into one that would be appropriate.

[00:11:43] Speaker 01:
The burden always lies with the government to justify the reasonableness and the breadth of the condition.

[00:11:49] Speaker 04:
So I gather the probation officer could propose to the district court an appropriate or a more limited or tailored condition.

[00:11:59] Speaker 04:
Is that right?

[00:12:00] Speaker 04:
Certainly.

[00:12:01] Speaker 04:
Well, I mean, you know, it does concern me that

[00:12:05] Speaker 04:
You know, you don't want to put too much burden on the... I hate to say this, but the district court judges have to have a checklist to make sure they're doing everything right.

[00:12:15] Speaker 04:
Right?

[00:12:15] Speaker 01:
Well, most originates from the PSR and the probation office.

[00:12:20] Speaker 01:
And so I think the onus is really on the government and the probation office to craft different bans on what... If I remember correctly, the probation officer was in court at the time.

[00:12:35] Speaker 04:
And the judge pointed to her and said, well, he asked her a question about this, I think.

[00:12:40] Speaker 01:
Yes, the judge asked about exceptions for family members.

[00:12:43] Speaker 01:
And the probation officer wasn't even willing to consider that at this point until Mr. Reynolds is released from prison.

[00:12:50] Speaker 02:
OK.

[00:12:50] Speaker 02:
So here's a question I have from the perspective of the district court judges.

[00:12:57] Speaker 02:
They're sentencing this person now.

[00:13:01] Speaker 02:
They're sentencing him to 10 years.

[00:13:05] Speaker 02:
and he has this horrible history of crime.

[00:13:09] Speaker 02:
What he wants to make sure is that when he gets out, nine or ten years later, you know, depending on what happens in prison, that someone's making that judgment then based on the circumstances that exist at the time.

[00:13:25] Speaker 02:
Like say he's going into a reentry program, well then the probation officer will say, of course you're going to be with other known felons, and so you may participate in this reentry.

[00:13:39] Speaker 02:
And if at that time he's getting along with his sister and wants to live with his sister, the probation officer could make that, or perhaps the sister's even no longer with us.

[00:13:51] Speaker 02:
We don't know.

[00:13:52] Speaker 02:
So to me, it's like a belt and suspender kind of thing that the district court puts on to make sure that someone who is aware of all the circumstances at the time

[00:14:07] Speaker 02:
of the release and when the supervised release, which is only for five years, is, I mean, that's a long time.

[00:14:14] Speaker 02:
But, I mean, it's not lifetime supervised release with these conditions.

[00:14:18] Speaker 02:
And furthermore, at the time, he could always make a motion to, for the district court to modify certain conditions if the circumstances were such that they should be modified at that period of time.

[00:14:32] Speaker 02:
It seems to me striking a discretionary

[00:14:37] Speaker 02:
consideration may not be the route to really getting to what we want to do, which is individualized sentencing based on the circumstances at the time.

[00:14:47] Speaker 01:
Everything your honor is suggesting could be done starting with an appropriately narrow ban on certain group associations.

[00:14:57] Speaker 01:
So the district court needs to start in conjunction with the probation office with a much smaller universe of offenders.

[00:15:06] Speaker 01:
potentially those who are five years out of prison and Some those who have committed offenses that are at least reasonably related to the defendant's offense

[00:15:18] Speaker 01:
That would suffice and then I agreed that the probation officer can make individual decisions about Should certain people be excluded should?

[00:15:27] Speaker 01:
the group that is part of the offender rehabilitation program be accepted those small decisions can be made but we have to start with a much smaller ban and just to keep a sense of this, you know probation officers are very overwhelmed and

[00:15:46] Speaker 01:
Their voicemail boxes are full.

[00:15:49] Speaker 01:
They are monitoring so many defendants that this is not some agile system where a defendant can simply get their probation officer on the phone and tweak the condition and get an exception.

[00:16:01] Speaker 01:
This process takes a while and is quite onerous for the probation department.

[00:16:06] Speaker 01:
So to start from,

[00:16:08] Speaker 01:
Entire felon ban and expect the probation officer to make exceptions from there I think is very unrealistic and unfair to the probation officer so I shouldn't the defenders object at the time and tell the district court Here's how it should be fashion in this case.

[00:16:24] Speaker 02:
I Mean this is discretionary.

[00:16:26] Speaker 02:
It's not you know mandatory felon ban Right but the

[00:16:34] Speaker 01:
The government has to show it's reasonable, and the district court has a statutory duty to make it reasonable.

[00:16:40] Speaker 01:
And so, yes, it's helpful if defense counsel helps fashion the ban, but that burden is simply not on defense counsel.

[00:16:48] Speaker 02:
Or at least object to the standard ban and give specific reasons.

[00:16:53] Speaker 01:
Right, which we did here.

[00:16:54] Speaker 01:
We actually briefed this almost exactly like we briefed in this court.

[00:17:00] Speaker 01:
The very same arguments were before the district court.

[00:17:04] Speaker 01:
Yes, there was thorough briefing, which there isn't usually.

[00:17:07] Speaker 01:
But the exact same arguments that have been made on appeal, including the ACLU's brief, including the statistics, including the specific cases cited to this court, all of that was before the district court when it made this decision.

[00:17:23] Speaker 03:
Did you suggest a concrete NAVA band to the district court judge?

[00:17:33] Speaker 01:
I did not start chipping away.

[00:17:34] Speaker 01:
I was counseled below.

[00:17:36] Speaker 01:
And again, I made the point that this is not my burden.

[00:17:39] Speaker 01:
I suggested several ways that it should be narrowed.

[00:17:42] Speaker 03:
All right.

[00:17:42] Speaker 03:
So the answer is, at the sentencing, the defense attorney didn't say, it's too broad a ban.

[00:17:49] Speaker 03:
Here's one that is better.

[00:17:53] Speaker 01:
Right?

[00:17:53] Speaker 01:
That's correct.

[00:17:55] Speaker 01:
Correct.

[00:17:55] Speaker 01:
OK.

[00:17:56] Speaker 01:
I see I've gone over time, if I may have a minute or two for rebuttal.

[00:18:00] Speaker 01:
Yes, you may.

[00:18:13] Speaker 00:
Good afternoon again, your honors.

[00:18:15] Speaker 00:
May it please the court, Kelly Volcar on behalf of the United States.

[00:18:18] Speaker 00:
This court should affirm because the district court did not abuse its discretion in finding that Reynolds' individualized circumstances justified imposing the standard supervised release condition that he not knowingly associate with felons absent pre-approval.

[00:18:34] Speaker 04:
So anybody that he knows who's been convicted of a felon, whatever it may be, if he were to associate with them, if he knows,

[00:18:45] Speaker 04:
Uh, he's in violation of the terms and conditions of that provision of supervised release.

[00:18:51] Speaker 00:
That's correct, your honor.

[00:18:53] Speaker 00:
Um, and it is.

[00:18:54] Speaker 04:
That strikes me.

[00:18:56] Speaker 04:
Why, why doesn't, let me ask you this.

[00:18:57] Speaker 04:
Why doesn't the logic, now I'm talking about logic, not the fact that it's a misdemeanor, but why doesn't the logic apply here?

[00:19:08] Speaker 00:
Your Honor, the main reason Napoli doesn't apply here, and it did reference the standard condition in that decision and specifically put to the side in foot number six.

[00:19:18] Speaker 00:
Right.

[00:19:18] Speaker 04:
I'm just talking about the logic, though, of it.

[00:19:20] Speaker 00:
Well, Your Honor, first of all, the decision in Napoli was really focused on the special conditions crafted by the district court in that case, including one that prohibited interaction with one particular person who was the person's life partner, and the record in that case also showed

[00:19:37] Speaker 00:
was providing support.

[00:19:39] Speaker 00:
They were going to counseling sessions together.

[00:19:41] Speaker 00:
She was bringing her food.

[00:19:43] Speaker 00:
They were visiting one another.

[00:19:45] Speaker 00:
We don't have anything like that in this particular case.

[00:19:48] Speaker 00:
Rather, we have the facts where someone has a long, extensive criminal history that was full of violent offenses, full of large-scale drug trafficking and narcotics offenses, as the district court found.

[00:19:59] Speaker 00:
who was associating with felons when he committed the underlying offense in this particular case.

[00:20:05] Speaker 00:
And the district court didn't hang his hat on any one felon in Anderson, as Judge Baio was talking with my colleague across the aisle.

[00:20:13] Speaker 00:
Didn't hang his hat on any single felon in this particular case, but noted that throughout his history, he had essentially demonstrated

[00:20:21] Speaker 00:
an inability to steer himself in the right direction.

[00:20:24] Speaker 03:
This standard condition would have prohibited him from associating with Michael Milken.

[00:20:30] Speaker 00:
Yes, Your Honor, but I go back to it.

[00:20:33] Speaker 00:
The question is, and Judge Wardlaw got at this with the belt and suspenders approach, which is the Sentencing Commission, the Probation Office, and the District Court all think that this broad condition is what will help give the Probation Officer the right tools to help to be reasonably related to the goals.

[00:20:52] Speaker 04:
Well, it's not a mandatory condition.

[00:20:54] Speaker 00:
That's correct, Your Honor.

[00:20:55] Speaker 04:
It's not mandatory.

[00:20:55] Speaker 04:
The District Court would say, I'm not going to oppose this.

[00:20:58] Speaker 02:
But as I understand it, the Northern District, though, has adopted this discretionary decision to its standard conditions of supervised release, which has sort of made it mandatory.

[00:21:15] Speaker 00:
That's correct, Your Honor.

[00:21:16] Speaker 00:
And unless it is challenged, and of course it was challenged here, but one point I want to make responding to questions that were asked of my colleague across the aisle.

[00:21:23] Speaker 00:
There was no specific narrowing of this particular

[00:21:28] Speaker 00:
Ban suggested below beyond striking the second sentence There was just the have the portion of the condition that says people who are actively engaging in crime that does put the onus on the probation officers to know who is actively engaging in crime rather than being able to to extrapolate out and what the judge said in this particular case is look at the facts again before

[00:21:53] Speaker 00:
present offense he was living with two felons and went out for his birthday and yes they were also committing a crime at that particular time because they had narcotics on them but the district court I believe you can fairly read from the record what he's inferring

[00:22:08] Speaker 00:
is if the probation officer knew that he was living with felons, they might have been able to intercede before the events that led to the criminal activity in this case.

[00:22:18] Speaker 00:
And I think that's, again, the belt and suspenders approach that Judge Wardlaw aptly put.

[00:22:23] Speaker 04:
Would the government object if the district court said, look, this is too broad, I think.

[00:22:28] Speaker 04:
Maybe we should just tailor it down and say you can't associate with anybody that you know has been convicted of a felony within the past five years.

[00:22:35] Speaker 00:
Would the government object to that?

[00:22:37] Speaker 00:
Well, Your Honor, it wasn't presented to them.

[00:22:39] Speaker 04:
Well, no, I'm just asking you, would the government, you know, just give me your reaction.

[00:22:43] Speaker 04:
I'm trying to figure this out.

[00:22:45] Speaker 04:
Because I have, you know, I have a hard time squaring this with, with Napolu.

[00:22:52] Speaker 00:
Yeah, thank you, Your Honor.

[00:22:53] Speaker 00:
And I just want your, you know, I want your help.

[00:22:56] Speaker 00:
Your Honor, I think the government's position is really based on the individualized circumstances here.

[00:23:03] Speaker 00:
The district court didn't abuse its discretion for what was put before it.

[00:23:06] Speaker 02:
But you know what the Northern District has done is sort of taken something that's sort of the burden on the prosecutor and taken that away, taken the burden away.

[00:23:20] Speaker 02:
Isn't that right?

[00:23:22] Speaker 00:
your honor respectfully I disagree in the sense of I don't think it's the process it is the prosecutor's burden but it's not the prosecution that has determined this particular condition is warranted at that standard condition level and your honor accurately recited that

[00:23:38] Speaker 00:
It was the Sentencing Commission that proposed it in this list of standard, they are discretionary, but this list of standard conditions.

[00:23:45] Speaker 00:
The probation office then nationwide has adopted that those should be the standard conditions and then the Northern District of California has adopted from that list this condition.

[00:23:58] Speaker 00:
This is a condition that has been proposed at multiple levels, and I did want to answer a question, Your Honor.

[00:24:04] Speaker 00:
Judge Wardlaw asked my colleague across the aisle of whether other circuits have ruled on this specific condition.

[00:24:09] Speaker 00:
They have.

[00:24:10] Speaker 00:
And my colleague is correct that oftentimes the challenge is presented as vagueness challenge, but there are over-breath challenges, too.

[00:24:19] Speaker 00:
And I want to specifically point the court to the 10th Circuit decision and the 7th Circuit decision that are cited in the government's briefs.

[00:24:26] Speaker 00:
The 10th Circuit decision is the United States v. Muniz, 812 F3rd, 809 at 820, or Pinsight 820.

[00:24:36] Speaker 00:
And the 7th Circuit case is United States v. Speed.

[00:24:40] Speaker 00:
with the citation 811, F3rd, 854, and that's at pin site 859 to 860.

[00:24:49] Speaker 00:
And if the court is willing to bear with me for one more citation, the Seventh Circuit also specifically addressed the same argument my colleague is putting forward here in US v. Douglas, citation 806, F3rd, 979.

[00:25:07] Speaker 00:
There the argument was that the defendant argued

[00:25:10] Speaker 00:
the condition of limiting engagement or prohibiting associating with people who are currently engaging in crime sufficiently covered it.

[00:25:19] Speaker 00:
That the remaining condition about associating with all felons was too broad and it should be limited to that first sentence.

[00:25:28] Speaker 00:
That's, again, the United States v. Douglas and the Seventh Circuit disagreed.

[00:25:31] Speaker 00:
And all of the rationale for each of these judges on the 10th and 7th Circuit is the same.

[00:25:37] Speaker 00:
The probation office needs the ability, the tools at its disposal in order to help a person.

[00:25:43] Speaker 04:
Well, there's nothing.

[00:25:45] Speaker 04:
I mean, as I ask counsel,

[00:25:50] Speaker 04:
Whether she was arguing that the whole thing should be just be struck down or whether it was more tailored to her responsibility, it should be more tailored to the particular defendant so that you have individualized sentencing.

[00:26:03] Speaker 00:
That's correct, Your Honor.

[00:26:04] Speaker 04:
I don't understand what's wrong with that.

[00:26:06] Speaker 04:
The district court could have said, look,

[00:26:11] Speaker 04:
probation officer, I want you to go back and think about this and propose a more narrow condition of supervised release that is not so broad.

[00:26:25] Speaker 04:
Otherwise, what you've got here is unreasonable.

[00:26:28] Speaker 04:
So you wouldn't, and then the probation officer comes back with something, five years drug related conviction.

[00:26:36] Speaker 04:
Would the government really be upset with that?

[00:26:39] Speaker 00:
Your honor, if that had been proposed below, we may be having a very different discussion.

[00:26:44] Speaker 00:
It just simply wasn't proposed below.

[00:26:46] Speaker 00:
And that's not the government shirking its burden.

[00:26:48] Speaker 00:
We know that it's our burden to uphold this condition.

[00:26:51] Speaker 00:
We believe that we have.

[00:26:52] Speaker 00:
But below, the district court was looking at whether or not that first sentence, the persons who are currently engaging in criminal activity,

[00:27:01] Speaker 00:
whether that narrowly tailored aspect was sufficient.

[00:27:05] Speaker 00:
And the district court rejected that.

[00:27:07] Speaker 00:
The district court rejected the all or nothing proposition that the probation officer either has to be all knowing and be able to assess who is currently engaging in criminal activity or to have the sort of belt and suspenders approach to also be able to assess known felons who Mr. Reynolds might want to associate with in order to

[00:27:30] Speaker 00:
sort of suss out the people like Mr. Anderson who may be negative influences on Mr. Reynolds during his rehabilitation during those five years that he's on supervision.

[00:27:39] Speaker 00:
And the district court explicitly held that this condition in full

[00:27:46] Speaker 00:
promotes the rehabilitation of defendants.

[00:27:49] Speaker 00:
It protects the public interest from future crimes.

[00:27:53] Speaker 00:
And he, Reynolds has chosen a life of crime from a very young age and along the way he has consorted with felons.

[00:28:00] Speaker 00:
So the district court rejected that anything narrower than this ban would help a defendant such as Mr. Reynolds.

[00:28:09] Speaker 00:
And again, while there may be a place in a forum

[00:28:13] Speaker 00:
for a further sort of referendum on whether the standard condition writ large makes sense.

[00:28:17] Speaker 00:
In this particular case, the district court did not abuse its discretion, given the individualized circumstances of Mr. Reynolds.

[00:28:26] Speaker 00:
Given, as my colleague, Crossale, said, all of the briefing that's before this court was before the court below.

[00:28:31] Speaker 00:
And the court held that, based on Mr. Reynolds' criminal history, based on the facts underlying this specific case,

[00:28:39] Speaker 00:
this was not the case to narrow that condition any further.

[00:28:50] Speaker 00:
And I just want to add to Judge Baia's point from earlier, one aspect that makes this condition particularly reasonable is of course the exception for probation officers, is the fact that

[00:29:03] Speaker 03:
The judge here spent some time thinking about Mr. Reynolds' particular crimes, but he didn't spend any time thinking about what kind of a felon would influence Mr. Reynolds.

[00:29:18] Speaker 03:
He took the broad approach of saying any felon would influence.

[00:29:24] Speaker 03:
He shouldn't hang out with felons.

[00:29:28] Speaker 03:
Is there any problem with that?

[00:29:30] Speaker 00:
Your honor, to that I respond again to what was put before the district court.

[00:29:37] Speaker 00:
For example, at the district court level, Mr. Reynolds was referencing his sister and his brother, who both have prior felonies.

[00:29:45] Speaker 00:
And ER 14 to 16, the district court spent two transcript pages talking with the probation officer about possibly making a carve out for those individuals, thinking that they might be able to provide

[00:29:57] Speaker 00:
a positive impact on him.

[00:29:58] Speaker 00:
And to answer your question more directly, Judge Baia, I think that if there had been put forth a proffer or, again, a request to limit or narrow the condition, again, according to Judge Baia's hypothetical, if the district court said, probation officer, go back to the drawing board, limit this based on the type of felony, limit this based on the number of years, we may be having a different conversation.

[00:30:21] Speaker 00:
But that simply wasn't the conversation that was happening below.

[00:30:24] Speaker 00:
The conversation that was happening before the district court

[00:30:27] Speaker 00:
is about specific people that were proffered that Mr. Reynolds might want to associate with.

[00:30:33] Speaker 00:
And again, what probation responded to the district court is very similar to what George Wardlaw was saying.

[00:30:39] Speaker 00:
It will be easier for us to determine at the time that he is released.

[00:30:43] Speaker 00:
from prison to know what their status is, to know what their sobriety status is, to know where they are with their own mental health, where they are in their own lives.

[00:30:54] Speaker 00:
And I would put forward, Judge Bea, that the same reasoning applies to making carve-outs based on certain types of felons.

[00:31:01] Speaker 00:
Felony, excuse me.

[00:31:03] Speaker 04:
That would still, I mean, it would have to be, I guess, say, how long would he, was it a 10-year sentence?

[00:31:10] Speaker 00:
Roughly on yes, or you know it was exactly 10 years.

[00:31:12] Speaker 04:
So when he gets out in 10 years, then he would have to go back to the Federal Public Defender's Office and say, hey, this is a problem.

[00:31:21] Speaker 04:
Could you file a motion to fix this?

[00:31:24] Speaker 04:
Is that what you're saying?

[00:31:25] Speaker 04:
Is that what the suggestion is?

[00:31:26] Speaker 00:
Well, Your Honor, the first step would be the probation officer, and Mr. Reynolds would have, would work with his probation officer for exceptions.

[00:31:34] Speaker 00:
If Mr. Reynolds did not agree with the probation officer's answer, there is the ability to modify his conditions by going back to the district court.

[00:31:43] Speaker 04:
He could file a motion, though, and the public defender most likely would have to do it.

[00:31:47] Speaker 00:
That's correct, Your Honor, and I would also- Probably not a high priority for them, right?

[00:31:52] Speaker 00:
Your Honor,

[00:31:53] Speaker 00:
There are a lot of things that they have to juggle.

[00:31:58] Speaker 00:
I won't deny that.

[00:31:59] Speaker 00:
But I would also point, Your Honor, to that's not the only, again, in this belt and suspenders approach.

[00:32:03] Speaker 00:
That's not his only avenue, as Your Honor is very familiar with the Napolo case and also the King case.

[00:32:11] Speaker 00:
Those both arose in the context of when the defendant was accused of violating the condition in a revocation proceeding.

[00:32:18] Speaker 00:
And at those point in time, the defendants chose to challenge

[00:32:23] Speaker 00:
the statute itself at that point in time.

[00:32:25] Speaker 00:
And this court gets to then determine whether it was reasonable, whether he was on sufficient notice, was the probation officer acting the way it should.

[00:32:33] Speaker 00:
And I put all of that forward to say it is a belt and suspenders approach.

[00:32:37] Speaker 00:
There is a lot of checks and balances that are there.

[00:32:41] Speaker 00:
And this is a condition that the Sentencing Commission, the Probation Office, and the District Court all thought should apply.

[00:32:49] Speaker 00:
in this case.

[00:32:50] Speaker 00:
And for that reason, the government urges this court to find the district court to not abuse its discretion given Mr. Reynolds' individualized circumstances and affirm.

[00:33:00] Speaker 03:
Let me try to understand one thing.

[00:33:03] Speaker 03:
Mr. Reynolds was given a 10-year sentence.

[00:33:08] Speaker 03:
He has some time before he has to worry about whether his probation conditions can be modified or not, right?

[00:33:16] Speaker 00:
That's correct, Your Honor.

[00:33:17] Speaker 00:
It is less time at this point.

[00:33:19] Speaker 00:
It is, I believe, scheduled to be released next October, October of 2026.

[00:33:25] Speaker 00:
And that's because this appeal went up, was held for Montoya, went back to the district court.

[00:33:30] Speaker 00:
There was a resentencing, and we're here.

[00:33:32] Speaker 00:
So there has been some time that has passed.

[00:33:34] Speaker 00:
But Judge Mayer, your point is still correct.

[00:33:36] Speaker 00:
There is still about 18 months or more before he will be released.

[00:33:42] Speaker 00:
Thank you.

[00:33:42] Speaker 00:
If there are no further questions, thank you, Your Honors, for your time.

[00:33:48] Speaker 02:
This is Vera.

[00:33:54] Speaker 01:
First, to address the cases from the other circuits, none of them raised the type of statutory reasonableness challenge raised here.

[00:34:02] Speaker 01:
Each of them that she mentioned addressed a First Amendment over-breadth or vagueness challenge unlike the one here, and they simply had cursory

[00:34:11] Speaker 01:
an unpersuasive analysis so none of them lend support here the second is that the second point is this court in no other case has kicked the can on an overbroad condition and made the defendant seek to have it altered once they were released a condition is evaluated when it's imposed we're being asked to review the imposition of this

[00:34:39] Speaker 02:
condition on your client.

[00:34:42] Speaker 02:
And as I go back and review the sentencing transcript, he made several very individualized points about this client in particular, saying, you know, he applied the 3582 factors and 3583 factors, and said this, it isn't overbroad.

[00:35:08] Speaker 02:
as to this defendant because he's serving under conditions, similar standard conditions of supervised release right now.

[00:35:18] Speaker 02:
And he broke that very one by living with a couple of felons and then going out with his friend.

[00:35:27] Speaker 02:
He says in the crime at issue, they were playing around with guns and shooting into the sky.

[00:35:34] Speaker 02:
Someone could have been killed.

[00:35:38] Speaker 02:
He says as to this, he goes through a lot of factors that he lives with two felons.

[00:35:45] Speaker 02:
They get together and act irresponsibly and commit more crimes.

[00:35:51] Speaker 02:
I don't think he was just like applying this as a routine thing.

[00:35:57] Speaker 02:
So isn't this something we should be, since he actually went through that analysis, isn't that something we should be reviewing for abuse of discretion?

[00:36:06] Speaker 01:
Yes, but this court has made clear that abuse of discretion in this context, and this is from Wolf Child, really depends on whether the reasoning of the court supports that the reasonableness, the two reasonableness tests in the statute have been met.

[00:36:23] Speaker 02:
Right, but he said, he explicitly said, I don't care if this is standard or mandatory.

[00:36:30] Speaker 02:
or what this is.

[00:36:31] Speaker 02:
In this case, this is the type of restriction that should be put on this defendant.

[00:36:39] Speaker 01:
Well, I think it runs headlong into Napolu's logic.

[00:36:42] Speaker 01:
I don't think that this felon ban can survive under Napolu, as applied to my client individually, because it will always be overbroad.

[00:36:52] Speaker 01:
And it's overbroad for him, because Napolu said two things.

[00:36:55] Speaker 01:
First of all, that past criminality does not determine current criminality, and the court said that again in TM.

[00:37:01] Speaker 01:
And then also made the point that it has to be tied to offense type.

[00:37:07] Speaker 01:
And so that point is made at 1045 to 1046, that when this court imposes other group association bans, they're based on a type of conduct that would be likely to cause that specific defendant to recidivate.

[00:37:22] Speaker 01:
So that's true for street gangs.

[00:37:24] Speaker 01:
for neo-Nazi groups, for people who have been convicted of drug offenses, for Irish organizations.

[00:37:31] Speaker 02:
May I just ask you, this is an as-applied challenge, is that correct?

[00:37:37] Speaker 01:
It's as applied to my client, but also we have briefed that facially this is not appropriate for any defendant because it will always be overbroad.

[00:37:46] Speaker 02:
You don't think there's circumstances where it can be constitutional?

[00:37:52] Speaker 02:
as applied to a particular criminal defendant?

[00:37:56] Speaker 02:
No, because it will always... A set of circumstances.

[00:38:00] Speaker 01:
No, it will always be missing a timing nexus and an offense nexus.

[00:38:05] Speaker 01:
There's no criminal for whom you could say any felon, no matter how old their offense, no matter how long it's been since they have committed an offense, no matter what their offense.

[00:38:17] Speaker 02:
I think if you're making that kind of challenge, you have to argue that there's no set of circumstances in which it would be constitutional.

[00:38:24] Speaker 02:
So let's take the worst criminal on the earth.

[00:38:30] Speaker 02:
I can think of several right now, but I won't mention their names.

[00:38:37] Speaker 01:
It still isn't tailored.

[00:38:38] Speaker 01:
There is always tailoring to be done with the felon ban.

[00:38:41] Speaker 01:
And I think the logic is inescapable.

[00:38:44] Speaker 02:
The narrow tailoring analysis is what is the as applied challenge.

[00:38:51] Speaker 02:
And as applied, so you're asking us to say as applied to this particular client.

[00:38:58] Speaker 02:
It's not constitutional.

[00:39:01] Speaker 01:
It doesn't meet the reasonableness, the statutory reasonableness.

[00:39:05] Speaker 04:
I'll go back to what I recall from reading your briefs, but it's that not that this is a constitutional, there's no constitutional claim, it's just that under the statute, this particular condition of probation is unreasonable.

[00:39:20] Speaker 04:
That's right.

[00:39:21] Speaker 04:
Because it's not properly tailored.

[00:39:23] Speaker 04:
That's right.

[00:39:24] Speaker 04:
That's what I understood your argument.

[00:39:25] Speaker 01:
That's right.

[00:39:26] Speaker 01:
And this court has used the term overbreath, meaning it is broader than is reasonably necessary, and it's not reasonably related according to the statute.

[00:39:36] Speaker 01:
So that's why I use the term overbreath in this context.

[00:39:40] Speaker 01:
All right.

[00:39:40] Speaker 01:
Thank you, Your Honor.

[00:39:41] Speaker 02:
Thank you, counsel.

[00:39:42] Speaker 02:
US versus Reynolds is submitted, and this session is adjourned.