[00:00:00] Speaker 00:
Good morning, Tom Schlesinger for Rudy Sablan.

[00:00:06] Speaker 00:
At the original sentencing of this case, incidentally, I asked to reserve two to three minutes at the end of the argument for rebuttal.

[00:00:15] Speaker 00:
At the original sentencing in this case at excerpts record 81, the district court judge asked both defense counsel and the AUSA

[00:00:28] Speaker 00:
whether they considered the state prosecution and the federal prosecution to be in the words of the court, the same offense.

[00:00:39] Speaker 00:
Everybody in that courtroom agreed that that was the case.

[00:00:42] Speaker 00:
This meant that credit for time served would be all of the time spent in state custody from the time of Mr. Saban's initial arrest, which occurred on

[00:00:55] Speaker 00:
either the 26th of October or the 27th of October.

[00:00:59] Speaker 00:
Now, what was the district court's responsibility at that point?

[00:01:03] Speaker 00:
Under guidelines section 5G1.3, the court had to make a determination of the amount of time to be credited and had to indicate in the judgment

[00:01:18] Speaker 00:
what its ruling was.

[00:01:20] Speaker 02:
Well, let me ask you if I could.

[00:01:21] Speaker 02:
During the sentencing hearing, it appears that the probation officer asserted that there was no evidence that Mr. Sablan over-served his sentence.

[00:01:33] Speaker 02:
And are you asserting that your client over-served his original sentence?

[00:01:39] Speaker 02:
And if so, by how much, and was there,

[00:01:42] Speaker 02:
ample discussion to make that clear for the district judge at that time.

[00:01:47] Speaker 00:
I think there was ample discussion to make it clear to the district court judge.

[00:01:51] Speaker 00:
I'm not sure about the Bureau of Prisons, however.

[00:01:53] Speaker 00:
The amount of time is 100, the way I computed is 112 days, which would be between the date Mr. Sablan was originally arrested in the state case under local court CF 60111 and the date that he was indicted in the federal case, which was February

[00:02:12] Speaker 00:
15th, 2012.

[00:02:14] Speaker 00:
What I meant by the fact that the judgment had to indicate all of this is the fact that when you look at the judgment, all it says is credit for time served.

[00:02:24] Speaker 00:
It's ambiguous.

[00:02:25] Speaker 00:
It doesn't indicate whether that means credit for time served on the federal case exclusively or whether it means both the state case and the federal case, which would give the Bureau of Prisons an indication of what they were supposed to compute.

[00:02:38] Speaker 00:
Now, as you recall,

[00:02:40] Speaker 00:
In the briefing, the Bureau of Prisons fell quite short in its determination of the credits to be given.

[00:02:47] Speaker 00:
And the U.S.

[00:02:48] Speaker 00:
probation department did a lot better job in determining that.

[00:02:53] Speaker 03:
Let's just assume that there was over service, that in general, he had served more time than originally required.

[00:03:02] Speaker 03:
But he's now before the district court on supervised release, right?

[00:03:06] Speaker 03:
Correct.

[00:03:08] Speaker 03:
Okay.

[00:03:08] Speaker 03:
So I'm having some trouble squaring that with the statute that you argued, which is 3585 B, but it relates to reduction of incarceration, not supervised release.

[00:03:21] Speaker 03:
So can you can explain, is there any support for the court to have gone and ignored the specific terms of that statute?

[00:03:31] Speaker 00:
No, they didn't have to do that, your honor.

[00:03:34] Speaker 00:
Basically,

[00:03:35] Speaker 00:
What happened was is that they confused what the mandate was in the Supreme Court case of United States versus Johnson, which indicated the authorized term expires based on this intervening case law under Bailey.

[00:03:49] Speaker 00:
There was a firearms case.

[00:03:51] Speaker 00:
were upon the defendant was immediately released from custody.

[00:03:55] Speaker 00:
And so in that case, there was no question as to when supervision began.

[00:04:02] Speaker 00:
But in this case, what you had was you had Mr. Sablan who remained in prison

[00:04:09] Speaker 00:
after his jail term expired.

[00:04:12] Speaker 00:
And so that was an unlawful continuation.

[00:04:16] Speaker 03:
And if it's an unlawful- That's not before the court at that point, we're talking about his supervised release.

[00:04:21] Speaker 03:
So you really haven't answered my statutory question.

[00:04:25] Speaker 03:
And let me add to that, it would seem to me then under 3585 E, that that would be more applicable where you can reduce time

[00:04:35] Speaker 03:
for over service, but the judge is not required to, but that's not the statute that you were arguing in your brief or that was argued before the district court.

[00:04:44] Speaker 00:
Well, 3585 B2 appears to apply.

[00:04:50] Speaker 00:
And then in terms of 8535, I'm sorry.

[00:04:57] Speaker 02:
How does that apply?

[00:04:58] Speaker 02:
How does B2 apply?

[00:05:01] Speaker 00:
Well, because the,

[00:05:04] Speaker 00:
the state case was based on an arrest that occurred after the commission of defense for which the sentence was imposed and the position of the parties was that the state case and the federal case were one and the same so that they would run concurrently from the start

[00:05:27] Speaker 00:
of whatever the first date of custody was when he was first placed in detention.

[00:05:33] Speaker 00:
And this was problematic in this case because the party seemed to misunderstand as to when the time would begin to run.

[00:05:40] Speaker 00:
Everybody seemed to think that it would run at the time the indictment was filed, the federal indictment was filed.

[00:05:46] Speaker 00:
But there's no case law which would support the idea that that would be the operative date for beginning

[00:05:54] Speaker 00:
the credit.

[00:05:58] Speaker 00:
Council, what's our standard of review here?

[00:06:01] Speaker 00:
The standard of review here would be based on the abuse of discretion on the part of the district court in failing to make the guidelines determination under 5G 1.3 and to use that in a post-broker world as a starting point

[00:06:20] Speaker 00:
in determining what the guideline range should have been.

[00:06:23] Speaker 01:
So what case are you relying upon to support your position that abuse of discretion is the proper standard of review?

[00:06:30] Speaker 01:
What case says that?

[00:06:32] Speaker 00:
The cases that are closest to identifying that would be the two cases that were decided in this court, United States versus Armstead and United States versus Brito.

[00:06:46] Speaker 00:
Although, Your Honor, I did have a dissent in the Brito case, Judge McKeown did.

[00:06:52] Speaker 00:
But that was a different scenario because the guidelines said that there were limitations in terms of how far down you could go, at least at that time.

[00:07:04] Speaker 00:
But the 28-J letter that we filed would suggest to the court that that is not something that's etched in stone.

[00:07:13] Speaker 00:
In other words, there are situations like,

[00:07:16] Speaker 00:
the case involving the FSA credits and the situation we had here where Mr. Saban remained in custody beyond the actual term, the legal term of the sentence.

[00:07:30] Speaker 01:
Council, Brito discussed the motion to reduce a sentence, but that's not what we have here, is it?

[00:07:38] Speaker 00:
What we have here, well, we have the revocation.

[00:07:41] Speaker 00:
the new imposition of supervised release.

[00:07:44] Speaker 01:
This is a term of supervised release as opposed to a sentence.

[00:07:47] Speaker 01:
So why would Brito be controlling in terms of the standard of review?

[00:07:52] Speaker 00:
Well, the supervised, supervised release situation here was one that I mentioned, which is that it did in fact run with the prior term of incarceration because

[00:08:10] Speaker 00:
He was never first of all, he was he was never released at the time he should have been properly for the credit that he should have received from the day he first entered state custody.

[00:08:20] Speaker 00:
But also is the fact that you have to treat the term of supervision as one of the miscase while the defendant remain in prison without proper authority.

[00:08:33] Speaker 00:
This is what this is what we're this is our position.

[00:08:36] Speaker 00:
And it seems to be consistent with some of the

[00:08:39] Speaker 00:
cases that came out after the Johnson decision.

[00:08:42] Speaker 00:
And so for that reason, since the federal and the local case ran together, the credit had to be applied to what was left of the federal case because the three year sentence in the state case had already passed by the time this became relevant.

[00:09:00] Speaker 00:
Did you want to reserve?

[00:09:02] Speaker 00:
Yes, I did.

[00:09:03] Speaker 00:
Thank you very much.

[00:09:11] Speaker 04:
May it please the court Rosetta Siniclus on behalf of the United States.

[00:09:28] Speaker 04:
The appellant's over served time cannot reduce supervised release.

[00:09:33] Speaker 04:
The relief sought by this appellant is not warranted.

[00:09:37] Speaker 04:
He should seek relief before the district court because this court respectfully is not the proper forum.

[00:09:46] Speaker 04:
The district court imposed a term of incarceration and supervised release.

[00:09:52] Speaker 04:
The purpose of supervised release differs from incarceration.

[00:09:57] Speaker 04:
It has a distinct rehabilitative goal.

[00:10:00] Speaker 04:
It serves a post confinement assistance to the defendant to assist him with transition and to reduce supervised release would defeat the two goals of supervised release.

[00:10:13] Speaker 03:
Do you agree that Mr. Saban has potential relief under 3583 E?

[00:10:20] Speaker 03:
I do agree.

[00:10:22] Speaker 03:
But I take it your position is that

[00:10:24] Speaker 03:
That's not something for this court to decide, but should be in the district court.

[00:10:28] Speaker 04:
That is our position, Your Honor.

[00:10:30] Speaker 02:
Is there a motion, but does their motion have to be filed specifically related to that?

[00:10:35] Speaker 04:
Yes, Your Honor.

[00:10:36] Speaker 04:
So we believe that the appellant can file a motion before the district court.

[00:10:42] Speaker 04:
He can raise 3583 E1 or E2.

[00:10:45] Speaker 04:
He can invoke that.

[00:10:46] Speaker 04:
And that is a remedy that Johnson has proposed, the equitable remedy that is available to this appellant.

[00:10:53] Speaker 03:
So, so basically,

[00:10:55] Speaker 03:
If he agrees that he could get relief under that, it's just a question of the discretion of the district court.

[00:11:01] Speaker 03:
This would go back to the district court for consideration of that, which was not raised before.

[00:11:08] Speaker 03:
Is that right?

[00:11:09] Speaker 04:
That is correct.

[00:11:11] Speaker 04:
and the appellant can raise it before the district court.

[00:11:15] Speaker 04:
It'll be an opportunity for the district court to consider, for example, the defendant's conduct, pattern scores, but the point being that yes, he has over served time.

[00:11:26] Speaker 04:
It still has value.

[00:11:27] Speaker 04:
It can be brought though before the district court.

[00:11:31] Speaker 02:
But in the original case, once this whole question of over served time was brought to the attention of the district court,

[00:11:40] Speaker 02:
Didn't the district court amend the judgment and issue a new judgment, giving him credit for time, sir.

[00:11:51] Speaker 04:
The court did, your honor.

[00:11:53] Speaker 04:
So the appellant brought a 3583 motion.

[00:11:57] Speaker 04:
The 3583 motion is,

[00:12:00] Speaker 04:
I'm sorry, the 3582 motion is commonly known as the compassionate release statute.

[00:12:07] Speaker 04:
So the appellant brought the fact that he had over served time and he presented that he had 913 days of over served time.

[00:12:16] Speaker 04:
The district court having heard the argument filed an amended judgment, which is in ER 21-22.

[00:12:25] Speaker 04:
The amended judgment gave this appellant

[00:12:29] Speaker 04:
881 days credit for that over served time.

[00:12:34] Speaker 04:
And the court also noted that this was pursuant to 5G 1.3B and actually corrected.

[00:12:45] Speaker 02:
So how much over served credit time is there as a result?

[00:12:50] Speaker 02:
If we were to take into account the,

[00:12:53] Speaker 02:
amended judgment that allowed for immediate credit for time served.

[00:13:00] Speaker 04:
Yes, Your Honor.

[00:13:01] Speaker 04:
So we believe that the appellant has 112 days.

[00:13:06] Speaker 04:
And that is calculated from the date of his local arrest on October 26, 2011, until the date of his federal case, which is February 15th, 2012.

[00:13:19] Speaker 01:
Council, are you saying that the number of days in contention are 112?

[00:13:24] Speaker 01:
That's what is an issue here?

[00:13:27] Speaker 04:
Yes, sure.

[00:13:28] Speaker 01:
Okay.

[00:13:29] Speaker 01:
And so I'll ask, do you agree that our standard of review here today is abuse of discretion?

[00:13:35] Speaker 01:
No, we disagree.

[00:13:37] Speaker 01:
What do you think our standard of review is?

[00:13:39] Speaker 04:
The standard of review we believe is because this issue was not raised before the before the district court.

[00:13:47] Speaker 04:
It's plain error.

[00:13:49] Speaker 02:
And so I'm looking ultimately though, I mean, so that's what happened before apparently the defendant in this case before us now.

[00:14:07] Speaker 02:
his supervised release was revoked, came back to the district court for a sentencing at that time, is that correct?

[00:14:15] Speaker 02:
And that's what's being appealed right now.

[00:14:18] Speaker 02:
But the district court heard the request for getting credit for time search, even though it was under, I think a statute that doesn't really squarely fit for what

[00:14:35] Speaker 02:
the defendant was asking for.

[00:14:36] Speaker 02:
And didn't the district court give a below guideline sentence in this case or the low end?

[00:14:44] Speaker 04:
For the supervised release term, yes.

[00:14:47] Speaker 04:
The district court did impose a, I believe it was a three month term of incarceration followed by a two year term of supervised release.

[00:14:56] Speaker 02:
And so, and he was looking at more than that, correct?

[00:15:00] Speaker 04:
certainly he could have faced the range.

[00:15:04] Speaker 04:
It could have been a range, for example, from three to nine months imprisonment and the court imposed the low end.

[00:15:13] Speaker 03:
The magistrate judge had recommended 12 months, correct?

[00:15:16] Speaker 03:
And then the district judge imposed the two years of supervised release.

[00:15:25] Speaker 03:
If he were to go back, it would seem to me he raised these exact arguments in district court.

[00:15:32] Speaker 03:
He was just invoking the wrong statute, right?

[00:15:38] Speaker 03:
Well, Your Honor, I mean, he's basically saying, give me credit for time served.

[00:15:43] Speaker 03:
I don't need, I'm not required to have a sentence as long as you're saying.

[00:15:49] Speaker 04:
Yes, I believe his counsel raised it.

[00:15:53] Speaker 04:
But Your Honor, I do not believe that there has been record or there's been any ERs that document that he raised the issue before the magistrate judge or the district court.

[00:16:08] Speaker 03:
Well, the whole point was credit for time served.

[00:16:12] Speaker 03:
So I don't know.

[00:16:13] Speaker 03:
I'm having a little trouble understanding why you think he didn't raise it.

[00:16:16] Speaker 03:
And that would actually implicate

[00:16:20] Speaker 03:
whether we would be looking at this as clear error or whether we'd be looking at it as abuse of discretion, wouldn't it?

[00:16:28] Speaker 03:
We'd agree, Your Honor.

[00:16:33] Speaker 04:
There has been no record that he has raised it below.

[00:16:38] Speaker 04:
In the event that the court considers that he did raise it, we contend that there was no error, that there was certainly no plain error, that his substantial rights have not been affected.

[00:16:52] Speaker 04:
And the court, this court, your honor, has a discretion to remedy only if it seriously affects the fairness, integrity, or public reputation of the judicial proceedings.

[00:17:04] Speaker 04:
If the district court imposed a low end guideline sentence and did hear that the appellant had 112 days of over served time, then that was within the district court's consideration and the court did not err.

[00:17:20] Speaker 03:
In your view, is there anything that would preclude Mr. Solon from going back to the district court and then arguing under 3585 E that the remainder of his over surf time should be taken into account?

[00:17:34] Speaker 04:
Your honor, I believe that the remedy that he has is the equitable remedy that Johnson points out under 3583 E1 and E2.

[00:17:42] Speaker 04:
We believe that Johnson, the Supreme Court has held that 3624 is the controlling statute and that is a remedy for over serve time.

[00:17:55] Speaker 03:
And that doesn't really answer my question because there's a remedy for over served time.

[00:17:59] Speaker 03:
And there's a difference, of course, between incarceration, imprisonment and supervised release, but he could make the argument that that would be a factor in setting his sentence, couldn't he?

[00:18:13] Speaker 04:
Certainly the court could consider that as a factor in applying 3583 relief.

[00:18:20] Speaker 04:
The fact of over served time.

[00:18:22] Speaker 04:
Thank you.

[00:18:23] Speaker 04:
Thank you, your honor.

[00:18:25] Speaker 04:
Otherwise, Your Honor, we submit.

[00:18:27] Speaker 02:
Thank you.

[00:18:37] Speaker 00:
The remaining time that I have, I just want to point out that there really is no question as to whether the issue was raised before the district court.

[00:18:46] Speaker 00:
The standard is abuse and discretion can't be plain error when at SCR,

[00:18:52] Speaker 00:
and at ER 19 and at SCR six, both the defense attorney and the US probation officer identify in their submissions that this issue is before the court.

[00:19:07] Speaker 02:
And that- The question is whether it was properly raised with the right statute before the district court, I think is one of the issues that we're looking at.

[00:19:16] Speaker 00:
Yes, it seems to us that if the court is going to decide that 5G 1.3 does not apply, then it has to state why, because if it doesn't state why, then the sentence is outside of the realm of the guidelines, considered a sentence that should be remanded for reconsideration, because the BOP doesn't have

[00:19:44] Speaker 00:
the power to interpret guidelines.

[00:19:49] Speaker 00:
It only has the power to interpret the statutes and its own program statements.

[00:19:56] Speaker 00:
And as the court may recall, in this particular instance, the BOP actually has a program statement which says that in these situations, if somebody is to be revoked on supervision and sentenced to jail time, that under the facts that we have in this case,

[00:20:12] Speaker 00:
that credit should be given.

[00:20:14] Speaker 00:
So the question, and of course, there was actually one case that said, well, if that hasn't happened yet, then the defendant can at least bank that time and have that time ready.

[00:20:26] Speaker 00:
But we're not asking for the court to consider that as a remedy because going back to jail, it obviously is more severe than being on supervision.

[00:20:35] Speaker 00:
At the time we filed this appeal, the only issue was whether credit could be given for supervision.

[00:20:42] Speaker 00:
And since, as we said at the beginning of our argument today, that the time that he overspent in custody to begin with was not part of a lawful state or federal sentence, it should be credited to whatever is available, which would be supervised release.

[00:20:56] Speaker 02:
It appears the other factor we look at in this case is whether his sentence was substantively unreasonable.

[00:21:02] Speaker 02:
And this was a below guideline sentence, I believe, of three months.

[00:21:06] Speaker 02:
What's your best argument that this was a substantively unreasonable sentence?

[00:21:12] Speaker 00:
Okay, the best argument would be that the district court did not fulfill its duties under guideline section 5G 1.3, because even though it said credit for time served and went with the party's positions, it was not clear on the record as to what the court meant.

[00:21:33] Speaker 00:
And therefore the 5G 1.3 actually at the beginning under Booker and Cardy,

[00:21:39] Speaker 00:
the court has to establish what is the guideline range.

[00:21:44] Speaker 03:
Did you ask for correction of the judgment or clarification?

[00:21:49] Speaker 00:
Well, implicitly we did not.

[00:21:52] Speaker 03:
No, but you didn't go back because you're now telling us, well, now we have the judge's order in the sentence, but there's some ambiguity there.

[00:22:00] Speaker 03:
So my question is, did you go back and say to the judge, there's an ambiguity here as to what you meant by that?

[00:22:08] Speaker 00:
That could be done.

[00:22:09] Speaker 00:
No, did you do it?

[00:22:11] Speaker 00:
That's my question.

[00:22:12] Speaker 00:
Did we do it in that, in so many words?

[00:22:15] Speaker 00:
I think the answer has to be no.

[00:22:17] Speaker 00:
No exact words, but I don't think it really makes a difference.

[00:22:20] Speaker 03:
So instead you're up here at the court of appeals and now saying the district court had some ambiguity, but there is an opportunity for trial counsel if there's some ambiguity in the court's record

[00:22:35] Speaker 03:
if there's something that is not fully understand to correct it at the trial level so that we don't even see it at the court of appeals, right?

[00:22:42] Speaker 00:
I understand that, your honor.

[00:22:44] Speaker 00:
The reason why we're here and what we're asking this court to do is to identify what is the protocol for the court at the time of sentencing and did this court follow that protocol?

[00:22:56] Speaker 00:
We don't think that it did.

[00:22:57] Speaker 00:
If there was no appeal raised before this court,

[00:23:02] Speaker 00:
we would, I don't think we would have any opportunity to do much of anything, because the district court took the position, first of all, that it felt that it was the Bureau of Prison's responsibility to make these determinations, when in fact, that is not the case.

[00:23:18] Speaker 00:
And in terms of the guidelines, computations, that's not something the BOP can actually do.

[00:23:26] Speaker 00:
Now, if the court had identified in the judgment what exactly he had found in terms of predis and had

[00:23:32] Speaker 00:
identified the state case in his judgment, then that would have been helpful to the Bureau of Prisons.

[00:23:39] Speaker 02:
You understand the court district court's limited on giving credit.

[00:23:43] Speaker 02:
The BOP has a clear role.

[00:23:45] Speaker 00:
You appreciate that.

[00:23:46] Speaker 00:
It has a clear role, but the district court also has a clear role.

[00:23:50] Speaker 00:
And even under Jayant Johnson, if the BOP gets it wrong, the defendant still has the right to go back and obtain clarification.

[00:23:56] Speaker 00:
And that's true.

[00:23:57] Speaker 00:
Under the proper statute, yes.

[00:23:59] Speaker 00:
That's the point, I think.

[00:24:01] Speaker 00:
Yes, and I think he can avail himself of that.

[00:24:03] Speaker 00:
Still, if he has guidance, if he has guidance from this court without guidance from this court, the court feels the district court is just going to say, well, we maintain the position we've always taken in this case, which is there was credit for time served.

[00:24:19] Speaker 00:
And this is this is what the parties agreed to.

[00:24:21] Speaker 00:
And there's no further remedy to be given.

[00:24:25] Speaker 00:
But that's not that's not really true.

[00:24:27] Speaker 01:
Well,

[00:24:30] Speaker 02:
Okay, thank you very much.

[00:24:32] Speaker 02:
Thank you.

[00:24:32] Speaker 02:
Appreciate your argument presentation here today.

[00:24:35] Speaker 02:
This son, Nikolas, and Mr. Schlesinger, thank you very much.

[00:24:43] Speaker 02:
Appreciate that.

[00:24:44] Speaker 02:
The case of United States of America versus Sablan is now submitted.