[00:00:01] Speaker 01:
Good morning.

[00:00:03] Speaker 01:
We have 2 cases on calendar that will be submitted on the briefs.

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Those are 22, excuse me, 24-1312 United States versus William Ernest Fuller and

[00:00:22] Speaker 01:
24-4667, Maria Luisa Jocol Solis versus Bondi.

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In accordance with the respective orders previously entered on the dockets of those cases, those two cases are hereby submitted on the briefs.

[00:00:39] Speaker 01:
We'll then proceed to hear argument in the first case on calendar for argument, which is 24-4187.

[00:00:47] Speaker 01:
United States of America versus Misael Armando Taracena Elias.

[00:00:53] Speaker 01:
And we will hear first from Mr. Hartzell.

[00:01:00] Speaker 02:
Good morning, Your Honors, Madam Clerk, Mr. Russell.

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Before I get into the gist of the argument, I must acknowledge that this case involves a terrible tragedy and the deaths of innocent persons.

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deaths that are still reverberating through the Tohono O'odham Nation.

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And I don't, by focusing on the sanitized application of law and guideline case and rule, ignore that for a moment.

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But when we get into that sanitized analysis here, the first thing to dispatch to take care of is the government's insistence that this is a plain error review.

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The government relies on rule

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50, 51, rule 50, all federal rules of criminal procedure saying that Mr. Talasin Elias did not object to the enhancement that was imposed by the district court judge.

[00:02:01] Speaker 02:
But in fact, it's the government who objected to the recommendations by the probation department not to apply.

[00:02:08] Speaker 01:
Well, didn't counsel say at the sentencing that

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counsel, defense counsel agreed with the probation officer's position?

[00:02:17] Speaker 02:
Yes.

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Isn't that a statement of what the defendant wanted the district court to do and why?

[00:02:24] Speaker 02:
Yes.

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Therefore, it would seem to be preserved.

[00:02:29] Speaker 02:
I agree.

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It is preserved.

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And it's a rule 32f question, which objecting to the pre-sentence report does not even allow for it.

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I mean, there's no mention of replies, responses,

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anything needed to preserve an exception.

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Given that, we're faced with a causation question.

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But before we get to the causation question, was the district court judge's explanation adequate under Rule 32 to analyze the decision it made upholding, sustaining the objection by the government?

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When we looked at what he said, he applied a fact-finding standard.

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He said that, oh, oh, the pre-sentence report made a mistake and it did make a mistake.

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It cited a clear and convincing evidence standard when in fact under United States v. Lucas, this is a preponderance of the evidence standard.

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But the facts here,

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were not in dispute.

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There was no question whether the facts had to be proven by clear and convincing evidence or by a preponderance of the evidence.

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It was almost as though the district court judge had this one teed up and ready to drive down the fairway just waiting.

[00:03:51] Speaker 01:
Well, how do you read what the district court said?

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What standard did the district court apply?

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It applied an evidentiary standard.

[00:04:02] Speaker 01:
Well, the probation office referred to the Eighth Circuit case and the clearing convincing evidence standard.

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And then the defense counsel said, I agree with what the probation office said.

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And then the district court said, well, the clearing convincing standard was wrong.

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Isn't the natural inference then that the district court applied the Eighth Circuit case that the probation office had?

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I don't believe, Judge Collins, that that is a natural inference here.

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If there is not.

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is not.

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I mean, the court said, all right, I disagree, the wrong standard was used.

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Pursuant to Lucas, it's no longer clear and convincing evidence on the matter, it is preponderance of the evidence, so therefore I'm going to sustain the objection

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He didn't deal at all with causation.

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He didn't deal at all with connection.

[00:04:52] Speaker 01:
So do you read that as the district court saying that, well, I wouldn't have sustained the objection if it were clear and convincing, but now that it's plain that it's preponderance?

[00:05:02] Speaker 01:
Is that how you read that?

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I find that the judge sustained the objection and did not explain why he sustained the objection, because as I said, there was no

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Dispute and the evidence.

[00:05:15] Speaker 01:
If you're complaining about the adequacy of the explanation, why wouldn't that be reviewed for plain error?

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Because after the sentence had been imposed, the judge said, does anyone have anything further?

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And under our case law, that's the time where if you think the explanation was inadequate, to speak up and say, you know, Your Honor, that explanation was a little bit vague.

[00:05:37] Speaker 01:
Can you clarify that?

[00:05:39] Speaker 01:
Defense counsel didn't do that here.

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So why isn't that plain error?

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Because the trial court asked the defense counsel that, other than objecting to my decision here, do you have any other objections to the pre-sentence report?

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So by saying that, any defense attorney would presume that it was preserved for appellate review, for de novo review, and not for plain error review.

[00:06:03] Speaker 01:
No, but I understand your substantive position is preserved.

[00:06:07] Speaker 01:
But when you're raising a separate objection, a procedural objection,

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about the adequacy of the district court's explanation of the sentence.

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Tell me why that isn't reviewed for plain error when no objection was made to the adequacy and when the judge asked if there were further issues, none were pointed out.

[00:06:28] Speaker 02:
I think perhaps, Your Honor, your scalpel was slicing a bit too thin.

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The entire sustaining of the objection was

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objected to.

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I mean, that position was observed, the fact that the... I'm referring to page 23 of the excerpt.

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So he's imposed the sentence, explains the appeal rights, and then says, do you have any questions about the sentence I've imposed?

[00:06:56] Speaker 01:
The defendant, no, Your Honor.

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Mr. Rogers, anything additional?

[00:07:01] Speaker 01:
Mr. Rogers, nothing from the defense, Your Honor.

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All right, Mr. Jougeau, and then the government does actually ask for clarification of one issue about the explanation.

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So why isn't that then a forfeiture of any contention about the inadequacy of the district court's explanation, meaning that that's reviewed for plain error?

[00:07:27] Speaker 02:
Because a reasonable attorney would believe

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that by objecting to the sustaining of the government's objection to the pre-sentence report, it was preserved in its entirety.

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This was a very, very brief statement by the trial court.

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Oh, they used the wrong standard.

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Therefore, I am sustaining the government's objection.

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He didn't comment at all upon the underlying facts.

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He didn't say that I find by preponderance that this applies rather than that.

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The facts weren't in dispute and so there was no explanation.

[00:08:02] Speaker 01:
Based on the facts that weren't in dispute, the driver blew through a stop sign at 59 miles an hour and hit into the Ford.

[00:08:14] Speaker 01:
Correct.

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Why isn't that sufficient to impose the sentencing adjustment under any standard of causation?

[00:08:26] Speaker 02:
Because

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In this circuit under the guidelines and under, and I have to admit the circuit precedent is pretty thin on this, there has to be foreseeability and it wouldn't be foreseeable to the passenger that the driver wouldn't see the stop sign on the intersection of two dark roads and blow through it.

[00:08:49] Speaker 02:
and it wouldn't be foreseeable to the passenger.

[00:08:51] Speaker 01:
There has to be foreseeability to tag him with the driver's conduct or foreseeability as to the driver himself?

[00:09:00] Speaker 02:
It has to be foreseeable to my client, Teresina Elias, to tag him with the driver's conduct.

[00:09:08] Speaker 02:
And I'm looking at relevant conduct under the guideline section 1B1.3.

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And there, when it talks about

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concerted effort.

[00:09:22] Speaker 00:
Let me see.

[00:09:23] Speaker 00:
Counsel, wasn't it a concerted effort for him to try to escape?

[00:09:27] Speaker 00:
That's part of the agreement that these co-conspirators have, right?

[00:09:32] Speaker 02:
Well, Teresina Elias did not try to escape, Your Honor.

[00:09:35] Speaker 02:
Teresina Elias was found in the front seat of the car, slapping the driver, trying to wake him up.

[00:09:43] Speaker 02:
There was another individual, an undocumented passenger who

[00:09:48] Speaker 02:
did flee from the scene and was apprehended, but not my client, not Mr. Tarasena Elias.

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He was in the car when the border patrol showed up.

[00:10:00] Speaker 02:
And that's a good point though that you make because in many of these cases cited by the government and which circuits are imposing the death enhancement, it did involve fleeing.

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And fleeing is, I would think, a reasonable

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a reasonably foreseeable act if one were to flee from law enforcement, if one were to drive at a high speed away from law enforcement.

[00:10:24] Speaker 02:
But here, the fact that the driver, I mean, driver didn't even slow down.

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It seems pretty clear.

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And here, once again, the district court judge didn't make any findings a factor, any conclusions other than to sustain the government's objection.

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It appeared that the driver didn't even know the stoplight or stop sign was there.

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The road continued on the other side.

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It wasn't a T intersection and bland.

[00:10:47] Speaker 02:
He ran into the Ford pickup with all of the members of the various families.

[00:10:53] Speaker 01:
Council, I'll give you one minute for rebuttal, but you're almost out of time.

[00:10:56] Speaker 01:
I think we should hear from the other side.

[00:10:58] Speaker 02:
Very well, your honor.

[00:11:00] Speaker 01:
All right.

[00:11:00] Speaker 01:
So now we'll hear from Mr. Russell.

[00:11:11] Speaker 03:
Thank you, your honor.

[00:11:11] Speaker 03:
Good morning.

[00:11:12] Speaker 03:
May it please the court.

[00:11:13] Speaker 03:
My name is Craig Russell appearing on behalf of the United States.

[00:11:17] Speaker 03:
The district court here correctly applied the 10 level enhancement for the death of the four victims in this case.

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Under the facts of the sentencing hearing, the district court also sufficiently explained its reasoning for imposing that enhancement.

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And lastly, any error here was not a clear and obvious error under plain error review.

[00:11:36] Speaker 01:
Well, you heard my colloquy with counsel.

[00:11:38] Speaker 01:
How can it possibly be plain error on the substantive point, given what counsel said on the record at the sentencing?

[00:11:47] Speaker 03:
Your Honor, the

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I follow the course logic in that regard and I think with plain error we made the argument here because Rule 51B sets out a contemporaneous objection rule which requires both the not only an objection but also the grounds for it here.

[00:12:06] Speaker 01:
It says we concur with the probation officer and her recommendations as to that objection and we believe it was resolved in our favor and we completely agree with her analysis.

[00:12:18] Speaker 01:
She had a substantive explanation with a case site.

[00:12:22] Speaker 01:
So that's their position.

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So I don't understand how you can say that that's plain error.

[00:12:28] Speaker 03:
Your honor, I think our position on plain error goes more to the procedural reasonableness argument.

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And as the court pointed out a moment ago.

[00:12:35] Speaker 01:
OK, you briefly presented it as to the substantive point, too.

[00:12:39] Speaker 01:
I understand the procedural objection about the adequacy of the explanation.

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But in terms of the substantive position and the objection,

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that there needed to be causation, at least in accordance with the Eighth Circuit standard, is preserved.

[00:12:53] Speaker 03:
All I would say to that, Your Honor, is the rule of criminal procedure 51B requires the grounds also.

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And this issue of the standard of causation was never raised below specifically.

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The district court didn't have a chance to address it, is all the government is saying.

[00:13:08] Speaker 03:
But I think perhaps more importantly, Your Honor, I think under any standard of review here, the district court did not have.

[00:13:16] Speaker 01:
Well, in order to tag him with it, it has to – he wasn't the driver.

[00:13:20] Speaker 01:
It wasn't his action blowing through the stop sign.

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So he has to be tagged with that for purposes of the enhancement, which means we have to go to 1B1.3, which means that it has to be foreseeable.

[00:13:35] Speaker 01:
Does it mean – what, in your view, makes it – satisfies the foreseeability element of relevant conduct?

[00:13:43] Speaker 03:
Your Honor, under 1B1.3, under the relevant conduct guideline, I think it's important to distinguish this guideline from what would, in other cases, be considered proximate cause, where under proximate cause, which is a more onerous standard, the harm has to be foreseeable.

[00:14:02] Speaker 03:
Under 1B1.3, it's not the harm that has to be foreseeable.

[00:14:06] Speaker 03:
What that guideline says is that... Right, but the conduct has to be foreseeable.

[00:14:12] Speaker 03:
Yes, Your Honor, that's correct.

[00:14:14] Speaker 03:
If the conduct was in the scope... What's the conduct?

[00:14:16] Speaker 01:
Blowing through the stop sign at 59 miles an hour?

[00:14:19] Speaker 01:
Is that foreseeable?

[00:14:21] Speaker 03:
Your Honor, I... Well, yes, I think that would be, but I don't think that's exactly the standard.

[00:14:26] Speaker 03:
I think in this case, under the language of 1B1.3, it just says basically the specific offense characteristic is going to be determined based on

[00:14:37] Speaker 03:
all harm that resulted from the act of the co-conspirator, the act of the driver here, as long as it was foreseeable within the scope and further inside the criminal activity.

[00:14:46] Speaker 03:
So here, just the mere fact that he was, this accident would have happened, but for just the simple transportation of these aliens from Southwest Arizona up back to Phoenix where the defendants were from.

[00:14:58] Speaker 03:
So I don't even think we need to get into some kind of negligence standard about blowing through the stop sign.

[00:15:03] Speaker 03:
It's just for the mere act of transporting these aliens,

[00:15:06] Speaker 03:
this accident wouldn't have occurred.

[00:15:08] Speaker 01:
So, but it says all acts and omissions of others that were within the scope of the jointly undertaken criminal activity and further into that criminal activity and reasonably foreseeable in connection with that criminal activity.

[00:15:21] Speaker 01:
So the, how do we, are you saying we just look at the act of driving is reasonably foreseeable or do we have to look at failing to yield at the stop sign is reasonably foreseeable?

[00:15:35] Speaker 03:
I think under a plain reading of the guideline, it's just simply any act that was taken in furtherance and in the scope.

[00:15:43] Speaker 01:
But it has to be reasonably foreseeable.

[00:15:44] Speaker 01:
Is it reasonably foreseeable that he's just going to plow through a stop sign in 59 miles an hour?

[00:15:51] Speaker 03:
Well, Your Honor, I think if you look at the specific facts of this case, and even if the court was going to apply a more onerous standard, here the defendants were transporting the aliens

[00:16:00] Speaker 03:
In an area that was unfamiliar to them, in a remote area of southwest Arizona, it was at night after dark.

[00:16:07] Speaker 03:
They were traveling at a high rate of speed.

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And certainly, although they were not fleeing from Border Patrol, certainly they would have been concerned with detection and apprehension.

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And so under those facts, I think it is reasonably foreseeable that these conditions could result in dangerousness and resulting in what was ultimately the death of the four individuals.

[00:16:27] Speaker 03:
And so, Your Honor, for these reasons, even if the court applied a more onerous standard, for the reasons I just mentioned, the enhancement was correctly applied.

[00:16:37] Speaker 03:
Your Honor, the district court here also sufficiently explained its ruling at the sentencing hearing.

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Procedural reasonableness at sentencing does not require a full opinion in every case, and the adequacy of the district court's explanation can be derived from the entire record of the sentencing hearing.

[00:16:54] Speaker 03:
Here below, the government addressed causation in its objection and cited to the relevant conduct guideline as the standard of causation.

[00:17:02] Speaker 03:
Of course, the guideline itself, 2L1.1b7, does not itself provide for a standard of causation, but clearly the guidelines as a whole under the relevant conduct standard does, and that's the standard that the government requests this court to apply.

[00:17:18] Speaker 03:
And so, Your Honor, because what happened below is

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The defendant did not respond in writing to the government's objection.

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The defendant did not raise the issue of causation of the sentencing hearing.

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And of course, as we mentioned before, he did not object.

[00:17:33] Speaker 03:
So below, there was no reason for the district court to go through a long explanation or a long analysis of the issue of causation or the standard of causation because it wasn't squarely presented below to the district court.

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So for those reasons, it's the government's position that

[00:17:48] Speaker 03:
the district court did sufficiently explain its ruling.

[00:17:52] Speaker 03:
The one issue that was the real main difference between what probation was saying and what the government was saying, as that was addressed earlier, was the issue of the standard of proof, not the standard of causation, and the district court did resolve that.

[00:18:05] Speaker 01:
But the probation officer did apply the Eighth Circuit standard, but it's not your view that that's the correct standard, is it?

[00:18:12] Speaker 03:
No, Your Honor, I don't believe it is.

[00:18:14] Speaker 03:
I think the guidelines itself clearly provide for a standard of causation here, and that's what the government believes would have applied in this case.

[00:18:21] Speaker 01:
What is that standard of causation?

[00:18:23] Speaker 03:
Under the relevant conduct guideline, the enhancement is going to apply for if the harm that resulted was resulted from the acts and omissions of the defendant or others involved in the criminal activity, as we mentioned before, as long as within the scope and furtherance

[00:18:41] Speaker 03:
and reasonably foreseeable in light of that criminal activity.

[00:18:43] Speaker 03:
We know from the Supreme Court's decision in Byrd's versus United States that that language resulted from, resulting in, equates to but for causation.

[00:18:53] Speaker 01:
And so that, in light of the Supreme Court's decision in the Byrd's case... But it refers to proximate causation, which subsumes always but for causation.

[00:19:03] Speaker 03:
So, Your Honor, I think that the Byrd's case said that that language, which encompasses the language and the relevant conduct guideline, equates to but for causation.

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without any additional requirements.

[00:19:14] Speaker 03:
And so the government.

[00:19:15] Speaker 01:
I mean, is this kind of an academic issue?

[00:19:19] Speaker 01:
Because to what are we applying the causation under the relevant guideline here?

[00:19:31] Speaker 03:
I'm sorry.

[00:19:31] Speaker 01:
To what acts?

[00:19:32] Speaker 01:
What causal connection between what act and what consequence are we looking at here?

[00:19:39] Speaker 03:
Your Honor, I think it's the causal connection between the transportation of the aliens.

[00:19:44] Speaker 03:
And so that would be the act.

[00:19:47] Speaker 03:
And even if this court was to apply a more onerous standard, we have additional facts here that show that would meet these.

[00:19:53] Speaker 03:
For example, Your Honor, I'll use, for example, in the 11th Circuit in the

[00:20:01] Speaker 03:
The Zalvidar case said that enhancement applied if it was reasonably foreseeable that the defendants or other members of the criminal activity could create dangerous conditions likely to result in death.

[00:20:12] Speaker 03:
And other courts have said that that standard is akin to proximate cause.

[00:20:15] Speaker 03:
And under that standard, as I mentioned before.

[00:20:18] Speaker 01:
The guideline is all harm that resulted from the acts and omissions specified in subsections A1 and A2 above.

[00:20:28] Speaker 01:
And A1 is the one that tags him with the driver's conduct if the driver's acts and omissions were, and then the three elements, one of which is reasonably foreseeable.

[00:20:41] Speaker 01:
So the causal connection is between the driver's actions and the harm, which seems under any standard to be met.

[00:20:49] Speaker 01:
The real issue is what's the reasonably foreseeable requirement and

[00:20:55] Speaker 01:
How do we define that in terms of the defendant's, the driver's conduct?

[00:21:00] Speaker 03:
Well, I think it's just the acts and omissions of the co-defendant driver.

[00:21:04] Speaker 03:
And the guideline doesn't narrow that to negligent or reckless acts.

[00:21:08] Speaker 03:
It says any acts or omissions of others involved in the jointly undertaken criminal activity, which could be the driving.

[00:21:14] Speaker 03:
It could be going through the stop sign.

[00:21:17] Speaker 03:
It could be any of these factors, Your Honor.

[00:21:21] Speaker 01:
OK.

[00:21:22] Speaker 03:
All right.

[00:21:23] Speaker 01:
Thank you, counsel.

[00:21:23] Speaker 03:
I see my time is up.

[00:21:24] Speaker 03:
Unless there's any further questions, I would ask this court to affirm the judgment and sentence.

[00:21:29] Speaker 01:
Thank you.

[00:21:30] Speaker 01:
We're here for rebuttal now.

[00:21:36] Speaker 02:
On the procedural issue, your honor, I refer the court to the Ninth Circuit Arara Roja case, which strictly, strictly applies Rule 32 to sentencing procedures, and any defect in Rule 32 needs to be reexamined.

[00:21:51] Speaker 02:
I think that this court must find that it had to be remanded whether it's analyzed under plain error or whether it's analyzed under a more abusive discretion or a more differential standard of review.

[00:22:08] Speaker 02:
The proximate cause and but for cause are different.

[00:22:13] Speaker 02:
The courts in this country have struggled over what proximate cause exactly is.

[00:22:19] Speaker 02:
But it's greater than just simply a but four which is what the government is arguing to apply to this case.

[00:22:26] Speaker 02:
And but four causes much less and does not require any foreseeability.

[00:22:31] Speaker 02:
But 1B1.3 does require that.

[00:22:34] Speaker 02:
Finally, last point, high rate of speed.

[00:22:38] Speaker 02:
But for the stop sign in this case, it wouldn't be a high rate of speed.

[00:22:41] Speaker 02:
59 miles an hour on a rural highway is not particularly a high rate of speed.

[00:22:47] Speaker 02:
Only in the context of there being a stop sign there and traffic, cross traffic, did this become a dangerous and negligent high rate of speed.

[00:22:57] Speaker 01:
All right.

[00:22:57] Speaker 01:
Thank you, Council.

[00:22:58] Speaker 01:
The case just argued will be submitted.