[00:00:04] Speaker 03:
Good morning, and welcome to the Ninth Circuit.

[00:00:07] Speaker 03:
We'll take the cases in the order on the day sheet.

[00:00:10] Speaker 03:
The first case is United States versus Douglas Taylor.

[00:00:23] Speaker 00:
Thank you, Your Honor.

[00:00:24] Speaker 00:
Good morning, and may it please the court

[00:00:26] Speaker 00:
My name is Caroline Platt from the Office of the Federal Public Defender on behalf of Appellant Douglas Taylor.

[00:00:31] Speaker 00:
We respectfully ask the Court to vacate the 60-month upward variance revocation sentence that Judge Anderson imposed in this case.

[00:00:38] Speaker 00:
Unless the Court directs otherwise, I'll start with the procedural errors that we allege to have taken place at the revocation sentencing hearing.

[00:00:45] Speaker 00:
As a more general matter, the District Court failed to properly or sufficiently explain its reasoning

[00:00:51] Speaker 00:
In the explanation requirement as set forth in cases such as Rita gall and this court's decision in Cardi from 2009 sorry 2008 So yes the entire explanation of sentence your honor is less than one transcript page covering 12 and parts of 12 and 13 of the er so the government argues it goes through the paragraph and and

[00:01:20] Speaker 03:
attaches each of the statements to a different portion, 3553A.

[00:01:26] Speaker 03:
So why isn't that enough?

[00:01:28] Speaker 03:
It wasn't just a sentence like in MGTOP.

[00:01:31] Speaker 03:
It was a whole paragraph.

[00:01:33] Speaker 00:
So, I mean, Your Honor, if I may, the undisputably under Supreme Court precedent and this Court's precedent, the degree of the variance has an effect on the degree of explanation required.

[00:01:45] Speaker 00:
This was a double to triple of the range sentence.

[00:01:48] Speaker 00:
It was 60 months when the range was 18 to 24.

[00:01:51] Speaker 00:
And so if you look, and I'm looking at the same list as you are, and I'm happy to address them, but if you look at cases such as Mikbel, Simtob, Hammons, I don't know how to pronounce, but Wachneen, and Trujillo, which is a 3582 case, but the rest of them are SRV sentencing cases, they all require more.

[00:02:07] Speaker 00:
And particularly those cases such as Mick Bell and Symtobe that involved upward variances.

[00:02:12] Speaker 00:
That's a requirement.

[00:02:13] Speaker 03:
Mick Bell was just a sense.

[00:02:14] Speaker 03:
I mean, there was nothing in Mick Tobe, basically.

[00:02:19] Speaker 00:
That's correct, Your Honor, but that was also only a three-month variance from nine months to 12 months, whereas Symtobe got a statutory maximum 36-month sentence.

[00:02:27] Speaker 00:
What we have here is a statutory maximum on two counts run consecutively, which is not

[00:02:33] Speaker 00:
a statutory maximum error, but is an extreme degree of variance and so looking to And so if you look at this court's decisions in wakening and in Hammond's specifically it discusses the meeting of the third and fourth prongs of plain error which as we noted are also changed in the defense's favor in

[00:02:55] Speaker 00:
Usually by Molina Martinez and Rosales Morelos neither case the government responded to in its red brief Although I raised them in the blue brief and so if I could go back to your original question judge Akuta and the six sort of things that the government pulled out from from the district court's explanation They're also largely very generic.

[00:03:13] Speaker 00:
So I'm not saying they have no reference whatsoever to the facts of mr. Taylor's case, but

[00:03:17] Speaker 00:
If you look at history of noncompliance and then saying that it's repeated violations, Mr. Taylor violated supervised release once on August 14th of 2008, which I also will note is 17 years ago because of the 21 years

[00:03:32] Speaker 00:
that he served in California, or 21-year sentence he served in the California state system.

[00:03:36] Speaker 03:
So the government suggests that's the only one which is wrong.

[00:03:40] Speaker 03:
It was sort of a slip of the tongue is what the government says.

[00:03:43] Speaker 00:
So the government makes that assertion based on an alleged violation from one week before the 14th on August 7th, which was something kind of alcohol parking lot situation, that the government explicitly withdrew the charges at page 34 of the ER.

[00:03:56] Speaker 00:
I submit that the government cannot now rely on that as a violation having withdrawn them.

[00:04:00] Speaker 00:
That's a waiver.

[00:04:01] Speaker 00:
The next factor is deterrence.

[00:04:03] Speaker 00:
That is generic.

[00:04:04] Speaker 00:
It applies in every case, particularly supervised release where someone has a conviction as well as a violation, has not responded favorably to sanctions or interventions.

[00:04:13] Speaker 00:
That is either out of date or patently false.

[00:04:17] Speaker 00:
He had not responded well in 2008, but now today in 2025 or 2024 at the time of sentencing, Mr. Taylor is in treatment.

[00:04:24] Speaker 00:
He is sober.

[00:04:25] Speaker 00:
He is out of the gang.

[00:04:27] Speaker 00:
He's living in the sensitive needs yard or now in the shoe because of his own

[00:04:31] Speaker 00:
successful rehabilitation in the California state prison system.

[00:04:35] Speaker 00:
So that was both outdated and then clearly erroneous.

[00:04:38] Speaker 00:
There's the cooperation.

[00:04:40] Speaker 03:
The government argues that the district court said it considered memos and letters in our decision.

[00:04:48] Speaker 03:
Cardi said you don't have to mention everything that's in that category.

[00:04:52] Speaker 00:
I'm so glad you raised that, Judge Akuta, because the judge did say that.

[00:04:55] Speaker 00:
But Cardi is a within range case.

[00:04:58] Speaker 00:
And there are lots of cases from this court that say, just saying, I considered the papers.

[00:05:03] Speaker 00:
for example Trujillo and also I think Micbel say that is not sufficient in a variance case.

[00:05:09] Speaker 00:
The court, I think it's Micbel, rejected that reasoning at length and it's also in Trujillo.

[00:05:14] Speaker 00:
I'd also like to note if my mayor and I know my time is dwindling, but a lot of the cases the government cites are within range sentences.

[00:05:22] Speaker 00:
That makes them completely an opposite because of the differing explanation requirements in an upward variance case, never mind an extreme upward variance case.

[00:05:30] Speaker 00:
So Carter, Cardi,

[00:05:32] Speaker 00:
Grant, Mix, Perez, Perez, and Stodaro.

[00:05:35] Speaker 00:
I know that was fast.

[00:05:36] Speaker 00:
I'm sorry.

[00:05:36] Speaker 00:
They're all within range cases.

[00:05:37] Speaker 00:
That makes them not particularly on point.

[00:05:40] Speaker 00:
Other cases they rely on, such as Leonard, Mix, and Musa, as well as Perez, Perez, again, all predate this court's decision in Cardi, which Footnote 5 says, if there's prior cases that are inconsistent with Cardi, Rita, Gall, and Kimbrough, they are overruled explicitly by this court on bank.

[00:05:56] Speaker 00:
So the government should not rely on them to the extent they say something different than

[00:06:00] Speaker 00:
So I think if you look carefully at the government citations, they don't really stand up in an extreme variance case in terms of just the basic explanation error.

[00:06:13] Speaker 00:
We have also submitted that there was an A2A error, which is the same case as largely because the egregious conduct was in fact the focal point

[00:06:21] Speaker 03:
of the court's sentencing, which is- Is this the one pending before the Supreme Court in Osteros?

[00:06:25] Speaker 00:
That's right, Your Honor.

[00:06:26] Speaker 00:
Yes.

[00:06:27] Speaker 03:
Should we wait until Osteros is decided?

[00:06:30] Speaker 00:
The court has the discretion, obviously, to control its docket.

[00:06:32] Speaker 00:
I would say you can rule, if you're going to rule for Mr. Taylor, on the generalized explanation, what I'll call a Cardi error, without waiting for Osteros.

[00:06:41] Speaker 00:
I think if you are going to find that there's no explanation error, but there's a procedural error of A2A,

[00:06:47] Speaker 00:
You may or may not want to wait for a Starris.

[00:06:49] Speaker 00:
That would be up to you.

[00:06:50] Speaker 00:
I listened to the argument last night.

[00:06:51] Speaker 00:
It was actually, it was really interesting.

[00:06:53] Speaker 00:
Nobody predicts, obviously, from any argument.

[00:06:56] Speaker 03:
We know it'll come out sometime before the end of June.

[00:06:59] Speaker 00:
I mean, presumably, yeah.

[00:07:00] Speaker 00:
I don't think this term is one of the weird ones that goes later.

[00:07:03] Speaker 00:
And then, again, I know I'm running out of time.

[00:07:06] Speaker 00:
But I would also say, if you decline to either recognize on-plane error or find procedural error, we submit, and I don't do this often.

[00:07:14] Speaker 00:
I'm a long-time defender.

[00:07:15] Speaker 00:
But this sentence is also substantively unreasonable.

[00:07:17] Speaker 00:
A 60-month, five-year sentence when you're not allowed to consider the egregious nature of the conduct and without a sufficient explanation, as you all know, the substantive reasonableness is also judged.

[00:07:27] Speaker 01:
What do you mean the first part about not consider the egregious nature of the conduct?

[00:07:31] Speaker 00:
So I think that an A2A, what we'll call retribution arguments that are excluded.

[00:07:36] Speaker 00:
Oh, you're saying you can't consider it.

[00:07:38] Speaker 00:
That's right.

[00:07:38] Speaker 00:
And I think the fact that he did, excuse me, the court did, goes also to substantive reasonableness because it's an impermissible

[00:07:44] Speaker 00:
currently factor.

[00:07:46] Speaker 00:
And similarly, just all the 3553A factors, which the whole list I was going through with Judge Akuta, those factors and their application to this client are how the court judges substantive reasonableness.

[00:07:57] Speaker 00:
And again, five years for revocation, particularly for a client who served 21 years for the same two incidents in the state court is just plainly, not plainly, substantively unreasonable.

[00:08:09] Speaker 03:
Plainly substantively.

[00:08:11] Speaker 00:
Well, it doesn't have to be plainly, but it's clearly so.

[00:08:13] Speaker 00:
How about that?

[00:08:14] Speaker 00:
Yeah, so obviously procedural is plain, substantive is straight up reasonable.

[00:08:17] Speaker 00:
And your substantively unreasonable argument would also tie in with asterisks, right?

[00:08:21] Speaker 00:
In part, but not entirely.

[00:08:23] Speaker 00:
It would be not just the retribution A2A factors, but we think on all the bases, particularly in light of the arguments that we submitted below to the district court about his later rehabilitation and treatment and cooperation.

[00:08:37] Speaker 00:
A one factors the history and characteristics of the offense and the offender they're not a one-way ratchet and here the district court ignored a substantial amount of both mitigating and also Rehabilitative evidence that's that's documented.

[00:08:50] Speaker 00:
You know it's not just we said it we know better So I would argue that those also I'll go to the substantive unreasonableness as well as the fact that the court didn't explain why it failed to to

[00:09:00] Speaker 00:
accept those arguments, which is a separate explanation requirement to address non-frivolous defense arguments, what I would say ours were in this case.

[00:09:09] Speaker 03:
Do you want to save time?

[00:09:10] Speaker 00:
I do want to save time for a battle, Your Honor.

[00:09:12] Speaker 00:
Thank you very much.

[00:09:12] Speaker 00:
I appreciate it.

[00:09:15] Speaker 03:
We'll hear from the government.

[00:09:22] Speaker 02:
Good morning, and may it please the court, Rajesh Srinivasan for the United States.

[00:09:27] Speaker 02:
A year after being released from prison,

[00:09:30] Speaker 02:
for committing four robberies, defendant Douglas Taylor committed a fifth one while on supervised release.

[00:09:37] Speaker 02:
In addition, he did not comply with his drug and alcohol conditions.

[00:09:42] Speaker 02:
Consequently, for this breach of trust, the district court sentenced him to 60 months imprisonment, and it justified that sentence based off the defendant's history and characteristics, the need for deterrence, the need to protect the public, and the defendant's recidivism risk.

[00:09:59] Speaker 02:
That explanation was not erroneous, let alone plainly erroneous, and the resulting sentence was reasonable.

[00:10:06] Speaker 03:
The other side says it was highly generic.

[00:10:09] Speaker 03:
There wasn't any specifics.

[00:10:10] Speaker 03:
It was all just generic statements.

[00:10:13] Speaker 03:
What's your response to that?

[00:10:15] Speaker 02:
Two responses to that, Judge Akuta.

[00:10:18] Speaker 02:
First, I would push back against it being generic.

[00:10:24] Speaker 02:
District court specifically said, for example, that the defendant had not responded well to prior interventions and had recidivated.

[00:10:32] Speaker 02:
And that happened in 2008, but that's a direct finding of the court.

[00:10:37] Speaker 02:
And in the interim, he was in prison.

[00:10:39] Speaker 02:
So recidivism, the public was not at issue, but it should be noted that even in prison, he stabbed a fellow inmate and had multiple violations of prison rules.

[00:10:51] Speaker 01:
But the public defender

[00:10:54] Speaker 01:
argues that there's evidence that was not looked at by the district court about Rehabilitation that it got out in prison.

[00:11:00] Speaker 01:
What's your response to that?

[00:11:02] Speaker 02:
The district court did look at that evidence.

[00:11:04] Speaker 02:
It simply disagreed with it It read all of the papers as it said it read the defendant's letter and can you rely on the paper?

[00:11:12] Speaker 01:
I mean you seem to be relying on that on the presumption which we normally grant but they now they argue and that

[00:11:21] Speaker 01:
You can't rely on that presumption when you're doing an out of guidelines range.

[00:11:26] Speaker 01:
Did the district court need to do more here because it was an out of guidelines range departure?

[00:11:31] Speaker 02:
No.

[00:11:31] Speaker 02:
The purpose of the sentencing explanation requirement is twofold.

[00:11:36] Speaker 02:
First, the parties need to be heard and the record needs to reflect that.

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And second, this court needs to have a basis for reviewing the sentence.

[00:11:45] Speaker 02:
And this record does provide a basis.

[00:11:47] Speaker 02:
Each of the things that the district court mentioned can be tied directly to arguments made by the government, either during the hearing or in the papers, as well as evidence in the supervised release report.

[00:11:59] Speaker 02:
The district court does not need to spell out, for example, why the specific instances in which the defendant did not respond to intervention.

[00:12:09] Speaker 02:
The district court does not need to spell out.

[00:12:11] Speaker 01:
Well, I guess that's the question we have to address.

[00:12:13] Speaker 01:
I mean, I think you're right if it's within guidelines range.

[00:12:16] Speaker 01:
The question is,

[00:12:18] Speaker 01:
Is there more required?

[00:12:19] Speaker 01:
It would seem there would be more required to go for a departure.

[00:12:23] Speaker 01:
I'm not sure this meets it, but you seem to be saying, no, the presumption applies.

[00:12:28] Speaker 01:
The presumption that he's read the papers, as long as it was in the papers, and the district court makes a nod to having read the papers, that's enough to depart.

[00:12:39] Speaker 01:
And what cases support that in the departure context?

[00:12:43] Speaker 02:
A mere nod is not enough, but specifically going through 3553A factors that could be attached to arguments in the papers is enough.

[00:12:51] Speaker 02:
And two cases that the government cited, which were upward departures or variances, were Musa and Leonard.

[00:12:59] Speaker 02:
In both of those cases, those were sentences above the guidelines range.

[00:13:03] Speaker 02:
In Musa, the court found it sufficient that the district court merely said that the defendant was a danger to the community.

[00:13:10] Speaker 02:
In Leonard, the court found it sufficient that the district court said that the defendant had not complied in any sense with the terms of supervised release.

[00:13:20] Speaker 02:
Those are far briefer explanations than what we have here.

[00:13:24] Speaker 02:
Which brings me to my next point.

[00:13:26] Speaker 02:
Even if this explanation were procedurally erroneous, it is certainly not clearly or obviously procedural error, particularly in light of Moussa and Leonard.

[00:13:38] Speaker 02:
The defense relies on Mikbel, but Mikbel is fundamentally different in that all the judge said was that his sentence complied with the purposes of sentencing, and then later expressed his own doubts about the sufficiency of his explanation.

[00:13:53] Speaker 02:
And that goes to prong three.

[00:13:55] Speaker 02:
Even if there were clear error, which there is not, there is nothing offered by the defense to show that the district court would impose a different sentence beyond speculation.

[00:14:05] Speaker 02:
And this court has said such speculation is not sufficient to meet Prong 3.

[00:14:12] Speaker 02:
I want to discuss the allegation of clear error as well.

[00:14:16] Speaker 02:
The district court did not err by saying that the defendant had repeated violations.

[00:14:22] Speaker 02:
The court was using the word repeated in the sense of multiple.

[00:14:27] Speaker 02:
And the defendant certainly had multiple violations in 2008.

[00:14:31] Speaker 02:
He was found drunk, thereby violating his alcohol condition.

[00:14:36] Speaker 02:
He had failed to report for drug testing, thereby violating that drug condition.

[00:14:41] Speaker 02:
He had committed an armed robbery.

[00:14:43] Speaker 02:
He had failed to report his arrest.

[00:14:46] Speaker 02:
He was found

[00:14:47] Speaker 02:
with a stolen cell phone when they searched his apartment.

[00:14:50] Speaker 02:
His apartment contained stolen property.

[00:14:53] Speaker 02:
All of these things were violations.

[00:14:56] Speaker 02:
And the purpose of clear error is that this court can reverse only when the error is clear.

[00:15:02] Speaker 02:
And when there are multiple meanings to a word, like repeated, I would submit that that is not clear.

[00:15:08] Speaker 02:
And even if that were an erroneous statement, as the government said in its briefs,

[00:15:14] Speaker 02:
Simple misstatement during a sentencing explanation is not sufficient to reverse a sentence when it's otherwise supported by the record What about the idea that?

[00:15:26] Speaker 01:
He's precluded the district court is precluded from looking at the severity of the crimes and If I remember correctly the district court said he wasn't but then mentioned it.

[00:15:39] Speaker 01:
How do you juxtapose those and

[00:15:42] Speaker 02:
I juxtapose those by looking at SIMTOB.

[00:15:45] Speaker 02:
SIMTOB outlined the ways you can consider prior offenses.

[00:15:49] Speaker 02:
Prior offenses are relevant to protecting the public, they're relevant to deterrence, they're relevant to the general nature and history of the characteristics that go into the permissible sentencing considerations.

[00:16:02] Speaker 02:
And that's what the district court was using that offense for in this case.

[00:16:06] Speaker 02:
The district court, as you said, never said it was sentencing based on the seriousness of the offense.

[00:16:13] Speaker 02:
In cases where this court has reversed on that basis, the district court had said it was considering that as a primary or sole reason.

[00:16:21] Speaker 01:
As long as the district court considers it through a backdoor analysis, then it's OK.

[00:16:27] Speaker 01:
Is that basically what the law is on this?

[00:16:31] Speaker 01:
Backdoor analysis well, I mean he says I'm not considering it, but then he is considering it for purposes of other Other factors I mean you seem to be suggesting as much as well that well you can consider it for purposes of its Effect on the on the public that makes sense to me, but then I don't understand why we can't just be honest and say Well, he's considering it he is considering

[00:16:55] Speaker 01:
He's just not considering it on the basis of it being an actual prior act of violence.

[00:17:02] Speaker 01:
He's just saying, well, it would harm the public.

[00:17:04] Speaker 02:
Well, as Judge Akuta mentioned, this is before the Supreme Court right now.

[00:17:08] Speaker 02:
They may come out that way.

[00:17:09] Speaker 02:
But in the interim, the district court acted within the confines of SIMTOB.

[00:17:14] Speaker 02:
which says exactly what you're saying, that you can't sentence primarily or solely on the basis of the seriousness of the offense, but it would not make sense to ignore prior offenses when considering permissible goals, like deterring the defendant or protecting the public.

[00:17:31] Speaker 03:
And if you said we did not have to wait for a steer us, do you still take that position, or should we wait and see what the Supreme Court says on that issue?

[00:17:41] Speaker 02:
Especially because this is a plain error case.

[00:17:44] Speaker 02:
And this court already aligns with the more defendant friendly view.

[00:17:49] Speaker 01:
Well, you have to be clean air.

[00:17:50] Speaker 01:
The defense gets the benefit of a Supreme Court decision that comes out during the pendency of the appeal.

[00:17:56] Speaker 01:
So even if we rule for you, the defense is going to keep this case open until June, and then we're going to have to revisit it.

[00:18:05] Speaker 01:
I don't understand why we should move forward until we hear from the Supreme Court.

[00:18:09] Speaker 02:
You should move forward because the district court did not consider the seriousness of the offense in this case.

[00:18:14] Speaker 02:
We have to take the district court at its word.

[00:18:17] Speaker 02:
This court has a presumption that the district court knows the law when it's sentencing.

[00:18:21] Speaker 02:
And there's nothing that the district court did here that was not explicitly approved of in symptom.

[00:18:27] Speaker 02:
So I don't think this court needs to wait for the hysterics decision, even if there were error, which there isn't on the seriousness of the offense prongs.

[00:18:38] Speaker 02:
Prongs three and four of plain error cannot be met.

[00:18:42] Speaker 02:
The court could rule on that alone.

[00:18:44] Speaker 02:
But if this court were somehow inclined to reverse based off procedural reasonableness, then the government would ask the court to wait for the hysterics decision.

[00:18:59] Speaker 01:
Fair enough.

[00:18:59] Speaker 01:
It's a good argument.

[00:19:02] Speaker 02:
Unless the court has any other questions.

[00:19:06] Speaker 03:
Apparently not.

[00:19:07] Speaker 02:
We ask the court to affirm.

[00:19:08] Speaker 03:
Thank you.

[00:19:14] Speaker 00:
I know I'm low on time, Your Honors, if I'm going to try to make three quick points, if I may.

[00:19:19] Speaker 00:
The first is that the two cases from this court that hold that the district court saying I've considered the papers

[00:19:24] Speaker 00:
is insufficient are both Trujillo and MacBell itself.

[00:19:29] Speaker 00:
As to Trujillo, it also says that this 3553C2 requirement, which I will note it's a statutory requirement as well as a presidential requirement, is a requirement of explanation, not consideration.

[00:19:41] Speaker 00:
The court has to explain its sentence, not just consider the arguments.

[00:19:44] Speaker 00:
And that includes explaining rejection of non-frivolous defense arguments.

[00:19:48] Speaker 00:
And finally, the two cases that my friend just relied on for upward variance cases, Judge

[00:19:54] Speaker 00:
are Musa and Leonard, both of which predate Cardi.

[00:19:56] Speaker 00:
So in terms of them requiring less of an explanation in an upward variance case, I submit that they are explicitly overruled by footnote five of Cardi, but by this court sitting on bank.

[00:20:05] Speaker 00:
I think that's all I have.

[00:20:07] Speaker 00:
Unless the court has further questions, we would ask that you vacate on either procedural error or substantive unreasonableness.

[00:20:14] Speaker 03:
OK.

[00:20:14] Speaker 03:
We thank you for your argument.

[00:20:15] Speaker 03:
We thank both sides for the argument.

[00:20:22] Speaker 03:
We have a number of cases that were submitted on the briefs.

[00:20:27] Speaker 03:
Those are Adolfo Garcia versus Costco, Wholesale Corporation is submitted.

[00:20:34] Speaker 03:
United States versus Hector Ohm, which is submitted.

[00:20:39] Speaker 03:
Ronald Woods versus Michelle King is submitted.

[00:20:42] Speaker 03:
And Raul Perez Cruz versus Pamela Bondi is submitted.