[00:00:01] Speaker 03:
Now for our argued cases, the first one today is United States versus Velazquez.

[00:00:07] Speaker 03:
And I believe, Mr. Thompson, you're representing the appellant and you're appearing remotely.

[00:00:12] Speaker 03:
Please proceed.

[00:00:13] Speaker 04:
Thank you, Your Honor.

[00:00:14] Speaker 04:
James Thompson on behalf of the Cesar Velasquez Jr.

[00:00:18] Speaker 04:
And I first want to thank the court for allowing me to appear by video as opposed to in person.

[00:00:25] Speaker 04:
Both my doctor and I thank you for that courtesy.

[00:00:30] Speaker 04:
I would like to reserve three minutes for rebuttal if I might.

[00:00:33] Speaker 03:
Try to keep your eye on the clock.

[00:00:34] Speaker 03:
We'll try to help you.

[00:00:36] Speaker 04:
Thank you.

[00:00:37] Speaker 04:
And I'll go ahead and begin.

[00:00:39] Speaker 04:
In this case, Mr. Velazquez played a minor role.

[00:00:43] Speaker 04:
He did not procure the drugs.

[00:00:45] Speaker 04:
He did not plan or organize the sale of the drugs.

[00:00:48] Speaker 04:
He did not plan the drug delivery.

[00:00:51] Speaker 04:
He did not make any of the decisions that were formed with respect to the transportation and distribution of the drugs.

[00:00:58] Speaker 04:
and it was to be paid a mere $500 for taking the package to the post office.

[00:01:04] Speaker 04:
And in fact, he wasn't even paid that $500 amount.

[00:01:08] Speaker 04:
With respect to the minor role that he played, probation agreed.

[00:01:13] Speaker 04:
Under the law, Mr. Velasquez was a minor player.

[00:01:18] Speaker 04:
He was substantially less culpable than the other two participants in the crime.

[00:01:23] Speaker 04:
He should have received a two-level reduction under Section 3B1, and he should have received a four-level reduction under Section 2D1.

[00:01:32] Speaker 03:
Yeah, so let me ask you this.

[00:01:34] Speaker 03:
Yes.

[00:01:34] Speaker 03:
What standard of review do we apply to the decision of the district court in this case?

[00:01:44] Speaker 04:
I think it's an abuse of discretion standard, Your Honor.

[00:01:47] Speaker 03:
The government claimed it's plain error.

[00:01:50] Speaker 03:
Why is it wrong?

[00:01:56] Speaker 04:
I'm not sure I can articulate a fact other than in Rodriguez and Diaz.

[00:02:01] Speaker 04:
I think they both both analyzed it under an abuse of the discretion.

[00:02:06] Speaker 04:
I don't think that there's a plain error error analysis here because the kind of the objections to the calculations and the participation of Mr. Velazquez were all addressed by the district court.

[00:02:20] Speaker 04:
Whether or not the precise you know language of some of the

[00:02:23] Speaker 04:
wording that we used on the appeal is different than that.

[00:02:27] Speaker 04:
Nevertheless, the thrust of the issue was addressed in the district court and the district court made those determinations.

[00:02:34] Speaker 04:
The pre-sentence report discussed these matters as well.

[00:02:38] Speaker 02:
What about the fact that a fingerprint of your client was found in the packaging indicating he was more than just a courier?

[00:02:45] Speaker 04:
Well, as he told probation and the district court learned later,

[00:02:52] Speaker 04:
His single fingerprint.

[00:02:54] Speaker 04:
was found on a food saver box that was in the package that was distributed.

[00:03:02] Speaker 04:
His fingerprint wasn't in the box itself, and it wasn't on the materials that were actually the contraband, and it wasn't on any of the taping or anything else.

[00:03:13] Speaker 04:
It was just in a bag that was used to help package the material that was then sent through the mail from the post office.

[00:03:22] Speaker 04:
He didn't, you know, a single fingerprint doesn't really indicate some sort of active participation compared to, you know, if you were actually packaging these drugs, your fingerprints would have been all over the interior of the box.

[00:03:36] Speaker 02:
I mean, the district judge thought that was highly significant.

[00:03:39] Speaker 02:
He used the word fingerprints, didn't he, the district court?

[00:03:43] Speaker 04:
Yes, he did.

[00:03:44] Speaker 04:
But it was a sole fingerprint found on a food saver box inside the package itself.

[00:03:51] Speaker 02:
So your inference is that somebody else of the co-conspirators who did the packages used the food saver box as part of the packaging?

[00:04:00] Speaker 02:
Is that your thought?

[00:04:03] Speaker 04:
Yes.

[00:04:03] Speaker 04:
And the court acknowledged that in the earlier discussions prior to the actual date of sentencing.

[00:04:09] Speaker 04:
The district court acknowledged that because Mr. Velasquez had participated in the sale of marijuana chewables and stuff in two earlier packages, which he admitted to the probation office.

[00:04:26] Speaker 04:
So if he was involved with that, his fingerprint could very well have been on there, but not in the actual package.

[00:04:32] Speaker 01:
One question I have with regard to all this is the whole story here of your client's very limited participation comes from your client's testimony.

[00:04:44] Speaker 01:
And it does seem like the district court judge, both because of the fingerprint and because of the fact that he'd done this before and because of the quantity of the drugs and other things.

[00:04:54] Speaker 01:
Other things that you might say are the more objective evidence.

[00:04:59] Speaker 01:
He sort of just concluded he seemed to minimize or weigh as less your client's testimony.

[00:05:07] Speaker 01:
Is it the case that when you have somebody that testifies and says, oh, I was just a minor participant, that the district court judge just has to accept that?

[00:05:16] Speaker 01:
Or can the district court judge discount that on the basis of what I think we would all think was sort of common sense?

[00:05:23] Speaker 01:
which is that everybody who gets caught is always going to say that they were a minor player if they can't, you know, and sometimes it's tough for the government to have, here they actually had quite a bit of objective evidence, but oftentimes they may not have a fingerprint in the box or something like that.

[00:05:41] Speaker 01:
So what do we do with the fact that everything that you're relying on to say that the district court judge did the wrong

[00:05:48] Speaker 01:
the wrong, ended up with the wrong result here, abused its discretion, is all the testimony of your client.

[00:06:00] Speaker 04:
Well, I think the district court has an independent ability or duty to assess the evidence.

[00:06:07] Speaker 04:
So I don't think it's tied just to the client's testimony.

[00:06:10] Speaker 01:
But I think that... I guess one thing I can... What testimony or what evidence is there other than that would support the minor role reduction other than your client's testimony?

[00:06:21] Speaker 04:
Well, I think there is the fact that he's the one that mailed the package and then when the package was not delivered or there was some checking on when it was to be mailed or when it was actually delivered, whatever, that was done by one of the other individuals.

[00:06:39] Speaker 01:
Yeah, so that's something, but I thought it was kind of odd that that cuts in that direction because

[00:06:46] Speaker 01:
When I want to have a package checked on, I usually have my JA or one of my clerks check on a package.

[00:06:52] Speaker 01:
I don't check on it.

[00:06:54] Speaker 04:
You know, I think someone who was, and again, I don't know, but I would think that someone who's in charge of that much methamphetamine and was involved in that distribution would be the one that would want to make sure that it was delivered appropriately, not the courier that dropped it off at the post office box.

[00:07:16] Speaker 04:
And the person who's in charge, right, is not going to get paid or promise to be paid a $500 sum.

[00:07:23] Speaker 01:
Right, so that's one possible way to look at it, but it does seem like you could look at it the other way that the district court judge did, which is that you just have somebody else checking on it, partly maybe because you don't want the higher-up person to get caught, right?

[00:07:38] Speaker 01:
You know, but because the person checking on it may be at more of a risk of getting caught.

[00:07:43] Speaker 01:
Especially if something's happened to the box and the government authorities have somehow obtained it.

[00:07:50] Speaker 04:
I understand, but I think, you know, if you look at the Diaz five factors in analyzing this, and you apply those from what we said in the briefs, and I certainly don't want to repeat it here, all of those factors pointed towards him being the minor participant.

[00:08:08] Speaker 04:
And so I think you have to take the evidence that you have at hand.

[00:08:11] Speaker 01:
In order to Analyze those factors and that's you're kind of taking over your time So but but so when you say we have to take the evidence you have at hand If the only evidence you know in this case there's quite a bit of objective evidence But in a lot of cases it might just be only the defendant's testimony And if that's all we got then that's what you have to plug into the factors and and basically if somebody says they're a minor role

[00:08:37] Speaker 01:
participant and the government can't disprove it, then they get the reduction?

[00:08:41] Speaker 01:
Is that your view?

[00:08:43] Speaker 04:
I don't know that the government can't disprove it.

[00:08:45] Speaker 04:
I think that if the defendant in a particular case makes the showing that is required and follows those five factors and they're analyzed by the court, then that is the evidence.

[00:08:57] Speaker 01:
But I think you're kind of, but makes the showing how?

[00:09:00] Speaker 01:
It makes the showing

[00:09:02] Speaker 01:
with their own testimony that says, I don't really know anybody else.

[00:09:06] Speaker 01:
I didn't really know what was going on.

[00:09:07] Speaker 01:
I just met a dude and he gave me the drugs and told me to mail six pounds of meth or six kilos, my bad.

[00:09:14] Speaker 04:
Unless there was some sort of written agreement that set that out that you could establish it, but the defendant can't call the co-defendants and have them testify at a sentencing hearing about what his role was.

[00:09:26] Speaker 04:
I mean, he's precluded from doing that.

[00:09:28] Speaker 04:
So he can only offer what he can offer, which is, this is my role.

[00:09:33] Speaker 04:
This is what I did.

[00:09:34] Speaker 04:
This is how it is.

[00:09:36] Speaker 01:
It might be really hard to actually show the minor role if you're the defendant, but that would be consistent with the fact that we've elsewhere said that that only applies in quote unquote exceptional circumstances.

[00:09:49] Speaker 04:
It does, but you know, and I'm not here to obviously argue.

[00:09:53] Speaker 04:
I'm trying to persuade, and I'm not the author of Rodriguez, which

[00:09:58] Speaker 04:
Both of you are in the concurring opinion and the real opinion.

[00:10:02] Speaker 04:
So I can't really say this is how I see that case as being read.

[00:10:07] Speaker 04:
You're the ones that wrote it.

[00:10:08] Speaker 04:
So you have a better sense.

[00:10:10] Speaker 04:
But I think even at the end of this, you can say from the record that no one can know for sure whether the court properly applied those five factors because the record is devoid of that discussion.

[00:10:25] Speaker 03:
Council, you're over your time, but we're going to give you some time, two minutes on rebuttal, and I suspect my colleagues would like you to comment on the government's argument that Diaz says that the district court's discussion of the 3B1.2 factors was sufficient as opposed to Rodriguez and other cases.

[00:10:50] Speaker 03:
So when you come back, will you be prepared to discuss those, please?

[00:10:53] Speaker 04:
Thank you.

[00:10:54] Speaker 03:
Okay, let's hear from the government.

[00:10:58] Speaker 00:
Mr. Alcaraz, right?

[00:11:01] Speaker 00:
Good morning, Your Honors, and may it please the Court.

[00:11:04] Speaker 00:
My name is Eli Alcaraz, and I represent the United States.

[00:11:08] Speaker 00:
In this case, the Court should affirm the District Court.

[00:11:10] Speaker 00:
The District Court did not abuse its discretion in declining to apply the mitigating role of reduction.

[00:11:17] Speaker 00:
And in imposing a low end guideline sentence, it was not a substantially unreasonable sentence.

[00:11:24] Speaker 03:
Can we focus on the Rodriguez, Quintero, Levia, and Diaz situation?

[00:11:32] Speaker 03:
Yes, your honor.

[00:11:34] Speaker 03:
I am concerned that the district court, a person I know well, ticked off some things but did not show to my mind a clear

[00:11:47] Speaker 03:
understanding that he had reviewed each of the five factors.

[00:11:50] Speaker 00:
Yes.

[00:11:50] Speaker 03:
Will you speak to that please?

[00:11:51] Speaker 00:
Yes, your honor.

[00:11:52] Speaker 00:
My answer is a threefold answer.

[00:11:54] Speaker 00:
The first is I'll rely on Cardi, which is in the government's brief, which is so long as there's an opportunity to be heard, the court says that it has announced... But that's 3553A.

[00:12:04] Speaker 03:
I was here when Cardi came down.

[00:12:07] Speaker 03:
That's all it was.

[00:12:08] Speaker 03:
3553A had nothing to do with these factors.

[00:12:12] Speaker 03:
That's just dicta.

[00:12:14] Speaker 03:
So put Cardi to the side because that's not this case.

[00:12:17] Speaker 03:
What else have you got?

[00:12:18] Speaker 00:
Yes.

[00:12:19] Speaker 00:
So the court explicitly said before each of its hearings that it reviewed all of the briefing.

[00:12:27] Speaker 00:
In each of the briefings submitted by the government, it announced the Dominguez Casino requirements, the Rodriguez requirements, and that the court must consider all five factors.

[00:12:36] Speaker 00:
The court also implicitly adopted the government's reasoning when it said at one point during one of the hearings,

[00:12:43] Speaker 00:
I think the government is probably right.

[00:12:45] Speaker 00:
Further, at the tail end of the third sentencing hearing, the United States said it incorporates by reference all of the earlier briefing, which the district court said substantial briefing indeed, showing that it had an understanding of its clear obligation to consider all of the five factors.

[00:13:01] Speaker 00:
Now, whether Cardi... So let me be sure I understand.

[00:13:06] Speaker 03:
So you're saying that because

[00:13:08] Speaker 00:
The government incorporated by reference all of the other materials that the court did not specifically referred to But did refer to the overall briefing that that's enough that in combination with we are dealing with a unique circumstance of three sentencing hearings which had About two hours of substantive discussion so in this particular instance.

[00:13:28] Speaker 00:
I'd like to direct the court to

[00:13:30] Speaker 00:
to excerpts, I believe it's at page 178 and 174, where in the discussion with the defense attorney, they were talking about whether the defendant was a minor participant, whether he was just a mere courier.

[00:13:45] Speaker 00:
Mere courier goes to factor one.

[00:13:47] Speaker 00:
I don't believe that the requirements of Rodriguez and others say that the court needs to say, let's discuss factor one now.

[00:13:53] Speaker 00:
But in substance, the court did discuss factor one.

[00:13:56] Speaker 00:
What was the knowledge and scope of this individual?

[00:14:00] Speaker 00:
And the court made a factual finding, which would be reviewed for clear error, which is in an instance where you find a fingerprint, the court found that to be fundamentally inconsistent with the idea that the person was a mule.

[00:14:12] Speaker 00:
And under that instance, the core of factor one was discussed and explicitly rejected by the court.

[00:14:18] Speaker 00:
And so this court can feel comfortable that the district court was analyzing the factors as they were presented to it.

[00:14:24] Speaker 00:
Further, the Chiconde decision recently said that,

[00:14:29] Speaker 00:
the amount of methamphetamine can also go or the amount of drugs can go to the specific factors that are enumerated in the commentary to 3B1.2 and there was substantial discussion about what the inference should be drawn of the amount of drugs that were sent and the court also made additional very specific findings such as that it believed for someone to be entrusted with this amount the bona fides of the individual had to have been proven to the drug trafficking organization.

[00:14:58] Speaker 01:
So you can definitely take

[00:14:59] Speaker 01:
It's not like the court didn't do anything here.

[00:15:00] Speaker 01:
It discussed different things.

[00:15:02] Speaker 01:
And you can, I don't think you have to be, pretty much anybody with a legal education could tie the court's discussion to some of the various factors.

[00:15:12] Speaker 01:
You'd think that somebody could do that.

[00:15:15] Speaker 01:
What did not happen here, I guess, is that the district court did not sort of go through each of the factors and tie, you know, explicitly tie them to the discussion.

[00:15:24] Speaker 01:
It seems to me that if we ruled against you in this case, that would be what we would be requiring a district court to do.

[00:15:32] Speaker 01:
Rodriguez does say that you have to consider all the factors.

[00:15:37] Speaker 01:
I don't know that we've yet said that you have to explicitly discuss each of the factors individually.

[00:15:43] Speaker 01:
Why do you not need to discuss each of the factors individually?

[00:15:46] Speaker 00:
Your Honor, I think that if we're going to use cardio as maybe a persuasive idea is that district courts are sentencing regularly defendants year in and year out across the largest circuit in the country.

[00:15:59] Speaker 00:
And in an instance like this where the ideas were discussed, where we've had three rounds of substantial briefing and where the court specifically says that it understood it, I believe that in this particular instance when the court hasn't previously said that the ideas must be enumerated,

[00:16:15] Speaker 00:
or must be discussed that it would then be an unnecessary expansion that would just add to the kind of backlog or the processing of the district courts because in this particular instance or even if we were to zoom back and look at a mind-run case we're really dealing with this idea that did the defendant get a fair shake and in this instance three rounds of briefing three sentencing hearings and two hours of argument show that the defense had its opportunity to make its

[00:16:43] Speaker 00:
arguments, and if we're going to talk about the analysis of degree, the court actually made an explicit, not using the word degree, but an explicit assessment between the two so that this court can feel comfortable.

[00:16:54] Speaker 02:
Well, you say that, but the essence of what the district court said in all this was basically just focusing on the fact that fingerprints were found in the packaging, and that's a misstatement because there was only one single fingerprint on the food wrapper, and this was a huge quantity, six kilos almost, of meth.

[00:17:12] Speaker 02:
But I mean, and that's it.

[00:17:14] Speaker 02:
Well, doesn't that indicate some error in not complying with the five factors that were added to the comments of the sentencing guidelines in 2015?

[00:17:25] Speaker 00:
Yes, your honor.

[00:17:26] Speaker 00:
And my answer to that is I believe at the district court, the correction had been made, that it was only one fingerprint.

[00:17:33] Speaker 00:
But as to the amount, Chikonde would say that the court is permitted to consider the amount.

[00:17:39] Speaker 00:
The long history of this court's ruling say the court is able to consider the amount.

[00:17:42] Speaker 00:
And there's one small nuance point that I believe might ease the court's concerns, which is

[00:17:48] Speaker 00:
at excerpt of record 178, there's a discussion about the later phone call by the other co-participants.

[00:17:54] Speaker 01:
I think what Judge Gilman may be getting at is that the district court never did, it discussed those things but it never tied that to any particular factor at all.

[00:18:03] Speaker 01:
It never said, and this goes to factor one and three, you know, it never did anything like that.

[00:18:08] Speaker 00:
I guess the submission would be that that's an unworkable solution in an instance where you're having such substantial discussion.

[00:18:15] Speaker 03:
So for example... But counsel, I guess,

[00:18:18] Speaker 03:
to cut to the chase, at least from my perspective.

[00:18:21] Speaker 03:
In Cardi, we made it very clear that 3553A was, as long as it was clear that the court was in the ballpark, that was okay.

[00:18:31] Speaker 03:
But in Quintero, Levia, and Rodriguez, we specifically said, you've got to tick these off.

[00:18:38] Speaker 03:
One, two, three, four, five.

[00:18:39] Speaker 03:
Uh, and that didn't happen here.

[00:18:41] Speaker 03:
What do we, what do we do with that?

[00:18:44] Speaker 00:
My understanding of those cases was that it was that the consideration must be made, not necessarily that.

[00:18:49] Speaker 03:
Well, I suppose we didn't say you have to number them, but you have to consider and speak to each of those.

[00:18:56] Speaker 03:
And as my colleagues and I have both talked about, yes, talk to some of them.

[00:18:59] Speaker 03:
But not all of them.

[00:19:00] Speaker 03:
So what do we do with that?

[00:19:01] Speaker 00:
Well, in this particular case, I think that courts are permitted at the district court level in terms of managing their courtroom to rely on the briefing, which has all of the factors and a full discussion of them to say, yes, it is substantial.

[00:19:14] Speaker 00:
Yes, it is scholarly.

[00:19:15] Speaker 03:
From the government's perspective, if in some of the briefing, these are all discussed and the court says, I've read these briefs, that's all that's required?

[00:19:23] Speaker 00:
uh... if it in then if it also is explicitly rejecting counter-arguments by the defense i think those two things in combination so for example in this particular case in the third sentencing hearing the government said that sorry the court said that it appreciated the government's additional work which had additional analysis and so in that way i think the court is permitted to adopt the government's analysis say that it believes the government is probably right and then reject explicitly that really eviscerates rodriguez i mean

[00:19:53] Speaker 03:
you all do fine briefs, wonderful briefs.

[00:19:56] Speaker 03:
We read them, lots of stuff in there.

[00:19:58] Speaker 03:
Most of it has nothing to do with what we're looking at.

[00:20:00] Speaker 03:
In this case, the question is, how were these factors considered?

[00:20:05] Speaker 03:
I'm troubled with the concept that if the court says, I read this brief and I liked it, that that's enough.

[00:20:13] Speaker 03:
What's your response to that?

[00:20:14] Speaker 00:
Well, the court would be able then to look at the analysis in the brief and make similar decisions like it did in Rodriguez.

[00:20:19] Speaker 00:
If the brief, for example, didn't talk about degree but said it was a binary and one single decision was enough, then in that way the court, in using time-saving procedures, would have adopted a decision that this court could then determine was an abuse of discretion and remand the way that it did in Rodriguez.

[00:20:37] Speaker 01:
Rodriguez, as I recall, and I would say, Rodriguez.

[00:20:41] Speaker 03:
He wrote a brilliant concurrence.

[00:20:43] Speaker 01:
Yeah, and concurrence in the judgment.

[00:20:48] Speaker 01:
Because Rodriguez, the whole issue of saying that you, as I'm reading it here, that they must consider all factors.

[00:20:53] Speaker 01:
I don't remember any ticking off or mentioning all, I'm sorry, explicitly mentioning all factors, but that they must consider all factors.

[00:21:01] Speaker 01:
That was sort of,

[00:21:02] Speaker 01:
Irrelevant to that case as I recall because I think the district court actually did explicitly We still overturned the district court and that but it was on a whole that completely different Reason the statement that it had to consider all factors I mean in that case if I recall the district court actually did go factor by factor the court considered the factors But as it applied them it didn't apply them using a degree standard it used it where there's a comparative analysis it made some some clear mistakes and how it applied the factors, but this is like seem to be a very

[00:21:32] Speaker 01:
to be relying on Rodriguez here, this is just a very different case.

[00:21:36] Speaker 01:
This is a case that presents where district court did some things that arguably can be tied to the factors but the court did not explicitly tick off the factors.

[00:21:46] Speaker 01:
And Rodriguez that ticked off all the factors but in analyzing them made some errors I think.

[00:21:53] Speaker 01:
Is that my correct?

[00:21:54] Speaker 00:
I think that that's right but I guess I was refreshing myself on Your Honor's concurrence this morning where the Your Honor I believe said

[00:22:01] Speaker 00:
Amount of methamphetamine could be something that was like significant enough to make you know I didn't make that up right that I got that from somewhere else But at least the court has like endorsed it is still being good law post Rodriguez and in other instances And so we have a long body of authority that says even that's a factor on its own would be enough In Rodriguez we said I'm just going to hear

[00:22:25] Speaker 03:
Gone are the days when district courts had virtually unlimited discretion to simply deem a defendant to be above average, average, or below average culpability.

[00:22:34] Speaker 03:
Yes.

[00:22:35] Speaker 03:
And that's kind of, I mean, this is a little bit better than that, but I just got to say you're up over on your time.

[00:22:43] Speaker 03:
Thank you.

[00:22:44] Speaker 03:
This is kind of a never-never land between Diaz and Rodriguez.

[00:22:51] Speaker 00:
Yes, your honor.

[00:22:52] Speaker 00:
I'm obviously disadvantaged in trying to interpret Rodriguez given your honors.

[00:22:56] Speaker 00:
But as I read that part, it was in discussing the kind of watershed change between being able to discuss any factor that any judge in any district could decide and say, let's have some uniformity where we're trying to direct courts to specifically understand some.

[00:23:12] Speaker 00:
But because it's still non-existent, a court might be able to say, here are mine, but these 10 others are really, really important to me.

[00:23:19] Speaker 00:
And so on an abusive discretion standard,

[00:23:21] Speaker 00:
if we kind of take a step back and understand that the abuse of discretion standard and the non-exhaustive list favors affirming the district court in this instance.

[00:23:30] Speaker 00:
Other questions by my colleague?

[00:23:31] Speaker 03:
Thank you very much.

[00:23:33] Speaker 03:
Okay, now we have a couple of minutes for rebuttal, Mr. Thompson.

[00:23:38] Speaker 03:
And remember, we ask you to focus on Diaz Rodriguez and let us know what, and Quintero Levia.

[00:23:47] Speaker 03:
What are we to do with those?

[00:23:49] Speaker 04:
I think you should apply Diaz and you should apply Rodriguez and we should have the case remanded back to the district court in order for it to properly analyze the five factors.

[00:24:01] Speaker 03:
Okay, now that you're being general, your opposing counsel makes the point that the government, from his perspective, included argument with respect to each of the five factors in its briefing and the court basically said,

[00:24:18] Speaker 03:
Great brief.

[00:24:19] Speaker 03:
Is that enough or is something more required?

[00:24:23] Speaker 04:
no it's not enough and the one comment about the court's comment about substantial briefing there was another issue and i apologize i do not recall what exactly it was they came up it like i think the second hearing prior to the actual sentencing in which the court asked for briefing on a particular issue and when the court then made its comment about thank you for the substantial briefing i think in fairness it's reflective of that issue which then the court did not

[00:24:51] Speaker 04:
need to address when it made the sentencing determination that it did in this case.

[00:24:58] Speaker 04:
So I don't think that if one party or both parties can brief the issue fully in their briefs, and the court looks at them and says they're great briefs, that that absolves the court of what Rodriguez and Diaz and the guideline itself provides, which is the analysis of the various factors.

[00:25:20] Speaker 04:
And I agree.

[00:25:21] Speaker 01:
So we're running low on time, but is your point that the court needs to go factor by factor and discuss them?

[00:25:28] Speaker 04:
No, I don't think the court needs to take them off.

[00:25:31] Speaker 04:
But the court has to have a discussion of those points as it is addressing those.

[00:25:36] Speaker 04:
And once it gets done addressing those points.

[00:25:40] Speaker 01:
So it would help me to know.

[00:25:42] Speaker 01:
Your view is it doesn't have to take them off, which I assume you mean go factor by factor and say, I'm talking about factor one here.

[00:25:49] Speaker 01:
Yes.

[00:25:50] Speaker 01:
Give me a little bit of a practical view of what the court needs to do if it doesn't need to take them.

[00:25:57] Speaker 01:
Does it need to tie them back to the factors when it's talking about something like the fingerprint and say, this relates to factor one and three?

[00:26:07] Speaker 04:
I don't know that the court has to say it relates to factor one particularly or three or whatever but I do think that it needs to say that you know based upon the evidence and stuff I can look at and I find that the degree to which the defendant participated in planning and organizing was such.

[00:26:28] Speaker 01:
Okay so it doesn't need to like say factor one and three but that has to use the language that's actually in the factors is what you're saying so instead of saying

[00:26:36] Speaker 01:
This relates to factor one.

[00:26:37] Speaker 01:
It has to make its opinion longer and say, this relates to, and then lay out the text of factor one.

[00:26:43] Speaker 01:
Is that what you're saying?

[00:26:46] Speaker 04:
Or it has to lay out the facts that fit factor one or three or five.

[00:26:51] Speaker 01:
But I mean, the government's saying they did that here.

[00:26:53] Speaker 01:
The government's saying when it talks about the fingerprint inside, that relates to the fact that he's not just a courier.

[00:27:01] Speaker 01:
And the fact that he's not just a courier goes to the level of the organization that he's operating at.

[00:27:08] Speaker 01:
So the government says they're doing that.

[00:27:11] Speaker 01:
I assume you disagree, but when you get to that level,

[00:27:16] Speaker 01:
especially from the district courts, if we're not going to make them tick off the factors either by the number of the factor or by stating the language of the factor, then I'm just trying to figure out practically what we would be saying in this case that they didn't do right, especially under an abuse of discretion standard.

[00:27:35] Speaker 04:
Right.

[00:27:35] Speaker 04:
And what I'm saying is that the case law is such that it says that they don't have to be ticked off.

[00:27:41] Speaker 04:
But in order for a court to responsibly make a determination as to whether my role is played, I think the court has to address each one of the factors.

[00:27:52] Speaker 04:
What I'm saying is they may not have used the exact language

[00:27:55] Speaker 04:
but they have to do it in such a way that whatever they are reporting, you know, or someone knows, ties to one of those factors.

[00:28:04] Speaker 04:
Because otherwise, it would just be a statement generally about, I found that there are a lot of drugs, I found that there was a single fingerprint, and therefore, you know, I'm going to... I'm just struggling with, you're saying it doesn't have to tick them off, but it does have to address them.

[00:28:19] Speaker 01:
And I'm trying to figure out,

[00:28:21] Speaker 01:
what our guidance is to the, if I was a district court judge trying to figure, okay, I don't have to, basically what we'd be creating is essentially the safe harbor for a district court judge is you do have to tick them off.

[00:28:34] Speaker 01:
Otherwise, a judge, when it comes up to us, we're like, well, it's not super clear to me, even though it's an abuse of discretion standard, it's not clear enough to me that they actually went through each of the factors, and we told them in Rodriguez they have to.

[00:28:46] Speaker 04:
Well, and they do have to go through each one of them, but I guess I'm trying to make a distinction between the, you know, kind of perhaps a technical or a specific or precise language of ticking them off versus analyzing them.

[00:28:59] Speaker 04:
I mean, I think that's what Rodriguez talks about, right?

[00:29:02] Speaker 04:
You have to properly analyze the factors.

[00:29:05] Speaker 04:
Well, in order to analyze something, you have to take the factor and you have to apply it to the facts.

[00:29:11] Speaker 04:
I'm just saying the court doesn't have to read factor one and then say, here are the points underneath it.

[00:29:19] Speaker 04:
It's not structured in such a way.

[00:29:21] Speaker 04:
The court has the ability to analyze it and then make its analysis known.

[00:29:30] Speaker 04:
But it has to be.

[00:29:31] Speaker 01:
I mean, there was analysis in this case.

[00:29:33] Speaker 01:
So what I'm struggling with is,

[00:29:34] Speaker 01:
how we would know as a reviewing court that the district court's analysis was tied to a specific factor, which is what you're saying needs to be shown, without explicitly doing that, which Diaz says they don't need to do.

[00:29:48] Speaker 01:
So I'm just trying to figure out, I don't know what standard we could create, but I guess we'll see.

[00:29:57] Speaker 03:
Other questions by my colleagues?

[00:29:59] Speaker 03:
Very interesting topic.

[00:30:00] Speaker 03:
We could talk about this for a long time, but we're not going to.

[00:30:04] Speaker 03:
The case just argued is submitted.

[00:30:06] Speaker 03:
We thank counsel for her argument.