[00:00:02] Speaker 03:
Good morning, your honors.

[00:00:03] Speaker 03:
Eric Guzman on behalf of Felipe Velez, the defendant appellant, may it please the court.

[00:00:10] Speaker 03:
In this case, at the supervised release contested hearing, at least three separate errors occurred.

[00:00:17] Speaker 03:
First, the district court erred by imposing a sentence significantly above the high end of the advisory guideline range without adequately explaining the need for justification.

[00:00:29] Speaker 03:
Second, the district court erred by not

[00:00:32] Speaker 03:
allowing Mr. Velez to exercise the right to a jury finding for the contested allegations.

[00:00:39] Speaker 03:
And third, it allowed a modification of Mr. Velez's supervisor lease terms without counsel, without a hearing, via third party transmission of a modification form that was sent to Mr. Velez while he was in prison.

[00:00:55] Speaker 02:
So can we start on the first question?

[00:00:58] Speaker 02:
I mean, you're right that he has to explain it.

[00:01:03] Speaker 02:
Why was the explanation not adequate under our prior precedent?

[00:01:08] Speaker 02:
Because in Massa, the district court found the defendant to be a danger to the community, and that justified.

[00:01:15] Speaker 02:
We said that that justified an upward departure.

[00:01:19] Speaker 02:
And here you have a district court who said he's a threat to society.

[00:01:23] Speaker 02:
I mean, outlined the nature and history of the offense, the fact that he violated the supervised release conditions, his recidivism, even acknowledged the terrible treatment by the mother.

[00:01:35] Speaker 02:
So why is that not enough under Moussa?

[00:01:41] Speaker 03:
If you look at those cases,

[00:01:43] Speaker 03:
Obviously there are going to be certain factors the district court has to analyze different 35 53 eight considerations But the district court needs to grapple with the guideline range sentence guidelines range 7 to 13 months and the sentence and impose and explain why

[00:02:04] Speaker 02:
Sentence outside the guideline range is necessary so while they're going to be factors in aggravation that would support so you you tend to you tend to agree that the factors were discussed, but they weren't narrowly tailored to the Spice it to it to what the fact that it went from 13 to 20 was it 21 21 much yeah The contention is well obviously district courts are going to look at them at myriad factors when deciding what a proper sentence is and

[00:02:33] Speaker 03:
When the court imposes a sentence outside the guideline range there has to be an additional analysis of Here are the factors we look at here's a guy there in range 1321 Why what is present in this case that takes it outside the guideline range?

[00:02:50] Speaker 03:
And why is the guideline range even the high end of it inadequate?

[00:02:54] Speaker 03:
I understand that there's

[00:02:55] Speaker 02:
The analysis that you see, the narrow tailoring, if you will, analysis doesn't seem to be consistent with what we said.

[00:03:03] Speaker 02:
We didn't put that in MUSA.

[00:03:07] Speaker 03:
Well, I think if you look in MCBEL, this court held that there has to be an explanation or justification of why the guideline range is inadequate.

[00:03:18] Speaker 03:
So it's insufficient to just focus on, oh, he poses a danger.

[00:03:22] Speaker 03:
The district court also has to

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Announce or focus at least at one point on the advisory guideline range and say This is inadequate this this is insufficient And here's why we have to take the atypical step of imposing the sentence outside It's relatively far outside the guideline range if the midpoint of seven to thirteen is ten twenty one That's over double the midpoint of the guideline range of what is so exceptional about this case that the guideline range that have been calculated

[00:03:52] Speaker 03:
by all the research and analysis of the Sentencing Commission, why that is so woefully inadequate to the case at bar.

[00:03:59] Speaker 03:
That was not done in this case.

[00:04:03] Speaker 03:
If I could move on.

[00:04:05] Speaker 03:
Regarding the modification of the terms of supervised release, I do not know how it could be considered valid for Mr. Velez to receive that form request for modification while he's still in custody.

[00:04:20] Speaker 02:
About to leave prison without being provided to me his counsel or you're talking about the third art you're talking about without without a hearing basically Yes, or at least an opportunity you're not talking about the jury trial correct amendment violation But he didn't he waive his right isn't that doesn't this whole thing come down to whether he waived his right to a hearing Yes, sir our position is that the waiver was invalid I understand that's your position, but you say you don't understand why this could happen and

[00:04:49] Speaker 02:
The way it can happen is if he waives his right.

[00:04:51] Speaker 02:
And so, I mean, this isn't something where the district court just said, oh, I'm just not going to give you a hearing.

[00:04:58] Speaker 02:
He looked at the waiver.

[00:05:00] Speaker 02:
He said, you've waived it.

[00:05:01] Speaker 02:
I don't need to.

[00:05:02] Speaker 02:
And you're saying that was wrong analysis.

[00:05:05] Speaker 02:
So why was it wrong to say that it was waived, that he had waived his right, that the defendant had waived his right?

[00:05:11] Speaker 03:
Because the waiver was presented to him

[00:05:14] Speaker 03:
someone probation is aware as an individual with significantly diminished mental capacity in a custodial setting he's in prison it was not presented to me which is you didn't know about the waiver correct until much later till after he'd been filed by an ecf it was presented to him before it even commenced supervised release while he was still in the custody of bureau of prisons so to i think it was invalid to allow an uncounseled

[00:05:43] Speaker 03:
Waiver, but by the defendant we have any case law.

[00:05:46] Speaker 02:
I mean you don't disagree that he signed it You're just saying he didn't have the mental capacity to sign it Or you're saying he was coerced what well I think there's some elements of course whenever it's presented to someone in prison But I don't what's our case that he says that a waiver signed by a defendant is invalid if the council doesn't review it

[00:06:09] Speaker 03:
I don't know if there's case law.

[00:06:11] Speaker 03:
I'm not aware case of it on that direct point, but Traditionally if he's on supervised release that modification is presented to his lawyer first And I would have been received a copy and I would have consulted with him and properly said You shouldn't sign this or you shouldn't waive this or maybe you will but let's think this through it was just given to him through a prison guard

[00:06:31] Speaker 03:
Which I think cuts against it being a valid knowing or voluntary I mean the idea that a probation officer didn't even present it to him directly the idea that the prison guard is going to adequately explain it or give them enough information such that it's a knowing or Intelligent waiver of his right to a hearing.

[00:06:49] Speaker 03:
It's not supported by the record If there are no further questions, I'd like to reserve the rest.

[00:06:54] Speaker 03:
Okay.

[00:06:54] Speaker 03:
Thank you

[00:07:06] Speaker 00:
Good morning.

[00:07:08] Speaker 00:
You may please the court.

[00:07:09] Speaker 00:
Annie Shea for the United States.

[00:07:11] Speaker 00:
This court should affirm for three reasons.

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First, the district court's revocation of Mr. Villaza's supervised release did not violate his Sixth Amendment or Article 3 rights to a jury trial.

[00:07:22] Speaker 00:
Second, the district court did not plainly err in imposing an above-guidelines revocation sentence, nor did it plainly err in modifying Mr. Velez's supervised release condition without a hearing because Mr. Velez knowingly and voluntarily waived the right.

[00:07:36] Speaker 01:
On the last one, does the Christensen case suggest that there needs to be a little bit more inquiry rather than just a reliance on the writing when there is information in the record about mental issues?

[00:07:52] Speaker 00:
Your Honor, I think based off this record, I would push back against the characterization that there was very much in the record that indicated further inquiry was required here.

[00:08:05] Speaker 00:
This was his third time before this judge.

[00:08:09] Speaker 00:
Mr. Velez was quite experienced in the federal criminal system.

[00:08:14] Speaker 01:
Does the PSR have any information about mental issues and mental problems for this defendant?

[00:08:20] Speaker 01:
Yes, there are some mental issues your honor Christensen suggests that when there's that kind of an issue that Just getting a sign writing may not be enough and there needs to be a little bit more of an inquiry

[00:08:33] Speaker 00:
Yes, so if there's enough for the district court to think of a some sort of special disadvantage or disability then the district court cannot rely on this presumption of validity and Should make more of an inquiry.

[00:08:49] Speaker 00:
I would say with this particular record here though There were really no competency issues or any issues raised as far as Velez's ability to waive his

[00:08:59] Speaker 00:
Wave his rights he had waived his rights previously he had pled guilty in prior cases the court had seen this the court had several colloquies with mr. Velez in the past and understood that At least from the record that the district court had that mr. Velez was capable of waiving modification I'd also point out that this particular modification the context of it was that the

[00:09:21] Speaker 00:
Again, it happened in the process of trying to find Mr. Villa's housing for his release after prison.

[00:09:29] Speaker 00:
And part of the problem was Mr. Villa's plan was to live at his father's house where his niece, who was a victim of Mr. Villa's prior conduct, was.

[00:09:39] Speaker 00:
And so he was not eligible under BOP programs to be put in the RRC.

[00:09:47] Speaker 00:
So the probation officer basically figured out, well, if I can get a court order,

[00:09:52] Speaker 00:
put him in the RRC, I can at least find some temporary housing plan.

[00:09:55] Speaker 00:
The condition that was actually modified, that modification simply said

[00:10:01] Speaker 00:
to be placed in the RSC for a period of up to 180 days upon the, you know, with the discretion of the probation officer.

[00:10:09] Speaker 00:
So it was essentially a temporary plan to find him housing.

[00:10:12] Speaker 00:
Even though it's not technically a favorable condition, I would say that rule, the rule 32 says there's two ways in which you cannot have a hearing for a modification.

[00:10:21] Speaker 00:
One is a waiver, which occurred here.

[00:10:23] Speaker 00:
But the second one is about a favorable modification.

[00:10:26] Speaker 00:
And this, again, was a modification that inured to Mr. Villas' benefit in some ways.

[00:10:33] Speaker 00:
I would say with regard to the imposition of the above guidelines revocation sentence, I'm just very briefly, I think, Judge Nelson, you did point out that MUSA, I think, is controlling here.

[00:10:48] Speaker 00:
In MUSA, the judge there, again, not a model of clarity is what this court said, but he made the statement that Mr. MUSA was in danger.

[00:10:56] Speaker 02:
Do you remember how far was the departure, the upward departure in MUSA?

[00:11:03] Speaker 02:
Because one of the arguments here seems to be, look, this is almost double or at least from 13 to 21 months above.

[00:11:16] Speaker 02:
I mean, there is something to this idea.

[00:11:18] Speaker 02:
I mean, what if it had been 100 months?

[00:11:21] Speaker 02:
I mean, I don't think you can just say, well, he's a threat to society, so then you get free rein to do whatever you want.

[00:11:27] Speaker 02:
So I guess I'm just trying to figure out

[00:11:31] Speaker 02:
It's pretty lenient, but there must be some connection between what you find and how far the upward departure could be.

[00:11:40] Speaker 00:
Yes, Judge Nelson.

[00:11:40] Speaker 00:
I would agree with that, but I think that's a different problem.

[00:11:42] Speaker 00:
That's a substantive reasonableness problem of the sentence.

[00:11:45] Speaker 00:
I think what's being raised here is a procedural error.

[00:11:48] Speaker 02:
And you're saying they haven't made that second argument.

[00:11:51] Speaker 02:
Even though he sort of tied that in here, they haven't actually said.

[00:11:55] Speaker 00:
That's not how I read Mr. Velezza's brief.

[00:11:58] Speaker 00:
And again, I want to point out that this was not raised below.

[00:12:01] Speaker 00:
Again, we're on plain air review for this particular claim as well as the modification claim neither of these claims were preserved and so the district court could have fixed it could have tried to give more of a Reason on the record if it had been raisin, but here we are trying to figure out did a procedural error occur?

[00:12:18] Speaker 00:
Did he actually meet 3553 c2 which here under Mesa is would be sufficient Lastly I wanted to turn to

[00:12:27] Speaker 00:
the final claim that Mr. Villes raises, which is the jury trial right claim.

[00:12:34] Speaker 00:
I want to say that this particular claim is squarely foreclosed by this court's precedent, both the Sixth Amendment claim, which has foreclosed both- And that's Bowers and Henderson, right?

[00:12:45] Speaker 00:
Yes, Your Honor.

[00:12:46] Speaker 00:
The Article III claim is foreclosed by Bowers, and the Sixth Amendment claim was foreclosed by a long line of cases in this court and the Supreme Court and other circuits, both before and after Haymond.

[00:12:56] Speaker 00:
And if there are no further questions on that point, the government respectfully asks this court to affirm.

[00:13:03] Speaker 00:
Thank you.

[00:13:08] Speaker 03:
We have time for rebuttal.

[00:13:12] Speaker 03:
Thank you.

[00:13:13] Speaker 03:
Just one final point, Your Honor.

[00:13:15] Speaker 03:
In following up on what Judge Collins inquired regarding evidence in the PSR of Mr. Velas's diminished capacity, in page two of my reply brief, I cite the sections of the PSR where there's detailed description of the significant brain impairment he suffered.

[00:13:37] Speaker 03:
It also detailed his diminished cognitive ability and evidence that under

[00:13:42] Speaker 03:
testing he his IQ scored in the level of people that have been categorized with mild mental retardation and that was in the PSR and there was in the possession of probation and the district court which I think would support the need for additional inquiry when this individual is signing that waiver without the advice of counsel and in response to the government's argument that

[00:14:11] Speaker 03:
Mr.. Velez is familiar with the federal system, and he's pleaded guilty to charges before that was always with the advice of counsel and often after rounds of negotiation and steps that were taken to his benefit and Offered him at least some level of protection and guidance and lastly I would not characterize the imposition of residing in a halfway house as a favorable modification that is often imposed as a castigation or a punishment it is a restriction on Liberty and

[00:14:41] Speaker 03:
So for those reasons, I'd ask the court to reject that argument and we'd ask the court to reverse the judgment and remand for further proceedings.

[00:14:48] Speaker 03:
Thank you.

[00:14:49] Speaker 02:
Thank you to counsel for your arguments in the case.

[00:14:52] Speaker 02:
The case is now submitted.