[00:00:02] Speaker 00:
Please the court Daniel zip on behalf the United States here as I'd like to reserve two minutes of my time for rebuttal The district court in this case aired by allowing mr. Viana to withdraw his plea after sentencing was complete under the rules plain language of rule 11e Once the court imposes sentence a defendant may not withdraw a guilty plea.

[00:00:23] Speaker 04:
It's a complicated case and sensitive Your notice of appeal was from the dismissal order Yes, okay, and you cited

[00:00:32] Speaker 04:
3731 as authority to appeal in the notice of appeal correct on your brief you're saying it's a 1291 appeal and The two have a very difficult interplay correct So I assume it's you've on further thought realized it's a 1291 appeal because the dismissal order was with prejudice.

[00:00:53] Speaker 04:
It was a final order and

[00:00:55] Speaker 04:
yes okay that's correct okay um just this is just to clarify the government's position so you're appealing the dismissal order which is a final order and the relief you're asking for is not the relief that was given in the mandamus and vineyard you're asking for a remand for re-sentencing not reinstituting the reset sense that's correct and that was sensitive and i appreciate that

[00:01:17] Speaker 04:
Okay so my focus has been on the dismissal order and therefore you're arguing there are a host of different issues lurking in it and district court dismissal authority is again important here it's late.

[00:01:31] Speaker 04:
Is your argument one of divestiture?

[00:01:34] Speaker 04:
Is your argument no, acknowledging that district courts do have post-judgment and conviction authority to dismiss if there's outrageous conduct or under supervisory power?

[00:01:43] Speaker 04:
You know, under Ninth Circuit law, they have that authority, but it was abused here.

[00:01:48] Speaker 04:
What exactly is the government's argument?

[00:01:50] Speaker 00:
Our primary argument is that the district court abused its discretion in exercising its supervisory power.

[00:01:55] Speaker 00:
That's what I thought.

[00:01:56] Speaker 04:
Okay, so this is supervisory power, not a due process outrageous

[00:02:00] Speaker 04:
You've acknowledged both lines of authority.

[00:02:05] Speaker 04:
I'm just trying to really isolate what we're focused on to seeing.

[00:02:09] Speaker 04:
So you're saying you've construed this to have been a supervisory dismissal and the error is it's an abuse because the court couldn't have done the premise, which was allowing the defendant to withdraw.

[00:02:23] Speaker 00:
The difficulty in this case is the court didn't explain what basis it was dismissing on.

[00:02:28] Speaker 00:
So in our briefs, what we've argued is if it was outrageous government conduct that was the basis, then that was an error.

[00:02:34] Speaker 04:
I don't want to take up too much of your time, but the reason it's important, obviously, dismissal authority at all stages is hugely important to district courts.

[00:02:41] Speaker 04:
I appreciate the government isn't arguing that 48B is the only authority, hence it was abused.

[00:02:46] Speaker 04:
But I really want to clarify, especially with relation to the Sumner decision, that you also aren't arguing

[00:02:52] Speaker 04:
that 3621 can never be reviewed, one, or that FRAP 4 was a block in terms of the timing and the district court lost all power.

[00:03:02] Speaker 04:
So you're accepting there is Ninth Circuit dismissal authority post-judgment, but you're just saying it was abused here.

[00:03:10] Speaker 04:
Is that fair to say?

[00:03:13] Speaker 00:
Yes, I believe that is fair, whether it's outrageous government conduct on a due process standard or supervisory power.

[00:03:20] Speaker 04:
But you aren't arguing divestiture.

[00:03:22] Speaker 04:
You're not making a jurisdictional argument, which would be very consequential.

[00:03:26] Speaker 04:
You're not saying the district court lacked authority to do the effort that it did.

[00:03:32] Speaker 00:
I mean, we have made the argument in our briefs.

[00:03:34] Speaker 03:
You've made that argument in your brief, that the court lacked authority to withdraw the plea, including under Baker, right?

[00:03:43] Speaker 00:
Right, and we're not abandoning that argument.

[00:03:45] Speaker 04:
Right, but if that were a valid argument, we wouldn't be reaching the rest.

[00:03:50] Speaker 04:
The district court lacked authority.

[00:03:51] Speaker 04:
That would be hugely consequential to district courts.

[00:03:54] Speaker 04:
And I'm not sure I'm convinced by that.

[00:03:56] Speaker 04:
Sumnerism is an expungement case.

[00:03:59] Speaker 04:
FRAP 4 does apply when there's a notice of appeal.

[00:04:01] Speaker 04:
The defendant didn't appeal here.

[00:04:03] Speaker 04:
Rule 36 allows district courts to take further actions after 14 days.

[00:04:10] Speaker 04:
But I think if we were to do sort of a sequencing, if you were pressing divestiture, we'd have to deal with that first.

[00:04:16] Speaker 04:
The relief would not be the remand for re-sentencing.

[00:04:20] Speaker 04:
It would be a dismissal altogether.

[00:04:24] Speaker 04:
The district court lacked authority to do what it did.

[00:04:27] Speaker 04:
So you can't really argue both.

[00:04:28] Speaker 04:
and I want to know what the, I don't think.

[00:04:31] Speaker 04:
So I did see your primary argument, one, that was preserving Ninth Circuit law that's very important to district judges, and then if you agree with me, then continue, and you're saying there was an abuse and dismissal here because, and then your primary argument.

[00:04:45] Speaker 04:
Sure.

[00:04:47] Speaker 00:
Again, I think the law is clear that after judgment has entered

[00:04:53] Speaker 00:
there are limits as to what a court can do with the judgment.

[00:04:56] Speaker 00:
It's limited to what's in rule 35.

[00:04:57] Speaker 00:
And this court in Wheeler held that the court otherwise has no authority over the defendant once the sentence has been entered.

[00:05:03] Speaker 00:
But understanding your point, our goal here is to bring this back down for re-sentencing.

[00:05:08] Speaker 00:
And if that outcome requires sort of this court addressing the supervisory powers issue, then proceeding with that, the district court abused its discretion in this case by dismissing it.

[00:05:20] Speaker 02:
Well, if we agree with you that the district court

[00:05:24] Speaker 02:
lacked authority to consider the motion to withdraw the plea, the remedy would not be resentencing, but reinstatement of the original sentence.

[00:05:34] Speaker 00:
Right, and then presumably he would serve his time in either the Santa Ana jail or the Imperial County jail as the BOP designated.

[00:05:43] Speaker 00:
If the court went that route, we would be back to sort of what the original sentence was.

[00:05:49] Speaker 02:
On that issue, do you have a position on whether the rule is jurisdictional regarding the withdrawal of the motion to withdraw the plea?

[00:05:59] Speaker 00:
On that issue, the court in King held that it is jurisdictional, which is separate from the question of whether the court had the authority to dismiss on the plea withdrawal.

[00:06:08] Speaker 00:
This court has held that it is a jurisdictional issue.

[00:06:10] Speaker 00:
In which case?

[00:06:11] Speaker 02:
I thought it was Baker that we held it was jurisdictional, but that was an old case predating the Supreme Court's more recent jurisprudence on claims processing versus jurisdictional rules.

[00:06:23] Speaker 00:
The case that we cited was King, which I believe was more recent, and it specifically said that the court lacked jurisdiction to withdraw.

[00:06:29] Speaker 04:
When the court allowed him to withdraw, you didn't seek mandamus, like as in vineyard.

[00:06:34] Speaker 04:
You waited for the dismissal, and then you noticed for appeal the dismissal.

[00:06:38] Speaker 04:
Why isn't our focus just on whether or not the dismissal was correct or not?

[00:06:43] Speaker 00:
The district court in this case seemed to believe that withdrawing was a sort of predicate to dismissal.

[00:06:48] Speaker 04:
I'm not asking what the court believed.

[00:06:49] Speaker 04:
I'm not asking what the government is appealing.

[00:06:52] Speaker 00:
We are appealing the ultimate dismissal.

[00:06:57] Speaker 00:
even if uh... suppose i guess that the district court aired in withdrawing and then dismissed the withdrawal wouldn't affect the ultimate dismissal even if the court.

[00:07:05] Speaker 04:
Right but as Judge Sung said this is consequential because if we're reversing the dismissal it goes back down and if you're not asking to reinstate the sentence i assume the defendant with new counsel in front of a new judge can move properly under rule eleven to say i want to withdraw my plea because the lawful sentence of weekend custody isn't even available in san diego

[00:07:24] Speaker 04:
So in other words, he could move to withdraw his guilty plea because you're asking for a re-sentencing and then Rule 11 would allow him for good cause to withdraw, right?

[00:07:34] Speaker 00:
Yes, this court has broad authority to remand.

[00:07:37] Speaker 04:
No, you're asking for a re-sentencing.

[00:07:40] Speaker 04:
When a defendant faces sentencing, he can still move to withdraw his guilty plea.

[00:07:44] Speaker 00:
That's correct.

[00:07:45] Speaker 00:
Okay.

[00:07:46] Speaker 00:
Fair and just reason.

[00:07:47] Speaker 04:
And wouldn't it be a fair and just reason that all of a sudden BOP says we actually can't accommodate a lawful sentence?

[00:07:54] Speaker 04:
Wouldn't that be probably a good cause?

[00:07:57] Speaker 00:
We don't agree that the BOP said it can't accommodate a lawful sentence.

[00:08:01] Speaker 03:
The BOP said it couldn't do it at the place where Judge Burns wanted him to be confined, right?

[00:08:06] Speaker 00:
That's correct.

[00:08:06] Speaker 03:
But didn't they offer, if I'm remembering correctly,

[00:08:10] Speaker 00:
One or two other alternatives, but not close to alternatives one in the Southern District of California one in Orange County, but both within 500 miles within 500 miles the one in Santa Ana at sentencing the district the Defendant mentioned that he worked in Escondido, which isn't sort of the northern end of the county

[00:08:30] Speaker 00:
So the Santa Ana one was about 70 miles, I believe, from the person's work, and it's a 45-minute drive from Escondido to downtown.

[00:08:39] Speaker 00:
So these are all decisions within the discretion of the BOP, and both of those facilities were within 500 miles.

[00:08:47] Speaker 00:
So I don't think that it's fair to say that the BOP sort of thumbed its nose at the court and said, we're not going to impose the sentence.

[00:08:54] Speaker 00:
It just had a disagreement over which facility was more appropriate.

[00:08:59] Speaker 00:
And going to the, on the supervisory powers issue, ultimately the district court in this case abused its discretion in part because the Bureau of Prisons had nothing to do with the prosecution of this case.

[00:09:15] Speaker 00:
Cases where this court has affirmed the exercise of supervisory power generally involve actions on behalf of the prosecutor or things

[00:09:22] Speaker 00:
the case itself.

[00:09:25] Speaker 00:
Here, this all occurred on the back end of the case.

[00:09:28] Speaker 00:
It had nothing to do with the validity of the charges, with the knowing voluntary plea.

[00:09:32] Speaker 00:
So it's fundamentally illogical for the court to punish the prosecutors for the actions of BOP, of which they had no part.

[00:09:40] Speaker 00:
And then there was also

[00:09:43] Speaker 00:
sort of lesser alternatives that the court could have pursued, including simply agreeing with the designation of the BOP.

[00:09:50] Speaker 04:
Or throughout the hearings, there were multiple times where at the first hearing the BOP said you could order us to... Could the district court have intervened at any point and said under Rule 36, there's an oversight here, because I was unaware that he couldn't have

[00:10:05] Speaker 04:
very immediate to his family and job.

[00:10:08] Speaker 04:
Weekend confinement pursuant to a probation.

[00:10:10] Speaker 04:
So I'm going to revisit the sentence.

[00:10:12] Speaker 04:
Would rule 36 have allowed this district judge, had the AUSA or anybody informed him, he still has authority to correct the sentence.

[00:10:20] Speaker 00:
Certainly at the first hearing, which occurred 14 days before.

[00:10:22] Speaker 04:
No, but that's rule 35 as the 14-day limit.

[00:10:24] Speaker 04:
36 has no time limit.

[00:10:26] Speaker 04:
He could have corrected it at any point, couldn't he?

[00:10:29] Speaker 00:
I believe that's correct.

[00:10:30] Speaker 04:
But just nobody, as far as I could tell, he was saying the defense attorney just receded and became the district judge with BOP.

[00:10:38] Speaker 00:
I'm not sure that the AUSA receded.

[00:10:40] Speaker 00:
The AUSA was not given a seat at the table in much of these arguments.

[00:10:43] Speaker 00:
It was primarily an argument between sort of a strong-willed district court judge and a BOP representative who he disagreed with.

[00:10:50] Speaker 04:
Did both counsel in this adversary case agree that the district judge could speak to the director of BOP where they consulted in the record?

[00:10:57] Speaker 04:
Does it reflect?

[00:10:58] Speaker 00:
No.

[00:10:59] Speaker 00:
We did not participate in that.

[00:11:03] Speaker 00:
That was sort of outside of the proceedings.

[00:11:05] Speaker 03:
I think he said he emailed her and then talked to her.

[00:11:08] Speaker 00:
I believe he set up a call and then she emailed afterwards sort of with an overview of what the discussion had been.

[00:11:13] Speaker 00:
Over time, I would... We'll give you a minute for rebuttal.

[00:11:19] Speaker 02:
I do just have one question, sorry.

[00:11:22] Speaker 02:
Before the district court, when the district court said they were going to entertain a motion to withdraw the plea, did the government specifically raise

[00:11:31] Speaker 02:
The rule prohibiting the withdrawal of the plea at that point?

[00:11:34] Speaker 00:
We did not.

[00:11:35] Speaker 00:
It was always sort of a package, but we didn't specifically object to the withdrawal.

[00:11:39] Speaker 00:
It was never raised specifically.

[00:11:42] Speaker 00:
Thank you.

[00:11:46] Speaker 01:
Morning Todd burns on behalf of Mr.. Viana I'll start with the last question as far as contacting the director of the BoP District court said this is what I'm going to do next no one objected to it beforehand no one objected to it afterwards So I don't see that there's the government can hang its hat on that even though it's somewhat unusual It's the telegraph he was going to do it.

[00:12:07] Speaker 01:
That's what he did and

[00:12:08] Speaker 01:
Starting, coming then to the question that Judge Higginson, you started off with, my view kind of the evolution of the government's position here is that in their opening brief, they said, well, the district court just didn't have any jurisdiction to do anything.

[00:12:23] Speaker 01:
Then I filed the answering brief saying, well, of course, the district court has ancillary jurisdiction to enforce its judgment.

[00:12:29] Speaker 01:
And then its position kind of moved, and they developed a lot of other positions.

[00:12:32] Speaker 04:
But if I'm focusing on the dismissal order, isn't dismissal here contrary to a host of rules, criminal rules?

[00:12:39] Speaker 04:
And I'm thinking 11E, of course, rule 35, which if everyone knew the weekend thing wasn't available within 14 days, the defense counsel could have said, we've got to come up with some other arrangement.

[00:12:54] Speaker 01:
The problem there I think is sort of the Bureau of Prisons kind of sucked the court into that hole.

[00:13:01] Speaker 01:
The judge was amazingly accommodating to the Bureau of Prisons here.

[00:13:04] Speaker 01:
There's this picture painted that he was a bully.

[00:13:07] Speaker 01:
What he actually said is to start with

[00:13:10] Speaker 01:
I've done this three times in 21 years.

[00:13:12] Speaker 01:
I rarely do it because I know the Bureau of Prisons doesn't like it.

[00:13:15] Speaker 01:
It fits like a glove in this case.

[00:13:16] Speaker 01:
That's why I'm going to impose it.

[00:13:17] Speaker 01:
I'm going to give you six weeks, Bureau of Prisons, to get your ducks in a row.

[00:13:20] Speaker 01:
If there's a problem, come to me.

[00:13:22] Speaker 01:
The Bureau of Prisons came to him within a week.

[00:13:25] Speaker 01:
The judge said, you know, heard their reasons, said, look, those sound protectual to me.

[00:13:29] Speaker 01:
And the Bureau of Prisons lawyer at that point, George Cho,

[00:13:31] Speaker 01:
candidly said, look, the Bureau of Prisons doesn't want to do this.

[00:13:34] Speaker 04:
I'm sympathetic with a district judge who gives a lawful sentence and then later is told, not from the AUSA, we can't do it.

[00:13:41] Speaker 04:
We've come up with an, I'm sympathetic with that.

[00:13:43] Speaker 04:
On the other hand, why aren't you accepting the government's proposed relief here?

[00:13:48] Speaker 04:
They're offering you re-sentencing.

[00:13:52] Speaker 01:
Well, resentencing could lead to a greater sentence, right?

[00:13:55] Speaker 01:
You just heard the previous argument.

[00:13:56] Speaker 01:
Judge Burns is retired.

[00:13:57] Speaker 01:
We have a different judge now.

[00:13:59] Speaker 01:
It could be a greater sentence.

[00:14:00] Speaker 01:
But I think another problem, too, is it rewards the government for its intransigence.

[00:14:06] Speaker 03:
I'm sorry.

[00:14:07] Speaker 03:
What's the government's intransigence here?

[00:14:10] Speaker 03:
The statutes make it absolutely clear

[00:14:14] Speaker 03:
that the BOP has pretty close to unreviewable discretion, not subject to review by any court as to where to house a prisoner.

[00:14:26] Speaker 03:
So what is the intransigence other than BOP saying?

[00:14:30] Speaker 03:
This interferes with our operation of the facility.

[00:14:33] Speaker 03:
We have a couple of places we can put him, but it doesn't work to put him in the place where Judge Burns wanted him.

[00:14:39] Speaker 03:
What's the intransigence?

[00:14:41] Speaker 01:
That's the central point of the dispute, which is they believe their trump card, which they came in with at three different hearings, was 3621B.

[00:14:47] Speaker 01:
But 3621B, clearly right in context, says that a sentence of imprisonment is not reviewable by a district court.

[00:14:55] Speaker 01:
This was not a sentence of imprisonment.

[00:14:57] Speaker 01:
It was a sentence of probation under a different chapter.

[00:15:00] Speaker 01:
And so 3621B does not apply to that.

[00:15:04] Speaker 01:
And the judge pointed out repeatedly to the government, he didn't point out that they're misreading the statute, but they should have briefed it and figured that out.

[00:15:11] Speaker 04:
3621 requires

[00:15:14] Speaker 04:
non-reviewability.

[00:15:16] Speaker 04:
The government's position would not be that we remand for re-sentencing, correct?

[00:15:20] Speaker 01:
knows that we would be dismissing this case we can't we don't have authority to review well if you dismissed it i don't know what happens with it then because it's it's a sentence they're not willing to impose the sentence at the district court uh... required which is either the mcc or somewhere local now what their two alternatives were was in santa ana which a friday afternoon traffic can take a couple hours or out in imperial valley which again could take an hour and a half

[00:15:47] Speaker 03:
Are you familiar with any case which has said that it is up to the district court to decide where under 3563 that a defendant would serve nights, weekends, or other intervals of time, et cetera, that that's the district judge has the discretion to pick a place?

[00:16:12] Speaker 01:
I'm not aware of a case that specifically says that.

[00:16:14] Speaker 03:
Because that's certainly

[00:16:17] Speaker 03:
uh...

[00:16:18] Speaker 03:
There's nothing in the statutes which say that, right?

[00:16:22] Speaker 01:
That's correct, but I think it's implicit in intermittent confinement that if you're going to put someone in custody for the weekend, that the Bureau of Prison doesn't have unlimited discretion to put them wherever.

[00:16:32] Speaker 01:
500 miles, by the way, is not some sort of hard limit.

[00:16:36] Speaker 01:
That's aspirational.

[00:16:38] Speaker 01:
So according to the Bureau of Prisons, they could put him in Alaska, they could put him in Maine, and the defendant could do nothing about it.

[00:16:44] Speaker 01:
The district court could do nothing about it.

[00:16:46] Speaker 03:
Well, the district court could have changed his sentence.

[00:16:48] Speaker 03:
I mean, he didn't want to.

[00:16:50] Speaker 03:
He specifically said, I'm not going to do that.

[00:16:53] Speaker 03:
This is the sentence that I want to impose and it has to be where I want it.

[00:16:57] Speaker 01:
Well, it's funny because the government argued strenuously in the opening brief that the district court couldn't change his sentence.

[00:17:03] Speaker 03:
So what the district court was trying to do... Well, there were motions that could have been filed, right?

[00:17:09] Speaker 01:
I'm not sure what the mechanics are.

[00:17:10] Speaker 01:
I am quite sure that the district court has inherent authority, ancillary jurisdiction, to enforce its judgments.

[00:17:17] Speaker 01:
And that was what it was trying to do here.

[00:17:19] Speaker 01:
And it was being flexible.

[00:17:20] Speaker 01:
It said, look, as long as you put him somewhere local so that you're not sabotaging his sentence, that's OK with me.

[00:17:27] Speaker 01:
But where you're proposing putting him is too far away.

[00:17:30] Speaker 01:
And this is a guy who

[00:17:32] Speaker 01:
works as a truck driver.

[00:17:34] Speaker 01:
He works all day long.

[00:17:35] Speaker 01:
He comes home to see his daughter.

[00:17:36] Speaker 01:
He's a single father to his daughter.

[00:17:38] Speaker 01:
And the judge said, I want to be able to come home, have dinner, say good night to his daughter, say goodbye for the weekend, check in at the jail at eight o'clock.

[00:17:45] Speaker 01:
He said, that's just not practical.

[00:17:48] Speaker 02:
What about contempt?

[00:17:49] Speaker 02:
Why didn't the district court

[00:17:51] Speaker 02:
hold the government in contempt for not complying with the sentencing orders.

[00:17:56] Speaker 01:
And I'm glad you asked that question because the government in its reply brief says, well, that wasn't, the judge wasn't realistically offering that and the prosecutor didn't actually decline.

[00:18:06] Speaker 01:
And if you look at excerpts of record 19 to 21, the judge begins by saying, I don't want to be a bully about this.

[00:18:13] Speaker 01:
I've considered in order to show cause why somebody shouldn't be held in contempt, think the best,

[00:18:19] Speaker 01:
probably the least offensive response to this is just to dismiss the case.

[00:18:23] Speaker 01:
Then the prosecutor says, but the government is not a party to this case.

[00:18:29] Speaker 01:
The US Attorney's Office is not a party to this case.

[00:18:32] Speaker 01:
And the judge says, well, they're part of the executive branch, and they're supposed to be carrying out the other.

[00:18:36] Speaker 01:
They're also a part of the Department of Justice.

[00:18:37] Speaker 01:
They're supposed to be carrying out the sentence.

[00:18:39] Speaker 01:
So I don't understand what your point is.

[00:18:41] Speaker 01:
What do we do about that?

[00:18:42] Speaker 01:
And the prosecutor says, well, dismissal is a severe remedy, and the Ninth Circuit is how the court must consider certain other factors.

[00:18:48] Speaker 01:
The judge responds, I get it, I've thought it through as I've said, would you rather that I have an order to show cause why the warden shouldn't be held in contempt?

[00:18:57] Speaker 03:
I mean, I really don't think... I mean, how could the judge hold the warden in contempt?

[00:19:02] Speaker 03:
What would the warden be held in contempt for?

[00:19:06] Speaker 01:
Well, he then goes on to say, I could call out the director of the Bureau of Prisons.

[00:19:10] Speaker 03:
And what would the director of the Bureau of Prisons be held in contempt for?

[00:19:13] Speaker 03:
For declining the judge's request in a telephone call?

[00:19:21] Speaker 03:
For refusing to execute the sentence.

[00:19:23] Speaker 01:
Did the sentence designate a place of confinement yes or the oral sentence controls and he designated the MCC Then he said at the first hearing a week after the sentencing I'm willing to be flexible about that is on so so your view is that

[00:19:38] Speaker 03:
a judge for intermittent confinement has the right to designate specifically where a prisoner will be held on weekends such that if the executive branch doesn't follow that, they can be held in contempt.

[00:19:54] Speaker 01:
Well, I wouldn't go so far as to say the judge has an absolute dictatorial right.

[00:19:58] Speaker 01:
Judges always, you know, are reviewable for abuse of discretion.

[00:20:02] Speaker 04:
That's running right into 3621.

[00:20:04] Speaker 04:
That was a recommendation.

[00:20:05] Speaker 04:
The JNC doesn't reiterate that.

[00:20:07] Speaker 04:
But he did have, to my eye, in mind that this would be probation, as you said, home with family.

[00:20:13] Speaker 04:
So if he sends them to Alaska, or if BOP turns around up in Alaska and says, we can't even let them out, that's disruptive, it's a safety issue, then you've got the friction here.

[00:20:22] Speaker 04:
If he's stuck in jail, you've got habeas.

[00:20:25] Speaker 04:
Here, tell me why you didn't file a Rule 36 motion.

[00:20:29] Speaker 01:
Well, I wasn't district court counsel.

[00:20:30] Speaker 01:
I got this, like, a year and a half after the notice of appeal was filed.

[00:20:36] Speaker 04:
Obviously, if BOP comes up with something that cannot accommodate a sentence that was lawfully given, you'd think you'd get back in for re-sentencing.

[00:20:43] Speaker 04:
And I've always thought Rule 36 is there for just that.

[00:20:47] Speaker 04:
But instead, we've got this world of contempt.

[00:20:50] Speaker 01:
But I think it's important to recall that the judge said it's not that they can't accommodate it.

[00:20:55] Speaker 01:
It's that they don't want to.

[00:20:56] Speaker 01:
It's a hassle to them.

[00:20:57] Speaker 04:
And that's a safety issue.

[00:20:59] Speaker 04:
They couldn't have people coming in when the rest of the population was there permanently.

[00:21:03] Speaker 01:
And the judge said, look, the MCC is a jail.

[00:21:06] Speaker 01:
There are people coming in and going all the time.

[00:21:08] Speaker 01:
That's what usually happens in jail.

[00:21:09] Speaker 04:
But we can't second guess BOP's safety determinations.

[00:21:12] Speaker 04:
It seems like it just has to get back to the sentencing judge, who now realizes he can't impose the sentence that Congress told him he could.

[00:21:19] Speaker 04:
because of unfortunate BOP safety facts, but no one asked him to do that.

[00:21:23] Speaker 04:
It deteriorated quickly.

[00:21:25] Speaker 04:
To my eye, I'm just, this is a statement.

[00:21:27] Speaker 04:
Defense counsel in the AUSA has receded.

[00:21:30] Speaker 04:
and it became a real impasse between BOP and the judge.

[00:21:33] Speaker 01:
Well, I don't think it's exactly accurate to say that the prosecutor receded.

[00:21:39] Speaker 01:
As a matter of fact, the prosecutor emerged.

[00:21:41] Speaker 01:
At the first hearing, there was one BOP lawyer who said candidly, we don't want to do this.

[00:21:45] Speaker 04:
May I ask one question?

[00:21:46] Speaker 04:
Of course.

[00:21:46] Speaker 04:
Because the divestiture issues are significant here, because that would implicate 9th Circuit District Judge authority to dismiss prosecutions post-JNC with prejudice.

[00:22:00] Speaker 04:
if they have the authority.

[00:22:02] Speaker 04:
I read the government brief to acknowledge the case law that you're relying on that they do, but could you speak to the Sumner decision and whether there is divestiture once the FRAP 4 deadline is hit and thereafter district courts have no authority even to use dismissal authority?

[00:22:18] Speaker 01:
Well, unfortunately, I'm sorry.

[00:22:19] Speaker 01:
I can't speak specifically to the summer decision.

[00:22:22] Speaker 01:
But it seems to me, and the government doesn't dispute, if the district court has ancillary jurisdiction to enforce its judgments, that that's a constitutional principle that trumps the federal rules of appellate procedure.

[00:22:34] Speaker 01:
Thank you.

[00:22:36] Speaker 03:
Appreciate it.

[00:22:37] Speaker 03:
All right.

[00:22:37] Speaker 03:
Thank you, counsel.

[00:22:38] Speaker 03:
Thank you.

[00:22:38] Speaker 03:
And we'll give you a minute.

[00:22:42] Speaker 00:
Thank you.

[00:22:43] Speaker 00:
Just briefly, the BOP has authority under 3621B to designate the location of an inmate's placement.

[00:22:52] Speaker 00:
The Supreme Court in Tapia has described that as plenary control, and in McCune recognizes that it goes to the core of the prison administrator's expertise.

[00:23:02] Speaker 00:
In this case, multiple BOP representatives explained to the district court why the unique facts of the MCC in San Diego made it not amenable to intermittent confinement and provided two alternatives.

[00:23:14] Speaker 00:
That was not the type of grossly outrageous conduct that would have warranted dismissal in this case.

[00:23:22] Speaker 00:
We'd ask that you remand for resentencing.

[00:23:25] Speaker 03:
Thank you.

[00:23:26] Speaker 03:
The case just argued is submitted and with that we will move to the final case on the argument calendar today.