[00:00:00] Speaker 04: The first case that we'll hear is a case called United States versus Bourne. [00:00:04] Speaker 04: It's 24-7011. [00:00:05] Speaker 04: And we'll hear first from Mr. Miller. [00:00:12] Speaker 02: Good morning, Your Honors. [00:00:13] Speaker 02: May it please the Court, Benjamin Miller, on behalf of Kale Bourne. [00:00:17] Speaker 02: And I'll start with the question we received from this Court, basically asking what would be the result, depending on how the Court views the issues, affirm [00:00:28] Speaker 02: reverse remand. [00:00:29] Speaker 02: And I think I'll just start with what I don't think the result can be. [00:00:32] Speaker 02: And I don't think this court, if they think there was an error, can affirm. [00:00:36] Speaker 02: And I'll say there's two reasons for that. [00:00:38] Speaker 02: And first, I will point to this court's decision in United States versus Hargrove. [00:00:43] Speaker 02: And there, in footnote nine, this court addressed there was an issue with the application of the acceptance of responsibility guidelines. [00:00:53] Speaker 02: And this court in that footnote says, the government doesn't ask us to impose a harmless error type analysis. [00:01:00] Speaker 02: And even if they had, they could not meet their burden, because when a court misapplies the guidelines, the error can't be harmless. [00:01:08] Speaker 02: And I think that would apply here, too. [00:01:10] Speaker 04: And that gets to my second point, where- You're talking about a tensor case? [00:01:16] Speaker 04: Yes. [00:01:17] Speaker 04: OK. [00:01:19] Speaker 04: That's not in your brief, correct? [00:01:21] Speaker 02: Hargrove is in our briefs. [00:01:22] Speaker 04: The Four Circuits opinion in Hargrove is in the brief. [00:01:28] Speaker 02: Am I? [00:01:29] Speaker 04: At least it's in the table of authority. [00:01:31] Speaker 02: All right, maybe there's a mistake. [00:01:32] Speaker 02: But the Hargrove I am mentioning, and I apologize if I'm getting them mixed up, is 478F3195. [00:01:38] Speaker 02: OK, thank you. [00:01:39] Speaker 02: And I do apologize. [00:01:40] Speaker 02: No, that's all right. [00:01:41] Speaker 02: OK. [00:01:42] Speaker 02: And then even if there could be a case where a similar type of guidelines error could be harmless, [00:01:49] Speaker 02: I don't think this is the case for it. [00:01:52] Speaker 02: And there, again, I'll point the government, like in Hargrove, didn't make a harmless error analysis. [00:01:57] Speaker 02: And I think more importantly, the error here got at the essential question the court had to answer. [00:02:04] Speaker 02: Did Mr. Bourne accept responsibility for the offense of conviction? [00:02:08] Speaker 02: And that isn't all that's required, but that is the essential question that starts the analysis. [00:02:15] Speaker 02: And if the court gets that wrong, [00:02:17] Speaker 02: I think this would be similar to Hargrove, where the harmless outcome couldn't be established. [00:02:24] Speaker 02: And then, so if it's not going to be affirmed, next to the court, just outright reverse. [00:02:28] Speaker 02: And I don't think the court can do that either. [00:02:31] Speaker 02: So that leaves us with sort of two options on remand. [00:02:36] Speaker 02: Remand with instructions to resentence in light of the opinion, or remand with specific instructions to award the acceptance of responsibility. [00:02:47] Speaker 02: Typically, the result would be remand for new sentencing in light of the opinion. [00:02:53] Speaker 02: However, when the record is sufficient enough, the outcome can be remand with instructions more specific to impose, to apply the deduction. [00:03:04] Speaker 02: And that is what this court did in Salzar Samaniega. [00:03:09] Speaker 02: And I think it can do it here, because similarly, the record is sufficiently complete to show why Mr. Bourne should have been [00:03:17] Speaker 02: entitled to the acceptance of responsibility deduction. [00:03:21] Speaker 02: And I'll start with, he does truthfully admit to the offense of conviction. [00:03:26] Speaker 04: Before you get to the merits-based arguments, is there not a third possible disposition, and that is to retain jurisdiction and remand for the limited purpose for the district court to state whether or not the paragraph in dispute [00:03:45] Speaker 04: with regard to his disputing the intent element, whether or not that was intended to be an independent part of the analysis or if it was supposed to be integral to the whole reason for the first paragraph, and that is that he found that there was not a clear demonstration of acceptance or responsibility [00:04:12] Speaker 04: for him to clarify that, and then we decide the merits of the appeal. [00:04:18] Speaker 02: I think the answer is, this is a little bit of a unique case. [00:04:20] Speaker 02: I think there the answer is no to that question, because intent is not part of the offense of conviction. [00:04:28] Speaker 02: And so if it isn't, I guess I don't understand the question. [00:04:32] Speaker 04: Well, I may be stating it very badly. [00:04:37] Speaker 04: I'm saying, assuming, arguing that we credit your argument [00:04:41] Speaker 04: that the offense in question is the offense of conviction based on application note one. [00:04:46] Speaker 04: I'm saying the question is whether or not that paragraph in dispute where the judge refers to one of the reasons that starts further, that this is an additional reason, whether that was intended to be an independent reason for denying the acceptance or responsibility credit [00:05:07] Speaker 04: Or if it was part and parcel of this whole explanation of why he found that there was not, in combination, a clear demonstration of acceptance and responsibility. [00:05:19] Speaker 04: Have him clarify that. [00:05:21] Speaker 04: Comes back to us. [00:05:22] Speaker 04: We know what the judge's intent was. [00:05:26] Speaker 04: Was this an independent reason or just one reason with several components? [00:05:32] Speaker 04: And then we decide the merits of the appeal. [00:05:37] Speaker 02: I guess I think the court probably could do that. [00:05:39] Speaker 02: I can't think of a reason why the court could not. [00:05:41] Speaker 02: I think it's not what would be, in my opinion, the outcome required by the record. [00:05:48] Speaker 02: Because we look at the reasons the court gives, given its sentencing. [00:05:53] Speaker 02: And one reason was the court agreed. [00:05:57] Speaker 02: Court thought he challenged intent and malice. [00:06:00] Speaker 02: So that's one reason. [00:06:01] Speaker 02: And that is what I think is the essential question to decide, do we even get to anything else? [00:06:06] Speaker 02: And then if we look at the other reasons the court cited, the court cites application note one, which number one, application note one begins with, does the person truthfully admit? [00:06:19] Speaker 02: And Mr. Bourne did. [00:06:20] Speaker 02: And then it gets to what the court is discussing, that he doesn't voluntarily terminate [00:06:27] Speaker 02: And he doesn't have post-defense rehabilitative efforts. [00:06:32] Speaker 02: When did he truthfully admit? [00:06:34] Speaker 02: At what stage did that happen? [00:06:36] Speaker 02: There's nothing in the record to show that he truthfully admits prior to the trial. [00:06:43] Speaker 03: Well, I understand that. [00:06:45] Speaker 03: So it happens at trial. [00:06:46] Speaker 03: When in the trial did it happen? [00:06:50] Speaker 02: I mean, it happens throughout. [00:06:51] Speaker 02: The defense, if we look at the defense as a whole, defense's opening statement is Mr. Bourne committed this offense as a voluntary manslaughter. [00:07:01] Speaker 02: His testimony is then very similar. [00:07:03] Speaker 02: And then the closing specifically says, please convict him of this offense. [00:07:08] Speaker 02: And so this becomes unlike a case, unlike United States versus Hearst, where [00:07:15] Speaker 02: The defense waits until they hear all the government's evidence and then sees, oh, wow, this is really overwhelming. [00:07:21] Speaker 02: We must pivot. [00:07:22] Speaker 02: This is very different from that. [00:07:23] Speaker 03: Tell me what happened at the end of the government's evidence. [00:07:27] Speaker 03: Was there a motion for a judgment of acquittal? [00:07:32] Speaker 02: I can check and let you know on rebuttal. [00:07:36] Speaker 02: I'm sure the government may know also. [00:07:37] Speaker 02: I don't recall. [00:07:39] Speaker 04: Just one quick follow-up question. [00:07:42] Speaker 04: In opening statement, he didn't say voluntary manslaughter. [00:07:45] Speaker 04: He said he had a passion. [00:07:47] Speaker 04: He didn't say, I committed voluntary manslaughter in opening. [00:07:51] Speaker 04: I mean, I don't think you even argue that in your brief. [00:07:54] Speaker 04: He did say he killed [00:07:57] Speaker 04: the guy and did it in a heat of passion, right? [00:08:02] Speaker 02: I believe that is correct. [00:08:03] Speaker 02: I'll double check, and I'll let the court know. [00:08:05] Speaker 02: But I believe that is correct. [00:08:06] Speaker 02: I think it's at 44 of the third volume. [00:08:08] Speaker 02: It's a portion where. [00:08:10] Speaker 02: But that is the entire, apparent with the entire defense, is they weren't contesting what happened. [00:08:16] Speaker 02: They were just arguing this was not premeditated. [00:08:19] Speaker 02: It was not with mouths. [00:08:20] Speaker 02: And that is what the jury agrees with, which also makes this case very different than a case like US versus Smith. [00:08:27] Speaker 02: or US versus Tom's, where the defense goes to trial, admits to conduct, but challenges the intent, and the jury winds up disagreeing with the defense. [00:08:36] Speaker 02: They convict of a lesser included, but it's still more than the defense asked for. [00:08:41] Speaker 03: Was the government on notice prior to trial that he was willing to admit that he committed the crime in the heat of passion? [00:08:49] Speaker 02: I'm unaware of anything in the record that I would say they were. [00:08:52] Speaker 02: I would point this court, the closest I could come to something that would answer that question was in page 228 of the second volume, when the defense submits its letter in response to the pre-sentence report. [00:09:06] Speaker 02: And there, whose court the defense counsel was, it says, Mr. Bourne had no opportunity to accept responsibility through a pretrial admission of guilt to the offense of conviction. [00:09:18] Speaker 02: So it's not exactly your question, Your Honor, but I read that sentence to mean this wasn't a case where they were ever close with the government on their view of what happened. [00:09:28] Speaker 02: And so I read that sentence to mean he didn't have a chance to admit voluntary manslaughter until it got to trial, because the government's view was this wasn't voluntary manslaughter. [00:09:38] Speaker 03: OK, so we wouldn't find anything in the record that he notified the government ahead of time. [00:09:43] Speaker 03: Hey, I plead to voluntary manslaughter, [00:09:46] Speaker 02: I don't recall seeing anything like that. [00:09:54] Speaker 03: Let's explore that for a minute. [00:09:57] Speaker 03: So if your intent is, if you believe that you were guilty of voluntary manslaughter but not of murder, and you wanted to someday take credit for an acceptance of responsibility, [00:10:13] Speaker 03: Wouldn't make much sense would it to to not notify the government of that and notify them that hey? [00:10:20] Speaker 03: I'm willing to say I did it in the heat of passion, and I'll take a conviction for voluntary manslaughter And that that would seem to be the type of conduct that would get you at least closer to the voluntary or to the acceptance of responsibility deduction, but this this seems like it could be a situation where a [00:10:43] Speaker 03: You didn't accept responsibility in a timely enough manner to where the government could do anything about it. [00:10:50] Speaker 03: I would say two points. [00:10:51] Speaker 03: Because they still had to go to trial. [00:10:52] Speaker 02: Yes. [00:10:53] Speaker 02: I would say two points to that, Your Honor. [00:10:55] Speaker 02: One is, obviously, the defense does have the burden, but I can't say that didn't happen. [00:11:01] Speaker 02: It's just not in the record. [00:11:02] Speaker 02: I can't imagine all the time there was no discussion. [00:11:04] Speaker 03: Well, you have to live with what's in the record, though, right? [00:11:07] Speaker 02: And then I would point to two is, that wasn't the court's reasoning. [00:11:11] Speaker 02: The court's reasoning for denying him at least that question wasn't that you waited too long or that you did it strategically like the defendant in Collins. [00:11:20] Speaker 02: It was that you didn't truthfully admit to malice. [00:11:23] Speaker 02: So the court wasn't denying him based on now's factors. [00:11:27] Speaker 02: It was denying him because it incorrectly believed he challenged the elements of conviction. [00:11:33] Speaker 02: And then on the two other reasonings the court mentions, one is voluntary termination and one is post-rehabilitative efforts. [00:11:40] Speaker 02: voluntary termination of writing the record is enough to show why he should get the deduction is typically when someone is showing some type of [00:11:51] Speaker 02: effort to obstruct justice, destroy evidence, concoct an alibi. [00:11:54] Speaker 02: I don't see any cases where voluntary termination is you don't immediately stop and turn it in. [00:12:00] Speaker 04: So you think it would be irrational to say, well, you didn't voluntarily stop after you stomped on his head 10 times and killed him, and you stomped on his head another 16 times. [00:12:12] Speaker 04: How can we say that that's not at least a rational application of that criterion? [00:12:21] Speaker 02: Because that's the offense, right? [00:12:22] Speaker 02: If he had stopped earlier, if he had stopped earlier. [00:12:28] Speaker 04: Under my hypothetical, it's not. [00:12:30] Speaker 04: I said, if you stomp on his head 10 times and you've killed him in the heat of passion, that's voluntary manslaughter. [00:12:38] Speaker 04: The manslaughter's over. [00:12:39] Speaker 04: He's dead, heat of passion. [00:12:41] Speaker 04: And what I'm saying is, you stomp on him another 16 times, well, [00:12:46] Speaker 04: That's not homicide, because he's already dead. [00:12:49] Speaker 04: You can't kill a dead person. [00:12:51] Speaker 04: So why isn't it rational to say, once you continue to stomp on him after you've already killed him, that's not voluntary cessation of that conduct? [00:13:05] Speaker 02: I would point this court. [00:13:06] Speaker 02: One, I'd say I've not seen any court that had so narrowly defined voluntary termination. [00:13:11] Speaker 02: If anything, I would point, we were citing our brief Kuhn versus the United States. [00:13:16] Speaker 02: where it's the Rodney King case, where they could have stopped at any point. [00:13:21] Speaker 02: And not only do they not get upward departure, they get a deduction. [00:13:26] Speaker 02: And so that's very similar, where you could say, well, they could have stopped beating him at any point in all the times they are hitting him, but they don't. [00:13:34] Speaker 02: And at no point does lack of voluntary termination come in there. [00:13:37] Speaker 02: And the last point I'd like to make on terms of the other part, post-rebilitative efforts, is I don't see how the court [00:13:44] Speaker 02: could deny him the credit here in this offense, but give him the credit in the two other offenses if the court thinks his post-rehabilitative efforts weren't sufficient. [00:13:52] Speaker 04: How do we assess that? [00:13:53] Speaker 04: We don't even have the PSIs in the two other cases. [00:13:57] Speaker 02: But the facts would be the same, Your Honor. [00:13:59] Speaker 04: Well, the facts that you're saying, the facts of completely distinct crimes [00:14:05] Speaker 04: would be the same as this voluntary manslaughter. [00:14:09] Speaker 04: Maybe the conduct is related. [00:14:12] Speaker 04: Maybe the conduct might even be the same. [00:14:14] Speaker 04: But they're different charges. [00:14:16] Speaker 04: They're different. [00:14:19] Speaker 04: They may be identical PSIs. [00:14:21] Speaker 04: They're not in the records. [00:14:21] Speaker 04: We don't know. [00:14:23] Speaker 04: And then the other problem I have is, how do we say that it's irrational to give an acceptance responsibility credit in two other cases [00:14:34] Speaker 04: with two other charges and not do it here. [00:14:39] Speaker 04: I mean, I don't know of a case that says it can't be consistent. [00:14:43] Speaker 02: I agree that, in theory, that you could have a case where we give the credit in two cases and not one. [00:14:49] Speaker 02: But I think the point is the court can't use lack of post-rehabilitative efforts against him in this one case, when the time frame we're looking at is exactly the same for all three. [00:15:00] Speaker 02: And so if he had post-rehabilitation, that one factor, I think, can't be distinguished. [00:15:04] Speaker 02: And for that, I will save my eight seconds for a puddle. [00:15:06] Speaker 04: Yeah, I'll give you, we'll make it a full minute, Kevin. [00:15:09] Speaker 04: Thank you, Your Honor. [00:15:11] Speaker 05: Let me, I've got a couple of questions. [00:15:13] Speaker 05: Oh, yeah. [00:15:14] Speaker 05: Come on, so sorry. [00:15:18] Speaker 05: This is Judge Baldwin. [00:15:20] Speaker 05: Yes, Your Honor. [00:15:22] Speaker 05: Judge Carson, I asked you a question that I never heard an answer to, and that is that your case is subject to the record that we have before us. [00:15:30] Speaker 05: Isn't that correct? [00:15:31] Speaker 02: Yes, Your Honor. [00:15:34] Speaker 05: And do you also agree that United States v. Galván and also United States v. McGeehee has some application to this case? [00:15:49] Speaker 02: Yes, I agree. [00:15:49] Speaker 02: Both of those cases are these cases where my reading of them is they say court, even going to trial, you can get the credit. [00:15:58] Speaker 05: Court does have that discretion. [00:16:01] Speaker 05: I know what your reading may be, but you're gonna be about what I read in regards to this matter. [00:16:08] Speaker 05: That's correct. [00:16:09] Speaker 05: Question is then, have you looked at application note number two and in regards to McGeehee and Cowbound where clear error is the question that we have here? [00:16:27] Speaker 02: Yes, and I would argue the court did clearly err when the court said he didn't admit he challenged the elements of conviction when he did not do that. [00:16:34] Speaker 02: That's clear error. [00:16:37] Speaker 05: Well, that's one of the issues we have before us because McGee and also Galván have kind of a different bent on that, don't they? [00:16:50] Speaker 05: Because we clearly say where [00:16:54] Speaker 05: Even though under, I believe it was Galvan, they granted the acceptance of responsibility, that it also refers to the fact that we could also, under those facts, the trial court could possibly deny the acceptance of responsibility. [00:17:11] Speaker 05: Do you agree with that? [00:17:14] Speaker 02: Yeah, the court can always deny. [00:17:16] Speaker 02: But what a court can do is say you challenged intent when intent wasn't an element of the conviction. [00:17:22] Speaker 02: That's the clear error here. [00:17:23] Speaker 02: And that's what makes it different than even Gavon, where he challenged intent and the jury disagreed. [00:17:31] Speaker 02: Thank you, Your Honor. [00:17:32] Speaker 02: Thank you, Your Honor. [00:17:56] Speaker 01: May it please the court. [00:17:58] Speaker 01: I'm Luke Rizzo. [00:17:59] Speaker 04: Can you pull that a little closer? [00:18:01] Speaker 01: Microphone? [00:18:02] Speaker 01: OK. [00:18:03] Speaker 01: Yes, Your Honor. [00:18:04] Speaker 01: May it please the court. [00:18:05] Speaker 01: I'm Luke Rizzo. [00:18:06] Speaker 01: An A was saved from the Eastern District of Oklahoma. [00:18:08] Speaker 01: The court should affirm the district court's decision to not credit defendant who went to trial for the acceptance of responsibility or a point reduction for acceptance of responsibility. [00:18:19] Speaker 01: The two key reasons are the law and this court's precedent. [00:18:23] Speaker 01: As for the law, the guidelines provide that a defendant [00:18:26] Speaker 01: is not eligible for this reduction if he denies the essential factual elements of guilt at trial. [00:18:32] Speaker 01: He didn't do that, did he, on the offense of conviction? [00:18:37] Speaker 01: Well, no, Your Honor, but this court's precedent requires him to admit to the factual elements of the crime that is charged. [00:18:46] Speaker 01: As the judge was alluding to, that's what McGahey and Galvin essentially say. [00:18:53] Speaker 01: And McGay reiterates that point. [00:18:56] Speaker 04: And he gets up before a single witness is called, an opening statement, and his counsel says he killed the guy in a heat of passion. [00:19:05] Speaker 04: What, in addition to those two admissions, would the government need to prove in order to convict a voluntary manslaughter? [00:19:15] Speaker 01: Well, Your Honor, the government's relying on Smith and Collins' cases from this court, where the bulk of the consideration is that the defendant went to trial. [00:19:27] Speaker 01: The government had the burden to prepare for trial. [00:19:29] Speaker 01: And from this court's precedent, that's essentially the main standard. [00:19:33] Speaker 04: I mean, that's what defines whether- So your position is, if you go to trial on bank robbery, [00:19:43] Speaker 04: And you say, I didn't commit bank robbery. [00:19:47] Speaker 04: And to get up in opening statement, it says, what I did is I committed larceny. [00:19:52] Speaker 04: And the jury agrees with you and says, you didn't commit bank robbery. [00:19:57] Speaker 04: You committed larceny. [00:19:59] Speaker 04: Then you automatically, under your view, are denied an acceptance responsibility credit? [00:20:06] Speaker 04: Because you didn't admit to something that you were acquitted of? [00:20:10] Speaker 04: You think that's what our case law says? [00:20:12] Speaker 01: The government does. [00:20:13] Speaker 01: That's the government's position. [00:20:14] Speaker 01: And again, Gavin and McGahey, McGahey essentially says that. [00:20:19] Speaker 01: It references the crime that is charged. [00:20:22] Speaker 01: The defendant didn't admit to the factual elements of the crime that is charged. [00:20:26] Speaker 04: And in that case, was there a discrepancy between the crime that was charged and the crime that was convicted? [00:20:32] Speaker 04: A lesser included offense, Your Honor. [00:20:34] Speaker 01: OK. [00:20:35] Speaker 01: Which the elements can never be the same for a lesser included offense. [00:20:39] Speaker 01: OK. [00:20:40] Speaker 04: And so in those cases, [00:20:42] Speaker 04: Was there a denial of the lesser included offense that was charged? [00:20:49] Speaker 01: I don't believe so, Your Honor. [00:20:52] Speaker 01: I don't believe so. [00:20:53] Speaker 01: But in particular, Collins, there is the lesser included offense. [00:20:57] Speaker 01: He does admit to the lesser included offense. [00:20:59] Speaker 01: He does admit to the crime that is charged. [00:21:02] Speaker 01: Collins is effectively, if I recall, it's a drug case where the individual is charged with intent to distribute [00:21:09] Speaker 01: He basically admits to possession during his trial. [00:21:12] Speaker 01: He gets convicted of that. [00:21:14] Speaker 01: OK. [00:21:15] Speaker 04: OK. [00:21:17] Speaker 01: And he doesn't get acceptance points. [00:21:19] Speaker 04: Are you saying in that case, the possession count was one of the charges? [00:21:25] Speaker 04: It was a lesser included defense, Your Honor. [00:21:27] Speaker 04: OK. [00:21:27] Speaker 04: And here, was there a lesser included defense that was charged for voluntary manslaughter? [00:21:32] Speaker 01: No, Your Honor. [00:21:34] Speaker 04: OK. [00:21:35] Speaker 04: And you don't see any difference? [00:21:38] Speaker 04: Well, Your Honor, I don't. [00:21:40] Speaker 04: What I'm getting at is, it seems, maybe I'm just misunderstanding, but it seems like you all are talking past one another. [00:21:49] Speaker 04: If I'm charged with two things and I deny one thing and admit the other, I can see the argument, well, you denied something that you were ultimately convicted of. [00:22:03] Speaker 04: Here, there was no charge for voluntary manslaughter. [00:22:07] Speaker 04: He says in opening statement before a witness is called, I committed, I killed a guy in the heat of passion. [00:22:16] Speaker 04: And that's why I asked you the question that you still haven't answered. [00:22:19] Speaker 04: What additional to that would the government need to prove in order to convict of voluntary manslaughter? [00:22:26] Speaker 04: And if the answer is nothing, then why didn't he, under application note two, admit in opening statement [00:22:35] Speaker 04: all of the conduct that was required for the offense of conviction. [00:22:39] Speaker 04: Now, you might have an argument that maybe that's too late. [00:22:43] Speaker 04: Maybe you can't wait until opening statement. [00:22:45] Speaker 04: But I guess I'm just not understanding why if you deny something that the one charge, and that was the only charge, and you're acquitted of that, why that should count against you for acceptance of responsibility. [00:22:58] Speaker 01: Well, Your Honor, the government could [00:23:00] Speaker 01: just point to the facts of this very case, right? [00:23:03] Speaker 01: Mr. Bourne, he's charged with first degree murder. [00:23:08] Speaker 01: That's the only charge. [00:23:09] Speaker 01: He's not charged with voluntary manslaughter. [00:23:11] Speaker 00: Exactly. [00:23:11] Speaker 01: He goes to trial. [00:23:13] Speaker 01: And he's acquitted. [00:23:15] Speaker 01: He's acquitted of that. [00:23:16] Speaker 01: He's convicted of the lesser-included offense based on his testimony at trial, effectively. [00:23:21] Speaker 01: I think the record makes that pretty clear. [00:23:23] Speaker 04: So when you say lesser-included offense, was he convicted of voluntary manslaughter? [00:23:30] Speaker 01: Yes, Your Honor. [00:23:32] Speaker 01: He's convicted of the lesser included offense of first degree murder. [00:23:36] Speaker 01: The government's position in a brief standing here before the court today has been, and it is, that it's about the crime that the individual is charged with. [00:23:47] Speaker 01: If he doesn't plead guilty to that, he doesn't get acceptance of responsibility if he goes to trial. [00:23:53] Speaker 01: And so he's convicted of the thing that he admitted. [00:23:55] Speaker 01: He is convicted of the thing he's admitted, Your Honor. [00:23:59] Speaker 01: Of course he is. [00:24:00] Speaker 01: But again, with all due respect, Your Honor, it's not the government's position alone. [00:24:09] Speaker 01: I think it's fair to say, based on the court's precedent, Smith, Collins, Galvin, McGahey, I think it's gleaned from those cases that it is about the crime that the individual is charged with. [00:24:21] Speaker 01: The government concedes in the application notes, you know, there's mentions of the crime of conviction, and the appellant relies on that. [00:24:31] Speaker 01: I mean, we are, you know, we're not coming to a connection on that point where two ships passing in the night. [00:24:38] Speaker 01: The appellant is relying on the application notes of the guideline. [00:24:42] Speaker 01: The government's relying on the precedent of this court, which it believes is more important. [00:24:48] Speaker 01: That's the government's position. [00:24:49] Speaker 01: I hope that clarifies that. [00:24:52] Speaker 05: I'd like to inquire, what is your best case [00:24:56] Speaker 05: that limits it strictly to the crime that he's charged with. [00:25:01] Speaker 05: Because as I look at the record, the trial court in this case instructed the jury on lesser included offenses. [00:25:11] Speaker 05: And the mass slaughter was instructed to them. [00:25:15] Speaker 05: Am I not correct? [00:25:17] Speaker 01: That is correct, Your Honor. [00:25:18] Speaker 05: Certainly the... So he's charged with that, but in opening statement, [00:25:25] Speaker 05: He already agrees that he's guilty of it. [00:25:28] Speaker 05: You're saying that unless he stipulates to the first degree murder charge, he can never get acceptance of responsibility. [00:25:40] Speaker 05: That's what I'm hearing you say. [00:25:42] Speaker 05: Am I correct or not? [00:25:45] Speaker 01: Well, I think I need to answer in two parts, Your Honor. [00:25:48] Speaker 01: You are correct. [00:25:49] Speaker 01: The latter part of your statement, that is the government's position. [00:25:53] Speaker 01: As far as is he charged with voluntary manslaughter, he's not. [00:25:57] Speaker 01: He's not charged by indictment with voluntary manslaughter. [00:26:00] Speaker 01: Based on his testimony, he presented enough evidence. [00:26:05] Speaker 01: I believe he moves for a lesser included offense instruction at trial. [00:26:11] Speaker 01: And he's granted that. [00:26:13] Speaker 01: And certainly, the jury finds him guilty of that. [00:26:15] Speaker 01: I believe that's how we get there. [00:26:18] Speaker 01: I hope that answers your question, Your Honor. [00:26:22] Speaker 05: I still haven't heard your best case. [00:26:28] Speaker 05: Are you arguing that Collins is your best case that supports that? [00:26:32] Speaker 01: Well, Your Honor, the government will also point to Smith. [00:26:36] Speaker 01: I mean, in Smith, that case is pretty much right on here. [00:26:39] Speaker 01: The individual in Smith, the defendant, he shoots a home invader. [00:26:43] Speaker 01: He's charged with first degree murder. [00:26:46] Speaker 01: Based on his testimony at trial, he's convicted of involuntary manslaughter, a lesser included defense. [00:26:51] Speaker 01: he does not get acceptance points. [00:26:54] Speaker 01: Quite frankly, I think Smith is parallel to this particular case. [00:27:01] Speaker 01: There's also the note that this is all about the factual elements of intent. [00:27:08] Speaker 01: That's what the defendant is effectively doing. [00:27:11] Speaker 01: He's challenging those when he goes to trial. [00:27:12] Speaker 01: He's challenging premeditation. [00:27:14] Speaker 01: He's challenging malice of forethought. [00:27:17] Speaker 01: Granted, he wins those challenges, of course, [00:27:22] Speaker 01: based on the court's precedent. [00:27:23] Speaker 01: And I'll just reiterate it, because I want to make that point clear. [00:27:26] Speaker 01: I mean, the government's relying on prior cases from this court. [00:27:36] Speaker 03: Do you agree that the district court could have exercised its discretion to award him the reduction in this case, because he came and agreed basically [00:27:52] Speaker 03: I don't want to use this term because he admitted in his testimony that he committed the elements of the lesser included defense. [00:28:02] Speaker 01: The government's position is that the judge certainly, well, the district court certainly had the discretion to do that. [00:28:08] Speaker 01: If the judge did, if the district court did, it very likely wouldn't have been challenged by my office. [00:28:16] Speaker 01: The court could look at it in Galvin. [00:28:19] Speaker 01: That's a particular case where, you know, [00:28:22] Speaker 01: The individual, he admits all the factual elements at trial. [00:28:27] Speaker 01: He goes to trial, and he still receives acceptance points. [00:28:31] Speaker 01: I mean, there's a caveat there that makes it different than this case, mainly being that he doesn't challenge any factual elements. [00:28:38] Speaker 01: The district court found that he challenged the legal application of the statute to his particular action. [00:28:44] Speaker 01: But the ultimate point being, and the reason why the government will reference that case, is because this court in review essentially [00:28:53] Speaker 01: you know, gave credit to the deference or gave deference to the district court, even though it noted it might have come to a different decision. [00:29:02] Speaker 01: So the government's position has been and will remain, you know, the district court has and should have a significant amount of discretion. [00:29:09] Speaker 01: That's, again, that's this court's position in the, you know, in sentencing in general, but also for an evaluation of an acceptance of responsibility reduction. [00:29:21] Speaker 01: Judge Boldo. [00:29:24] Speaker 05: I have a... Please, thank you. [00:29:29] Speaker 05: In light of the fact that the first argument is that he was denied acceptance of responsibility, which would give him, I believe, what, a two-point reduction? [00:29:41] Speaker 05: Isn't that correct? [00:29:42] Speaker 01: That's correct, Your Honor. [00:29:52] Speaker 05: that maybe he should have been entitled to a two-point reduction or acceptance of responsibility. [00:30:02] Speaker 05: In that event, do we still answer his issue number two, which is the [00:30:10] Speaker 05: accept an upward violation because of the upward departure? [00:30:17] Speaker 05: And based upon the evidence, I believe that Judge Baccarat was talking to earlier about stomping a person's head several times. [00:30:25] Speaker 05: Do we need to answer that question just in the event that the court hypothetically should agree with you? [00:30:33] Speaker 05: Because that is an issue he's raised. [00:30:37] Speaker 01: Well, Your Honor, I think it certainly would be beneficial for the court to answer that question. [00:30:43] Speaker 05: A lot of things are beneficial with the court. [00:30:47] Speaker 05: The question is, do we have to answer that question in the event we go the other way? [00:30:53] Speaker 05: I agree. [00:30:53] Speaker 05: It makes sense if we do that, whether or not to affirm the second issue or to reverse it too. [00:31:00] Speaker 05: But again, the application notes are pretty clear. [00:31:04] Speaker 05: So my question to you is, [00:31:06] Speaker 05: If you know the law in regards to that, do we have to answer the second issue if we reverse on the first? [00:31:18] Speaker 01: Well, Your Honor, I suppose it would have to be, you know, the guideline range at that point would have to be recalculated. [00:31:24] Speaker 01: I'm not, well, the government's not necessarily sure why. [00:31:27] Speaker 00: Sure. [00:31:31] Speaker 05: No, I'm just saying I agree because one, you get a point, you get points reduced, and the other one is upward departure, you get points added. [00:31:42] Speaker 05: So that's why I'm asking the question. [00:31:45] Speaker 05: It just seems to me, well, what seems to me may be right or wrong. [00:31:52] Speaker 05: I don't know. [00:31:52] Speaker 05: So anyway. [00:31:56] Speaker 01: Certainly. [00:31:56] Speaker 01: All right. [00:31:56] Speaker 04: Well, that's all. [00:31:59] Speaker 04: I think Judge Carson had a question. [00:32:01] Speaker 03: No, I don't. [00:32:01] Speaker 04: Go ahead. [00:32:02] Speaker 04: I do have a question. [00:32:03] Speaker 04: So you were commenting about discretion to the district court. [00:32:09] Speaker 04: I think everybody would agree with that. [00:32:11] Speaker 04: Do you agree or disagree with the notion that if the district court makes a legal error, let's say the district court decides, oh, that defendant is of an ethnicity that is predisposed to commit crime, [00:32:28] Speaker 04: Even if all of the other factors weigh in support of the decision, we would say, well, that tainted the discretion. [00:32:36] Speaker 04: And so illegal errors, by definition, are an abuse of discretion. [00:32:41] Speaker 04: Do you agree or disagree with that? [00:32:42] Speaker 01: The government agrees that certainly that would be a legal error, and it would be remanded. [00:32:48] Speaker 01: I mean, OK. [00:32:50] Speaker 01: And so? [00:32:50] Speaker 01: Well, can I ask you a question? [00:32:54] Speaker 03: Okay, so assume there is a legal error that would, if standing by itself would require remand, but the district court gave an alternative reason for denying the acceptance of responsibility that was not a legal error, would you still have to remand it? [00:33:11] Speaker 01: Well, Your Honor, in this particular case, the reference to an extraneous reason by the court [00:33:20] Speaker 01: doesn't make it a clear error. [00:33:22] Speaker 01: The government's position is it doesn't have to be remanded. [00:33:25] Speaker 01: The court's comment is essentially something extra, but it's not a clear error. [00:33:31] Speaker 03: Again, I understand that, but that's not responsive. [00:33:34] Speaker 03: So I want you to assume that there is a clear error as to one ground. [00:33:40] Speaker 03: But the court says, alternatively, I'm [00:33:45] Speaker 03: I'm denying the request for the acceptance of responsibility for reason why, and assume that reason why is a valid reason. [00:33:55] Speaker 01: Fair enough, Your Honor. [00:33:56] Speaker 01: In this particular narrow context of acceptance of responsibility, the government would posit that there has to be a foundation. [00:34:03] Speaker 01: There has to be a valid foundation, and it's pretty clear what that would mean. [00:34:07] Speaker 01: And it would mean the defendant didn't make the government go to trial. [00:34:11] Speaker 01: That's the foundation. [00:34:12] Speaker 01: There's facts to support that, and the government [00:34:15] Speaker 01: You know, rest on the notion that if the district court throughout the sentencing makes a comment or gives a reason that wouldn't be in the realm of acceptance of responsibility, this court doesn't necessarily have to remand it for that one reason. [00:34:31] Speaker 04: Why? [00:34:32] Speaker 04: So I assume that the answer is, so you're saying, [00:34:36] Speaker 04: If a judge gives two reasons, one's valid and one's invalid, that you don't have to remand, is that because your opponent theorized, well, that's because the only way you can get there is to say, well, there was a legal error, but it was harmless. [00:34:53] Speaker 04: Is the reason that we wouldn't remand, in your view, because the taint was harmless because the judge gave an alternative reason that was valid? [00:35:04] Speaker 01: Absolutely, Your Honor. [00:35:06] Speaker 04: And have you in your until two minutes and 12 seconds of your excess time in your argument, have you ever argued until just now that if there was an error, it was harmless? [00:35:25] Speaker 04: I mean, we ordered you all to be ready to answer this question. [00:35:34] Speaker 04: Harmlessness is typically borne by the government. [00:35:38] Speaker 04: And the government has the burden. [00:35:42] Speaker 04: And he's not had an opportunity to brief it. [00:35:46] Speaker 04: Only because of my mercy and giving him an additional 45 seconds can he even respond to your harmlessness argument. [00:35:54] Speaker 04: So how can we say it would be, if it's an error, that it would be harmless when you've waited until now to raise harmlessness? [00:36:03] Speaker 01: Well, Your Honor, and again, I realize I'm over time. [00:36:07] Speaker 01: I'll answer your question. [00:36:08] Speaker 01: The government, the appellate doesn't raise that exact issue. [00:36:14] Speaker 04: Maybe we're not communicating. [00:36:19] Speaker 04: The whole argument is that the third paragraph in the explanation, starting with the further paragraph, is legally erroneous. [00:36:30] Speaker 01: Is this about your honor? [00:36:32] Speaker 04: A further paragraph. [00:36:34] Speaker 04: That he is denying acceptance responsibility because he disputed a charge that he was acquitted of. [00:36:44] Speaker 04: He says, throughout, that is a legal error. [00:36:49] Speaker 04: And what Judge Carson is positing to you is, well, if the judge gives an independent reason, would that preclude us from [00:36:59] Speaker 04: the necessity of remand, and you're saying, yes, it would, as I understand it, because it's harmless. [00:37:05] Speaker 04: But that's, man, until you just said that, I didn't know that was your argument. [00:37:12] Speaker 01: Well, forgive me, Your Honor, the government understood that to be the question to be hypothetical. [00:37:17] Speaker 01: Obviously, based on the briefs, the government does not believe there is a legal error here. [00:37:21] Speaker 03: I get that. [00:37:22] Speaker 03: In his defense, he didn't dispute my hypothetical. [00:37:28] Speaker 04: I thought that's why you called it a hybrid. [00:37:31] Speaker 04: But I thank you for bearing with me. [00:37:33] Speaker 04: And I'm sorry to go back and forth, but I definitely understand your argument. [00:37:38] Speaker 04: OK. [00:37:39] Speaker 04: Thank you, Your Honor. [00:37:40] Speaker 04: Judge Baldock, do you have any questions? [00:37:44] Speaker 04: No. [00:37:44] Speaker 04: I think we have tortured you enough. [00:37:50] Speaker 04: Thank you very much. [00:37:51] Speaker 01: It's my pleasure, Your Honor. [00:37:52] Speaker 04: Thank you. [00:37:52] Speaker 04: We'll hear from the appellant, and I think you've got one minute. [00:37:57] Speaker 02: Thank you, Your Honor. [00:37:58] Speaker 02: I'll be very quick. [00:38:00] Speaker 02: They keep talking about precedent, and the government says their best case is Smith. [00:38:06] Speaker 02: Smith is distinguishable. [00:38:08] Speaker 02: Smith, the defendant, is charged with murder. [00:38:11] Speaker 02: He argues self-defense, pure self-defense. [00:38:15] Speaker 02: He did not admit anything else. [00:38:18] Speaker 02: He said he did not commit this act. [00:38:21] Speaker 02: He's convicted of a lesser included offense that still disagrees. [00:38:25] Speaker 02: with his defense. [00:38:27] Speaker 02: Here, on the other hand, he's convicted of exactly what he testified to and exactly what the defense was. [00:38:33] Speaker 02: And that is why Smith and Toms are different. [00:38:36] Speaker 02: Collins is different because the judge there doesn't credit his testimony. [00:38:41] Speaker 02: He says it was strategic, which isn't what we have here. [00:38:43] Speaker 02: And the last point, lest there are any questions, is to say this is the offense as charged versus the offense of conviction is to contradict all of the plain language. [00:38:53] Speaker 03: The entire 3e 1.1 and the application couldn't those things make a difference though I don't want to I don't want to make this go on forever, but wouldn't your case be better if the lesser included offense had been charged as well Because in that instance you're admitting to something that was charged and you can get up and say hey I [00:39:20] Speaker 03: I came to trial, I admitted to what they charged me with. [00:39:25] Speaker 03: Um, I didn't make them put me to, you know, put on the burden, uh, you know, they, we could have all just gone straight to sentencing judge. [00:39:34] Speaker 03: And in this case, you came to trial and as on the record, as we understand it, nobody knew anything about what the opening argument was going to be until it happened. [00:39:48] Speaker 03: And so. [00:39:49] Speaker 03: The government did have to show up. [00:39:51] Speaker 03: They did have to get their witnesses. [00:39:53] Speaker 03: They did have to put on their case, because they thought the case was about murder, because that's what had been charged. [00:40:03] Speaker 03: And it just so happens that you did strategically show up with a different case in mind, which was morphing the case into a manslaughter case that was not charged. [00:40:14] Speaker 02: I think a few. [00:40:15] Speaker 02: Very, very quick. [00:40:16] Speaker 02: But number one, I think how it's charged shouldn't impact [00:40:20] Speaker 02: this, because that's completely out of the defense's control how the government chooses a charge. [00:40:25] Speaker 02: What I would agree with, we probably would have a better record had the defense prior to trial put something on the record saying, this is what we intend to do, which I don't see anything that says that. [00:40:36] Speaker 02: And then the last thing I'll say, and then I'll sit down, [00:40:40] Speaker 02: in terms of whether it's too late or strategic. [00:40:42] Speaker 02: But again, that's not what the court said, which is the call that is what the court said. [00:40:46] Speaker 02: And so we're left with what the court says, and they just dispute this because it didn't think he admitted to the offense of conviction. [00:40:54] Speaker 02: Unless any other questions? [00:40:56] Speaker 05: I have a question. [00:40:59] Speaker 05: I have a question. [00:41:01] Speaker 05: I prolonged this a little further, but I'm going to go back to the same issue that I asked the government. [00:41:09] Speaker 05: I'm getting a feedback. [00:41:12] Speaker 05: Anyway, do we need to answer your second issue? [00:41:18] Speaker 05: Your first issue, you're arguing you should have gotten a two point reduction for acceptance of responsibility. [00:41:26] Speaker 05: Your second issue is that the court erred in departing upward. [00:41:32] Speaker 05: And that's an addition. [00:41:34] Speaker 05: It would appear to me that if you're right on your first issue, [00:41:39] Speaker 05: We still need to answer the second issue and take that because that's the government's motion below. [00:41:46] Speaker 05: Do you agree that we need to answer your second issue also on the trial court's error as to the departing upward? [00:41:59] Speaker 02: Yes, I think either way, the issues are distinct and they both need to be addressed. [00:42:04] Speaker 02: And I'll just point this court to Kuhn versus United States. [00:42:07] Speaker 02: and rest on my brief for why we believe that was wrong. [00:42:12] Speaker 04: I appreciate it, counsel. [00:42:13] Speaker 04: Thank you. [00:42:14] Speaker 04: Mr. Brewer, I do have one question. [00:42:18] Speaker 04: And this goes back to if we credit your legal argument that this third paragraph from Judge Heil is legally erroneous, I want to ask you about the impact of the first paragraph. [00:42:32] Speaker 04: In terms of whether or not these are really independent rationales, we're all part of one. [00:42:38] Speaker 04: He says the first is, he has a list of non-exhausting factors under 3E1.1. [00:42:49] Speaker 04: The first is truthfully admitting the offense conduct. [00:42:52] Speaker 04: True, the defendant's trial testimony included an admission of attacking the victim and some expectation of remorse. [00:42:59] Speaker 04: He also stipulated to the medical examiner's findings in the cause of death. [00:43:05] Speaker 04: This is what I want to ask you about, Mr. Miller. [00:43:08] Speaker 04: However, this is not sufficient for a clear demonstration of responsibility, nor, which seems to me that he's already said why he's not giving it an acceptance responsibility, nor is it so significant to outweigh other factors that weigh against such [00:43:29] Speaker 04: of finding such a clear demonstration. [00:43:31] Speaker 04: And that's two paragraphs later is when he gets into one of those other factors that you criticize. [00:43:38] Speaker 04: Even if you're right about the legal error in the third paragraph, he has already said that what he did in opening statement and closing argument at trial is not enough for a clear demonstration of responsibility. [00:43:56] Speaker 04: And so [00:43:58] Speaker 04: We also have, even if we don't view it as an issue of harmlessness, we do have many cases that say stray comments are not enough to require reversal. [00:44:11] Speaker 04: Why isn't it sufficient that he gave one independent rationale that is unaffected by the taint of the legal error that you're theorizing about the third paragraph? [00:44:25] Speaker 02: Because the last paragraph the court gets to, where the court says you challenged intent in malice and put the government to its proof, that is the foundational question at issue. [00:44:37] Speaker 02: Does someone get this credit or not? [00:44:39] Speaker 02: And when the court gets that wrong, there's no way to separate that from everything else. [00:44:46] Speaker 02: And it wasn't a tangential off-the-cuff remark. [00:44:49] Speaker 02: That was the exact same argument the government makes. [00:44:52] Speaker 02: in their sentencing letter at 229 of the second record. [00:44:55] Speaker 02: It's the same argument the government's making now, and it's wrong. [00:44:59] Speaker 02: And when that foundation is wrong, it impacts everything else. [00:45:02] Speaker 02: And so I think at minimum, we need the court to go back and explain, would you still deny the credit if you take this out and you agree he did accept the offense of conviction? [00:45:13] Speaker 02: And with that, we would just ask the court to reverse. [00:45:15] Speaker 02: Thank you, Your Honors. [00:45:16] Speaker 04: Thank you both. [00:45:18] Speaker 04: Appreciate both of you indulging our many questions. [00:45:22] Speaker 04: It's an important issue, as all of our cases are. [00:45:25] Speaker 04: This matter will be submitted.