[00:00:03] Speaker 04: And now we'll call the case of US versus Calderon Padilla. [00:00:13] Speaker 04: That's 242097. [00:00:19] Speaker 00: Thank you. [00:00:19] Speaker 00: May it please the court. [00:00:21] Speaker 00: My name is Shira Keval. [00:00:22] Speaker 00: I represent Mr. Calderon. [00:00:25] Speaker 00: The district court in this case plainly erred when, at the government's behest, it sentenced Mr. Calderon as an aggravated felon [00:00:31] Speaker 00: when the government now admits Mr. Calderon was never convicted of an aggravated felony. [00:00:37] Speaker 00: This court should presume error in this case because this type of statutory range error puts upward pressure on the final sentence. [00:00:46] Speaker 00: But even if this court doesn't presume prejudice, it should still reverse because there's a reasonable probability that the district court's misperception of the seriousness of Mr. Calderon's criminal history actually influenced the sentence in this case. [00:01:01] Speaker 01: I was just wondering if you were conceding that there isn't any actual prejudice. [00:01:08] Speaker 00: No, Your Honor, definitely not. [00:01:09] Speaker 00: I plan to address all three of these issues. [00:01:13] Speaker 00: The government, as I said, agrees that Mr. Calderon is not an aggravated felon, but argues the error here isn't plain and isn't prejudicial. [00:01:20] Speaker 00: So my intention is to focus on both prongs two and three and both of those prong three arguments today. [00:01:25] Speaker 01: The difference in the sentencing range [00:01:29] Speaker 01: would not have affected the guidelines range, correct? [00:01:33] Speaker 00: That's correct. [00:01:34] Speaker 01: It would have been the same either way. [00:01:35] Speaker 00: Yes, the numerical guideline range doesn't change. [00:01:38] Speaker 00: But I do think that the gestalt of the guidelines range changes. [00:01:43] Speaker 00: So you can think of a few different defendants who maybe all have the same guidelines range, like this case, three to four years. [00:01:52] Speaker 00: And they're going to come into court in really different positions [00:01:55] Speaker 00: if, say, the statutory maximum is five years, 10, 20, or maybe life. [00:02:00] Speaker 00: So someone who comes in with a three- to four-year range and the stat max is five years, that guidelines range feels very serious. [00:02:09] Speaker 00: And so that's going to change how the district court perceives arguments about whether it should go low within the range or below the range. [00:02:17] Speaker 00: You can think that, conversely, let's say we have someone with a lifetime sentence. [00:02:20] Speaker 00: They're coming in, and their guidelines range of three to four years always looks really lenient. [00:02:25] Speaker 00: already looks really lenient. [00:02:26] Speaker 00: And that's going to impact if they say, oh, I want more lenience. [00:02:31] Speaker 00: That higher statutory maximum is going to put upward pressure on the sentence because it's going to look like they already got lenience and don't necessarily need any more. [00:02:43] Speaker 03: Help me out here. [00:02:44] Speaker 03: Are we saying that, are you saying that there's evidence here that the sentence will be different [00:02:52] Speaker 00: So I'm making two arguments. [00:02:54] Speaker 00: The first one is that prejudice should be presumed just like it is with guidelines, range error. [00:03:00] Speaker 00: But the second one, yes, is that there is evidence here that it mattered. [00:03:04] Speaker 00: So I'm happy to address that first. [00:03:07] Speaker 00: I think the error in this case went to the heart of what Congress says is important. [00:03:14] Speaker 00: Congress's statutory range that it sets out is Congress's statement of the seriousness of the offense. [00:03:20] Speaker 00: And here, there's an offense that is 0 to 10 years. [00:03:22] Speaker 00: And there's an offense that's twice as serious. [00:03:24] Speaker 00: The deportation, excuse me, re-entry after you've been removed after an aggravated felony that's twice as serious, up to 20-year maximum sentence. [00:03:33] Speaker 00: And it's more serious for a number of reasons. [00:03:34] Speaker 00: But one of them is you've been told when you're removed, you've been convicted of an aggravated felony. [00:03:41] Speaker 00: You may never re-enter the United States, no matter what. [00:03:44] Speaker 00: And so your actual act of re-entering is more serious. [00:03:47] Speaker 00: But also. [00:03:49] Speaker 00: It's also more serious because it's about a statement, Congress's statement about the seriousness of your criminal history. [00:03:56] Speaker 00: How big of a deal is it that you've come back to the United States just as a general public safety measure? [00:04:03] Speaker 00: So it's Congress's statement that this is a much more serious offense. [00:04:07] Speaker 00: And Congress also instructs the district court, you need to consider the statutory range, the available sentences. [00:04:13] Speaker 00: That's one of the 3553A factors. [00:04:15] Speaker 00: And you also need to consider the [00:04:18] Speaker 00: You need to design a sentence that's sufficient but no greater than necessary to reflect the seriousness of the offense. [00:04:26] Speaker 04: Does the district court have to start with a parsimony principle, with the seriousness of the offense, with the seriousness of the criminal history, or does 3553A with regard to those particular considerations simply require the judge at some point before he or she imposes the sentence to consider those? [00:04:49] Speaker 00: I don't think that it needs to be the very first thing that the district court does. [00:04:54] Speaker 04: Isn't that a big difference with the guideline range under Pugh, Gall, and Molina Martinez, which says, and I think in Molina Martinez, as well as something, whatever it was, Judge Gorsuch's opinion in 2014, that the problem, that the presumption of prejudice for a guideline range mistake [00:05:19] Speaker 04: is because that's the starting point of the judge's inquiry into the sentence. [00:05:26] Speaker 04: And so if a judge, for example, in McLeod, if a judge goes through the 3553A factors and says, OK, well, the sentence is going to be eight years. [00:05:37] Speaker 04: Now I'm going to just check and make sure that that's not over the maximum range or [00:05:44] Speaker 04: or that it's within the statutory range, that is a legitimate consideration of 3553A. [00:05:52] Speaker 04: There's nothing wrong with that, right? [00:05:56] Speaker 00: I actually, that very last part, I would disagree with. [00:05:58] Speaker 00: So I think there's a few things that I wanted to say to respond. [00:06:01] Speaker 00: So obviously, Molina Martinez was a different case addressing a different error. [00:06:06] Speaker 00: But the reasoning, I believe, applies. [00:06:07] Speaker 00: And it's not just a question of chronology. [00:06:10] Speaker 00: The idea of a benchmark or an anchor [00:06:13] Speaker 00: is about numbers that come before you reach your final decision. [00:06:17] Speaker 00: The dissent in McLeod, the Seventh Circuit inquiry have called this an anchor. [00:06:21] Speaker 00: And I think that's rightly so, because I don't think that the proposal you give would be proper to say, eight years, OK, now let me make sure that that's within the statutory range. [00:06:31] Speaker 00: Because reaching that eight years, you have to have already gone through the person mini principle. [00:06:36] Speaker 00: You can't do that afterward. [00:06:38] Speaker 00: You have to say, what sentence [00:06:39] Speaker 00: is sufficient but no greater than necessary. [00:06:41] Speaker 00: And that requires, and the Third Circuit agreed in Piano, that that requires the court to consider what the statutory maximum range is, which I think without a doubt it does, if you look at it. [00:06:54] Speaker 00: I don't know how you would perform the 3553A requirements without doing that. [00:06:59] Speaker 04: What about the other two, the seriousness of the offense or the seriousness of the criminal history? [00:07:04] Speaker 00: I think all of those things have to be done in advance before you come up with the finer figure. [00:07:09] Speaker 00: They're all inputs. [00:07:11] Speaker 00: If chronology is really important, though, as the McLeod dissent points out, even if it's not the first number that the judge calculates, it is the first number that the judge sees. [00:07:18] Speaker 00: And we have that in this case, too. [00:07:20] Speaker 00: It's the first page of the pre-sentence report, and that's the document that's essentially the roadmap for the district court for the sentencing hearing. [00:07:27] Speaker 00: And it's the first page of the government's sentencing memorandum, where the government says, this argument you're making [00:07:34] Speaker 00: that your criminal history is kind of overinflated here, uh-uh. [00:07:39] Speaker 00: You should not just not get a downward variance. [00:07:41] Speaker 00: You should get the top of the guidelines. [00:07:44] Speaker 00: I know we're jumping around a little bit between the different arguments here, but going back to what the evidence of prejudice specific in this case is, first, I think you have to consider this upward pressure that you get by a matter of necessity. [00:07:58] Speaker 00: That's part of the equation. [00:07:59] Speaker 00: Part of the equation is that Congress has said [00:08:02] Speaker 00: that this is important, this is what makes a reentry offense more or less serious, is what you were deported after. [00:08:11] Speaker 00: And then finally, that error goes to what the disagreement at sentencing was. [00:08:18] Speaker 00: So the district, you know, Mr. Calderon says, my criminal history, you know, this New York conviction is kind of doing all this business to my guidelines. [00:08:27] Speaker 00: My criminal history is not that serious. [00:08:29] Speaker 00: Please vary downwards. [00:08:30] Speaker 00: And the government comes back and says, no, sentence this aggravated felon at the top of the guidelines range. [00:08:35] Speaker 04: Did it say this aggravated felon or this person who had committed a serious drug traffic offense? [00:08:42] Speaker 00: It said this person who, well, I don't want to paraphrase, literally said 1326 B2 in the citation in the first paragraph of its sentencing memorandum. [00:08:52] Speaker 00: So it doesn't say the government. [00:08:54] Speaker 00: Oh, I'm sorry. [00:08:54] Speaker 00: Yes. [00:08:54] Speaker 04: I'm talking about the judge. [00:08:56] Speaker 04: The judge doesn't ever refer to the fact that he was an aggravated felon. [00:09:00] Speaker 00: So what the judge does is the judge says, you know, I'm considering your criminal history as set out in the pre-sentence report. [00:09:05] Speaker 00: So I think there is one level of inference that you do need to make here if we're asking whether it specifically is invoking 1326b2. [00:09:13] Speaker 00: But I don't think that's a difficult inference to make. [00:09:15] Speaker 00: His criminal history as set out in the pre-sentence report was that he was an aggravated felon and subject to sentencing under 1326b2. [00:09:24] Speaker 00: So the district court's statements of facts are focusing on the factual disagreements. [00:09:32] Speaker 00: And that makes sense. [00:09:33] Speaker 00: This isn't a factual disagreement. [00:09:35] Speaker 00: We're on Planner Review because Mr. Calderon did not object. [00:09:38] Speaker 00: So there's no reason for the district court to get into it, to say, no, really you're an aggravated felony. [00:09:43] Speaker 00: Because everyone's going into this proceeding with the assumption that Mr. Calderon re-entered the United States, even though he'd been deported after being convicted of an aggravated felony. [00:09:54] Speaker 00: I think that's a good way to talk about the plainnesses of the error here as well. [00:10:01] Speaker 04: Can you talk about the plainness? [00:10:02] Speaker 04: Can I talk about whether there is an error? [00:10:05] Speaker 04: So you had to go outside the record. [00:10:10] Speaker 04: And I'm not faulting you. [00:10:13] Speaker 04: I certainly think you have the right, as what lawyer you are, to say that we can take judicial notice. [00:10:22] Speaker 04: of the New York proceedings. [00:10:25] Speaker 04: But there's nothing in this record that would have alerted this judge to the fact that this violation under 265.03 was for which of those offenses it was. [00:10:43] Speaker 04: And so if the judge would have had to go outside his or her record to determine [00:10:52] Speaker 04: that it wasn't an aggravated felony, how can we say, even though nobody disputes it, how can we affirmatively say that the district judge erred at prong one when a judge, understandably, is confined typically to the record before him or her? [00:11:11] Speaker 00: And Your Honor, I think there's a few ways to address that. [00:11:14] Speaker 00: First, the government hasn't brought this up. [00:11:17] Speaker 00: They have not opposed this court taking judicial notice. [00:11:20] Speaker 00: I don't think that it's properly before the court to consider whether or not to do that on that level. [00:11:28] Speaker 00: But let's say it is. [00:11:29] Speaker 00: Planner review isn't a grading system for a judge. [00:11:31] Speaker 00: We expect, we reverse on planner review, even if there was a law that the judge couldn't have known about because it didn't exist yet. [00:11:37] Speaker 00: The question is whether the error is plain on appeal. [00:11:40] Speaker 00: And the error here is plain on appeal. [00:11:42] Speaker 04: Only if we go outside the record. [00:11:47] Speaker 04: I mean, that seems a little different than the Henderson principle that you're talking about. [00:11:52] Speaker 04: We look at the law at the time of our decision, but we don't typically say if the record below was broader than it was, then there would have been an error. [00:12:06] Speaker 00: And, Your Honor, so again, this isn't briefed, but United States versus Castellanos-Barba, which is a published 10th Circuit case, 648 F-3rd, 1130. [00:12:17] Speaker 00: says if a request, this is not a quotation, this is a summary, if a request to supplement the record with court records from other proceedings is properly before the court that it must be received. [00:12:28] Speaker 00: So this court doesn't have to take judicial notice of its own accord, but if I properly present it to this court, it must be received. [00:12:35] Speaker 00: So it is part of the appellate record on that level. [00:12:39] Speaker 00: And I think from Henderson, what's important is that we're not asking did the district court ignore something [00:12:46] Speaker 00: ignore the law, ignore the facts, make a mistake, we're asking whether now on appeal we know that an error has been committed. [00:12:52] Speaker 00: And now on appeal we do know that this error has been committed. [00:12:58] Speaker 00: I don't know if Your Honor still has questions on plainness of the error. [00:13:02] Speaker 00: Okay, in that case I'd like to reserve the remainder of my time. [00:13:05] Speaker 04: Okay, Paul, why don't you stop our time, but we're not prejudicing your rebuttal. [00:13:28] Speaker 02: Good morning, Your Honor's counsel. [00:13:30] Speaker 02: May it please the court, I'm James Braun on behalf of the United States. [00:13:34] Speaker 02: The defendant has failed to meet his burden under a plain error review of establishing that the district court committed obvious error or that any such error affected his substantial rights. [00:13:48] Speaker 01: But you did not raise the argument that Judge Bacharach has been making here today for you. [00:13:55] Speaker 02: No, we have not opposed taking judicial notice of these other documents. [00:13:59] Speaker 02: We agree that there was error on the part of the government and on the part of probation in labeling the defendant as an aggravated felon. [00:14:08] Speaker 02: What the defendant has failed to do is establish that the district court committed error. [00:14:12] Speaker 02: And that's what's required, that there's no indication that the district court sentenced the defendant [00:14:18] Speaker 02: as a B2. [00:14:20] Speaker 02: The district court never references the aggravated felony at sentencing, never says he's a B2, never says he's an aggravated felon. [00:14:30] Speaker 02: And the judgment, in line with the indictment, simply says 1326A and B. Because I combed the same thing you're talking about. [00:14:39] Speaker 03: I could not find where the district court ever even came close. [00:14:44] Speaker 03: to mentioning what you're talking about here. [00:14:47] Speaker 03: In other words, it's just not there. [00:14:49] Speaker 02: That's right. [00:14:50] Speaker 02: The court never mentions that the prior is an aggravated felony or that the defendant has been convicted under B-2. [00:14:58] Speaker 02: And really, that wasn't an issue for the district court. [00:15:01] Speaker 02: What the district court was focused on was the conduct underlying these priors, including the misdemeanors. [00:15:06] Speaker 02: It wasn't the categorization of them. [00:15:09] Speaker 02: It was the fact that they involved violence. [00:15:11] Speaker 02: And the district court specifically mentioned [00:15:13] Speaker 01: This district court did say it was accepting the PSR and relying on it. [00:15:18] Speaker 02: It did not. [00:15:18] Speaker 04: One of the attachments of the J&S, the top box, adopted the pre-sentence report without change. [00:15:28] Speaker 02: That is correct. [00:15:29] Speaker 01: And adopting it without change, the PSR clearly says aggravated felon. [00:15:36] Speaker 02: Right. [00:15:36] Speaker 02: Our point is, and that's in the judgment that's issued after sentencing, [00:15:40] Speaker 02: That might be error, but that's not error that the defendant has pointed to. [00:15:44] Speaker 02: The defendant has to point to specific error. [00:15:47] Speaker 02: Now, maybe adopting the pre-sentence report was error, because the pre-sentence report inaccurately labels him as a B2. [00:15:55] Speaker 02: But at sentencing, the district court never says, I adopt the pre-sentence report. [00:16:00] Speaker 02: I find him to be an aggravated felon. [00:16:02] Speaker 02: I find him to be convicted under B2. [00:16:05] Speaker 02: Never says any of that. [00:16:06] Speaker 02: And that, of course, influences how the district court goes about its sentencing. [00:16:10] Speaker 04: Why does it matter? [00:16:12] Speaker 02: Well, it matters because to show that there is error that is plain from the record. [00:16:16] Speaker 02: And that is the defendant's burden. [00:16:18] Speaker 01: Well, your argument is there's plain error in the PSR. [00:16:22] Speaker 01: And even though the PSR was before the judge and the judge read it, that we can't infer that the judge was aware of the aggravated felony reference? [00:16:37] Speaker 02: Certainly, the judge was aware of it. [00:16:38] Speaker 01: The judge had that before it from the... It seems to me you're making an argument not that it was an error, but that any error was harmless, that it didn't affect his substantial rights. [00:16:49] Speaker 02: Well, we are arguing that there was not plain error on the part of the district court because the district court did not plainly sentence him as a B-2. [00:16:58] Speaker 02: It did not adopt the pre-sentence report at the sentencing hearing and the judgment, although it adopts the pre-sentence report, it doesn't reflect that the conviction was for a B-2. [00:17:08] Speaker 02: And that's something that under plain error review, the defendant has failed to show that it's obvious. [00:17:15] Speaker 02: Now, the defendant then says, well, it would be error to not choose between B1 or B2. [00:17:20] Speaker 02: That's not obvious either that the district court has to choose. [00:17:24] Speaker 03: Well, I'm picking up what difference does it make if we say, okay, we agree that there was error. [00:17:33] Speaker 03: But have they sustained their burden of showing that the sentence is going to be any different? [00:17:38] Speaker 02: Right. [00:17:39] Speaker 02: And we would argue that they have not. [00:17:40] Speaker 02: So moving to the third prong of plain error review, the defendant should be required to show in accordance with this court's precedent that the error affected his substantial rights. [00:17:54] Speaker 02: That is how this court has addressed this type of statutory range error in the past in Marquez and in Carrillo-Torres. [00:18:03] Speaker 02: both unpublished cases, but those courts went through the proper plain error analysis without applying any sort of a presumption that the error was prejudicial or affected substantial rights. [00:18:16] Speaker 01: The defendant is arguing that we should adopt a per se rule with respect to sentencing range errors that compares to our [00:18:30] Speaker 01: law with regard to guidelines, range, errors. [00:18:34] Speaker 01: Why is that not the right way to go? [00:18:37] Speaker 02: Well, first, every other court that has considered that has rejected it. [00:18:40] Speaker 02: Most recently, the court in Dominguez that we cited in the 28-J letter saying it was an emphatic no that other circuits would adopt that kind of a presumption. [00:18:51] Speaker 02: And that makes sense because while now [00:18:58] Speaker 02: Justice Gorsuch in, it was the Sabayon case, the 10th Circuit case, where he wrote for the court that the guidelines are the essential starting point for every sentencing. [00:19:08] Speaker 02: The same simply does not hold true. [00:19:11] Speaker 04: What about the parsimony principle? [00:19:17] Speaker 04: Isn't that the starting point for any district judge to decide the sentence? [00:19:22] Speaker 02: But that doesn't necessarily take into account the statutory range. [00:19:27] Speaker 02: Why not? [00:19:28] Speaker 04: In terms of the seriousness of the offense? [00:19:31] Speaker 02: Well, the seriousness of the offense, and especially in this type of case, a reentry case, the Supreme Court has explicitly held the offense is the reentry. [00:19:39] Speaker 02: Everything else is a penalty provision. [00:19:42] Speaker 02: The offense is simply 1326A, reentry after previously having been deported. [00:19:49] Speaker 02: The sentencing provisions don't relate to the offense itself, which is the reentry. [00:19:55] Speaker 02: And so the courts don't necessarily have to factor in the statutory sentencing range the same way they do with a guideline range sentencing. [00:20:03] Speaker 02: The statutory range merely sets the outer boundaries of what's permissible, whereas in every single case, the district court has to start with the guideline range. [00:20:14] Speaker 02: And the guideline range permeates then everything under 3553A in a way that the statutory range simply does not. [00:20:28] Speaker 02: And as the court said in McLeod, the Sixth Circuit case from 2013, there the court recognized that in the normal sentencing proceeding, it's not as if the district court determines what the statutory range is, determines the sentence within that range, and then looks to see if that comports with the guideline range. [00:20:49] Speaker 02: Rather, the court looks at the guideline range. [00:20:52] Speaker 02: That's the very first thing the court has to calculate. [00:20:54] Speaker 02: And then from there, [00:20:56] Speaker 02: applies the 3553A factors. [00:20:58] Speaker 04: Let me ask you one. [00:21:00] Speaker 04: And I believe it was the majority of McLeod. [00:21:03] Speaker 04: I mean, the McLeod author for the majority, as I recall, says for every sentencing judge that he was aware of, that's how they do it, that they calculate the [00:21:21] Speaker 04: appropriate sentence, and then they use the statutory range as the check, the cap. [00:21:33] Speaker 04: But it seems a little counterintuitive for us to be talking about our personal experiences anecdotally. [00:21:42] Speaker 04: in talking with people or drawing on prior experience as Judge Balduck was for a number of years as a district judge. [00:21:55] Speaker 04: It just, you know, how do we know? [00:21:58] Speaker 04: You know, maybe a lot of judges do take the approach that Ms. [00:22:03] Speaker 04: Keval has outlined. [00:22:05] Speaker 04: If you're talking about the statutory range in terms of the key ingredient [00:22:11] Speaker 04: seriousness of the offense, the seriousness of the criminal history, the parcel money principle, the first thing that appears in the PSI. [00:22:23] Speaker 04: How do we know that the panel majority in the cloud was correct about how judges go about imposing sentences? [00:22:31] Speaker 04: We do know it's a big deal of what Congress has enunciated as the cap [00:22:40] Speaker 04: of the appropriate Senate. [00:22:42] Speaker 04: So why is it so intuitive that we would distinguish between guideline ranges and statutory maxima as the focal point for a presumption? [00:22:55] Speaker 02: Well, we know the importance of the guideline range because that's what the Supreme Court has said. [00:23:00] Speaker 02: That's the first thing the sentencing court has to determine and look at is the guideline range. [00:23:06] Speaker 02: forms, and again, as this court said in Savion, that's the essential first step. [00:23:12] Speaker 02: There's only one first step. [00:23:14] Speaker 02: There can't be two. [00:23:15] Speaker 02: That first step is looking at the guideline range. [00:23:18] Speaker 02: And so where in McCloud, the majority writes at page 603 that having reviewed innumerable sentencing transcripts, this is how district judges do sentencing, that's in line with Supreme Court directive. [00:23:30] Speaker 02: That's what district courts are required to do. [00:23:33] Speaker 02: And I don't think that McCloud then says, [00:23:35] Speaker 02: And then in every case, the court looks at the statutory range and makes sure it's within that, because that doesn't happen generally. [00:23:42] Speaker 02: What the court says is that the statutory sentencing range just provides the outer boundaries and limits any potential variance. [00:23:50] Speaker 02: And that does make sense. [00:23:51] Speaker 02: If the court's looking at varying widely, [00:23:54] Speaker 02: then the court might look and say, OK, there's a 20-year statutory max. [00:23:57] Speaker 02: I can't go over that, but I'm going to go up to that. [00:24:00] Speaker 01: Well, you say that the beginning point is the guidelines. [00:24:06] Speaker 01: But anecdotally, most of my district court friends, they read the PSR before they get on the bench. [00:24:14] Speaker 01: So the first thing they do is they read that document, and that document here [00:24:22] Speaker 01: gave inaccurate information about the statutory range. [00:24:27] Speaker 01: Going back to Judge Backerak's question, how do we know that that inaccurate information about the statutory range that was already in the judge's head when the judge starts calculating the sentence based on guidelines, looking at the guideline range and deciding on a sentence doesn't impact the ultimate conclusion [00:24:51] Speaker 01: of where that sentence should be. [00:24:53] Speaker 02: Well, and this all comes down to the standard of review and it being on Plain Air Review. [00:24:57] Speaker 02: And the fact is the guidelines are unique, right, because they are the essential starting point. [00:25:03] Speaker 02: And so that's the reason the Supreme Court adopted the presumption that an error in guideline range calculation affects substantial rights. [00:25:12] Speaker 02: And that's a presumption this court already had in Savion. [00:25:15] Speaker 02: But not all procedural error is subject to a presumption of prejudice. [00:25:21] Speaker 02: And so perhaps when the court reads the PSR and gets that in the judge's head that this is an aggravated felony with a 20-year statutory maximum, maybe that does impact the judge. [00:25:36] Speaker 02: And if it's clear from the sentencing transcript, then that would affect substantial rights, and that would be reversible plain error. [00:25:45] Speaker 02: reason for a presumption. [00:25:47] Speaker 02: The statutory range does not have that kind of an impact on the sentencing that it gives rise to a presumption. [00:25:52] Speaker 02: And Marquez, the case cited by the defense in their 20HA, provides a very good juxtaposition for this case because there the district court did mention the aggravated felony. [00:26:04] Speaker 02: And this court said that was front and center in the district court's mind. [00:26:08] Speaker 02: We have nothing like that here. [00:26:10] Speaker 04: What if the judge has a prejudice against a particular ethnicity? [00:26:16] Speaker 04: And I'll just say Puerto Ricans. [00:26:19] Speaker 04: And the judge says, I know that the defendant is Puerto Rican. [00:26:25] Speaker 04: And statistically, Puerto Ricans have a higher degree of recidivism. [00:26:30] Speaker 04: Now, that's just a procedural error. [00:26:35] Speaker 04: It's not a substantive error, right? [00:26:38] Speaker 04: But wouldn't something like that implicitly trigger a presumption of prejudice? [00:26:48] Speaker 02: I'm sorry. [00:26:50] Speaker 04: No, that's a question. [00:26:52] Speaker 02: It might. [00:26:53] Speaker 02: That would seem to be a constitutional error, where it may be a due process violation or an equal protection violation, not a procedural error like this. [00:27:02] Speaker 04: Well, we're not talking about whether it was an error. [00:27:04] Speaker 04: It obviously was an error. [00:27:05] Speaker 04: He started by acknowledging prom 1. [00:27:09] Speaker 04: So the question is, at prom 3, whether it affected the defendant's substantial rights. [00:27:14] Speaker 04: And so that procedural error, unlike the procedural errors you identify in your brief, [00:27:19] Speaker 04: That might very well, even though it's just procedural, might trigger a presumption of prejudice, just like Ms. [00:27:28] Speaker 04: Kaval is indicating. [00:27:30] Speaker 04: And so how do we draw the line between that and an obvious error, thinking that this was an aggravated felony when it obviously wasn't? [00:27:40] Speaker 02: Well, I think there would have to be a distinction between an error of constitutional dimension, a procedural error, even of constitutional dimension, where you're [00:27:48] Speaker 02: factoring in a defendant's race or ethnicity into the determination of the sentence that that gives rise to other concerns. [00:27:57] Speaker 02: Whereas here, when the Supreme Court was deciding whether to apply a presumption, and it never explicitly came out and said there's a presumption, that's how it's been interpreted in Molina. [00:28:09] Speaker 02: But because of the central [00:28:14] Speaker 02: role that the guidelines play in sentencing, that really nothing else does. [00:28:19] Speaker 02: The very first thing it has to do is determine that guideline range. [00:28:23] Speaker 02: And if it gets it wrong, everything that follows from there is skewed. [00:28:27] Speaker 02: And so there it makes sense to have a presumption. [00:28:30] Speaker 02: It doesn't make the same sense here. [00:28:31] Speaker 02: And one final thing, I notice I'm out of time. [00:28:34] Speaker 02: If I could just make the point as far as putting the presumption aside, whether [00:28:40] Speaker 02: prejudice was shown here. [00:28:42] Speaker 02: The one thing the defense really points to is that the court said at sentencing, I could have sentenced you to more time. [00:28:47] Speaker 02: And I would just note that right before that, the court had sentenced the defendant for the supervised release violation to a low end of 12 months and had run half of that concurrent. [00:28:57] Speaker 02: And so when the court then at page 20 of the transcript says your sentence could have been higher, it references then [00:29:06] Speaker 02: what it imposed as to both crimes. [00:29:09] Speaker 02: And so yes, it could have been higher on the supervised release. [00:29:12] Speaker 02: It could have been a high end. [00:29:13] Speaker 02: It could have been all consecutive, as the guidelines would call for. [00:29:16] Speaker 02: It could have also been at the top of the range for this offense. [00:29:19] Speaker 02: That does not in any way implicate the statutory maximum of 20 years, which was 15 years higher than what the court gave. [00:29:27] Speaker 02: That simply had no role in this sentencing. [00:29:30] Speaker 02: Thank you. [00:29:34] Speaker 04: Paul, they went over a little overtime, so would you give her an extra minute? [00:29:46] Speaker 00: The government just said that the court doesn't have to factor in the statutory range, and that's the premise of the entire argument the government is making, is that the court doesn't have to know or ever consider or figure out what the sentencing range is. [00:30:00] Speaker 00: That cannot possibly be true. [00:30:02] Speaker 00: No court has ever said that to you. [00:30:04] Speaker 00: I think Congress would be pretty surprised. [00:30:06] Speaker 00: The Supreme Court in Eleni has said, when the defendant is facing a different sentencing range, that changes the defendant's expected sentence. [00:30:16] Speaker 00: You can't even calculate the guidelines range without knowing what the statutory range is, because you can't determine whether there's a floor or ceiling to cap the guidelines range. [00:30:24] Speaker 00: So I just think that that premise that the government is resting on [00:30:29] Speaker 00: simply needs to be rejected. [00:30:30] Speaker 00: And without it, they really aren't left with anything. [00:30:33] Speaker 00: This court doesn't have to say that the guidelines range is the same as the statutory range. [00:30:38] Speaker 00: The question is whether they have this material similarity where they put upward pressure on the final sentence, which, again, Congress has instructed that it should. [00:30:47] Speaker 00: The Supreme Court says that it does in Eleni. [00:30:50] Speaker 00: And just thinking cognitively about how our brains work, knowing that number puts pressure on the sentence. [00:30:57] Speaker 03: to the case that we actually have in front of us because what we would be doing, we already know, all of us know that if there's a misstatement or wrong statement in the guidelines that the district judges for, that's wrong. [00:31:14] Speaker 03: And that's going to get appealed and probably going to get a reverse. [00:31:18] Speaker 03: What you're asking us here to do is based upon the language that was used by the district court to raise that language [00:31:26] Speaker 03: to an automatic reversal. [00:31:29] Speaker 03: That's the way, in my poor mind, that I'm visualizing this case. [00:31:34] Speaker 03: So based upon the language that the district court used here, which is different from Judge Anderson's language in the other... I remember the judge's name. [00:31:44] Speaker 03: I don't remember the name of the case. [00:31:46] Speaker 03: He was very explicit as to the animosity almost of the district court in that case. [00:31:54] Speaker 03: And as a consequence, it got reversed. [00:31:56] Speaker 03: But I don't see that. [00:31:57] Speaker 03: And you need to help me in this case, in your case, because the trial court never mentions anything. [00:32:05] Speaker 03: He just, even though I agree that the language could have been error from that standpoint, but he did not. [00:32:15] Speaker 03: There's no evidence of him taking that into consideration in his language. [00:32:20] Speaker 00: And Your Honor, I think the evidence is when he says, I'm looking at your criminal history is reflected in the pre-sentence report. [00:32:26] Speaker 00: I think that is exactly what's reflected in the pre-sentence report. [00:32:30] Speaker 00: Also, Your Honor said automatic reversal. [00:32:33] Speaker 00: Judge McHugh, you said per se rule. [00:32:35] Speaker 00: I want to remind you that this is a presumption, that the government always can step forward with evidence, which it didn't do in this case, to affirmatively show that it didn't matter and that there was no prejudice. [00:32:46] Speaker 00: So we're asking for that presumption, but even without it, I think that there is enough on the record here when you have a 200% of what the actual statutory maximum is and a focus on the criminal history and its severity that in this case you should reverse.