[00:00:00] Speaker 03:
is United States versus Candelaria, number 242108.

[00:00:07] Speaker 03:
Council, you may proceed.

[00:00:09] Speaker 00:
Good morning, Your Honors, Council.

[00:00:11] Speaker 00:
My name's Amanda Skinner and I'm here on behalf of Mr. Candelaria.

[00:00:14] Speaker 00:
I'd like to try to reserve two minutes for rebuttal.

[00:00:16] Speaker 00:
We briefed two issues in this appeal and I'd like to just briefly touch on the district court's denial of the motion to suppress.

[00:00:23] Speaker 00:
The government briefed two additional grounds

[00:00:26] Speaker 00:
in support of affirmance on that issue.

[00:00:28] Speaker 00:
And I acknowledge this court can affirm on alternative grounds when the district court record is adequately preserved, but this record isn't developed enough as to either of the alternative grounds cited by the government.

[00:00:40] Speaker 00:
First, the government cites Corral in support of the foregone conclusion doctrine applying.

[00:00:45] Speaker 00:
Corral is a very different case.

[00:00:46] Speaker 00:
It deals with containers.

[00:00:48] Speaker 00:
Are these containers opaque?

[00:00:50] Speaker 00:
It's in a vehicle.

[00:00:51] Speaker 00:
that is stopped in an investigatory stop after an undercover buy basically gets busted up.

[00:00:57] Speaker 00:
These are wildly different circumstances in Mr. Candelaria's case.

[00:01:01] Speaker 00:
And similarly for the automobile exception, the government would need to show that the vehicle was lawfully in police custody and that there was probable cause to believe that contraband was in the vehicle.

[00:01:11] Speaker 00:
First, Mr. Condolaria, I agree, didn't challenge lawful police custody.

[00:01:15] Speaker 00:
But at the same time, the district court didn't make an affirmative finding that the impound was lawful.

[00:01:22] Speaker 00:
And additionally, the note in question isn't necessarily contraband on this record.

[00:01:27] Speaker 00:
It's not an identical note to the note that was described in the bank robbery case.

[00:01:31] Speaker 00:
It was shorter, had far less detail.

[00:01:33] Speaker 00:
So just on those issues, Your Honors, we don't believe that the record is developed enough for the court to rely on either of those

[00:01:41] Speaker 00:
exceptions if you were to find that Mr. Kundalaria prevailed on the other issues with respect to that.

[00:01:46] Speaker 01:
But we don't need to go there if we think that there's either actual or apparent authority for the wife to consent to the search.

[00:01:53] Speaker 00:
Agreed, Your Honor.

[00:01:54] Speaker 00:
And I think those issues were well briefed by the parties.

[00:01:57] Speaker 00:
But I would just say that for support for our argument, I think RITH makes it clear that it's an extremely fact-specific inquiry.

[00:02:06] Speaker 00:
In RITH, if there had been evidence that the parents were not ever going into their 18-year-old son's room without permission, that's something that may have made RITH prevail.

[00:02:15] Speaker 00:
Here, it's interesting because, yes, we have a married couple.

[00:02:18] Speaker 00:
Yes, we have a car that's kept on the property.

[00:02:22] Speaker 00:
But each parent has their own car seat in the vehicle that they use for their child.

[00:02:27] Speaker 00:
The testimony was maybe anywhere from one to three times the wife had driven this vehicle.

[00:02:31] Speaker 01:
But she had, I mean, she owned it.

[00:02:35] Speaker 01:
She was the primary insured.

[00:02:39] Speaker 01:
She made the car payments.

[00:02:41] Speaker 01:
She had a key that she could use to access it.

[00:02:45] Speaker 01:
And don't we start in RIF with a presumption

[00:02:50] Speaker 01:
that she has actual authority because they're married?

[00:02:53] Speaker 01:
And isn't it your burden to rebut?

[00:02:56] Speaker 01:
That presumption?

[00:02:57] Speaker 00:
Yes, Your Honor, and I think in terms of the evidence to rebut that, we had testimony that she would never use that car without first coordinating with Mr. Candelaria.

[00:03:08] Speaker 00:
So that's sort of what we hang our hats on in terms of the suppression argument.

[00:03:12] Speaker 01:
But the fact that she would coordinate with him doesn't mean that if she thought she left something in the car, she couldn't go enter the car without his permission and search for it, does it?

[00:03:23] Speaker 00:
No, but that's not the testimony in this case.

[00:03:24] Speaker 00:
And so that's why I think RITH is so constructive.

[00:03:26] Speaker 00:
It's extremely fact specific.

[00:03:28] Speaker 00:
And the government did not pull out any testimony that she had ever left anything in the car, that there was anything other than a car seat.

[00:03:34] Speaker 00:
And there was testimony that Mr. Candelaria contributed to household expenses to include the coverage for that car, because it was purchased for him.

[00:03:42] Speaker 00:
That much was clear.

[00:03:44] Speaker 04:
Can I ask you a question?

[00:03:46] Speaker 04:
Just hypothetically, let's say my wife and I have a Volkswagen Jetta.

[00:03:53] Speaker 04:
And it's my wife's.

[00:03:55] Speaker 04:
My wife drives it.

[00:04:00] Speaker 04:
But if my wife tells me I can drive it, then that's OK.

[00:04:05] Speaker 04:
But then we get separated.

[00:04:07] Speaker 04:
We're estranged.

[00:04:09] Speaker 04:
And in that separation, I get the Jetta.

[00:04:16] Speaker 04:
And then I say, my wife isn't going to be able to drive that.

[00:04:29] Speaker 04:
And then the cars get searched.

[00:04:33] Speaker 04:
And I say, OK, you can search it.

[00:04:35] Speaker 04:
And they find incriminating evidence against my wife.

[00:04:38] Speaker 04:
Is it, do we look at actual control at the time that I give the consent of the search, or do we look at it at some preceding time when I was hunky dory in my household?

[00:04:51] Speaker 00:
That's a good question, Your Honor.

[00:04:53] Speaker 00:
And I think in your hypothetical, if you actually received that car in a settlement, I think it would be your call.

[00:05:00] Speaker 00:
There's nothing in this case that says that Mr. Condolaria lost the access he previously had simply because it was impounded.

[00:05:09] Speaker 00:
And it was taken when he was driving it, not his wife.

[00:05:14] Speaker 00:
So I think our issue with this is that there's more investigation that the federal agent should have done.

[00:05:20] Speaker 04:
Let me play devil's advocate.

[00:05:22] Speaker 04:
At the time that the officer asks Megan if she would consent, my understanding is that he talked to the owner of the impound lot, and he said, Mr. Candelaria cannot get that vehicle out of impound.

[00:05:37] Speaker 04:
Only Megan can get the vehicle out of impound.

[00:05:40] Speaker 04:
So is it really different from my hypothetical if Candelaria

[00:05:49] Speaker 04:
Even if it was his vehicle, if he was not going to be able to drive that vehicle away and only Megan could get it out.

[00:05:55] Speaker 00:
I think that it is different because in Mr. Candelaria's situation, his use of the vehicle over that period of time that they had it is what gives him the right to say no to a search.

[00:06:06] Speaker 00:
So he never lost that simply because it was impounded and his name wasn't listed as the owner.

[00:06:11] Speaker 00:
That would be my answer to that.

[00:06:13] Speaker 00:
Thank you.

[00:06:14] Speaker 00:
Turning to the sentence itself, this court should remand for resentencing on this record.

[00:06:19] Speaker 00:
In Cookson and Crosby, this court has made it clear that a lack of explanation hinders substantive reasonableness review.

[00:06:25] Speaker 03:
Can I just ask you a threshold question?

[00:06:28] Speaker 03:
Because it sounds like you're moving into substantive reasonableness.

[00:06:33] Speaker 03:
Are you still on appeal challenging procedural reasonableness?

[00:06:37] Speaker 00:
Yes, we are.

[00:06:38] Speaker 03:
I didn't see much of that in your brief.

[00:06:42] Speaker 00:
I'm not going to wave it, Your Honor, but I wanted to focus the discussion on substantive reasonableness because the result is the same.

[00:06:47] Speaker 00:
And I acknowledge I think it's our stronger argument in light of Cooks and Crosby.

[00:06:53] Speaker 00:
This is not a situation like many of the typical substantive reasonableness reviews that

[00:06:59] Speaker 00:
that we bring before this court and often lose on behalf of our clients.

[00:07:02] Speaker 00:
We're not talking about 40 months, six months, 12 months for someone who had a really lengthy criminal history that wasn't counted.

[00:07:09] Speaker 00:
And maybe the district court just sort of gave a comment about, I've considered all the factors.

[00:07:15] Speaker 00:
And this court affirms.

[00:07:16] Speaker 00:
In Crosby, we were talking about a 78-month downward variance to time served.

[00:07:22] Speaker 00:
In this case, we're talking about a 255-month upward variance.

[00:07:27] Speaker 00:
And the discussion by the district court in Crosby is remarkably similar to the discussion by the district court judge in Mr. Candelaria's case.

[00:07:39] Speaker 00:
Heavy focus on nature and circumstances of the events, history and characteristics of Mr. Candelaria, deterrence and restitution.

[00:07:51] Speaker 00:
very similar in Crosby.

[00:07:53] Speaker 01:
Well, I think there are some differences here.

[00:07:56] Speaker 01:
I mean, the district court focuses on, you're comparing this with other bank fraud cases.

[00:08:04] Speaker 01:
And the district court says that this is far outside the heartland of the typical bank fraud cases.

[00:08:13] Speaker 01:
And it looks at the behavior here

[00:08:19] Speaker 01:
And that a major, it says a major variance is justified here because of that unusual behavior that had nothing to do with a typical bank fraud case.

[00:08:35] Speaker 00:
So I think that if the district court had then also addressed why the sentencing disparity was warranted, we wouldn't.

[00:08:43] Speaker 01:
But it did.

[00:08:44] Speaker 01:
It said it's not within the heartland of these other cases.

[00:08:48] Speaker 01:
And it's sui generis.

[00:08:51] Speaker 00:
But that comment doesn't allow this court to evaluate why a 255-month variance was necessary when perhaps a 230-month upward variance would have sufficed.

[00:09:02] Speaker 01:
Do we require that kind of detail?

[00:09:05] Speaker 00:
No, Your Honor.

[00:09:06] Speaker 01:
A 250 to a 230, and please tell us why.

[00:09:09] Speaker 00:
No, Your Honor, but in Crosby, and I listened to that argument yesterday, Judge McHugh, because you and I were on that, the panel consistently focused me back on where is the explanation.

[00:09:21] Speaker 00:
And here, we have no discussion of the need to avoid the need, the need to avoid unwarranted sentencing disparities or the guideline range.

[00:09:32] Speaker 00:
In Crosby, at 1252,

[00:09:35] Speaker 00:
or 1245, the court included a paragraph and a half from the district court judge on what he said in that case.

[00:09:42] Speaker 00:
And he discussed a significant policy disagreement with the guidelines.

[00:09:47] Speaker 00:
Big discussion.

[00:09:48] Speaker 00:
There was also a expert evaluation of Mr. Crosby.

[00:09:53] Speaker 03:
Is that what the judge here?

[00:09:55] Speaker 03:
was talking about, it seems like what the judge here is saying is this is no ordinary bank fraud.

[00:10:03] Speaker 03:
You just don't see this kind of permanent injury to the victim in a bank fraud.

[00:10:11] Speaker 03:
Usually it's somebody has lied on a loan application or something like that, but here we have someone who is disabled for life.

[00:10:22] Speaker 03:
Why can't that be a valid

[00:10:25] Speaker 03:
reason for a disparate sentence.

[00:10:28] Speaker 00:
It can be a reason, but this court needs to evaluate whether the amount was appropriate.

[00:10:33] Speaker 00:
And in Crosby, Mr. Crosby was an extremely unique defendant, a military member, undiagnosed autistic, not knowing he was autistic when the offense occurred.

[00:10:43] Speaker 03:
Well, does every case require some sort of statistical analysis?

[00:10:47] Speaker 00:
No, but when a major variance is imposed, Your Honor, 255 months, there should be at least a comment from the district court judge about how this also avoids an unwarranted sentencing disparity.

[00:10:58] Speaker 00:
And I'd point the court to the JSON data.

[00:11:00] Speaker 00:
We're a JSON pilot project district.

[00:11:02] Speaker 03:
Well, that's what I'm saying.

[00:11:03] Speaker 03:
You've got the data, but does a court and the data in a given case maybe

[00:11:11] Speaker 03:
quite relevant and important, but is that the only basis on which an upward variance can be justified?

[00:11:21] Speaker 00:
No, but without any comment, one of the issues in Crosby was no discussion of general deterrence.

[00:11:27] Speaker 00:
And in this case, we have no discussion of the need to avoid unwarranted sentencing disparities.

[00:11:32] Speaker 03:
Again, I think on remand, this is potentially very fixable for the district court judge, but this is a massive variance when the JSON data tells us that the... Well, if it's so fixable, isn't the bottom line in these substantive reasonableness cases, whether the sentence is manifestly unreasonable?

[00:11:52] Speaker 03:
How is this sentence manifestly unreasonable?

[00:11:56] Speaker 00:
So I think this sentence is manifestly unreasonable because the sentencing transcript shows that the district court judge believed Mr. Candelaria committed the home invasion.

[00:12:05] Speaker 00:
And there is zero evidence for that in the record.

[00:12:08] Speaker 00:
Probation, the government, and the victim all agreed it was not Mr. Candelaria.

[00:12:13] Speaker 03:
And at the sentencing hearing, three separate times... Did he do that or did he consider the assault to be relevant conduct?

[00:12:23] Speaker 00:
So if the assault was, even if the assault was somehow separately charged, the guideline range- Not separately charged, relevant content.

[00:12:31] Speaker 00:
And that was included for enhancements under the guidelines.

[00:12:36] Speaker 00:
It could have been, you know, accounted for some of the variants.

[00:12:39] Speaker 00:
Again, I do think it's the same as Crosby, because there was a developed record there, uncontested by the government, that could have supported that 78-month downward variance to time served.

[00:12:48] Speaker 00:
But in this case,

[00:12:49] Speaker 00:
We have an inconsistent explanation by the district court because three separate times at 96, 101, and 102, the district court went out of its way to say something about the home invasion saying, if you did not do it yourself.

[00:13:10] Speaker 00:
And again, it's at 96.

[00:13:14] Speaker 01:
That's consistent with what he's saying.

[00:13:17] Speaker 01:
Even though you didn't personally go commit this violent act, you are responsible.

[00:13:25] Speaker 01:
You got the check that the man was forced to write and you were at the bank cashing the check while the guy's on the floor almost dying.

[00:13:36] Speaker 00:
And I would still argue that the court needs to address an unwarranted sentencing disparity when you're sending someone upwards of 255 additional months.

[00:13:48] Speaker 00:
But I'd ask the court to look at the quotes that we're pulling out.

[00:13:52] Speaker 00:
The district court stated, you have conspired with an unknown individual to rob and assault John Doe if you did not do it yourself.

[00:13:59] Speaker 00:
I don't read that as even though you didn't do it yourself.

[00:14:04] Speaker 00:
It is very clear.

[00:14:05] Speaker 00:
that the district court judge is saying, I think that you did this.

[00:14:09] Speaker 00:
There's no support in that for the record, so even just a remand on that issue would be appropriate.

[00:14:13] Speaker 01:
I don't read that that way.

[00:14:14] Speaker 01:
I think he's saying, if you didn't do it yourself, you're equally responsible.

[00:14:20] Speaker 01:
Meaning, I don't think there was any confusion that he himself didn't do it, but that it was a conspiracy to do it.

[00:14:31] Speaker 00:
I understand that, Your Honor.

[00:14:33] Speaker 00:
We read it a different way.

[00:14:34] Speaker 00:
And I think that without an explanation as to the extent of that variance addressing, that's a major factor.

[00:14:41] Speaker 00:
We're adjacent pilot project district because that data is supposed to be relevant.

[00:14:45] Speaker 00:
Again, the district court could have made really even a throwaway comment about why something this high was warranted.

[00:14:53] Speaker 00:
But on this record, I think it's difficult for the court to review where the 255-month increase came from.

[00:14:58] Speaker 00:
Thank you.

[00:14:59] Speaker 03:
Thank you, Counsel.

[00:15:05] Speaker 02:
Good morning, Your Honor's counsel.

[00:15:08] Speaker 02:
May it please the court, I'm James Braun on behalf of the United States.

[00:15:14] Speaker 02:
This court should affirm the district court's denial of the defendant's motion to suppress and its imposition of a 26-year sentence based on conduct that the court justifiably believed to be vile, egregious, and truly horrifying.

[00:15:30] Speaker 02:
If I could start briefly with the suppression issue and actual consent or actual authority to consent.

[00:15:39] Speaker 04:
And I hate to do this to you, but before you get into this, there was just a factual question that I want to make sure that I understood.

[00:15:47] Speaker 04:
As I understand it, and tell me if I'm wrong about this because I don't think the briefing addresses it,

[00:15:53] Speaker 04:
As I understand it, the Santa Fe police got a warrant to search the car in connection with the investigation over the bank robbery.

[00:16:02] Speaker 04:
The bank fraud.

[00:16:03] Speaker 04:
Over the bank fraud.

[00:16:04] Speaker 04:
And then they obtained a warrant to get into the vehicle and got the physical copy of that handwritten note.

[00:16:12] Speaker 04:
That's right.

[00:16:14] Speaker 04:
And for some reason, they put it back.

[00:16:17] Speaker 04:
Right.

[00:16:18] Speaker 04:
And here we are.

[00:16:20] Speaker 04:
And I don't think you've argued this, but does the defendant have a reasonable expectation of privacy in a vehicle to protect against the detection of the contents of a handwritten note when a judge has already issued a warrant in connection with another investigation?

[00:16:42] Speaker 04:
I don't even understand why you all needed to get

[00:16:44] Speaker 04:
consent to search the vehicle.

[00:16:46] Speaker 04:
Why didn't you just get it from the Santa Fe police?

[00:16:48] Speaker 04:
A copy for the Santa Fe police.

[00:16:51] Speaker 02:
We don't believe the officers did need consent.

[00:16:55] Speaker 02:
And standing could possibly be an issue.

[00:16:58] Speaker 02:
We politely touched on that in the brief with regard to a parent authority because at that point the defendant wasn't

[00:17:07] Speaker 02:
making any payments on the vehicle.

[00:17:10] Speaker 02:
It was really his wife's vehicle, and there's a question about even standing.

[00:17:14] Speaker 02:
There is an issue about if something is seen in plain sight during the execution of a warrant, say in a home, and officers leave it behind, leave the home,

[00:17:24] Speaker 02:
There's a question about whether they can just go back in and take what they saw after they've left.

[00:17:29] Speaker 02:
A vehicle, obviously, is different, but that's why we have the vehicle exception, and we've argued that in our brief.

[00:17:34] Speaker 02:
We've also argued just a foregone conclusion, because they know it's in there.

[00:17:41] Speaker 02:
They saw it.

[00:17:44] Speaker 02:
car is in impoundment.

[00:17:45] Speaker 02:
There's nobody else who can come get it.

[00:17:47] Speaker 02:
There's no reason they shouldn't be able to just go get it.

[00:17:49] Speaker 02:
And we have argued that under those two exceptions that weren't argued below.

[00:17:53] Speaker 02:
But dealing with the record that we have and the arguments that were made, the primary focus there was consent and actual authority, because that's what the agent did.

[00:18:03] Speaker 02:
And because

[00:18:04] Speaker 02:
That made the most sense in that moment.

[00:18:05] Speaker 02:
He was going to interview her.

[00:18:07] Speaker 02:
The officers had put the Santa Fe police officers had left the note in the visor, and the easiest, cleanest thing to do was just get the owner's consent.

[00:18:16] Speaker 02:
And as far as the agent knew, it's the wife, she's the registered owner.

[00:18:20] Speaker 02:
There's no issue with obtaining her consent.

[00:18:22] Speaker 02:
She does have actual authority.

[00:18:24] Speaker 01:
Under our law, there was a presumption that she

[00:18:27] Speaker 01:
had authority, actual authority, right?

[00:18:30] Speaker 02:
Right.

[00:18:32] Speaker 01:
If you want to rebut that presumption, who has the burden?

[00:18:36] Speaker 02:
The defendant has the burden.

[00:18:37] Speaker 01:
And really the argument that in RIF they had evidence that the parents didn't go into the bedroom and this and that, that would have been Mr. Candelaria's obligation to put on that kind of evidence, right?

[00:18:49] Speaker 02:
Right.

[00:18:49] Speaker 01:
OK.

[00:18:50] Speaker 01:
And I think the argument is that the evidence that was put on

[00:18:54] Speaker 01:
that she didn't take the car without his permission, that they each had a car seat in their own vehicle, that that was enough to rebut the presumption.

[00:19:05] Speaker 01:
How do you respond to that?

[00:19:08] Speaker 02:
Well, really, under RIF there are two flavors, two varieties of actual authority.

[00:19:13] Speaker 02:
One is the joint access, and that's where the court found, the district court here found that she was the

[00:19:19] Speaker 02:
registered owner and all of those things.

[00:19:21] Speaker 02:
The other is control for most purposes.

[00:19:23] Speaker 02:
And what Rith says is that's not the fact-intensive inquiry.

[00:19:26] Speaker 02:
That's more of a normative inquiry based on the relationship.

[00:19:29] Speaker 02:
And because of the husband-wife relationship, there is that presumption.

[00:19:33] Speaker 02:
And there you don't look at necessarily the use of the vehicle and how often she used it and all of that.

[00:19:39] Speaker 02:
whether to rebut the presumption, it would be whether there's evidence of an agreement that that was off limits to her.

[00:19:46] Speaker 02:
Basically, that they had agreed or they understood she doesn't go there.

[00:19:49] Speaker 02:
She doesn't look in that vehicle.

[00:19:51] Speaker 02:
She doesn't touch it.

[00:19:52] Speaker 02:
It would be the same as if the defendant had a safe in the house and he had told her, I don't want you going in there.

[00:19:58] Speaker 02:
That's my safe.

[00:19:59] Speaker 02:
Then that would probably rebut the presumption of

[00:20:03] Speaker 02:
of actual authority.

[00:20:04] Speaker 02:
But here, we have actually the opposite.

[00:20:07] Speaker 02:
We have Megan Henley actually testifying, there were no limits on my access to it.

[00:20:12] Speaker 02:
Yes, I had to coordinate if I was going to use it.

[00:20:14] Speaker 02:
And that makes sense, because he's primarily the one to use it.

[00:20:17] Speaker 02:
If she's going to take it, she needs to talk to him about it.

[00:20:20] Speaker 02:
But she didn't have to ask for permission to go look for something in the car.

[00:20:24] Speaker 02:
And she clearly testified to that.

[00:20:26] Speaker 02:
And that's enough to affirm the presumption, really, much less

[00:20:30] Speaker 02:
for the defendant to rebut it.

[00:20:32] Speaker 04:
Well, maybe Ken Roria, you know, once they were estranged, maybe he changed his mind and said, Megan, you know, now that we're on the track to getting a divorce, you're not getting into that jet.

[00:20:43] Speaker 02:
Well, that's where the standing comes into play, because on the facts of this case, there's absolutely no basis for him to say that.

[00:20:49] Speaker 02:
He didn't pay for the car.

[00:20:50] Speaker 02:
He's not the registered owner.

[00:20:53] Speaker 02:
Santa Fe police isn't going to give it to him if he tries to come get it.

[00:20:56] Speaker 02:
He's basically walked away from it at that point.

[00:20:58] Speaker 02:
And that's why when Ms.

[00:21:00] Speaker 04:
Hennelly was asked... Let me just play devil's advocate.

[00:21:04] Speaker 04:
you know, does the owner of the impound lot have the power to adjudicate a domestic dispute?

[00:21:10] Speaker 04:
I mean, in other words, the owner of the impound lot can say, okay, well, only Megan can get into it, but, you know, unless the owner of the impound lot, you know, moonlights as a domestic court judge, who is he or she to say who has access to that Jetta?

[00:21:27] Speaker 02:
Well, I would imagine what they were going by is who's the registered owner, and it was her.

[00:21:31] Speaker 02:
So I think on those facts, there was a justification for them to say that.

[00:21:36] Speaker 02:
And the reality is he had walked away from it.

[00:21:39] Speaker 02:
And that's why she's the one who took it back.

[00:21:42] Speaker 02:
She paid the impoundment lot, and then she sold it, because it was her vehicle, really.

[00:21:47] Speaker 02:
And the court doesn't need to go beyond there.

[00:21:49] Speaker 02:
Actual authority is enough.

[00:21:50] Speaker 02:
The district court correctly found that.

[00:21:54] Speaker 02:
This court can affirm on that basis alone.

[00:21:56] Speaker 02:
We, of course, have made several other arguments that would justify the denial of the suppression motion, but we would certainly stand on that for argument purposes.

[00:22:06] Speaker 01:
Turning to substantive reasonableness, if we're ready.

[00:22:11] Speaker 01:
Yes.

[00:22:11] Speaker 01:
Is this case the same as Crosby, but the opposite side of Crosby?

[00:22:16] Speaker 01:
It's not.

[00:22:17] Speaker 01:
And why not?

[00:22:18] Speaker 02:
Well, what the defendant does is they take a part of Crosby, the part that discusses 3553A6, and basically treat that as the entire holding, that that would have been a standalone reason for this court to reverse in Crosby, and it wasn't.

[00:22:34] Speaker 02:
What the court clearly said in Crosby is the district court's failure to consider multiple sentencing factors, along with its over-reliance on one factor, really on the defendant's rehabilitation, is what made that a substantively unreasonable sentence.

[00:22:51] Speaker 02:
And what here we have is really the opposite of that, where this is one factor the court didn't specifically discuss.

[00:22:58] Speaker 02:
It discussed many other factors, starting with the

[00:23:05] Speaker 02:
the nature of the offense.

[00:23:06] Speaker 02:
The court went to great lengths to discuss the nature of the offense, how egregious it was, what a violation of trust it was, the lasting damage that the defendant's conduct did to Mr. Hennelly.

[00:23:18] Speaker 02:
And the court had heard from four witnesses at sentencing.

[00:23:21] Speaker 02:
This was not some slapdash sentencing hearing.

[00:23:24] Speaker 02:
This was a lengthy sentencing hearing where the court heard from witnesses, heard from Mr. Hennelly, and she had also heard from him at trial, heard from the bank

[00:23:32] Speaker 02:
employees heard from Mr. Henley's brother about the lasting damage.

[00:23:37] Speaker 02:
So all of that went into the nature of the offense.

[00:23:41] Speaker 02:
Then you look at the characteristics and history of the defendant.

[00:23:45] Speaker 02:
She went to great lengths to talk about that, his criminal history and how it was actually underrepresented because of the things he had done in the past, including

[00:23:53] Speaker 02:
a prior conviction related to the McDonald's that he had worked out that was eerily similar to this case.

[00:24:00] Speaker 02:
And the judge talked about that.

[00:24:03] Speaker 02:
She talked about how during his pretrial release, he had committed a DUI and lied about that to the probation officer.

[00:24:09] Speaker 02:
And so that obviously factored into it, the ability for him to be rehabilitated, where she found that he had no remorse.

[00:24:18] Speaker 02:
The court looked at safety of the community

[00:24:22] Speaker 02:
The fact that having no remorse, having this history of similar conduct where he's going to take what he wants, the judge said something like that, that that's going to continue to happen.

[00:24:35] Speaker 02:
And that was a factor for the court to consider.

[00:24:38] Speaker 02:
So all of those things, at length, the court considered.

[00:24:42] Speaker 01:
Are you familiar with our recent case of the United States versus Washington?

[00:24:47] Speaker 02:
I don't believe I am.

[00:24:49] Speaker 02:
I'm happy to try and answer a question, but I'm not.

[00:24:54] Speaker 02:
So that's how this case is so different from Crofty, because the court here discussed so many of the factors and didn't discuss that one.

[00:25:02] Speaker 02:
And so really what the defense hangs their hat on is the idea that it's procedurally unreasonable and therefore substantively unreasonable for the court not to discuss every single factor.

[00:25:14] Speaker 02:
And that's simply not the law.

[00:25:16] Speaker 02:
The district court has to consider every factor, and here the district court clearly said that it did.

[00:25:21] Speaker 03:
Did the court not address 3553A6 on sentencing disparity?

[00:25:30] Speaker 02:
Well, the court said that it considered it.

[00:25:33] Speaker 02:
Not that one specifically, but had considered all of the 3553A factors.

[00:25:37] Speaker 02:
I think we have to take the court at its word for that.

[00:25:41] Speaker 02:
Absent a specific argument, like in Lenti, a specific argument from the defense related to sentencing disparities.

[00:25:47] Speaker 02:
If the defendant had said, this will create a sentencing disparity, and the district court had ignored that, then we might have a different case.

[00:25:55] Speaker 02:
But that's not what happened here.

[00:25:57] Speaker 02:
And absent a specific argument from the defense, the court isn't required to discuss every single 3553A factor.

[00:26:04] Speaker 03:
Well, is it possible for a court's discussion of the nature of the offense to be relevant to the Senate's disparity issue?

[00:26:14] Speaker 03:
In other words, here we have, as the court pointed out, an extraordinary type of bank fraud offense in terms of what happened.

[00:26:26] Speaker 03:
Does that in and of itself speak to sentencing disparity?

[00:26:31] Speaker 02:
I think it does.

[00:26:32] Speaker 02:
And you're going to Gantt, which we cited in the brief.

[00:26:36] Speaker 02:
The court said that one can say as a general rule that when a court considers what the guideline range is, it necessarily considers whether there is a disparity between the defendant's sentence and the sentences imposed on others.

[00:26:48] Speaker 02:
So you have that sentence from Gantt.

[00:26:50] Speaker 01:
The court specifically noted the guideline range 46 to 57.

[00:26:55] Speaker 01:
and then said it fell outside the heartland.

[00:26:59] Speaker 01:
Isn't that a consideration of the disparity?

[00:27:02] Speaker 02:
It is.

[00:27:03] Speaker 02:
It's not citing to 3553-86, but it certainly is considering the disparity that's created.

[00:27:11] Speaker 02:
And saying it's warranted.

[00:27:12] Speaker 02:
It's warranted by the egregious nature of this case.

[00:27:15] Speaker 02:
It's warranted by the fact that this case is so far outside of the guidelines that that justifies this substantial variance.

[00:27:24] Speaker 02:
And so given all of the

[00:27:27] Speaker 02:
The lengthy explanation that the court gave considering a number of factors, the fact that the court didn't specifically cite to A6 is not procedural error, and that would have to be plain error, of course, on this case, nor is it substantively unreasonable.

[00:27:45] Speaker 02:
Does the court have any questions we would ask that the court affirm?

[00:27:48] Speaker 03:
Thank you.

[00:27:50] Speaker 03:
Ms.

[00:27:51] Speaker 03:
Skinner, I think you've got six seconds.

[00:27:52] Speaker 03:
Do you want to take them?

[00:27:55] Speaker 03:
Okay, good luck.

[00:27:58] Speaker 03:
Good for you.

[00:28:00] Speaker 03:
Oh, seven seconds.

[00:28:02] Speaker 03:
Thank you.

[00:28:05] Speaker 00:
With respect to history and characteristics, it was not enough in Crosby that the district court, I'm sorry, with the sentencing disparity, it was not enough that the district court said, I've considered the factors.

[00:28:16] Speaker 00:
That was a 78-month variance.

[00:28:18] Speaker 00:
This is 255 months, and there's no discussion of the real sentencing disparity.

[00:28:24] Speaker 00:
and also the guideline range, just simply stating the guideline range and then imposing a 255-month variance that relies heavily on history and characteristics and an 05 juvenile conviction does not allow this court to do meaningful review.

[00:28:38] Speaker 00:
Thank you.

[00:28:38] Speaker 03:
Thank you.

[00:28:40] Speaker 03:
We'll consider this case submitted in counselor excuse.

[00:28:44] Speaker 03:
Thank you for your time.