[00:00:00] Speaker 04:
This case is 23-2177, United States versus Cortez.

[00:00:04] Speaker 04:
And welcome back.

[00:00:06] Speaker 01:
Thank you.

[00:00:08] Speaker 01:
I would like to reserve two minutes of my time for rebuttal.

[00:00:11] Speaker 01:
And I represent Santiago Cortez.

[00:00:16] Speaker 01:
Crosby compels reversal in this case.

[00:00:19] Speaker 01:
This court was there and must now be guided by the uncontroversial principle that a major variance must be subverted by a significant justification.

[00:00:28] Speaker 01:
The district court here imposed an extreme variance without justifying it by meaningful reference to the 3553A factors.

[00:00:37] Speaker 01:
Two central considerations crystallized by this court in Crosby and before it in Cookson really dictate the outcome here.

[00:00:44] Speaker 01:
The first is that the massive free ranging upward variance was untethered from the guidelines resulting in an arbitrary term.

[00:00:54] Speaker 01:
And the second is that the sentence creates clear unwarranted disparity.

[00:00:58] Speaker 01:
and the district court offered no reasoning to show that it was warranted, resulting in what this court called a facially unwarranted sentence in Crosby.

[00:01:07] Speaker 01:
So the failure to consider the guidelines and the district court's decision to vary upward for reasons already accounted for the guidelines and then not explain why this case warranted that kind of variance is really the crux of the problem.

[00:01:24] Speaker 01:
The guidelines account for

[00:01:26] Speaker 01:
the conduct that preoccupied the district court in two ways.

[00:01:31] Speaker 01:
Mr. Cortez received a 10 level offense level increase for his prior, and he also received three criminal history points.

[00:01:40] Speaker 01:
And both of those provisions are the most, that's the highest increase a person can get under the relevant guidelines for this type of prior conduct.

[00:01:48] Speaker 01:
And the other thing is that the guidelines, the criminal history rules in the guidelines

[00:01:54] Speaker 01:
are the most often empirically studied and validated.

[00:02:00] Speaker 01:
So to the extent that his prior reflects on any of the goals of sentencing, the guidelines account for that.

[00:02:07] Speaker 01:
And that's a process that the commission is continually undertaking and that does deserve some deference or at least consideration.

[00:02:16] Speaker 02:
But we've said over and over again that the fact that the guidelines already consider

[00:02:24] Speaker 02:
a factor, any factor, in terms of setting the sentence does not mean that the sentencing court can't also consider that factor.

[00:02:35] Speaker 02:
Would you agree that's a correct statement of the law?

[00:02:38] Speaker 01:
Yes, that's true.

[00:02:39] Speaker 01:
And certainly the court can consider that factor and determine that the guideline range doesn't adequately reflect how that plays into sentencing.

[00:02:49] Speaker 01:
The problem is that the district court didn't

[00:02:53] Speaker 01:
even expressed that.

[00:02:54] Speaker 01:
I mean, that's what makes this case like even kind of more egregious than Crosby in that there was no policy disagreement with the guidelines.

[00:03:01] Speaker 01:
She never said, I understand that this has affected his guideline range, but that range is still insufficient.

[00:03:09] Speaker 01:
And not only that, but a sentence double the high end of the guideline is necessary for this person because this prior is so extreme in my view.

[00:03:18] Speaker 02:
She didn't say that.

[00:03:20] Speaker 02:
indicate that he had three prior convictions that were too old to have been considered in the guideline calculation, and that she considered all of the prior criminal history.

[00:03:34] Speaker 02:
And one of those that wasn't considered was the manslaughter that had been originally charged as murder.

[00:03:42] Speaker 02:
And she took that into account.

[00:03:45] Speaker 01:
She did reference that prior.

[00:03:47] Speaker 01:
There's two things about that.

[00:03:50] Speaker 01:
is also something that is factored into the guidelines, even though it gets zero points.

[00:03:54] Speaker 01:
There's a reason, and that's because the commission has determined that convictions of that age don't tie into the factors in a way that suggests a person should get a higher sentence.

[00:04:09] Speaker 01:
But even if she saw fit, based on that, to increase his sentence... Which she's allowed to do, right?

[00:04:16] Speaker 02:
I mean, the guidelines are guidelines.

[00:04:18] Speaker 01:
Right, but they are also the...

[00:04:20] Speaker 01:
Keystone or the starting point.

[00:04:23] Speaker 02:
The starting point.

[00:04:25] Speaker 01:
Yes.

[00:04:26] Speaker 02:
They're not necessarily the ending point.

[00:04:28] Speaker 01:
They're not.

[00:04:29] Speaker 01:
But if a court imposes an extreme variance, that it doesn't explain, even in light of a disagreement with the guidelines.

[00:04:40] Speaker 01:
Like in Crosby, there was a policy disagreement with the enhancements.

[00:04:43] Speaker 01:
And the district court explained that.

[00:04:44] Speaker 01:
That's true in Cookson too.

[00:04:46] Speaker 01:
But then didn't explain why a variance on top of that difference

[00:04:50] Speaker 01:
was appropriate and the court didn't do that.

[00:04:54] Speaker 01:
It didn't go through what the other allowable sentences were or evaluate.

[00:04:58] Speaker 01:
Think about how the guidelines are treating these kinds of convictions and why Mr. Cortez's convictions are so problematic that they warrant 60 months.

[00:05:09] Speaker 01:
And it also ties into disparity because she didn't point to any other case where someone like Mr. Cortez has received a sentence like this one.

[00:05:20] Speaker 01:
And Gall makes clear, and it's progeny, that first of all, that the guidelines are created and reevaluated with all of these considerations in mind, which is why they are the starting point.

[00:05:36] Speaker 01:
And second of all, that some sort of explanation

[00:05:40] Speaker 01:
that ties into the extent of the variance is required.

[00:05:44] Speaker 01:
And she just didn't do that.

[00:05:46] Speaker 01:
She seems to have rejected the guidelines and come up with her own number without giving us any way to know why that is, that that was the sentence that was necessary for this person.

[00:05:58] Speaker 01:
And that's the kind of lacking explanation that this court has found substantively unreasonable, at least in the case of downward variances.

[00:06:07] Speaker 01:
which, in fact, are entitled to greater solicitude than upward variances.

[00:06:13] Speaker 01:
So it certainly seems that the same problems presented in Crosby would require reversal here.

[00:06:20] Speaker 04:
The defendant had a history of violent criminal conduct, expelled from the country, came back.

[00:06:32] Speaker 04:
Couldn't the court reasonably determine

[00:06:36] Speaker 04:
The previous sentences were not adequately deterring his behavior and very upward for that reason.

[00:06:45] Speaker 04:
And we are in abusive discretion, right?

[00:06:48] Speaker 01:
Yes.

[00:06:49] Speaker 01:
She could think about deterrence in fashioning her sentence.

[00:06:55] Speaker 01:
It doesn't really track here, because Mr. Cortez served 12 years for the prior she was most concerned with.

[00:07:03] Speaker 01:
And his illegal reentry offense is not really connected to that prior offense.

[00:07:10] Speaker 01:
In terms of illegal reentry, that's another thing that the guideline that captures that conduct is considering deterrence and the punishment that is recommended in the guidelines achieves that goal.

[00:07:26] Speaker 01:
So it doesn't, without a more

[00:07:30] Speaker 01:
comprehensive explanation for why he needed to be deterred this way with this amount of time in terms of his instant offense, I don't think that renders this sentence substantively reasonable.

[00:07:46] Speaker 04:
And like the previous case, there was no objection to the PSR, right?

[00:07:50] Speaker 01:
There was no objection to the account in the PSR, but the different- The defendant did testify, though.

[00:07:56] Speaker 01:
He did, yes.

[00:07:58] Speaker 01:
And the account set forth in the PSR itself, it doesn't set out one version of events.

[00:08:04] Speaker 01:
So it's already inherently kind of disputed within the PSR.

[00:08:09] Speaker 01:
It's allegations that he said something different than she said.

[00:08:13] Speaker 01:
And that's what came from the police report.

[00:08:15] Speaker 01:
But I think this is clearly a case where all we know is what he's actually convicted of because the factual account in the PSR doesn't

[00:08:25] Speaker 01:
establish a fact, even if you take it all as true.

[00:08:27] Speaker 02:
What do we do with the fact that his own counsel said he admitted to raping her?

[00:08:34] Speaker 01:
Well, there was some sort of back and forth at sentencing.

[00:08:38] Speaker 01:
Her point was that he accepted accountability for his actions.

[00:08:47] Speaker 01:
And that was kind of an unavailing tactic at sentencing.

[00:08:53] Speaker 01:
He then made sure to correct that and say that it wasn't what he did.

[00:08:59] Speaker 01:
But even so, that conviction counts for three points.

[00:09:06] Speaker 01:
That's the maximum a prior can count for.

[00:09:09] Speaker 01:
And even if you double it, or even if you put him in criminal history category six, which is where people with the most extreme criminal history categories are, she's still buried upward on top of that.

[00:09:22] Speaker 01:
So I think that's the heart of this case is that there isn't any justification for why he belongs in that group with people who could have any number of criminal history category points or why he then even is worse than those people in terms of his culpability.

[00:09:42] Speaker 01:
And her treatment of his prior, I mean, that's the only thing really in the record that stands out as something that she was troubled by.

[00:09:52] Speaker 01:
and the uncounted prior, but given the contradicting accounts, oh.

[00:09:58] Speaker 03:
I have a question.

[00:09:59] Speaker 03:
I have a question, please.

[00:10:02] Speaker 03:
In your research, I'm somewhat troubled by the extent of a 16th month increase in this case.

[00:10:11] Speaker 03:
In the 10th Circuit, what is the most comparable case to this type of variance that we have, that we can look at?

[00:10:21] Speaker 03:
Contrary to the last case that we were discussing, as I recall, this was a, what, 21 to 27 months something, and that the guideline rate would have been around 15 months, and yet we vary up to 16 months in regards to this case.

[00:10:47] Speaker 03:
So again, I won't help in pointing me to ten circuit chases.

[00:10:51] Speaker 03:
that's comparable with this kind of variance?

[00:10:56] Speaker 03:
Do you have any of those?

[00:10:57] Speaker 01:
I do not have a 10th Circuit case with a comparable sentence, and that is the problem.

[00:11:04] Speaker 01:
The district court did have the JSON data before it, which, as you mentioned, Your Honor, suggests that the average, I think, is 15 months, and also that maybe 2% of people in his situation

[00:11:19] Speaker 01:
received an upward variance, and we don't know of what size.

[00:11:22] Speaker 01:
But it's incumbent upon the district court, particularly because here, neither of the parties requested an upward variance to point to that data.

[00:11:34] Speaker 01:
And that is what this court has said, that there needs to be some kind of data or comparable case.

[00:11:45] Speaker 01:
In the case Lente, where this court

[00:11:48] Speaker 01:
affirmed a sentence, I think an upward variance, for substantive reasonableness.

[00:11:55] Speaker 01:
It said it was troubled by the discretion that a court might have if it disagreed with the guidelines, but that in this case, that case, there was such a thorough evaluation of other cases that it meant the sentence was substantively reasonable.

[00:12:10] Speaker 01:
And that's the kind of record that can support a significant upward variance.

[00:12:16] Speaker 01:
That doesn't exist here.

[00:12:18] Speaker 01:
is a substantive error at sentencing by the district court, that the record doesn't contain any reference to some other case or some data that suggests that this sentence is appropriate for this defendant.

[00:12:37] Speaker 01:
And I think that applies to even if you're looking at uncounted

[00:12:44] Speaker 01:
There aren't any cases where you say, oh, someone had an uncounted prior that is severe, and so this is how they vary upward.

[00:12:52] Speaker 01:
Or someone had this kind of prior, and that's why they varied upward.

[00:12:57] Speaker 01:
We don't have anything now.

[00:12:59] Speaker 01:
And so it impedes review by this court, which is a reversible substantive error as well.

[00:13:06] Speaker 01:
If there are no further questions, I'll reserve my time for rebuttal.

[00:13:10] Speaker 01:
Thanks.

[00:13:15] Speaker 00:
May it please the court.

[00:13:17] Speaker 00:
My name is Amal Keeney, and I'm here for the United States.

[00:13:22] Speaker 00:
To address the substantive reasonableness, the district court did explain why it was imposing an upward variance.

[00:13:30] Speaker 00:
It explained the defendant had a repeated record of violent conduct in this country, and despite receiving on his last conviction a 12-year, what she characterized as a very lengthy sentence, he still came back to the United States.

[00:13:45] Speaker 00:
Even after he knew he shouldn't do that.

[00:13:47] Speaker 00:
So the district court tied that in with the 3553A factors and said, we need to protect the public because he's violent.

[00:13:57] Speaker 00:
And we need to deter his conduct.

[00:14:00] Speaker 00:
We need something extra here to deter additional criminal conduct because he's not being deterred.

[00:14:05] Speaker 02:
Well, even if all of that is true, how do we evaluate a 60-month variant?

[00:14:15] Speaker 02:
Well, I think the... I mean, can the variance be too big even given the explanation?

[00:14:25] Speaker 00:
I mean, the court's case law leaves it open for that.

[00:14:28] Speaker 00:
This court's case law says, and the Supreme Court, by the way, says that if there's an upward variance, the court should look at it with greater care.

[00:14:42] Speaker 00:
I forget the exact language for greater scrutiny.

[00:14:45] Speaker 00:
But this court hasn't really reversed one of those that I'm aware of.

[00:14:50] Speaker 00:
So I don't have any examples of what would be, but too much.

[00:14:55] Speaker 00:
But conceptually, that is true.

[00:14:58] Speaker 00:
It can happen.

[00:15:01] Speaker 00:
But I don't think that's true here, because this is comparable to some of the other cases.

[00:15:07] Speaker 04:
Are you going to ask a question?

[00:15:09] Speaker 04:
There's no 10th Circuit case with a

[00:15:12] Speaker 04:
basically sentence double the upper guideline range on substantive reasonableness?

[00:15:19] Speaker 00:
No, I cited two cases, page 20 of my brief.

[00:15:23] Speaker 00:
Now, those are non-precedential cases from this court.

[00:15:29] Speaker 00:
But in the one of Maia Calle, the district court varied upward from a top end of 16 to 48 months, and this court affirmed.

[00:15:39] Speaker 00:
And in Caivinagua Sanchez,

[00:15:42] Speaker 00:
the district court varied from a seven-month top-end guideline range to 24 months.

[00:15:48] Speaker 00:
Now, that's not the same numbers, but it's comparable in percentage.

[00:15:52] Speaker 00:
One of those is at least three times, or let's see, no, both of them, three times the guideline range.

[00:15:58] Speaker 00:
Now, this is around a little over double the guideline range here, and the numbers are different.

[00:16:03] Speaker 04:
Were those the legal reentry cases?

[00:16:04] Speaker 00:
I believe they were.

[00:16:05] Speaker 00:
Caivinagua Sanchez, I know it was, because that was my case.

[00:16:09] Speaker 00:
I think Mayakaya was as well.

[00:16:11] Speaker 00:
So this court has affirmed in similar circumstances in the past.

[00:16:18] Speaker 00:
I think the claim that on unwarranted sentencing disparities, the district court had to point to some other similar case.

[00:16:27] Speaker 00:
I mean, well, the district court didn't do that, but the district court could have done that, as I've shown in my brief by.

[00:16:33] Speaker 02:
Does the district court have to do that?

[00:16:36] Speaker 02:
I mean, do we have case law that says the district court has to?

[00:16:40] Speaker 02:
do a search for other cases and cite them?

[00:16:43] Speaker 00:
I'm not aware of it.

[00:16:44] Speaker 00:
I mean, Crosby says that if a district court does do that, then I think this court may have been trying to encourage that and say that that would support it.

[00:16:54] Speaker 00:
But Crosby didn't say that was necessary.

[00:16:56] Speaker 00:
And I'm not aware of any other authority that says it was.

[00:16:59] Speaker 00:
And here, the defendant didn't point to any cases saying, wait a second.

[00:17:03] Speaker 00:
Hey, look at this.

[00:17:04] Speaker 00:
Look at that.

[00:17:06] Speaker 00:
You just pointed to the JSON data, which is not, by the way, there's a difference between the JSON data that was in the PSR and the one that we're now seeing for the first time on appeal in the JSON data that was in the PSR.

[00:17:18] Speaker 00:
That data didn't, at least the probation officer didn't include the data about what percent of cases there had been upward variances or downward variances.

[00:17:35] Speaker 00:
But it did say that there was an average sentence of 15 months for the same guideline range.

[00:17:42] Speaker 00:
So the district court was aware at least of that.

[00:17:49] Speaker 00:
Well, of course, I'm happy to answer additional questions about substantive reasonableness.

[00:17:53] Speaker 00:
But I also wanted to address the first claim that was presented here, which is that the facts stated in the PSR are not

[00:18:04] Speaker 00:
sufficient to support the district court's belief that there was a sexual assault or rape.

[00:18:10] Speaker 00:
And we think they were.

[00:18:11] Speaker 00:
The facts were that the victim reported, and the unobjected two facts, I should say, is the victim reported that the defendant threw her to the ground, dragged her behind some bushes, forcibly removed her underwear, all the time she's saying no.

[00:18:30] Speaker 00:
And the PSA also reported that the defendant admitted, yes, I had sex with her.

[00:18:34] Speaker 00:
I think the district court could look at all that and think, yeah, I think there was some non-consexual sexual conduct going on there.

[00:18:41] Speaker 00:
And I don't think that's, especially on clear error plus plain error review, that this court could write an opinion saying that the district court just completely blew it in thinking there was.

[00:18:52] Speaker 00:
And in addition, you have the defense counsel sentencing that the attack that she took was to say, look, I know

[00:19:03] Speaker 00:
My client here, he did some bad stuff.

[00:19:06] Speaker 00:
He had sex with this one, but at least he admitted it.

[00:19:10] Speaker 00:
So I think that's a further reason for the district court to think that there was a non-consexual sexual encounter going on there.

[00:19:19] Speaker 04:
We have the same problem that we were discussing in the previous case about the district court unhappy with the prior

[00:19:28] Speaker 04:
plea bargain, sentencing, and basically using this illegal entry case to enhance a sentence that it thought should have been presented for the prior crime.

[00:19:42] Speaker 00:
No, I don't think we have that problem here.

[00:19:44] Speaker 00:
If you look, and I forget where it is, but it's in volume three of the sentencing transcript between

[00:19:51] Speaker 00:
I think pages 30 and 39, but I could be wrong about that.

[00:19:55] Speaker 00:
But what the district court characterizes earlier at the Nevada court sentence is a very lengthy sentence.

[00:20:00] Speaker 00:
District court expressed no dissatisfaction or thought or belief that the Nevada court had not appropriately sentenced Mr. Cortez.

[00:20:10] Speaker 00:
So I don't think we have the same issue at all.

[00:20:13] Speaker 00:
I mean, I understand this district court has said

[00:20:15] Speaker 00:
this judge has said things similar and maybe may have said things like that in other cases, but not in this case.

[00:20:23] Speaker 02:
Well, the district court did, though, seem to be very concerned with the facts of the prior crime.

[00:20:33] Speaker 00:
That's correct.

[00:20:34] Speaker 00:
I think that's fair.

[00:20:35] Speaker 02:
So I guess it's the same issue I think Judge Timkovich raised on the prior case, which is, you know, is the district court

[00:20:43] Speaker 02:
actually sentencing for the illegal reentry, really also sentencing again for the prior crime.

[00:20:53] Speaker 00:
Well, District Court didn't say anything like that in its explanation.

[00:20:56] Speaker 00:
The District Court said.

[00:20:58] Speaker 02:
Well, it would be pretty foolish for the District Court to say that.

[00:21:02] Speaker 00:
Right.

[00:21:02] Speaker 00:
Right.

[00:21:03] Speaker 00:
But still, the District Court didn't give that as an explanation.

[00:21:07] Speaker 00:
The District Court said, look, he's

[00:21:11] Speaker 00:
He's acted violently before.

[00:21:13] Speaker 00:
I need to protect the public.

[00:21:15] Speaker 00:
And that's an appropriate consideration even on the illegal reentry offense.

[00:21:20] Speaker 00:
And the district court said, look, he's not being deterred.

[00:21:24] Speaker 00:
He's not been deterred.

[00:21:25] Speaker 02:
Is it the government's position that so long as the district court walks through the 7, 35, 53 factors and basically creates a record that it can vary

[00:21:40] Speaker 02:
above the guideline range anywhere up to the statutory maximum without being substantively unreasonable?

[00:21:48] Speaker 00:
Hmm.

[00:21:50] Speaker 00:
I mean, I don't know that I can draw a clear blight line rule for you.

[00:21:54] Speaker 00:
I think there are cases in which the district court could vary upward to the statutory maximum, depending on what those 353A factors were, and depending on how much of a variance

[00:22:06] Speaker 00:
percentage-wise and perhaps month-wise, that statutory maximum is from the guideline range.

[00:22:12] Speaker 00:
So for example, if there was a shorter, if the statutory maximum here had been 60 months, I think it's actually 20 years.

[00:22:19] Speaker 00:
But I think the district court could have done that.

[00:22:24] Speaker 00:
I think it would still be reasonable.

[00:22:25] Speaker 00:
But if she had varied upward to 20 years, I think my opponent would have a much stronger case.

[00:22:32] Speaker 00:
But I don't have a right line that I can offer you on that, Your Honor.

[00:22:35] Speaker 00:
And the cases that this Court and the Supreme Court have decided don't really provide me with a basis to give you one.

[00:22:47] Speaker 00:
On the third issue, I'll just say, Your Honor, that the issue was, if you disagreed with me on any point, you thought, yes, there needs to be a remand.

[00:23:03] Speaker 00:
I don't think this needs to be assigned to a different judge.

[00:23:06] Speaker 00:
There's been no accusation of personal bias.

[00:23:09] Speaker 00:
And I think the district court judge hasn't shown any indication that she would be unwilling to follow this court's directions in the past.

[00:23:18] Speaker 00:
And nothing about this particular issue provides a basis for that either.

[00:23:22] Speaker 00:
I mean, it's not uncommon on reversals to say for this court, when this court does reverse, to say to a district court,

[00:23:30] Speaker 00:
hey, this is a fact you shouldn't have considered, or this is a fact you shouldn't have considered in this particular way.

[00:23:36] Speaker 00:
And district courts are generally trusted to follow this court's instructions, absent some indication that they're not going to.

[00:23:44] Speaker 00:
And I don't see anything in this record that would provide that.

[00:23:49] Speaker 00:
So Your Honor, unless there's any additional questions, or I mean.

[00:23:52] Speaker 04:
Judge Boland?

[00:23:55] Speaker 04:
No.

[00:23:56] Speaker 00:
Thank you.

[00:23:57] Speaker 00:
We would ask you to affirm, and thank you very much.

[00:23:59] Speaker 01:
I just sort of like to address the question Judge McHugh that you posed about whether if the court invokes factors it can then just vary up to the maximum and I think affirming this sentence would send that message because

[00:24:24] Speaker 01:
What the judge did was list the factors and then impose a sentence that didn't have a grounding in the guidelines.

[00:24:32] Speaker 01:
And in some ways, this kind of presents the question, I guess, what the role of the guidelines is at sentencing post-booker.

[00:24:39] Speaker 01:
But that's a question we have the answer to.

[00:24:42] Speaker 01:
And the answer comes from Gall.

[00:24:44] Speaker 01:
When there's an extreme variance, the court needs to offer sufficient significant explanation.

[00:24:52] Speaker 01:
It's uncontroversial.

[00:24:54] Speaker 01:
And this is something that this court has applied correctly in its previous cases, most recently in Cookson and Crosby.

[00:25:01] Speaker 01:
And Gaal also pointed out that we accept that the guidelines are the result of careful study of thousands of cases, and it's a constantly evolving process.

[00:25:13] Speaker 01:
And so we do owe them consideration.

[00:25:19] Speaker 01:
For that reason, the district courts neglect of the guidelines or even implicit rejection without an explanation is really the problem here.

[00:25:28] Speaker 01:
And I think it is true that this court doesn't have published cases reversing upward variances on this theory.

[00:25:36] Speaker 01:
But I think that is deeply troubling because constitutionally, the same standard has to apply to an upward variance that applies to a downward variance.

[00:25:48] Speaker 01:
With that, I will ask that this court reverse.

[00:25:51] Speaker 04:
Thank you.