[00:00:03] Speaker 00:
Last case this morning is 25-6020 United States versus Fletcher, counsel for appellant.

[00:00:12] Speaker 00:
If you'd make your appearance and proceed, please.

[00:00:16] Speaker 02:
May it please the court.

[00:00:17] Speaker 02:
Good morning.

[00:00:18] Speaker 02:
My name is Andrea DeGiglio Miller, and I, along with my co-counsel, Josh Welch, represent John Fletcher.

[00:00:25] Speaker 02:
Mr. Fletcher was tried by a jury and convicted of 39 counts of various drug and gun crimes.

[00:00:33] Speaker 02:
26 of those offenses involved cocaine-based charges covered under the Fair Sentencing Act.

[00:00:40] Speaker 02:
Three of those counts involved cocaine-based offenses that are non-covered offenses.

[00:00:47] Speaker 02:
Seven involved cocaine powder charges that are non-covered.

[00:00:51] Speaker 02:
One of those powder cocaine charges, count nine, resulted in a life sentence

[00:00:58] Speaker 02:
and that count is central to the lower court's disposition of Mr. Fletcher's First Step Act Compassionate Release Motion.

[00:01:07] Speaker 02:
On October 19, 2011, after the Fair Sentencing Act went into effect, Mr. Fletcher was sentenced to 26 life sentences, nine 360-month sentences,

[00:01:21] Speaker 02:
one 240 month sentence and two 120 month sentences with all sentences running concurrently.

[00:01:31] Speaker 02:
He was sentenced to the maximum pre Fair Sentencing Act sentences.

[00:01:38] Speaker 02:
And many of those counts reflect the very disparity that Congress was intending to address when it passed the Fair Sentencing Act and subsequently the First Step Act.

[00:01:51] Speaker 02:
On its face, this case is extraordinary, both in the severity of the sentence and because even though the Fair Sentencing Act should have applied at the time of his sentencing, he did not get the benefit of the reduced statutory minimum sentences that should have been applied to his case.

[00:02:14] Speaker 01:
Well, didn't the district court conclude that even under the Fair Sentencing Act ranges, his sentence would still be life?

[00:02:23] Speaker 02:
The court concluded, I believe, Your Honor, that even under the Fair Sentencing Act standards, the maximum would be life.

[00:02:32] Speaker 02:
However, because the statutory minimums have changed and lowered the range, we believe that in the perspective of what has occurred since the Fair Sentencing Act and the First Step Act, it is possible that he would not have been maxed out on every single count.

[00:02:51] Speaker 02:
and therefore it would have made a difference to the overall sentencing.

[00:02:54] Speaker 03:
But didn't the District Court also find the guidelines were still life?

[00:03:00] Speaker 02:
Your Honor, I believe that is correct, Your Honor.

[00:03:04] Speaker 03:
Both the statute and the guidelines were telling the District Court, whether it was sentenced before or after the Fair Sentencing Act, that life should have been the sentence.

[00:03:12] Speaker 02:
Or that life was the maximum sentence.

[00:03:15] Speaker 02:
Of course, even at that time, the Court could have sentenced him to something lower than that.

[00:03:23] Speaker 02:
In Terry v. United States, Justice Sotomayor observed that despite Congress's clear intention to remedy the unjust sentencing disparities, some people have been left behind.

[00:03:34] Speaker 02:
And we submit to this court that John Fletcher is one of the people that has been left behind.

[00:03:40] Speaker 01:
He tried to rem- In some ways, we're taking these in the wrong order.

[00:03:46] Speaker 01:
because if he loses on his compassionate release argument, this argument is moot, right?

[00:03:56] Speaker 01:
It's not a lack of jurisdiction, it's not a lack of standing, it's moot.

[00:04:00] Speaker 02:
Your Honor, I do not believe that it is moot, even if he loses on the compassionate relief

[00:04:06] Speaker 01:
Well, how can that be?

[00:04:08] Speaker 01:
Because if he loses on the compassionate release, he's serving a life prison term for counts that would not be affected by your Fair Sentencing Act argument.

[00:04:22] Speaker 01:
And so even if we gave you relief under the fair sentencing, it would have no impact on the length of his sentence.

[00:04:31] Speaker 02:
Your honor, it's true that it would have no direct impact on the length of his sentence because of Count Nine.

[00:04:38] Speaker 02:
There's no question about that.

[00:04:40] Speaker 02:
But I don't believe if you go back and you look at Congress's purpose in passing both the Fair Sentencing Act and the First Step Act, the intention was to make it to ensure that somebody who was getting relief under those provisions got out of prison.

[00:04:56] Speaker 02:
The purpose was to redress the disparity in sentencing

[00:05:01] Speaker 02:
between crimes that involved cocaine base and crimes that involved powder cocaine.

[00:05:07] Speaker 02:
Because of that,

[00:05:09] Speaker 02:
the court can still redress through the First Step Act motion all the other counts that are impacted that could be impacted by the change in the law, even if that one count doesn't change.

[00:05:23] Speaker 02:
And I say that because there's also the possibility that at some point that count, since there'd be a challenge to the life sentence on that count.

[00:05:31] Speaker 02:
But I think if you go back to the purpose of the provisions themselves,

[00:05:36] Speaker 02:
They are simply to redress the disparity.

[00:05:39] Speaker 02:
The court can redress the disparity between powder cocaine and crack cocaine sentencing, even if it doesn't mean the overall sentence is reduced.

[00:05:50] Speaker 03:
But Judge McHugh's question, I think, was saying that the court has discretion under the compassionate release motion on count nine, the powder cocaine.

[00:06:02] Speaker 03:
But if you lose that, at that point,

[00:06:05] Speaker 03:
It becomes moot because aren't we bound to apply our decision and Manny that essentially reaches that result?

[00:06:13] Speaker 02:
You are in and I'd submit that the decision and Manny and its application in this case were both erroneous.

[00:06:21] Speaker 02:
So if I can address the issue of standing for a moment as it relates to losing the the.

[00:06:28] Speaker 02:
Count 9 and therefore losing the entire application.

[00:06:34] Speaker 02:
The discussion of standing in Manny, and by the way, it was in the Maytubby case that the standing discussion occurs, which happens to be the same judge as the judge who denied Mr. Fletcher's compassionate release request.

[00:06:49] Speaker 02:
And it seems a little formulaic if you really look and compare the two cases.

[00:06:55] Speaker 02:
But the discussion in Manny and the court's analysis on standing is kind of questionable providence to begin with, because the case that the court relied on to make its standing determination in that case was United States versus Myers, which the court confined to 200 F3rd, 715.

[00:07:14] Speaker 02:
If you do a word search in Myers, the word standing does not actually appear anywhere in that case.

[00:07:23] Speaker 02:
It is a jurisdiction case.

[00:07:25] Speaker 02:
And the three requirements that the Manny opinion cites as establishing standing are actually prongs of jurisdiction and not standing.

[00:07:36] Speaker 00:
Well, standing is a jurisdictional doctrine, and is it not?

[00:07:42] Speaker 02:
Your Honor, standing is a component of jurisdiction, but there's no question here that the court had jurisdiction over Mr. Fletcher's

[00:07:52] Speaker 02:
First Step Act request as well as his compassionate release.

[00:07:55] Speaker 02:
The question for standing is simply whether he falls under the class of persons who can entitle themselves at that jurisdiction.

[00:08:03] Speaker 00:
Well, one of the reasons that I'm sorry to interrupt, but one of the reasons that Judge McHugh phrased it in terms of mootness is it really is irrelevant whether you call this ultimately.

[00:08:13] Speaker 00:
I mean, standing is probably a misnomer.

[00:08:15] Speaker 00:
The bottom line is the bottom line inquiry is was there subject matter jurisdiction?

[00:08:21] Speaker 00:
Was there an Article 3 injury?

[00:08:24] Speaker 00:
And don't we have a case that said for purposes of the First Step Act, the injury

[00:08:30] Speaker 00:
is the length of your sentence.

[00:08:32] Speaker 00:
I mean, the injury is, is there a some basis for your sentence to be reduced?

[00:08:37] Speaker 00:
Is that not right?

[00:08:40] Speaker 02:
The injury disparity that the First Step Act and the Fair Sentencing Act addressed, not the injury be required

[00:08:51] Speaker 02:
Nothing in either of those provisions suggests that the only way you can get relief on the counts that are covered by those acts is if it covers every single count of your overall sentence.

[00:09:06] Speaker 02:
The statutes certainly don't say that.

[00:09:09] Speaker 03:
I'm sorry, did I hear you say though, I mean, I hear your argument and this may have been a good argument to make to the court who's deciding Manny, but are you saying we have to overrule Manny?

[00:09:20] Speaker 03:
for you to get the relief that you're requesting?

[00:09:23] Speaker 02:
Your Honor, I'm always hesitant to suggest the court should overrule any precedent, but I do think that there is a question as to whether Manny was correctly decided based on the authority itself cites.

[00:09:37] Speaker 02:
And so I would suggest that maybe a clarification of what Manny really stands for would be appropriate in this case.

[00:09:45] Speaker 02:
because the standing issue, I believe, is, as the Chief Judge pointed out, kind of a misnomer, because we're not really talking about standing here.

[00:09:58] Speaker 02:
The second problem... Well, we are.

[00:10:01] Speaker 01:
I mean, in Manning, they were talking about standing because

[00:10:04] Speaker 01:
The only claim that was brought was under the First Step Act, but there were other charges not covered by the First Step Act.

[00:10:13] Speaker 01:
So there was no relief that could be granted that would give him relief.

[00:10:21] Speaker 01:
So it was an Article 3 issue.

[00:10:23] Speaker 01:
So in this case, he brought the claims together.

[00:10:29] Speaker 01:
So at the moment he filed

[00:10:31] Speaker 01:
his case, it was possible if he won on both the covered and non-covered offenses, that relief could be granted.

[00:10:41] Speaker 01:
So there was standing, but if we rule against him on compassionate release, then it becomes moot on his other claim under the first step act,

[00:10:57] Speaker 01:
because we can't give him relief by reducing his sentence because he's got a life sentence under count nine.

[00:11:04] Speaker 01:
Does that make sense to you?

[00:11:06] Speaker 02:
Yes, your honor.

[00:11:07] Speaker 02:
And I appreciate the question, because that was going to be my next point is that that by the fact that he asked for compassionate relief on the non covered offense, it takes it out of the situation in Manny and it takes it out of it for purposes of exercising jurisdiction at the beginning of the case based on whether he has standing.

[00:11:30] Speaker 01:
But you have to have the ability, you have to have Article 3 jurisdiction.

[00:11:36] Speaker 01:
We have to have jurisdiction over the case for the entire pendency of the case.

[00:11:40] Speaker 01:
And if it reaches a point where relief cannot be granted on his first step back, I would call that it was rendered moot.

[00:11:51] Speaker 01:
And we can't, there's nothing to give him.

[00:11:58] Speaker 01:
First of all, you mentioned that the government has not

[00:11:59] Speaker 01:
Is that better?

[00:12:05] Speaker 00:
Yes.

[00:12:07] Speaker 02:
Sorry, I'm not sure what I did.

[00:12:08] Speaker 02:
I don't know what I touched.

[00:12:09] Speaker 02:
Your Honor, the government has an asserted mootness.

[00:12:13] Speaker 02:
But I take your honor's point, but again, standing is typically judged at the beginning of the case.

[00:12:20] Speaker 02:
And once somebody has standing, the court has Article III jurisdiction to decide the issues.

[00:12:26] Speaker 00:
And again- Until they lose it, until they lose it.

[00:12:29] Speaker 00:
In mootness, you lose it.

[00:12:31] Speaker 00:
And so, Anne, it is a subject matter jurisdiction question.

[00:12:36] Speaker 00:
So irrespective of whether the government raised it or not, we have to look at our subject matter jurisdiction.

[00:12:41] Speaker 00:
I take it you agree with that, right?

[00:12:43] Speaker 02:
Yes, Your Honor.

[00:12:44] Speaker 00:
Okay.

[00:12:45] Speaker 00:
Well, then the question is, quite apart from what the government did, is it moot?

[00:12:51] Speaker 00:
And let me just follow up with it for a second.

[00:12:53] Speaker 00:
I think I understand, and let me see if I do, that your point was the purposes of the FIRST Act were to essentially address this disparity issue and to give relief to the defendants.

[00:13:06] Speaker 00:
And so, in this situation, if we were to rule on the First Step Act, Mr. Fletcher, in some sense, in some at least symbolic sense, would get relief, right, because his statutory sentences would be reduced.

[00:13:20] Speaker 00:
I get that, but I do understand that, right?

[00:13:24] Speaker 00:
That was your position.

[00:13:27] Speaker 00:
OK, well, I get that.

[00:13:29] Speaker 00:
But the point is, our cases, I think, stand for the proposition, and this is where you can help me if I'm wrong, that the only injury that really matters for Article III purposes is a reduction in your total, that you'll get out, that you'll actually get out.

[00:13:49] Speaker 00:
So even if we give Mr. Fletcher, even if the court were to give Mr. Fletcher the benefit of the reduction of his statutory sentences,

[00:13:57] Speaker 00:
because you have a non-covered count nine, he'll never get out.

[00:14:03] Speaker 02:
Your Honor, I understand what the Court is saying, and I agree that certainly that is the perspective that the Manny Court took in deciding Manny.

[00:14:15] Speaker 02:
But going back to the purpose of the Fair Sentencing Act and the First Step Act, nowhere in those acts do you see any language that Congress intended for people to only get relief under those acts if it reduced their overall sentences or necessarily even meant they would get out.

[00:14:34] Speaker 02:
They simply intended to redress the disparity in sentencing and make the ability to redress it retroactive as well as putting it in the hands of the defendant to ask the court for such relief.

[00:14:48] Speaker 02:
So while there is certainly, and Manny followed that path,

[00:14:56] Speaker 02:
saying that unless you can, unless it reduces the overall sentence, there's no standing, or there's no jurisdiction, or it becomes moot if you don't, then, but I don't think that that is actually grounded in the statutory language.

[00:15:11] Speaker 02:
And there are other benefits to reducing the other sentences, even if count nine remains out there.

[00:15:17] Speaker 02:
But I think it also gets, and if I could wrap up quickly,

[00:15:20] Speaker 02:
just to finish answering your honor's question, because I see I'm out of time.

[00:15:23] Speaker 00:
Please do.

[00:15:24] Speaker 02:
I think this also gets to the problem with the overall analysis the lower court conducted, because basically if he can just find a way to deny the compassionate release, he never has to even bother consider the impact of the changes in the sentencing.

[00:15:41] Speaker 02:
range, or make any determination under the Fair Step Act at all, which also seems like it's contrary to Congress's intention in passing these acts to begin with.

[00:15:54] Speaker 00:
Did my colleagues have any other questions?

[00:15:56] Speaker 00:
No.

[00:15:57] Speaker 00:
All right.

[00:15:58] Speaker 00:
Thank you, counsel.

[00:16:01] Speaker 00:
We'll hear from the government.

[00:16:03] Speaker 04:
May it please the court, Stephen Krueger on behalf of the United States.

[00:16:06] Speaker 04:
The district court did not abuse its discretion when it denied Mr. Fletcher's request for relief under 18 USC section 3582 C1A1.

[00:16:15] Speaker 04:
Now, as a result, it did not err when it dismissed the section 404 of the First Step Act or 3582 C1B request for a sentence reduction on jurisdictional grounds.

[00:16:28] Speaker 04:
I will, in light of the court's questions, I think I do need to admit I agree with Judge Holmes and Judge McHugh.

[00:16:36] Speaker 04:
Standing probably is not the right label to put on this.

[00:16:40] Speaker 04:
In reading the reply brief and doing additional research, this court has referred to mootness as standing over time.

[00:16:48] Speaker 04:
To use what Judge Holmes or Chief Judge Holmes said, you can lose, essentially lose standing.

[00:16:54] Speaker 04:
That's what the doctrine of mootness is.

[00:16:56] Speaker 04:
And ultimately it is a jurisdictional question because one of the questions that, or one of the things you have to have for a court to have Article III jurisdiction

[00:17:05] Speaker 04:
is a live case or controversy, something that the court can remedy.

[00:17:10] Speaker 04:
And at the end of the day, what Manny stands for is that in a 3582 C1B proceeding, a sentence reduction proceeding, that if the actual sentence, the actual amount of time served cannot be reduced, there is no judicial relief that can be granted.

[00:17:28] Speaker 04:
So yes, and Manny was standing because from the outset, there was no judicial relief that could be granted.

[00:17:36] Speaker 04:
Here, there could have been relief that could have been granted up until the point the district court denied the 3582C1A1 compassionate release motion.

[00:17:47] Speaker 04:
But when the district court ultimately decided the 3582C1B section 404 reduction, it had already denied relief as to count nine and as to every count under compassionate release.

[00:18:01] Speaker 04:
Thus, there was no,

[00:18:05] Speaker 00:
I was just going to shift gears if I could.

[00:18:07] Speaker 00:
I didn't want to interrupt your thought.

[00:18:08] Speaker 00:
And shifting gears, what I'd like to talk about for a quick second is 1B1.13B5, the B5 catch-all provision.

[00:18:20] Speaker 00:
And since Maomao, which set out the framework, the three sort of things that we're supposed to be looking at, B5 came into place, I just wanted to get your opinion on

[00:18:30] Speaker 00:
whether B5 in effect really collapses the first two of those.

[00:18:35] Speaker 00:
I mean, in other words, are we in a situation where, you know, you're looking at whether there are what compelling reasons and looking at it within through the lens of essentially the policy statement.

[00:18:50] Speaker 04:
So I think as a practical matter, yes, and I think that's something that McGee and Maomao recognized is that the second step effectively circumscribes the first step.

[00:19:02] Speaker 04:
That being said, there is a three part statutory framework, the district court

[00:19:08] Speaker 04:
of course, is free to say, notwithstanding what the commission has said, I think this would be extraordinary and compelling reasons.

[00:19:14] Speaker 04:
And I could see reasons why a district court might do that in terms of if it wants to put that on the record for the Sentencing Commission at a later date.

[00:19:23] Speaker 04:
But as a practical matter, even if the district court were to say, I think this is an extraordinary and compelling reason, but it doesn't rise, it doesn't satisfy one of the 1B1.13B1 through 4 or a collection

[00:19:38] Speaker 04:
doesn't satisfy the gravity requirement of B5.

[00:19:43] Speaker 04:
And then B6 is on its own.

[00:19:44] Speaker 04:
And there are several different arguments as to that.

[00:19:46] Speaker 04:
But it could say under the first step, it's satisfied.

[00:19:51] Speaker 04:
But under the second step, it fails.

[00:19:52] Speaker 00:
That is... It has the authority to do that.

[00:19:55] Speaker 00:
Correct.

[00:19:56] Speaker 00:
But ultimately, once it gets to the second step, it's going to have to be circumscribed by that, right?

[00:20:03] Speaker 00:
Correct.

[00:20:03] Speaker 04:
And that's what McGee and Malma

[00:20:05] Speaker 04:
and Hall and I think several other cases have said, a defendant in order to get relief under 3582 C1A has to satisfy all three criteria, all three parts of the test.

[00:20:19] Speaker 04:
If the defendant fails to satisfy any one of those parts, the defendant's not entitled to relief.

[00:20:26] Speaker 04:
And as a result, the district court can go to the second prong or the third prong without addressing the first prong if it chooses to do so.

[00:20:37] Speaker 04:
So in this case, I would submit the easiest path to affirmance is to bypass probably a large amount of the arguments in this case about the law regarding 1B1.13B6 and everything that happened in the district court on that and whether the district court properly considered things or not considered things as to extraordinary and compelling reasons and goes straight to the 3553A factors because if the district court

[00:21:04] Speaker 04:
did not abuse its discretion on the 3553A alternative, then that alternative holding is sufficient to say no abuse of discretion on 3582C1A, and thus no jurisdiction as to 3582C1B.

[00:21:21] Speaker 04:
And here, the district court correctly noted the guideline range, life imprisonment, and it gave an explanation for why it thought a sentence reduction was not warranted.

[00:21:33] Speaker 04:
Mr. Fletcher was an organizer of a lengthy drug conspiracy.

[00:21:38] Speaker 04:
He committed this crime while he was on supervised release.

[00:21:42] Speaker 04:
During trial, he threatened and intimidated witnesses.

[00:21:46] Speaker 04:
And he weighed that against the mitigating circumstances that Mr. Fletcher put forth in his brief and ultimately concluded a sentence reduction was not warranted.

[00:21:57] Speaker 04:
Even if this were under the more stringent, what I would submit would be the more stringent standards of a

[00:22:03] Speaker 04:
de novo sentencing, that would be sufficient under this court's case law.

[00:22:09] Speaker 03:
Council, can I ask you about one aspect of this case, which is the district court's order.

[00:22:14] Speaker 03:
There's a footnote wherein it says that Mr. Fletcher had waived his argument under B6 because of the supplemental brief that was ordered.

[00:22:27] Speaker 03:
I guess what troubles me a little bit about that is my understanding of the procedural timeline is the motion was filed in January of 2022.

[00:22:35] Speaker 03:
And then the district judge essentially does nothing on it until December of 2024 before the court then recuses itself.

[00:22:46] Speaker 03:
And then Judge Russell's assigned and at that point, you know, the landscape has changed 1B1.13 as it existed when the motion was filed.

[00:22:57] Speaker 03:
is changed.

[00:22:59] Speaker 03:
And so even though Mr. Fletcher had said repeatedly that he had an unusually long sentence, and that was his primary argument, in fact, the fact that he doesn't sort of expound upon that in a way that conforms to the citation to B6 is thereby waived.

[00:23:16] Speaker 03:
So I guess I want to know, do you really think it's waived?

[00:23:18] Speaker 03:
And then secondly, maybe more importantly, does it make a difference?

[00:23:23] Speaker 04:
So if I can answer the second question first, as I just mentioned, I think the court can bypass all of these issues, including this one, simply by affirming on 3553A grounds.

[00:23:35] Speaker 04:
But to answer the first part of your question, yes, I think it is waived.

[00:23:40] Speaker 04:
Because 1B1.13b6 was injected by Mr. Fletcher through filing a supplemental memorandum of law noting that there was 1B1.13b6.

[00:23:52] Speaker 04:
And asking the court to hold an evidentiary or to hold a motion hearing so that he could expound upon that, because the local rules only allow for a notice, essentially a notice of supplemental authority.

[00:24:05] Speaker 04:
And then if you want to argue that you have to ask for a leave to file a supplemental treaty, the district court took that notice and said, okay,

[00:24:14] Speaker 04:
1B1.13b6, you brought it to my attention, file supplemental brief, and this is at page 86 of Supplemental Appendix Volume 1, quote, address any relevant changes in the law, which is essentially the heart of 1B1.13b6.

[00:24:30] Speaker 04:
I understand the usually long sentence is the title, but the way it reads, there has to be a change in the law.

[00:24:37] Speaker 04:
And so we fast forward to the supplemental brief that was filed by Mr. Fletcher,

[00:24:42] Speaker 04:
And he cites 1b1.13b5 throughout it, but he doesn't address what that change in the law is, what 1b1.13b6 is.

[00:24:52] Speaker 04:
He addresses, he changes course and he goes to 1b1.13b5.

[00:24:56] Speaker 04:
The government in its supplemental response pointed out that he didn't address it and it appeared to be abandoned.

[00:25:03] Speaker 04:
We had nothing to respond to.

[00:25:05] Speaker 04:
Mr. Fletcher could have filed a, sought leave to file a supplemental reply to say, no, no,

[00:25:11] Speaker 04:
I actually intended, here's how I satisfied it.

[00:25:14] Speaker 04:
He didn't, he chose not to do so, and the district court ruled upon it.

[00:25:18] Speaker 04:
And so, yes, I would submit that he abandoned his claim when he brought it to the district court's attention.

[00:25:24] Speaker 04:
The district court said, brief this, and he declined to do what the district court asked him to.

[00:25:35] Speaker 04:
I'm happy to answer any other questions the court might have, but if not,

[00:25:40] Speaker 04:
I will, if there are no further questions.

[00:25:42] Speaker 00:
I do have one question.

[00:25:44] Speaker 00:
In your summary of argument, at least as I recall it, you said that we could affirm the dismissal of the First Step Act relief based upon harmless error if the district court's standing mootness analysis is wrong.

[00:26:04] Speaker 00:
I don't recall you expanding upon that in the rest of your brief, did you?

[00:26:09] Speaker 04:
I think that was a fragment left over from an initial draft.

[00:26:13] Speaker 04:
I don't think I did.

[00:26:15] Speaker 04:
And honestly, on further reflection, given the jurisdictional nature of the district court's ruling, I think you would probably have to remand if the court got that far.

[00:26:25] Speaker 00:
You were anticipating my next question.

[00:26:28] Speaker 00:
So yes, OK.

[00:26:31] Speaker 04:
That being said, for the reasons I've set forth before,

[00:26:35] Speaker 04:
I think you first go to 3553A, you affirm on that basis, and then you affirm on the jurisdictional ground.

[00:26:41] Speaker 04:
And you don't need to address, you know, there wouldn't be a harmlessness.

[00:26:45] Speaker 04:
One thing I would note with regard to why I think that probably is the right answer in terms of based on the jurisdiction, jurisdictional holding, you would want to remand.

[00:26:57] Speaker 04:
Congress in Section 404C of the First Step Act

[00:27:00] Speaker 04:
provided only one bite of the apple, it precludes a defendant from filing a second 404 motion if there's a full and complete decision on the merits.

[00:27:11] Speaker 04:
And so if this court were to affirm on the alternative basis of 3553A factors, there would at least be an argument that there had been a merits decision.

[00:27:22] Speaker 04:
As of right now, there has not been a merits decision.

[00:27:25] Speaker 01:
On the compassionate release?

[00:27:27] Speaker 04:
On the 404.

[00:27:29] Speaker 04:
There's been a merit's decision on the compassionate release.

[00:27:33] Speaker 01:
I'm sorry.

[00:27:34] Speaker 01:
I've gotten backwards.

[00:27:38] Speaker 04:
Unless there any further questions.

[00:27:40] Speaker 04:
I would ask that you affirm the district court's order denying in part and dismissing in part the defendant's motion.

[00:27:47] Speaker 04:
Thank you.

[00:27:49] Speaker 00:
Hearing none, so case is submitted.

[00:27:51] Speaker 00:
Thank you counsel for your arguments.