[00:00:01] Speaker 03:
I'll turn to 24-2045, United States versus Guevara Lopez.

[00:00:09] Speaker 00:
Good morning.

[00:00:10] Speaker 00:
My name is Violet Edelman, and I represent Mr. Guevara Lopez.

[00:00:14] Speaker 00:
I would like to reserve two minutes of my time for rebuttal, if possible.

[00:00:19] Speaker 00:
This court's recent decision in United States versus Crosby compels reversal in this case.

[00:00:26] Speaker 00:
This court is guided by the uncontroversial rule that at sentencing,

[00:00:30] Speaker 00:
a major variance must be supported by a significant justification.

[00:00:34] Speaker 00:
The district court here varied upward to the statutory maximum without justification.

[00:00:41] Speaker 00:
Most importantly here, the free ranging extreme upward variance to the maximum was imposed without meaningful consideration of the guidelines and without consideration of the unwarranted disparity it created resulting in a facially unwarranted sentence.

[00:00:58] Speaker 00:
The court's exclusive focus in discussing the extreme variance imposed in this case was really the number of times that Mr. Guevara-Lopez engaged in the smuggling conduct.

[00:01:10] Speaker 00:
But in doing so, the district court ignored completely the fundamental theories underpinning the pertinent guidelines, which account for the full extent of his conduct in a variety of ways.

[00:01:22] Speaker 00:
His offense level was increased by 16 based on the loss table in the guidelines.

[00:01:29] Speaker 00:
And it's clear from the relevant conduct provisions as well as the grouping provisions in the guidelines that the conduct is looked at in terms of the amount of loss for a reason.

[00:01:39] Speaker 00:
And that's because the number of times that a person engages in the conduct doesn't have a meaningful impact on sentencing in the way that the commission has evaluated it.

[00:01:51] Speaker 00:
It's a conscious decision to base the increase on the amount rather than the estimated.

[00:01:57] Speaker 03:
Do you think if he repeats it for over a many months period of time, that suggests some additional culpability?

[00:02:07] Speaker 03:
You don't think it's an important factor or a relevant factor in sentencing?

[00:02:12] Speaker 00:
Well, it's considered in the guidelines.

[00:02:15] Speaker 00:
So the measurement of the loss the commission has determined captures the culpability there.

[00:02:21] Speaker 00:
And even if he had been charged with multiple counts or convicted of multiple counts of the same crime his guidelines would be the same because the Commission has determined that they group together and so There's not a dispute about the guideline calculation it's the variance that's an issue right so

[00:02:47] Speaker 03:
It might make a difference if you were confident that the guidelines covered the component of the crime in this case that is unusual, but I'm not sure you can say that.

[00:03:03] Speaker 03:
Is there any reason to think that?

[00:03:05] Speaker 00:
Well, the first thing is that the district court didn't explain that it disagreed with the guidelines, if it did.

[00:03:14] Speaker 00:
I mean, she alluded to it being something that was calculated by the amount of loss rather than the number of times.

[00:03:21] Speaker 00:
But she didn't say, I don't think that captures his culpability, and this is why.

[00:03:25] Speaker 00:
And this is why 60 months, the statutory maximum, which is for the worst of the worst offenders, was appropriate.

[00:03:33] Speaker 00:
So she didn't explain that it didn't reflect his culpability.

[00:03:36] Speaker 00:
And that alone renders the sentence substantively unreasonable.

[00:03:43] Speaker 00:
I mean the same cell, the same guideline range would capture people who engaged in the conduct more times with maybe less money.

[00:03:51] Speaker 04:
Or one time with all of that money.

[00:03:54] Speaker 04:
Right.

[00:03:54] Speaker 04:
Which would seem almost worse because you'd have to be pretty trusted to be caught with two point plus million dollars.

[00:04:01] Speaker 00:
That's true.

[00:04:02] Speaker 00:
And I think that the various provisions set forth in the guidelines are calibrated to

[00:04:11] Speaker 00:
put people in cells that reflect their culpability.

[00:04:15] Speaker 00:
And so when there's such an extreme variance above that range, the district court has to explain what it is about this conduct that makes it more egregious.

[00:04:27] Speaker 00:
And simply the number of times which the commission has explained doesn't necessarily aggravate someone's culpability in terms of sentencing and in its relation to the 3553A factors.

[00:04:41] Speaker 00:
It isn't enough.

[00:04:42] Speaker 02:
But that may be the commission's position.

[00:04:44] Speaker 02:
But Judge Strickland here seemed to focus a lot on the number of times and the amount, both.

[00:04:52] Speaker 02:
And even if she didn't draw a direct line towards a specific 3553A factor for the number of times, why couldn't she conclude that the defendant sort of zipping across the border repeatedly would need to have an enhanced sentence because

[00:05:08] Speaker 02:
for deterrence purposes, in the sense that every time someone makes a conscious decision to engage in criminal misconduct, that alone, the fact that it has to happen repeatedly, is an aggravator.

[00:05:21] Speaker 02:
And again, she doesn't specifically say that, but I think you could read the transcript and infer that that's the point she's trying to make, is the number of times was significant to her.

[00:05:32] Speaker 00:
Well, the burden

[00:05:37] Speaker 00:
imposing an upward variance like this one is on the district court to explain its reasoning.

[00:05:43] Speaker 00:
And that is a principle dating back to Gall.

[00:05:46] Speaker 00:
And it's clear in every one of this court's cases reversing on substantive unreasonableness that when there is a variance, the district court does have to actually spell it out and explain and go through an analysis of why this person

[00:06:04] Speaker 00:
deserves a sentence that's different than the one in the guidelines and specifically one that's so far above the range.

[00:06:14] Speaker 00:
So I think that, you know, if you look at Crosby and at Cookson and at all of the cases that those two cases really crystallize, the district court had to voice its policy disagreement with the guidelines, which it didn't do.

[00:06:30] Speaker 00:
And that's something that the court did do in Crosby.

[00:06:32] Speaker 00:
But that still wasn't enough to support a variance on top of that.

[00:06:35] Speaker 00:
And also, the district court has to consider whether there are other defendants who have been similarly sentenced, similarly situated defendants who get a sentence that is comparable.

[00:06:46] Speaker 00:
And that isn't in this record either.

[00:06:49] Speaker 00:
So all you have is data showing that people who, by the way the guidelines measure it, are similar to Mr. Guevara-Lopez.

[00:06:59] Speaker 00:
having an average sentence significantly lower than his.

[00:07:02] Speaker 00:
I think it's 15 months.

[00:07:05] Speaker 00:
And 0% of offenders getting an upward variance at all.

[00:07:08] Speaker 00:
So she just didn't offer.

[00:07:10] Speaker 02:
Well, what about this offering?

[00:07:12] Speaker 02:
She says that she's very concerned about the nature and circumstances.

[00:07:16] Speaker 02:
So now she's quoting from 3553A.

[00:07:18] Speaker 02:
And then she goes on to then say about the $2 million of cash back to organized crime in Mexico.

[00:07:24] Speaker 02:
It's a very large amount of money.

[00:07:25] Speaker 02:
And he knows, as he said today,

[00:07:27] Speaker 02:
organized crime in Mexico is doing with the money.

[00:07:30] Speaker 02:
And as I read that, I think why couldn't we consider – this is a drug transaction.

[00:07:36] Speaker 02:
She just said it's organized crime in Mexico.

[00:07:38] Speaker 02:
And in the transaction, drugs come one way, a sale is made, cash goes the other way.

[00:07:44] Speaker 02:
Had he been on the front end of that carrying the drugs, not the cash, his sentencing liability would have been exponentially higher.

[00:07:50] Speaker 02:
And again, I know she doesn't say all of this, but why can't we?

[00:07:54] Speaker 02:
I mean, she's talking about the nature and circumstances, and she's talking about organized crime in Mexico.

[00:07:58] Speaker 02:
Isn't that sort of obvious inferences we can draw?

[00:08:00] Speaker 00:
Well, there are a couple things about that.

[00:08:03] Speaker 00:
The first is that in the PSR, I don't think the PSR says anything about organized crime or about a cartel, which is the word she used as sentencing.

[00:08:13] Speaker 00:
And he did engage with her on that point.

[00:08:16] Speaker 00:
But he also received the downward adjustment for minor role.

[00:08:21] Speaker 00:
And in order to receive that adjustment, a person, I mean, the requirement is that the person has limited knowledge of the scope of the activity.

[00:08:29] Speaker 00:
And she accepted that as a factual finding.

[00:08:34] Speaker 00:
So in some sense, her then saying that he is more culpable because he admitted to some awareness when she was grilling him at sentencing

[00:08:43] Speaker 00:
It contradicts the finding that she made in accepting the PSR and undermines really the spirit of the minor role that he played.

[00:08:54] Speaker 00:
He's also, at the time, he was only 19 years old.

[00:08:57] Speaker 00:
And his age, the commission has also acknowledged that a youthful age can impact sort of the way that somebody might understand their conduct.

[00:09:06] Speaker 00:
So I think that contributed to what he said.

[00:09:08] Speaker 00:
It's his first time in federal court

[00:09:12] Speaker 00:
having this conversation with a federal judge.

[00:09:15] Speaker 00:
So there are a lot of factors that I think reduce that as significant in her consideration.

[00:09:21] Speaker 00:
But she also didn't explain again how the guidelines and the loss table specifically reference the charge that he's faced with.

[00:09:34] Speaker 00:
So we assume that they do reflect this kind of conduct that he was charged with.

[00:09:41] Speaker 00:
And so her judgment that they aren't adequate for this crime, she has to explain that.

[00:09:50] Speaker 00:
And that, I mean, in some sense, she's just treating the guidelines as if they aren't even advisory, because it's not clear where she gets the number that she ultimately arrives at in giving him the maximum.

[00:10:04] Speaker 00:
He's also somebody with zero criminal history points, and she sentenced him to

[00:10:11] Speaker 00:
the guideline maximum, which is clearly for the worst of the worst of offenders, but also that falls within the cell on the guidelines table for people in criminal history category six, which could be people with any number of criminal history points.

[00:10:28] Speaker 00:
So the point is that she wasn't looking at the guidelines as a reference point.

[00:10:34] Speaker 00:
There's nothing in the record to suggest that she did.

[00:10:37] Speaker 00:
She didn't seem to.

[00:10:40] Speaker 00:
understand or at least didn't articulate an understanding that the guidelines might reflect the things that she was concerned about but also didn't explain why they didn't or why an upward variance was necessary.

[00:10:53] Speaker 03:
Your only issue on appeal was substantive reasonableness, is that right?

[00:10:59] Speaker 00:
Yes.

[00:11:00] Speaker 03:
A lot of what you're talking about is failure to explain.

[00:11:04] Speaker 03:
That's procedural reasonableness, is it not?

[00:11:08] Speaker 03:
When we're looking at substantive reasonableness, it's nice if the sentencing judge explains the sentence.

[00:11:15] Speaker 03:
We might find something substantively reasonable because of the explanation that we wouldn't have otherwise.

[00:11:22] Speaker 03:
But the failure to explain itself is not substantive reasonableness, is it?

[00:11:28] Speaker 00:
It can be.

[00:11:29] Speaker 00:
The two are overlapping.

[00:11:31] Speaker 00:
And this court's case has acknowledged that there's

[00:11:34] Speaker 00:
a murky area there, but also that an insufficient and inadequate explanation impedes review.

[00:11:41] Speaker 00:
And so that can render a sentence substantively unreasonable, because when you're looking at a term that's so- It impedes review, because we can't see why that sentence is justified.

[00:11:53] Speaker 03:
We find that there is failure to explain, so we reverse on procedural reasonableness grants.

[00:12:01] Speaker 03:
Is it not what we do?

[00:12:03] Speaker 00:
Well, in Crosby, and in Cookson, and I think in Barnes.

[00:12:07] Speaker 03:
I don't think we've ever found a sentence too long on substantive reasonableness grounds, have we?

[00:12:13] Speaker 00:
Well, you're right.

[00:12:14] Speaker 00:
I don't think you've ever found a sentence to be too long on substantive reasonableness.

[00:12:19] Speaker 00:
But that's slightly problematic, because this standard is actually, the district court is entitled to greater solicitude for a downward variance than an upward variance.

[00:12:32] Speaker 00:
And so in these cases where this court has gone through a painstaking review of 3553A and looked at the explanation to see whether it's adequate, for a downward variance, certainly that standard has to apply in the case of an upward variance too.

[00:12:49] Speaker 00:
So I think the lack of that case certainly doesn't mean this court can't reverse an upward variance on the same theory.

[00:12:57] Speaker 00:
And in fact, I think in a case like this one, it's necessary.

[00:13:03] Speaker 04:
What about the Texas charges and conduct?

[00:13:06] Speaker 04:
That's something the district court relied on.

[00:13:10] Speaker 00:
Yes, the district court did mention that conduct, which is something that it was in her discretion to do.

[00:13:16] Speaker 00:
But again, that conduct, she never explained how that conduct sets him into either theoretical criminal history category six or at the statutory maximum.

[00:13:28] Speaker 00:
He also hasn't been convicted of those charges yet.

[00:13:31] Speaker 04:
Did the district court get that wrong or do I have it wrong?

[00:13:35] Speaker 04:
The timing as far as when the Texas conduct had occurred versus this arrest?

[00:13:41] Speaker 00:
Yes, I believe she did get that wrong because it happened after this arrest or is alleged to have happened.

[00:13:51] Speaker 04:
Does that matter?

[00:13:52] Speaker 04:
Is that a reason to send it back or not?

[00:13:56] Speaker 00:
I don't think that's a reason for reversal now because it is the

[00:14:00] Speaker 00:
it is something that she could consider.

[00:14:04] Speaker 00:
But the amount of weight or the important point is that it can't justify the extent of the variance imposed, especially without further explanation.

[00:14:17] Speaker 04:
Can I ask you on Garcia where you have gun offenses and look at the sentencing commission data and it says for felon possession or something?

[00:14:25] Speaker 04:
Average sentence is X and then defendants try to compare and say, I got worse than that.

[00:14:30] Speaker 04:
Substantive, unreasonable.

[00:14:32] Speaker 04:
This one is more precise, which is to say 2S1.3, the guideline, total offense level 17, which I think means acceptance of responsibility to get an odd number, and criminal history 1.

[00:14:46] Speaker 04:
So you have a very narrow group of people who presumably have a whole lot more in common than gun offenders.

[00:14:55] Speaker 04:
I haven't seen a case that has dealt with that on substantive reasonableness, where it's zeroed in so tightly, and whether doubling a sentence from the top end would be substantially unreasonable in view of that.

[00:15:11] Speaker 00:
I say I'm out of time.

[00:15:13] Speaker 00:
May I?

[00:15:14] Speaker 00:
Yes.

[00:15:14] Speaker 00:
So I just want to clarify.

[00:15:21] Speaker 00:
The small pool, are you asking how the relatively small pool impacts the question of substance of unreasonableness?

[00:15:29] Speaker 04:
I'm saying he's in that small pool.

[00:15:32] Speaker 04:
Between 2018 and 2022, there are 70 defendants sentenced under that guideline who have a total offense level 17, criminal history 1.

[00:15:41] Speaker 04:
The average sentence is 13 months.

[00:15:44] Speaker 04:
And he got 60.

[00:15:46] Speaker 04:
Now, I understand Garcia is not a lot of help because

[00:15:50] Speaker 04:
There's such a wide range of offenders under the umbrella of gun offenders.

[00:15:57] Speaker 04:
But this is a tiny, tiny umbrella, which is to say the 70 defendants that we're talking about have a lot in common to land on criminal history one and total offense level 17.

[00:16:13] Speaker 04:
So I'm wondering if there's any authority that says, well, when you narrow that sentence and commission,

[00:16:19] Speaker 04:
date it down to that point, then you really better have a good explanation for doubling the sentence.

[00:16:27] Speaker 00:
Right.

[00:16:27] Speaker 00:
I mean, I don't know off the top of my head of any authority that expressly says that, but I think it does underscore the point, which is that to get into that cell, that's because of the loss table, essentially, that he got there because that's what put him in such a high offense level.

[00:16:44] Speaker 04:
And all of the other defendants are going to be similar.

[00:16:47] Speaker 00:
Right.

[00:16:48] Speaker 00:
Right.

[00:16:48] Speaker 00:
Exactly.

[00:16:50] Speaker 00:
to go so far outside of that, then, without looking at the comparative data or without pointing to a case where, because, I mean, like this case, this court's case, Lente, talks about where a sentence might be substantively reasonable based on policy disagreements with the guidelines or underrepresented criminal history.

[00:17:09] Speaker 00:
And the reason it was reasonable is because there was, the court could point to evidence of other people that were similar, that had similar records.

[00:17:19] Speaker 00:
where a variance was warranted.

[00:17:21] Speaker 00:
And that doesn't seem to exist here.

[00:17:23] Speaker 00:
If it did, I think we'd be having a different conversation.

[00:17:29] Speaker 04:
So no cases that you're aware of?

[00:17:31] Speaker 00:
No, I don't think so.

[00:17:34] Speaker 00:
Thank you.

[00:17:34] Speaker 03:
Mr. King?

[00:17:45] Speaker 01:
Good morning, Your Honors.

[00:17:47] Speaker 01:
May it please the Court, my name is Amel Keeney.

[00:17:49] Speaker 01:
I'm here for the United States.

[00:17:51] Speaker 01:
And I don't know where you want to start first, but I'll just start going through defense counsel's points unless you want to go somewhere else.

[00:18:00] Speaker 01:
I think for the first argument was that the district court's upward variance was really reliant on the number of times that Mr. Guevara-Lopez committed this offense.

[00:18:12] Speaker 01:
And while that certainly was an important factor,

[00:18:14] Speaker 01:
and one of the driving factors.

[00:18:16] Speaker 01:
The district court sentence is really based on three different things.

[00:18:20] Speaker 01:
It's the number of times, the amount of money, and the culpability of the offense as expressed by his remarks at sentencing.

[00:18:29] Speaker 01:
What was the government's recommendation?

[00:18:31] Speaker 01:
Sorry to interrupt.

[00:18:32] Speaker 01:
Government's recommendation was for a guideline sentence.

[00:18:34] Speaker 01:
Low end or just within?

[00:18:36] Speaker 01:
I think we just said within, Your Honor.

[00:18:38] Speaker 01:
I know we filed a memorandum.

[00:18:41] Speaker 01:
I think we just said within.

[00:18:43] Speaker 01:
And at the sentencing, we did say just within the range.

[00:18:47] Speaker 01:
So the culpability that I'm talking about is the defendant's admissions during the sentencing hearing that, yes, he knew full well that the cartels used this money to fuel violence in Mexico and that this hurts people.

[00:19:02] Speaker 01:
But he didn't really consider that when he was doing the, he didn't think much about it because he wanted the money at the time.

[00:19:09] Speaker 02:
Council, one thing that strikes me as odd as I was reading the sentencing transcript is how much of the information was distracted by the judge's questioning.

[00:19:19] Speaker 02:
The government here, sentencing memo is pretty bland.

[00:19:23] Speaker 02:
As you just says, within the guideline range, it doesn't really go beyond anything that's stated in the pre-sentence report.

[00:19:29] Speaker 02:
It doesn't argue any of the harm, you know, with cartels and violence.

[00:19:32] Speaker 02:
There's no evidence of any of that.

[00:19:33] Speaker 02:
It may allude to it, but it doesn't really press that point.

[00:19:36] Speaker 02:
But yet the court here really pressed the defendant.

[00:19:41] Speaker 02:
She vigorously questioned the defendant on all these points in a very leading manner.

[00:19:45] Speaker 02:
Is that customary in the District of New Mexico, or would you say this sentencing transcript kind of reads to you to be somewhat of an outlier?

[00:19:54] Speaker 01:
I don't think most judges do question defendants in this way.

[00:19:58] Speaker 01:
I mean, some of them will ask follow-up questions during an allocution.

[00:20:04] Speaker 01:
I think this district judge does tend to question defendants more than others.

[00:20:10] Speaker 01:
I've seen a number of her cases, and I think she does that.

[00:20:13] Speaker 01:
But there's no claim here that she acted improperly by doing that.

[00:20:19] Speaker 01:
I think that the main facts that

[00:20:23] Speaker 01:
were of concern to defense counsel below, and that might have some force.

[00:20:28] Speaker 01:
I'm sorry, Judge Hartz, were you going to ask me something?

[00:20:31] Speaker 01:
OK.

[00:20:32] Speaker 01:
Is that this was the defendant's first conviction, criminal conviction of any kind, and his youth.

[00:20:40] Speaker 01:
And the district court, though, did consider those factors.

[00:20:44] Speaker 01:
She explicitly says, I acknowledge this is his first criminal conviction.

[00:20:48] Speaker 01:
I acknowledge he's very young.

[00:20:51] Speaker 01:
But I still think these other factors weigh more heavily in my analysis.

[00:20:57] Speaker 01:
And just because he's not a typical... She didn't say this specifically, but on these facts, he's not a typical first-time criminal offender.

[00:21:05] Speaker 01:
He's someone who's admitted, I did this 25 or 30 times without getting caught.

[00:21:10] Speaker 04:
He volunteered that as part of cooperation originally, I gather.

[00:21:14] Speaker 04:
They took him into the shop and... He did.

[00:21:17] Speaker 04:
And so he's regretting having opened his mouth because it

[00:21:21] Speaker 04:
double his sentence at least.

[00:21:23] Speaker 01:
I suspect he might.

[00:21:25] Speaker 01:
I mean, he's not arguing, though, that he was forced to make those statements or that there was any misconduct on law enforcement's parts in receiving his admissions.

[00:21:36] Speaker 01:
He didn't file any suppression motion.

[00:21:39] Speaker 02:
No, but is it fair to say or accurate that the only evidence that supported the relevant conduct for the loss amount was the statements that he made to law enforcement post-arrest?

[00:21:51] Speaker 01:
I think that's fair to say.

[00:21:52] Speaker 01:
He admitted he usually took more than he was caught with this time.

[00:21:58] Speaker 01:
He was caught with something like $60,000 or $61,000.

[00:22:02] Speaker 01:
And he said, usually I carry between $100,000 and $118,000.

[00:22:06] Speaker 01:
But that was the only evidence.

[00:22:08] Speaker 01:
And at that time, he didn't admit, I know what the cartels do with the money.

[00:22:15] Speaker 01:
He said, I admit that I know this is from drug proceeds.

[00:22:19] Speaker 01:
But then at the sentencing hearing is where he admits, yeah, I knew all along what they did with this money, and it didn't stop me.

[00:22:27] Speaker 01:
So while it's unusual for a first-time offender for a district court to impose an upward variance like this on a first-time offender, I don't think it satisfies the standard.

[00:22:45] Speaker 01:
Her decision to do so satisfies the standard

[00:22:48] Speaker 01:
of a substantively unreasonable sentence, which is, is the district court's sentence irrational or whimsical in some way?

[00:22:59] Speaker 02:
What about if she relied on something that was inaccurate?

[00:23:03] Speaker 02:
And I think the government in sentencing mellow explained to the district court that it was worth noting that the defendant committed this offense, the smuggling of cash, when he had two pending.

[00:23:17] Speaker 02:
Cases in El Paso County and then I think the district court and make sure I'm right about this.

[00:23:24] Speaker 02:
Yeah, she says you did it.

[00:23:26] Speaker 02:
I mean you have pending state cases, right?

[00:23:28] Speaker 02:
So you've already been in trouble and you still did this.

[00:23:31] Speaker 02:
In other words, she considered she may be able to consider he had pending cases in the in the state.

[00:23:38] Speaker 02:
But her justification for why they had any relevance to her sentence was was wrong.

[00:23:43] Speaker 02:
It was false.

[00:23:44] Speaker 02:
He had not committed the offense for which he was being sentenced subsequent to the other state pending cases.

[00:23:51] Speaker 02:
So how do we factor that in?

[00:23:53] Speaker 01:
Well, on the first thing you said, Your Honor, maybe I don't have the government's sentencing memorandum in front of me.

[00:24:01] Speaker 01:
I don't remember the government saying that he had been arrested.

[00:24:06] Speaker 02:
On page 4, it is also worth noting that the time the defendant committed the incident offense, he had two pending 2023 cases in El Paso.

[00:24:14] Speaker 02:
Texas District Court for Drug Trafficking and Alien Smuggling.

[00:24:17] Speaker 02:
And then it references the PSR.

[00:24:19] Speaker 01:
And that's in our sentencing memorandum?

[00:24:21] Speaker 01:
At page four.

[00:24:21] Speaker 01:
OK.

[00:24:22] Speaker 01:
No, that's incorrect.

[00:24:24] Speaker 01:
And the district court was wrong to say that.

[00:24:28] Speaker 01:
We were wrong to say that.

[00:24:29] Speaker 02:
So how do we sort of factor that into the soup here?

[00:24:32] Speaker 01:
Well, I've thought about that.

[00:24:33] Speaker 01:
And the thing is that this is a ground on which

[00:24:40] Speaker 01:
Defendant could oppose the sentence, could say the sentence is substantively unreasonable, but he didn't raise it in his opening brief.

[00:24:49] Speaker 01:
We're the ones who pointed out the mistake in our answer brief.

[00:24:53] Speaker 01:
Could have said in his reply brief, look, this is a plain error, because this court does.

[00:24:59] Speaker 01:
I mean, sometimes this court will say, on a reply brief, we're not going to consider a plain error, but the court has discretion to do that.

[00:25:06] Speaker 01:
And then even today, defendant has said,

[00:25:10] Speaker 01:
defense counsel said, I'm not relying on that as a ground for reversal.

[00:25:13] Speaker 01:
I think, based on the party presentation principle, at least, that the defendant has abandoned that as a claim.

[00:25:20] Speaker 03:
I think the claim would be stronger with that claim, but they have... Are you conceding that it would be worse for him to have committed this offense after being arrested

[00:25:38] Speaker 03:
or committing other offenses in El Paso, then it would be for him to commit the offenses in El Paso after he'd been arrested for these offenses.

[00:25:47] Speaker 01:
I'm not sure that it's worse necessarily.

[00:25:50] Speaker 01:
I don't know.

[00:25:52] Speaker 01:
I think you can make a case that they're both pretty bad.

[00:25:55] Speaker 01:
But if the claim was going, what I'm referring to is if the defendant had claimed, look, the district court's decision is wrong because the district court got this fact wrong.

[00:26:06] Speaker 01:
That would be a stronger claim.

[00:26:08] Speaker 01:
But the defendant is abandoning that claim.

[00:26:09] Speaker 01:
I mean, I understand that they may have very good reasons for doing that, of which I'm unaware.

[00:26:17] Speaker 01:
I don't know what else to say about that, except that it's not before the court.

[00:26:20] Speaker 02:
I was going to say, I suspect, that the arrest that gave rise to his statements and the relevant conduct was in 2021.

[00:26:27] Speaker 01:
That's right.

[00:26:27] Speaker 02:
But then it's in May of 2023 that he gets arrested by the state on the state counts.

[00:26:32] Speaker 02:
But then he's not indicted federally until June of 2023.

[00:26:36] Speaker 01:
In March and May, I think there were two different Texas arrests, and then the next month, he was indicted.

[00:26:43] Speaker 02:
Can I assume that's because that's sort of when he comes onto the radar of the federal authorities once he's been arrested?

[00:26:48] Speaker 01:
That's what I assume too, but I don't see anything in the record that explains why we didn't charge him until two years after.

[00:26:55] Speaker 01:
I mean, he wasn't even arrested.

[00:26:56] Speaker 01:
Well, he was taken to... I'm thinking he was taken to HSI when he was first found with the cash, the office in Las Cruces.

[00:27:05] Speaker 01:
It seems like he was let go at that time.

[00:27:07] Speaker 03:
But he was arrested.

[00:27:08] Speaker 03:
Would you say taken to the office?

[00:27:10] Speaker 01:
Yeah, I think that would count as an arrest.

[00:27:12] Speaker 01:
I think the PSR says detained, but I mean, they take him there against his will, so I think that would be an arrest.

[00:27:18] Speaker 04:
And he's very talkative, and then he's not confined, which sounds like cooperation, which fell apart at some point, and therefore two years.

[00:27:26] Speaker 04:
It's all speculation.

[00:27:28] Speaker 01:
I don't know, Your Honor.

[00:27:29] Speaker 04:
You're the person who knows.

[00:27:29] Speaker 04:
I don't know.

[00:27:30] Speaker 01:
I actually don't know.

[00:27:31] Speaker 01:
I just reviewed the record.

[00:27:33] Speaker 01:
I didn't go look at the whole file of everything, just the appellate record.

[00:27:39] Speaker 01:
Another point that my colleague made was that something about the district court's remarks contradicts the minor role finding.

[00:27:50] Speaker 01:
And I just wanted to point out that's not a claim that has been raised in the briefing, so I don't think that's before the court.

[00:27:58] Speaker 01:
I'm not sure I've thought through what I would say about that, but I don't really think there's anything

[00:28:03] Speaker 01:
district court said that would contradict that.

[00:28:08] Speaker 01:
We've talked about the Texas charges.

[00:28:13] Speaker 01:
I think I've responded to what, oh, Judge Phillips, you mentioned, I think at the very end, you were asking whether there's a case law about whether the number of defendants who are in a certain cell have the same

[00:28:33] Speaker 01:
criminal history category and offense level.

[00:28:36] Speaker 01:
And guideline.

[00:28:37] Speaker 01:
Right.

[00:28:38] Speaker 01:
If they have the same guideline range and the same primary guideline, if the number of defendants within that category affects the analysis in some way.

[00:28:51] Speaker 04:
What I'm asking is, because you have this tight guideline, 2S1.3, and then it refers back, I think, to B1.1 for the total amount of the dollars and so forth.

[00:29:03] Speaker 04:
There just aren't that many pieces that add up to the total offense level.

[00:29:07] Speaker 04:
It ends up an odd number, so I think it's three for acceptance.

[00:29:11] Speaker 01:
You got acceptance, yeah.

[00:29:13] Speaker 04:
And these 70 people over the course of those four years are going to be very tight as far as it's hard to have an outlier if they're all criminal history one, where one is a rampant criminal, or it's hard to have an outlier where somebody only had $20,000 or instead

[00:29:32] Speaker 04:
was $20 million, and they're all pretty similar.

[00:29:36] Speaker 04:
And therefore, doesn't that count as far as what's substantive reasonable when you start going from 24 low end to 60 max, as opposed to just all gun offenders?

[00:29:48] Speaker 04:
When there's tens of thousands and so forth.

[00:29:50] Speaker 04:
If I came in and I said, I got eight years for felon in possession, I'm outraged because the average sentence is five years, but I'm a criminal history six, and I threatened someone with a firearm.

[00:30:01] Speaker 04:
All of those things, you can't really compare.

[00:30:04] Speaker 04:
But this one, it seems like, I don't know how you can compare it any better than to have that tied to the guideline and circumstance.

[00:30:11] Speaker 01:
The amount of money.

[00:30:12] Speaker 01:
Except that guideline, it doesn't count the number of times.

[00:30:16] Speaker 01:
It doesn't talk about the time.

[00:30:18] Speaker 04:
That one I'm confused by, because as I said, to have 25 or 30 trips of a lesser amount seems more innocuous

[00:30:27] Speaker 04:
than having one trip with $2.75 million because they're not just going to hand over $2.75 million to someone.

[00:30:33] Speaker 04:
It's going to be obviously you've been involved in a lot of criminal activity if you're that trusted.

[00:30:41] Speaker 04:
So that's my point.

[00:30:43] Speaker 01:
I think that could support an upper variance as well, but I think there's still a lot of copability with doing it a lot of times because if you're carrying small amounts of cash,

[00:30:55] Speaker 01:
perhaps the thinking is that you're less likely to be discovered.

[00:30:59] Speaker 01:
So I think you make an argument that there may be different strategies that the cartel has in doing this and they may reflect, but I think just because it's a different strategy than giving one guy two or three million dollars, I don't think that the district court

[00:31:20] Speaker 04:
Measurement of culpability necessarily has to be any less because the sentencing Commission data doesn't specify how many trips that knows that's not an offense characteristic But my guess is there aren't too many who are out there a cop with two point seven five million in other words what this defendant confessed to doing is Probably pretty standard.

[00:31:41] Speaker 01:
I would guess it might be and then in the there may be cases I think it would in a lot of cases.

[00:31:47] Speaker 01:
It's probably difficult for us to prove that

[00:31:50] Speaker 01:
But here, the district court had that information before that this defendant didn't just commit a crime one time or two times, but made a decision over a six-month period to commit this crime 25 to 30 times, and that this was something that was very concerning to her, and I think that's very reasonable to be concerned about that.

[00:32:09] Speaker 01:
Unless the court has any other questions, we would ask you to affirm.

[00:32:26] Speaker 03:
See what you can do in 30 seconds.

[00:32:34] Speaker 00:
Just on the Texas convictions, what I'd like to say is that no matter how they counted or when they occurred, those two convictions wouldn't place my client in a guideline cell that would be close to 60 months, even if they both somehow got three points.

[00:32:51] Speaker 00:
So that's why no matter how she treated them, it still doesn't

[00:32:56] Speaker 00:
warrant the sentence from a substantive point of view.

[00:32:59] Speaker 00:
The other thing I just want to mention about the loss and the number of times is that the guidelines say in the grouping, in the commentary, that they are not especially meaningful for purposes of sentencing the number of times.

[00:33:11] Speaker 00:
He was sentenced as if he smuggled the very most highest amount in the loss table.

[00:33:17] Speaker 00:
Thank you.

[00:33:19] Speaker 03:
I have one question just to remind.

[00:33:20] Speaker 03:
He was sentenced to five years?

[00:33:22] Speaker 00:
60 months, yes.

[00:33:24] Speaker 03:
And what's the?

[00:33:25] Speaker 03:
High-end of the guideline range for him.

[00:33:29] Speaker 00:
I think it was 30 24 to 30 20 it was 30 months.

[00:33:33] Speaker 03:
Yeah Thank you Thank you counsel case submitted counselor excused