[00:00:00] Speaker 02:
24-2136, United States versus Heyman.

[00:00:05] Speaker 02:
Ms.

[00:00:05] Speaker 02:
Johnson.

[00:00:07] Speaker 01:
May it please the court, JK Fyodosia Johnson on behalf of Ms.

[00:00:10] Speaker 01:
Heyman.

[00:00:12] Speaker 01:
The person running principle governs sentencing that has to be sufficient but not greater than necessary, and the maximum sentence is reserved for the worst offenders, the ones who are most culpable.

[00:00:24] Speaker 01:
Ms.

[00:00:24] Speaker 01:
Heyman, who has an IQ of 63, believed a parody website was real.

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cannot live alone as a plenary garden is not the worst of the worst.

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The district court failed utterly to consider how an intellectual disability affected all the sentencing factors, and it does affect them all.

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It affects retribution because

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intellectual disability is inherently mitigating and it reduces culpability.

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It affects deterrence because, again, the intellectual disability affects cognition and your ability to reason things out.

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And it affects deterrence in that general population is not going to have the same reaction to a

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to a punishment for an intellectually disabled individual as it does for themselves.

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They do see themselves as categorically different.

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Now we've repeatedly said we don't reweigh the factors.

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So you'd have to show that the court, wouldn't you have to show that the district court simply didn't consider this?

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Yes.

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And I think that when you sent us it to the statutory maximum without ever discussing it, we did show that

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the judge never considered Ms.

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Heyman's intellectual disability.

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We're not asking this court to say, to reweigh it.

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We're asking them to look at it in light of the fact that she never mentioned it and that it is inherently mitigating.

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The Supreme Court has told us that.

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And with that information, she, at the very least, should have said, I find that even though she has intellectual disability, her culpability is less.

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Her culpability is less for this crime.

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But also, she relied almost solely on dangerousness, which derived from stereotypes of those with intellectual disability instead of any sort of actual testing to show dangerousness.

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And that any of these, she says, these prior acts didn't result in convictions, but they didn't even result in arrests.

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I mean, the one time that she managed to do anything

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When she went to Mexico, as soon as she was confronted with any sort of deterrence, that's not quite the right word, but she immediately turned around and left, but she needed help to leave because she had already left her ID somewhere.

[00:02:52] Speaker 01:
This is not someone who is dangerous.

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The government kept pointing to, she kept contacting this parody website, but you're using the very

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intellectual problem, intellectual disability that Atkins has told us is mitigating as evidence of dangerousness.

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I'm looking at the sentencing transcript and really there was a fulsome discussion of the defendant's history and the defendant participated in much of the colloquy

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So I mean, we're not looking at this in a void.

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It really looks like a solid back and forth between the defendant, the defendant's lawyer, and the court.

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And a lot of these cases, we don't really see that.

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They're much more perfunctory.

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Where do you think Judge Strickland went off the rails here?

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Because the developmental disability was front and center as part of the presentation.

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So it's not like,

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she didn't, you know, she ignored it.

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It was part of the context of the entire sentencing hearing.

[00:04:07] Speaker 01:
Well, I think one of the things in the Atkins talks about is that those with intellectual disability have difficulty with expressive and respective language, and that very often that sort of translates into lack of remorse, which I think Strickland took from this, and a just general

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reliance on instead of what we actually know about intellectual disability of stereotypes of what what we think it should look like or has looked like in the past.

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And like, again, the Supreme Court has said that you need to look at what it actually does and what it actually is and the scientific basis of intellectual disability and how it affects their actions.

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I mean, remember that she had a plenary guardian when she tried to actually go and meet with the alleged hit man, she she couldn't

[00:04:57] Speaker 01:
escape her caretaker.

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Her caretaker prevented her from going there and told the alleged hitman that they had already called the police.

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This is not your worst of the worst of the person that use the interstate commerce for murder for hire is designed to get at.

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I mean, they passed it to reach mafia hitman.

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She's as far from a mafia hitman as it's possible to get.

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I mean, she's just

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If the statutory maxima is reserved for the most culpable, she needed to explain why this person who believed a parody website that is over the top and is designed to be so was actually real and who has a plenary guardian, has never lived on their own, will never live on their own, deserves the same sort of

[00:05:52] Speaker 01:
punishment as one who is fully cognitively aware and went out and contracted for someone to kill an individual.

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I mean, it's really, it boils down to like, yes, it was in the, I'm sorry, Judge McHugh, are you asking a question?

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Your Microsoft, Judge McHugh.

[00:06:21] Speaker 02:
Judge McHugh, you look like you're speaking, but your mic is off.

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Can't hear you.

[00:06:34] Speaker 00:
It said the host had to unmute me.

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I think you muted me, Harris.

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Thank you.

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We did that on purpose.

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OK, my question is, where the court did go through the 3553A factors, how much discretion do we have?

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I mean, even if we, you know, we might have sentenced differently, how much discretion do we have here?

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to reweigh those factors and say that the intellectual disability here should have been weighed more heavily?

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So one of the problems, obviously, is that it gets murky between procedural and substantive reasonableness.

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And when you're left in the zone of speculation about what weight or consideration a factor was given,

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exactly where we are right now.

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You have to reverse for further discussion for resentencing.

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And in cases like Crosby and Cookson, where they're kind of lost over, they're like, I find that it's necessary for deterrence, but don't discuss how it deters either that specific individual or more general individuals.

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This court has said that's not sufficient.

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And I think that's

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where we are here.

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I mean, everything about this thing had to be looked through the lens of intellectual disability and it needed to be at least acknowledged.

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And she never said the words intellectual disability in talking about it.

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And when she's the first factor, right, it goes to retribution.

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And we know that they're less culpable is inherently mitigating.

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The Supreme Court has told us that over and over.

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And in that background, you have to at least say,

[00:08:29] Speaker 01:
She, you know, even with all this, you know, inherently mitigating stuff, I think she's still culpable, culpable as the worst of the worst because X, Y, and Z, but X, Y, and Z don't really exist here.

[00:08:42] Speaker 01:
So it's not that we're asking you to reweigh it.

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You have to look at the entire thing through the lens of intellectual disability.

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And there's no evidence that she did that.

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So is this a procedural error?

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Did you, did you raise, did you,

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Did defense counsel in district court say you have not given an adequate explanation?

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No, and he did say when she asked, no, but he did continue to immediately argue about the sentence.

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I also think that given Ms.

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Heyman's status, I think it's

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unfair to impart that knowing an intentional waiver to her, but also it's right.

[00:09:28] Speaker 02:
We're talking about forfeiture, which is not necessarily intentional.

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The question is whether we review for plain error in this regard.

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You would have to revert for plain error, but it's really on that line.

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because we know that procedural reasonableness bleeds into substantive reasonableness.

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It gets a little murky because it's the adequacy of the explanation.

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And can we engage in good review and in appellate review?

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And I think that's lacking here.

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And the first circuit found itself in the exact same position and said, this isn't really a procedural problem.

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It's so invasive and it's the mitigating factor that it is substantive.

[00:10:14] Speaker 01:
It's not procedural.

[00:10:16] Speaker 00:
What case are you referring to there?

[00:10:19] Speaker 01:
It's Colon Codero.

[00:10:20] Speaker 01:
I don't have the citation right off the top of my head, but I did cite it in the reply brief and I can't... I mean, if you look... So Dr. Abil, who was the BOP doctor, never opined on dangerousness or even the offense.

[00:10:42] Speaker 01:
But Dr. Kaufman, who had extensive experience with Ms.

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Heyman, pointed out how ridiculous this is, right?

[00:10:49] Speaker 01:
Because on the face of it, it sounds serious, right?

[00:10:52] Speaker 01:
She tried to contact a hitman multiple times.

[00:11:00] Speaker 01:
She'd met with them, all that.

[00:11:01] Speaker 01:
But when you look at what it actually is, it's, as Dr. Kaufman said, ridiculous.

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I'm going to reserve the remainder of my time because I'm essentially just repeating myself.

[00:11:18] Speaker 02:
I think you're right.

[00:11:21] Speaker 02:
I think we understand what you're arguing.

[00:11:25] Speaker 02:
Thank you, counsel.

[00:11:29] Speaker 02:
Ms.

[00:11:29] Speaker 02:
Messick.

[00:11:32] Speaker 04:
Good morning, Your Honors, and may it please the court, Paige Messick for the United States.

[00:11:37] Speaker 04:
Heyman's 10-year sentence for attempting to have a woman violently murdered was reasonable in every way.

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And I'll jump back in where you all just left off with substantive reasonableness.

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The district court imposed a sentence of reasonable length under the 3553A factors.

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Having a mild intellectual disability does not compel a district court to conclude that a defendant deserves a downward variance from the guideline range, not when the crime is so serious and the defendant has a history of putting other dangerous plans into action.

[00:12:15] Speaker 00:
Let me ask you a specific question.

[00:12:18] Speaker 00:
When looking at the transcript from the sentencing hearing, does the court specifically discuss the impact of the intellectual disability on the evaluation of the 3553A factors?

[00:12:36] Speaker 04:
No, Judge McHugh, the district court did not specifically address intellectual disability on the record.

[00:12:41] Speaker 00:
Do you think that it needed to, under some of the Supreme Court authority, about how important that is in assessing culpability?

[00:12:52] Speaker 04:
No, I don't think that the district court was required to address that on the record, either under those Supreme Court cases or under this court's precedent about what a district court has to specifically say in imposing a guideline sentence, because

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It's obvious from the sentencing record what Judge Strickland was concerned with.

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Judge Strickland was very well aware of Heyman's intellectual capacity.

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Judge Strickland had presided over a full-day hearing on competency earlier in the case, started the hearing by saying, I've considered your arguments, ended the hearing by saying, I've considered your argument for no more time.

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And the intellectual disability was the course

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piece of that argument, as Judge Timkovich said, this issue was front and center.

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And so when the district court says, I'm really concerned that you're a danger to the community, I'm concerned with some of this stuff in your history, and this crime is an extremely serious one, and then gives a sentence at the statutory maximum, you can tell that Judge Strickland has determined that Heyman's intellectual disability does not outweigh or does not neutralize those other factors.

[00:14:03] Speaker 04:
So it may be inherently mitigating, at least part of it is, at least part of the intellectual disability has an inherent mitigating effect on culpability, for instance, but it can also have

[00:14:18] Speaker 04:
An effect that offsets that in the way that the intellectual disability may affect Taman's ability to exercise good judgment.

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And so the district court certainly is within its discretion to conclude that that this disability does not outweigh these other important factors.

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And I don't think that it has to say so on the record either.

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Well, how would you distinguish Cologne Court Darrow then?

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Cologne is a very different case, first, because there was a lot more explanation in this case than was on the record in Cologne.

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And also, Cologne is an upward variance.

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And that makes a huge difference, because there are two different frameworks for what a district court has to say in explaining a sentence that depend on whether the sentence is a guideline sentence, as we have here, or is an upward variance, as was the case in Cologne.

[00:15:12] Speaker 04:
If the district court imposes an upward variance, the district court has to address on the record every non-frivolous argument that the defendant makes for mitigation, every material non-frivolous argument.

[00:15:26] Speaker 04:
And so if this were an upward variance, we might have an insufficient explanation.

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But it's not.

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It's a guideline sentence.

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And it's a guideline sentence where the guideline was already lowered substantially to the statutory maximum.

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But the entire framework that the First Circuit applied in Cologne is not the right framework to apply here.

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This court should apply Núñez Carranza and all of the cases that talk about the amount of explanation that's necessary for a guideline sentence.

[00:16:00] Speaker 04:
I would also like to touch on the forfeiture and waiver point here.

[00:16:06] Speaker 04:
We don't just have a forfeiture of this issue.

[00:16:09] Speaker 04:
We have an affirmative waiver because defense counsel, in response to a direct question from the district court about the adequacy of its explanation, responded, Your Honor, I do not object to the adequacy of your explanations.

[00:16:25] Speaker 04:
And when you say that, you shouldn't be able to object on appeal to the adequacy of the explanations.

[00:16:31] Speaker 04:
This is not the sort of question that we sometimes see, a general question at the end of a sentence in hearing where a district court says, any further objections?

[00:16:42] Speaker 04:
Seeing none, we're adjourned, right?

[00:16:44] Speaker 04:
This wasn't that.

[00:16:45] Speaker 04:
This was direct and it was targeted.

[00:16:48] Speaker 00:
And if this- In this case, immediately after saying that, defense counsel pivots to the main argument.

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And don't we have some authority, Zubia, Torres,

[00:16:59] Speaker 00:
that suggests when council does that, it's not necessarily that they're really intending the wave, they're just trying to pivot.

[00:17:10] Speaker 04:
I'm not familiar with that case, Your Honor.

[00:17:12] Speaker 04:
I would say here that what the defense counsel did was say, I don't have an objection to the adequacy of your explanations.

[00:17:19] Speaker 04:
That's what you just asked you, Judge Strickland, right?

[00:17:23] Speaker 04:
Let me move on and talk about the length of the sentence you just imposed, right?

[00:17:27] Speaker 04:
So I think this is an intentional, it is a pivot.

[00:17:31] Speaker 04:
It's a pivot to the place where the defendant still has an objection.

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If Judge Strickland cannot avoid

[00:17:38] Speaker 04:
a waiver by asking a specific question like this, then I would ask the court, please tell us what words would accomplish that kind of waiver, because it seems to me she is doing absolutely everything she can to elicit an objection at the time that she can still address it.

[00:17:55] Speaker 04:
And it doesn't seem efficient or fair to allow someone to answer this kind of very specific question about a narrow issue with no, I have no objection to that, and then turn around and raise the exact objection that they've just disclaimed when they're on appeal.

[00:18:14] Speaker 04:
So if this isn't enough for a waiver,

[00:18:17] Speaker 04:
I would just ask that the court try to provide us some more guidance, because we want to do what we can to get sufficient explanations out.

[00:18:24] Speaker 04:
Judge Strickland wants to do that.

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You can tell through her careful questioning.

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And so I think I've made my point there.

[00:18:36] Speaker 04:
We also had a question about the calculation of the guideline range in this case.

[00:18:39] Speaker 04:
I'm happy to rest on the briefs as far as that, unless the court has any questions.

[00:18:48] Speaker 04:
Moving back to the adequacy of the explanation, I think under Nunez Carranza, we clearly have an adequate explanation.

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In fact, we have more than what was required in that case.

[00:18:58] Speaker 04:
The district court here clearly entertained defendants' argument for a downward variance.

[00:19:02] Speaker 04:
She opened the sentencing hearing by saying, I've read your briefing.

[00:19:05] Speaker 04:
I've looked at the PSR.

[00:19:06] Speaker 04:
She then engages actively in the questioning during the sentencing hearing.

[00:19:12] Speaker 04:
She's expressly considered the 3553A factors.

[00:19:15] Speaker 04:
She says, she goes through them all in the record, not just as I've considered these factors, but actually goes through and pauses to elaborate on the factors that are the most important here to her decision.

[00:19:26] Speaker 04:
This is more than enough under Nunez-Carranza.

[00:19:29] Speaker 00:
I think what the argument is, if I'm understanding it, is that yes, she went through the factors, but she was supposed to look at those factors through the lens of

[00:19:41] Speaker 00:
the substantial intellectual disability of this particular defendant and there's nothing in the transcript that reflects that that was done.

[00:19:52] Speaker 00:
How would you respond to that argument?

[00:19:55] Speaker 04:
I think when Judge Strickland says, the things that really concern me are the seriousness of the offense and the danger that you present to the public and the other people that you have tried to harm in the past.

[00:20:06] Speaker 04:
Judge Strickland is necessarily saying, I don't think your intellectual disability keeps you from committing serious offenses and being a danger to the public.

[00:20:17] Speaker 00:
Well, I mean, you're inferring that.

[00:20:19] Speaker 00:
And I guess the question is, did we need something on the record?

[00:20:24] Speaker 04:
To tell us that she considered that I guess that is an inference, but I think it's a very strong 1 from the record and no, she doesn't need to do anything specifically to put.

[00:20:36] Speaker 04:
That on the record, the court's precedent is clear that in imposing a guideline sentence, the district court does not need to affirmatively reject on the record.

[00:20:45] Speaker 04:
each argument that the defendant makes for a downward variance.

[00:20:50] Speaker 04:
So there is no procedural requirement that Judge Strickland did that here.

[00:20:54] Speaker 04:
And I recognize that the explanation blends with the substantive reasonableness of the sentence because it assists this court's review.

[00:21:03] Speaker 04:
But I'm not aware of any case that has found that an explanation that is procedurally sufficient is nonetheless insufficient to enable

[00:21:15] Speaker 04:
meaningful appellate review.

[00:21:17] Speaker 04:
Here, there's no question why Judge Strickland is imposing this sentence.

[00:21:21] Speaker 04:
She's very familiar with Heyman.

[00:21:23] Speaker 04:
She's familiar with Heyman's intellectual capacities.

[00:21:28] Speaker 04:
She's read the briefing.

[00:21:29] Speaker 04:
She's considered the arguments.

[00:21:30] Speaker 04:
She's simply not persuaded.

[00:21:32] Speaker 04:
And I think that that's quite clear.

[00:21:35] Speaker 04:
And she even highlights the reasons that she thinks that 120 months is the absolute minimum

[00:21:41] Speaker 04:
that will meet these factors.

[00:21:43] Speaker 04:
I don't think anybody has been left in the dark here.

[00:21:52] Speaker 04:
If the court does not have any further questions, I'm happy to return the remainder of my time.

[00:21:57] Speaker 02:
Any further questions from the panel?

[00:22:00] Speaker 02:
Thank you, Ms.

[00:22:00] Speaker 02:
Messick.

[00:22:06] Speaker 02:
We're getting Ms.

[00:22:06] Speaker 02:
Johnson back on.

[00:22:07] Speaker 02:
I think she had a couple of minutes left.

[00:22:14] Speaker 01:
All right.

[00:22:16] Speaker 01:
So going back to the dangerousness, Judge Strickland cherry picked facts of this one trip to Mexico, where again, when she was actually met with real world resistance, she immediately did nothing.

[00:22:30] Speaker 01:
All the others were merely plans or exclamations of, you know, I really want to kill you, which directed at your mother-in-law may not be the most unique

[00:22:43] Speaker 01:
statement ever made.

[00:22:44] Speaker 01:
And then again, like, she says, you know, I'm given her behavior in this case and given her behavior in the past, but her behavior in this case is ludicrous.

[00:22:58] Speaker 01:
I mean, she couldn't escape her caregiver.

[00:23:00] Speaker 01:
She could never have gotten to Bayard, which is where the supposed victim lived, by herself.

[00:23:07] Speaker 01:
She never had a driver's license.

[00:23:09] Speaker 01:
She contacted a parody website over and over.

[00:23:13] Speaker 01:
You can't use the same evidence of intellectual disability, which is what that repeated contact shows as evidence of dangerousness.

[00:23:24] Speaker 01:
Atkins warns explicitly against that.

[00:23:27] Speaker 03:
On the waiver issue, the defendant's lawyer

[00:23:37] Speaker 03:
Ms.

[00:23:37] Speaker 03:
Poussaint specifically said, quote, Your Honor, I do not object to the adequacy of your explanations, close quote.

[00:23:46] Speaker 03:
Why isn't that pretty much a clear and unmistakable waiver of the challenge that you're making on appeal?

[00:23:56] Speaker 01:
Even if it is a waiver, we can still consider it as a substantive error in the sentencing.

[00:24:02] Speaker 01:
And if we find ourselves in the zone of speculation where I think we clearly are, it's substantively unreasonable.

[00:24:09] Speaker 01:
I do think I should have read the record a little more carefully there, but the immediate pivot to, you know, but 120 months is unreasonable in, I mean, I can hardly

[00:24:24] Speaker 01:
be pointing fingers at being inarticulate, but he doesn't say, you know, it's not the sentence.

[00:24:33] Speaker 01:
I can't remember exact words, but it was fumbled, which like I'm fumbling now.

[00:24:37] Speaker 01:
And I want to point out too, like with the cross-reference, any sentence is going to be above the guideline range.

[00:24:46] Speaker 01:
I can't remember exactly, but with that cross-reference, which they've applied in all cases, it's always going to be above the 120.

[00:24:54] Speaker 01:
statutory max and, you know, just going to return.

[00:24:59] Speaker 00:
Cross-reference, you were definitely on plain error, right?

[00:25:02] Speaker 01:
We were definitely on plain error in the cross-reference.

[00:25:05] Speaker 00:
And we don't have, I mean, there's no law, right?

[00:25:09] Speaker 00:
Nothing that would make it plain.

[00:25:15] Speaker 01:
No, not no.

[00:25:20] Speaker 01:
But I just, I'll just return to,

[00:25:22] Speaker 01:
The statutory max is supposed to be for the worst offenders who are most culpable and miss Haman is not that I would ask you to reverse and remand because the sentence is subsequently up and usable.

[00:25:31] Speaker 01:
It is manifestly unreasonable.

[00:25:34] Speaker 01:
Thank you.

[00:25:36] Speaker 02:
Thank you.

[00:25:37] Speaker 02:
Thank you counsel.

[00:25:39] Speaker 02:
That's our excuse cases submitted.