[00:00:00] Speaker 03:
The next matter before us today is 24-7082, United States versus Kimball.

[00:00:09] Speaker 00:
If it please the court and counsel.

[00:00:11] Speaker 00:
My name is Tim Kingston.

[00:00:12] Speaker 00:
I'm here on behalf of Mr. Darren Kimball in this appeal.

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Your Honor, the appellant is making a very modest argument in this case.

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We're not challenging the conviction of Mr. Kimball.

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guilty to the charge against him.

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And the only argument that we're making is that the district court, when it's sentenced, Mr. Kimball, incorrectly applied a four-level enhancement instead of a three-level enhancement.

[00:00:44] Speaker 03:
Don't we have a preliminary issue of whether the appellate waiver in the plea agreement should be enforced and whether a lack of transcript

[00:00:58] Speaker 03:
from that plea hearing means that we can't enforce it.

[00:01:04] Speaker 00:
Yes, Your Honor.

[00:01:05] Speaker 00:
It's a belated argument, I would say, on behalf by the government in this case.

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But it is a threshold issue, I would agree with the Court.

[00:01:11] Speaker 00:
Well, it's before us, isn't it?

[00:01:13] Speaker 00:
Yes, it certainly is.

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I'm not saying it's not before the Court.

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Here, as you just noted, Your Honor, there is no transcript for whatever reason of the change of plea hearing between

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the appellant and his counsel and the government.

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And so there's no way for this court to determine several different things.

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First of all, and primarily, whether Mr. Kimball's entering into the plea agreement that contained a waiver of his right to appeal was knowing and voluntary.

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Under the standard, as the court knows, under the rules, the government has the opportunity

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to move to dismiss a case to enforce the appeal waiver, but the rules require that a transcript be provided.

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This is when they make such a motion or when they do such a thing prior to merits briefing in the case.

[00:02:14] Speaker 03:
Well, but we can look at the appellate waiver itself to determine whether it was knowing and voluntary, can't we?

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You can, but I would argue, Your Honor, that in this case, yes, I agree.

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and have taken a position in our briefs that the waiver is within the scope of what we're dealing with here today.

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The two arguments that I'm making are we don't know whether the waiver was given knowingly and voluntarily by Mr. Kimball, and we also make the argument, or I make the argument on his behalf,

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there would be a miscarriage of justice in this case if the court were to enforce the appeal waiver.

[00:03:01] Speaker 01:
But are you challenging whether the waiver was knowing and voluntary?

[00:03:05] Speaker 01:
Because I read your reply to say, well, it says, there's no way for this court to determine if he voluntarily knowingly waived his appellate rights.

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But are you affirmatively asserting that he did not knowingly and voluntarily waive those rights?

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That is a fine point, Your Honor, and I recognize that's a difficult issue or argument specifically to make in this case.

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It didn't come up in the lower court, and we don't know that it came up in the lower court because of the lack of the transcript.

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I would at least argue that we don't know whether it was a voluntary

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relinquish of his right to appeal his sentence in this case.

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So we do challenge, and I will take the position on behalf of the appellant, that we do challenge whether it was knowing and voluntary.

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But we certainly don't know.

[00:04:01] Speaker 03:
Well, that's the first time I've seen that.

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It's not in your briefs.

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There's no challenge.

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There's a challenge to our ability to review.

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whether it was knowing and voluntary.

[00:04:13] Speaker 03:
But I looked pretty carefully, and I don't see anywhere in your briefing to us where you have claimed it was actually not knowing and not voluntary.

[00:04:24] Speaker 00:
Well, it's an ironic point, Your Honor, because in the circumstances with a lack of a transcript of the plea agreement, and I'm constrained by the record on appeal, I cannot point to something in the record that says,

[00:04:41] Speaker 00:
Mr. Kimball said, or his attorney said, it wasn't knowing and voluntary.

[00:04:46] Speaker 03:
Well, there's a procedure under the federal rules to deal with the lack of a transcript, isn't there?

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It's Federal Rule of Appeal Procedure 10C, where you can reconstruct the record if you want.

[00:04:58] Speaker 00:
That's correct.

[00:04:59] Speaker 03:
You didn't avail yourself of that.

[00:05:04] Speaker 00:
The following point I'm going to make is not in the record per se.

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I did contact Linda Epperly, who was the main appellant counsel for the Eastern District of Oklahoma on exactly that point.

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I had spoken to the attorney for Mr. Kimball in the district court, and he could not provide me any information with regard to that.

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I asked Ms.

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Eberle to look into the issue as well, and she said that she had nothing in front of her, no notes, no materials from her people in her office that would address that particular issue.

[00:05:47] Speaker 03:
Well, don't we have case law that says that in the absence of the record, we presume the regularity of the proceedings below?

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I will confess I'm not familiar with that.

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But that still doesn't get to the issue.

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We know in this case that at the sentencing hearing, the judge and counsel rightly points this out, that there was some reference to the appellate waiver.

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But it only goes to show whether he knew, Your Honor,

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that there was a appellate waiver in the case.

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But it says nothing about the voluntariness of his entering into that waiver.

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But don't you have the burden of proof in this posture to demonstrate that the defendant did not knowingly voluntarily enter into this appellate waiver?

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Yes, under the normal circumstances.

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But that presupposes that there is a record on which

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Well, I guess I'm suggesting, I'm not sure it does presuppose that.

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So maybe I'll ask it rather than state it.

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Who has the burden of proof to show that the appellate waiver was knowing and voluntarily entered into by Mr. Kimball in this posture?

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I would say it's the appellant's duty to show.

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But I know I'm repeating myself, and I apologize, Your Honor, but when we don't have anything in the record

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that's sufficient to demonstrate that his waiver was knowing and voluntary, then this court, I believe, should pass over the issue of enforcing the appellate waiver and get to the merits in the case.

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If I may turn to those.

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I believe it's fairly straightforward, Your Honors.

[00:07:40] Speaker 03:
So then turning to the merits.

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It's the whether there were stabbing motions, right?

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Correct.

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It really comes down to that, Your Honor.

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And the government makes a, I guess you can call it a threshold issue argument again, which is whether Mr. Kimball objected to the pre-sentence report and what it provided with regard to that specific issue.

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And the record is, I wish it were a better one with regard to the issue.

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I don't think it's fatal to.

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Mr. Kimball's argument or position with regard to this, but we know that the draft pre-sentence report took the position that Mr. Kimball takes today, that he only brandished the knife and did not, quote, otherwise use the knife.

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And so that was in the draft pre-sentence report.

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Mr. Kimball did not object to that because that was his position.

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The government then objects.

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And Mr. Kimball's attorney then filed a response to the government's objection.

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That was then heard.

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Then at that point in time, the final pre-sentence report came out.

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And in the final pre-sentence report, the probation officer adopted the government's position.

[00:09:01] Speaker 03:
Well, it's cited.

[00:09:02] Speaker 03:
It had statements from witnesses in there, right?

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That's correct.

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In the PSR?

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Yes.

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And those witnesses described stabbing motions.

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The witnesses described stabbing that.

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But at the sentencing hearing, the judge treated Mr. Kimball's position as an objection to the final pre-sentence report.

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And it's our position, Your Honor, and I think it's clear that under Rule 32G that if a defendant

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as here makes an objection to a pre-sentence report on the facts, which Mr. Kimball did, then there are several responsibilities that are then in place.

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One, it's then the government's burden to prove by the preponderance of the evidence that the enhancement on its facts ought to apply.

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And secondly, the judge has to make factual findings based on evidence presented to it by the government sufficient

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to show the government met its burden and that the enhancement ought to apply.

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Neither of those things happened in this case.

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After Mr. Kimball's objection was on the record, the government presented two photographs to the district court.

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And those photographs are still photographs.

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They don't show stabbing motions.

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Obviously, they couldn't because they're still photographs.

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And that's all that the government presented.

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Now, the government in its brief tries to, well, claims, and I'm not suggesting bad intent, but claims that there was a video that was considered by the district court at its sentencing that would show stabbing motions.

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No such video was presented to the court.

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So the government didn't present any evidence at all to the sentencing court.

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Rather, all it did was rely on what it previously had argued

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so to speak, with regard to the subjections of the PSR.

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And at that point in time, the sentencing court cannot rely on what is set forth in the pre-sentence report, rather as to consider competent evidence with regard to the particular issue.

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And this sentencing court did not have competent evidence presented to it with regard to that issue.

[00:11:21] Speaker 02:
Counsel, wasn't there testimony by an employee?

[00:11:26] Speaker 00:
Well, not testimony.

[00:11:27] Speaker 02:
Okay, recounted testimony.

[00:11:30] Speaker 00:
Well, it was in the pre-sentence report.

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Okay.

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But again, Your Honor, once an objection is made as here to a pre-sentence report, then the sentencing court can simply say, okay, I believe that part of the pre-sentence report.

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Rather, the judge has to take evidence.

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The government has to prove by a preponderance of the evidence that that evidence shows

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that there is evidence that shows that meets its burden to show that the enhancement ought to apply.

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That didn't occur in this case.

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Rather, the government made argument.

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The government pointed to the pre-sentence report, what it said, and sat down.

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And that was it.

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And that's not sufficient on which to base the enhancement in this particular case.

[00:12:20] Speaker 02:
Could you tell me why do you have authority for that point that the district court could not rely on the pre-sentence report?

[00:12:29] Speaker 00:
I think there's There's a plethora well rule 32g requires the court to take to factually determine whether what's once an objection is made whether and how it will apply was in the pre-sentence report and

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and the facts to the particular sentencing.

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So that's clear in the footage.

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I also, I'm sorry, I don't have the cases off the top of my head, but I believe I cited them in the brief, that the court has an obligation to and is required to make actual factual findings.

[00:13:04] Speaker 00:
If, as I said before, it's the government's burden of proof to show by the proponents of the evidence that the enhancement ought to apply, that means the judge has to have considered confident evidence.

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And here, all it had was a pre-sentence report in front of it.

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And at the risk of repeating myself again, that's not sufficient, Your Honor.

[00:13:23] Speaker 02:
Thank you.

[00:13:24] Speaker 00:
And I guess I'll reserve my last little bit of time.

[00:13:27] Speaker 00:
Thank you, Your Honor.

[00:13:27] Speaker 02:
Thank you.

[00:13:46] Speaker 04:
May I please the court?

[00:13:48] Speaker 04:
My name is Luke Rizzo.

[00:13:49] Speaker 04:
I'm an AOSA from the Eastern District of Oklahoma.

[00:13:51] Speaker 04:
The court should enforce the waiver of appellate rights in the plea agreement and dismiss the appeal.

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In the alternative, it should affirm the district court's application of the challenge sentencing enhancement.

[00:14:03] Speaker 04:
So as for the appellate waiver, in determining whether the waiver is enforceable, the court considers whether the appeal falls within the scope of the waiver, whether the defendant knowingly and voluntarily waived

[00:14:14] Speaker 04:
his appellate rights and whether enforcing the waiver would result in a miscarriage of justice.

[00:14:19] Speaker 04:
And can we decide that without a transcript?

[00:14:27] Speaker 04:
Yes, Your Honor, the court can decide that without a transcript and the government points to the evidence that the defendant knowingly and voluntarily waived his appellate rights.

[00:14:39] Speaker 04:
Part of that is the plea agreement document itself, the fact that the district court was advised about the waiver at sentencing and the defendant was present at that hearing.

[00:14:49] Speaker 04:
The defendant doesn't even really allege any error in the agreement whatsoever.

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Well, I guess not even now.

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And the terms of the plea agreement are clear.

[00:15:01] Speaker 04:
They were clear.

[00:15:02] Speaker 04:
They were unchallenged.

[00:15:03] Speaker 04:
I don't know if they are anymore, but the fact of the matter is there's also the case of the United States v. Atterbury, which the government cites in its brief.

[00:15:13] Speaker 04:
But the government points to as a case where there also wasn't a plea agreement transcript.

[00:15:19] Speaker 04:
And the court found it wasn't an issue based on other forms of evidence and the fact that, again, there's no real challenge here to the knowing and voluntariness of this waiver.

[00:15:35] Speaker 04:
Well, there wasn't in the briefs, but we just heard one made.

[00:15:38] Speaker 04:
There was one right now.

[00:15:40] Speaker 04:
But again, without elaborating on exactly what aspect of this was unknowing and involuntary, without that being explored and elaborated on, I don't know if the challenge has much merit.

[00:15:59] Speaker 04:
I mean, there's also the part of whether this is a miscarriage of justice.

[00:16:03] Speaker 04:
Again, these things aren't argued.

[00:16:06] Speaker 04:
What we really get down to is at sentencing, the defendant got up and said, well, I didn't try to stab anyone.

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I just brandished the knife.

[00:16:18] Speaker 04:
I mean, that's what really took place here.

[00:16:20] Speaker 04:
And so what the court did is it looked at the evidence the government submitted, which were those photographs

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know, the defendant with the knife in hand, but more importantly, the facts in the PSR.

[00:16:34] Speaker 04:
So the appellant is saying, well, those aren't really important or they shouldn't be considered, but the reality is the district court can rely on unchallenged facts in a PSR.

[00:16:45] Speaker 03:
Weren't they challenged?

[00:16:46] Speaker 03:
I mean, in the first version of the PSR,

[00:16:50] Speaker 03:
the defendant does not challenge, but then it was brandishing, not otherwise carried, otherwise used, right?

[00:16:59] Speaker 03:
But then on the second version of the PSR, it does, is there an objection that would have triggered Rule 32?

[00:17:10] Speaker 04:
So these particular, well what happens is the government actually

[00:17:16] Speaker 04:
moves to have the PSR amended or to have the plus four enhancement because of that.

[00:17:21] Speaker 04:
Obviously, the defendant does respond and challenge the enhancement, but the underlying facts themselves, the witness statements, those aren't directly challenged.

[00:17:30] Speaker 04:
What really occurs here is the defendant, he presents his version of events, the court hears them, and it doesn't, like any evidence, it weighed the credibility.

[00:17:44] Speaker 04:
and the PSR.

[00:17:47] Speaker 03:
Well, it didn't have an evidentiary hearing, right?

[00:17:53] Speaker 03:
It didn't bring in the people, the statements in the PSR that talk about him making stabbing motions.

[00:18:01] Speaker 03:
The court didn't directly hear from those witnesses.

[00:18:04] Speaker 03:
No, Your Honor.

[00:18:06] Speaker 03:
Okay.

[00:18:06] Speaker 03:
So if he challenged

[00:18:09] Speaker 03:
If he adequately challenged under Rule 32, thereby triggering the court's obligation to make a finding by a preponderance of the evidence, did the court fulfill that obligation?

[00:18:27] Speaker 04:
Well, the government's arguing that it did, and the reasoning... That doesn't sound very forceful.

[00:18:38] Speaker 04:
No, Your Honor.

[00:18:39] Speaker 04:
So again, in trying to answer your question, effectively he does make that challenge when he says, hey, I didn't try to stab anyone.

[00:18:51] Speaker 04:
The government agrees with that.

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So it's merely pointing to the fact that, you know,

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The judge, he relies on the facts in the PSR.

[00:19:02] Speaker 04:
He clearly finds them more credible because they're based on multiple witnesses.

[00:19:06] Speaker 04:
He finds them more credible than the defendant's self-serving assertion that, no, I took out a knife, but I didn't try to stab anyone.

[00:19:16] Speaker 04:
I mean, that's the ultimate decision.

[00:19:18] Speaker 03:
Is that sufficient under Rule 32 to just say, I don't believe you, defendant, so I'm going to go with the PSR?

[00:19:26] Speaker 03:
I mean, is that enough?

[00:19:28] Speaker 03:
to fulfill the obligation triggered by an objection under Rule 32?

[00:19:34] Speaker 04:
So it's not like the government didn't.

[00:19:37] Speaker 04:
Well, the government presented some evidence.

[00:19:39] Speaker 04:
Two pictures.

[00:19:39] Speaker 04:
Two pictures, yes, Your Honor.

[00:19:41] Speaker 04:
That's what the government submitted.

[00:19:44] Speaker 04:
That is true.

[00:19:46] Speaker 03:
They're not motion pictures.

[00:19:48] Speaker 04:
They are not motion.

[00:19:49] Speaker 04:
They are not video.

[00:19:50] Speaker 04:
They're still photographs of the defendant with the TV and the knife.

[00:19:53] Speaker 04:
That's what the government presented to support its proposed enhancement.

[00:19:58] Speaker 04:
Clearly, the district court found that.

[00:20:00] Speaker 04:
And we're sitting here today, and the government is asking the question or rather hoping that the fact that is this a clear error?

[00:20:10] Speaker 04:
The question is, is this a clear error?

[00:20:12] Speaker 04:
Did the district court make a clear error when it's finding the facts of the PSR to be the appropriate ones, the right ones, as opposed to the defendants?

[00:20:24] Speaker 04:
you know, viewing the entire record, is it?

[00:20:27] Speaker 03:
So is it your position that the court relied on the still, the court's decision that it was proved by a preponderance is based just on the still photographs and that that meets the threshold of it not being clearly erroneous?

[00:20:45] Speaker 03:
Is that what you're arguing?

[00:20:48] Speaker 04:
So the evidence for that

[00:20:53] Speaker 04:
for the government's proposal for the enhancement is the photographs.

[00:20:57] Speaker 04:
But it's also the facts in the PSR.

[00:21:00] Speaker 04:
And the government understands the court's point that the defendant effectively challenged those paragraphs within the PSR when he provides his version of events.

[00:21:15] Speaker 04:
Again, the court is just considering that, or rather, the government is presenting that a clear error.

[00:21:21] Speaker 04:
It means the sentencing court's factual findings would not be plausible or permissible in light of the entire record.

[00:21:28] Speaker 04:
And that's what the government stands on today to support the enhancement.

[00:21:33] Speaker 04:
It would have to be, again, it would have to be a clear error of fact.

[00:21:36] Speaker 04:
And in the PSR, there's multiple individuals.

[00:21:41] Speaker 04:
Granted, obviously, it's not

[00:21:42] Speaker 03:
Multiple individuals who you've conceded those statements were challenged and you've conceded nothing was done to investigate the credibility of those statements by having an evidentiary hearing.

[00:21:56] Speaker 03:
And so what I think you're telling me is that the photographs alone were enough for the district court to find by a preponderance the stabbing.

[00:22:08] Speaker 04:
The government's proposing that the photographs alone were enough to support paragraph six and seven of the PSR, which contained the statements of, I believe it's one of the Walmart employees who says he saw the stabbing or stabbing motions and another individual who said the defendant tried to stab one of the Walmart employees.

[00:22:29] Speaker 04:
So yes, Your Honor, I mean, there wasn't a full-blown evidentiary hearing.

[00:22:38] Speaker 04:
The sentence and hearing was pretty standard.

[00:22:46] Speaker 04:
I guess the only thing, again, the waiver of the appellate rights and the plea agreement should be enforced.

[00:22:52] Speaker 04:
That's the government's first position here.

[00:22:55] Speaker 04:
And alternatively, it would propose there's ample support for the factual findings on the record.

[00:23:02] Speaker 04:
And it would be unreasonable.

[00:23:06] Speaker 04:
I guess the government's position is that it's not impermissible, it's not implausible, the district court's determination of what the facts were.

[00:23:13] Speaker 04:
And for that reason, it's not a clear error.

[00:23:16] Speaker 03:
And beyond that... Well, failure to comply with Rule 32 is a due process problem, isn't it?

[00:23:28] Speaker 03:
I mean, you know, these are facts that are affecting what he's charged with, right?

[00:23:35] Speaker 04:
Well, I think the key term there is failure, and the government proposes that it wasn't a failure.

[00:23:43] Speaker 04:
It may not have been a presentation of all the evidence of the best version of the evidence to support the enhancement, but it still was some evidence.

[00:23:54] Speaker 04:
You know, the photographs are some evidence if they may not be fully convincing.

[00:23:58] Speaker 04:
I mean, the district court found that they were.

[00:23:59] Speaker 04:
The district court found that that was enough to support

[00:24:02] Speaker 04:
the stabbing objection, and that's, again, the government, it concedes to the court that it wasn't the best presentation of evidence, but I guess to, my final point here would be just to go back to the beginning, and it's the appellate waiver, which really effectively hasn't been challenged until probably right now, and that's where the government would make its firmest stand.

[00:24:33] Speaker 04:
And if there's no further questions, the government will give back its time.

[00:24:38] Speaker 03:
Thank you.

[00:24:39] Speaker 04:
Thank you, Your Honor.

[00:24:49] Speaker 00:
Just briefly, Your Honors, because then we have a minute or so.

[00:24:53] Speaker 00:
I would disagree with counsel for the government that it's only today that the appellant has raised the issue of the knowing and voluntariness

[00:25:03] Speaker 00:
is entering into the appellate waiver, I would point the court to page 13 of the appellant's reply brief, and that would be the only time it would be raised anyway because the government hadn't previously moved to enforce the appeal waiver and only raised it in its response brief.

[00:25:20] Speaker 00:
As I said, if you look at page 13 of the appellant's reply brief, the issue is raised by the appellant, at least in terms of

[00:25:32] Speaker 00:
Given the lack of a transcript, there's no way to know whether the... Well, that's a different argument.

[00:25:40] Speaker 00:
It's the closest I can come to being straightforward with the court, given the state of the record in this case.

[00:25:48] Speaker 00:
There's nothing else that I can do.

[00:25:50] Speaker 00:
The appellant could show the court at this point.

[00:25:54] Speaker 00:
And that is a crucial distinction that's made in the Atterbury, or that I would say comes out of the Atterbury case, which is, in the Atterbury

[00:26:02] Speaker 00:
The Atterbury court said the appellant in that case didn't even raise the issue of whether the waiver was knowing and voluntary, and here we have.

[00:26:12] Speaker 00:
So I think that distinguishes the instant case from the Atterbury case.

[00:26:18] Speaker 00:
And finally, I would say with regard to the credibility issue, with the lack of an evidentiary hearing,

[00:26:25] Speaker 00:
There's no way for that court to have made any kind of credibility determination based on whatever was set forth in the pre-sentence report.

[00:26:33] Speaker 00:
With that, I ask the court to reverse the appellant's sentence and to remand the matter to the district court for further proceedings.

[00:26:39] Speaker 00:
Thank you, Your Honors.

[00:26:41] Speaker 03:
Thank you.