[00:00:00] Speaker 03: And so I am ready to call the first case. [00:00:07] Speaker 03: Counsel is at the table. [00:00:09] Speaker 03: And the first case that we will hear today is United States versus Moonseals. [00:00:14] Speaker 03: Counsel, when you're ready, please come forward and proceed when you're ready. [00:00:24] Speaker 01: Thank you, Your Honor. [00:00:25] Speaker 01: May it please the court, Jake Rochevaux, for the appellant, Mr. Moonseals. [00:00:30] Speaker 01: This case involves three different approaches to sentencing on a probation revocation. [00:00:35] Speaker 01: This court's precedent and more requires a two-step process. [00:00:39] Speaker 01: First, re-sentencing of the original offense based on the original guideline range and a separate sentence for the revocation based on the Chapter 7 guideline revocation range. [00:00:50] Speaker 01: Mr. Moonseals has consistently argued that this is incorrect and that the sentence must be based on the Chapter 7 guideline range alone. [00:00:58] Speaker 01: The district court plainly erred in taking a third approach. [00:01:01] Speaker 01: It believed it had discretion to pick either range, and it chose the original offense range. [00:01:07] Speaker 01: This court should remand under either one of two scenarios. [00:01:10] Speaker 01: First, Mr. Moonseals urges the panel to seek en banc review to hold that probation revocation sentences must be based on Chapter 7, or in the alternative, this court should remand for re-sentencing under Moore's two-step process. [00:01:25] Speaker 01: The relevant statutes, legislative history, and guidelines make clear that a probation revocation sentence must be based on the Chapter 7 guidelines range alone. [00:01:34] Speaker 01: Section 3553A4 specifically provides that the district court must consider A, the guideline range applicable to the underlying offense, or [00:01:43] Speaker 01: in the case of a violation of probation for supervised release, the Chapter 7 guidelines. [00:01:48] Speaker 01: By using the disjunctive or, the plain language of the statute does not permit Moore's two-step process, which requires one and the other. [00:01:58] Speaker 03: Do you contend that's so for supervised release as well as probation? [00:02:03] Speaker 01: Yes, Your Honor. [00:02:04] Speaker 03: Well, with a supervised release, a sentence of imprisonment has been imposed in which the Chapter 5 guideline has been calculated and a sentence imposed [00:02:13] Speaker 03: Then there's a violation of supervised release. [00:02:16] Speaker 03: Isn't the court required to go back through and look at everything 3551 to 59 for the supervised release violation as well? [00:02:29] Speaker 03: And so it's going to hit that or, and it's already done, the A part. [00:02:33] Speaker 03: Does that mean it can't do the B part? [00:02:37] Speaker 01: For a supervised release revocation, I would say it's exactly the same. [00:02:41] Speaker 01: When you're going back through the 3533A factors, whether it's probation or supervised release, you apply only A for B. OK. [00:02:49] Speaker 03: But for a supervised release, what I'm saying is the court is going to ultimately have used both A and B. At the original sentencing hearing, it would have considered [00:03:02] Speaker 01: And the same is true for probation, too. [00:03:08] Speaker 01: At the original sentencing, it would have heard A. And then now we're at a new proceeding, which is a probation revocation hearing. [00:03:13] Speaker 01: And just like with the supervised release revocation hearing, in both situations, you would have considered A the first time at the original sentencing, and now at the revocation proceeding, B. And the legislative history confirms that probation revocation [00:03:32] Speaker 01: sentencing are supposed to be based on A4B alone. [00:03:36] Speaker 01: The Third Circuit in Schwegel went through the legislative history of the amendment to 3553 that added A4B, went through the legislative history, which specifically said that the purpose of the amendment was to make clear that for probation and supervised release sentences, the applicable guidelines are those issued by the commission specifically for that purpose. [00:03:58] Speaker 01: And that is Chapter 7. [00:04:00] Speaker 01: Those are the guidelines that the commission [00:04:02] Speaker 01: promulgated specifically for probation and supervised release revocations. [00:04:07] Speaker 01: And Chapter 7 specifically and repeatedly says that in the case of a revocation of probation or supervised release, the applicable range of imprisonment is that set forth in Section 7B.1.4, the Chapter 7 revocation guideline range. [00:04:23] Speaker 01: It doesn't say, you know, in the case of revocation of probation, the violation is punishable under Chapter 7. [00:04:32] Speaker 01: It says, in the case of revocation, the applicable range of imprisonment is that set forth in 71.4. [00:04:38] Speaker 01: So it's talking about the total range of imprisonment. [00:04:41] Speaker 03: Do you agree that what underlies all of this is the letter from then chairman of the commission, Judge Wilkins, to Senator Thurmond, which is recounted in the congressional record with his recommendations and his reasons for the recommendations, and saying, we're going to come forward. [00:05:00] Speaker 03: the brand new Sentencing Commission are going to come forward with the Chapter 7. [00:05:04] Speaker 03: We haven't done that yet. [00:05:06] Speaker 03: And United States v. Smith, the Circuit Court case, is telling us that we can only go to the top of the guideline range for the instant offense. [00:05:16] Speaker 03: And so there can be no incremental penalty [00:05:20] Speaker 03: under the existing law according to the United States versus Smith help. [00:05:25] Speaker 03: What we need, we're telling you Senator Thurmond, is going to be, we're going to add Chapter 7, but under United States versus Smith, we can't have the incremental penalty. [00:05:34] Speaker 03: We're pinched. [00:05:36] Speaker 03: So please change the statutes in such a way that we can have both. [00:05:42] Speaker 01: I agree with the general premise of that. [00:05:48] Speaker 01: That's in a pre-booker world, where the probation can only be a sentence where the guidelines was zero to six months. [00:06:02] Speaker 01: So with the new Chapter 7 guideline ranges, the sentences actually were higher. [00:06:08] Speaker 01: And so that did address that concern, that the sentences weren't [00:06:14] Speaker 01: weren't harsh enough for probation revocations. [00:06:18] Speaker 01: I forgot what my next point was. [00:06:28] Speaker 01: But now, the guideline range is what it is, under-supervised release and probation revocations. [00:06:37] Speaker 01: But the court is not bound by the revocation range set out in Chapter 7. [00:06:44] Speaker 01: it is allowed to vary based on 3553A factors to anywhere within the original offense statutory range. [00:06:53] Speaker 03: Do you agree that we should look back, and when you say clear language and it's the or, that's not clear to me. [00:06:58] Speaker 03: Well, it is clear to me, but the other direction. [00:07:01] Speaker 03: Do you agree that we should look to the Judge Wilkins, Senator Thurmond communications in interpreting what that language means? [00:07:10] Speaker 01: I mean, my position is that [00:07:13] Speaker 01: It's that the language of the statute is unambiguous, and so there's no need to resort to legislative history. [00:07:18] Speaker 01: But I think, obviously, we disagree on that. [00:07:20] Speaker 01: So when there is ambiguity, we can look at the legislative history. [00:07:24] Speaker 01: But I think the legislative history confirms, even if the concern was that these sentences aren't harsh enough, Chapter 7 was still promulgated to explain what the process [00:07:37] Speaker 01: should be for all revocation sentences. [00:07:42] Speaker 01: And that's what it laid out. [00:07:43] Speaker 01: It laid out the Chapter 7 guideline. [00:07:45] Speaker 03: I'm not entirely sure we do disagree, based on your earlier answer, which was that whether you go A or B with that or in the middle, it depends on where you are in the proceedings. [00:07:55] Speaker 03: If you're at the original sentencing, you go to A. And if you're on a revocation, you go to B. And it could hardly say and, because that wouldn't make any sense the first time around. [00:08:04] Speaker 03: But the original sentence [00:08:05] Speaker 03: and apply the one for the revocation, that would be senseless. [00:08:09] Speaker 03: So it has to be in order, doesn't it? [00:08:11] Speaker 01: Yes, I agree with that. [00:08:14] Speaker 01: When you said you would interpret it the other way, I thought you meant something else. [00:08:20] Speaker 03: Can I ask you this, and then I'll get out of the question business, because I'm hogging all the time, but I'm interested. [00:08:26] Speaker 03: Is your position that on the probation violation, [00:08:30] Speaker 03: When the statute was changed in 94, in accordance with what Senator Thurmond got from Judge Wilkins, when that statute was changed, probation became a conditional sentence. [00:08:47] Speaker 03: It's a sentence, but it's a conditional one, which can be revoked. [00:08:51] Speaker 03: And then the other new word that is used is re-senancing. [00:08:55] Speaker 03: When that happens, there's going to be a re-senancing, which one [00:08:59] Speaker 03: way of looking at that may be, we're going to start over on your sentencing, you failed. [00:09:04] Speaker 03: And we're going to start right where we left off. [00:09:07] Speaker 03: And another way of looking at that, as I understand it, your view, which is the re-sentencing is just a rubber stamp that says, we said zero months for probation, so it's zero months. [00:09:20] Speaker 03: Is that your position, the re-sentencing in a probation case yields a zero-month sentence under Chapter 5? [00:09:29] Speaker 01: Assuming we're applying the two-step process, does it necessarily yield a zero sentence of imprisonment? [00:09:35] Speaker 03: Any process you want. [00:09:38] Speaker 01: No, because you're punishing for the breach. [00:09:44] Speaker 01: As Chapter 7 says, you're punishing primarily for the breach of trust of the violation of the condition. [00:09:52] Speaker 01: And that's what the table is set out to punish. [00:09:55] Speaker 01: And then you're not just [00:09:57] Speaker 01: getting off scot-free for the original offense, presumably in every case, the judge is going to continue supervision. [00:10:06] Speaker 02: So the supervised release period that... The question is, on re-sentencing, if there's been a violation of probation, I read your submissions as saying that at step one, the sentence is zero, and then you go to step two. [00:10:22] Speaker 02: Now you're saying something else. [00:10:25] Speaker 01: Well, I'm trying to address two different. [00:10:27] Speaker 01: So under my interpretation of the statutes in chapter seven, and when I'm, when I'm arguing that the two step process is incorrect, what I'm saying is that you apply only the chapter seven guidelines, which say to punish primarily for the breach of trust. [00:10:41] Speaker 01: Um, but it is still at step two. [00:10:46] Speaker 01: So under mine, there is, it's just one step. [00:10:49] Speaker 01: Uh, my, my, [00:10:50] Speaker 01: my proposed procedure and the procedure as far as I can tell literally every federal that's aspirational because that's not where we are with more more to confirms more one was not dicta and we do this two step process true and finished at least before us so under under the two step process my position is that more says at step one you have to consider only pre probation conduct the judge has to put itself back in the same shoes that it was originally at [00:11:18] Speaker 01: when it ordered probation, it can't consider the fact that there was a later violation. [00:11:22] Speaker 02: And you're saying that you cannot consider the statutory sentence or the guideline range on the offense. [00:11:33] Speaker 02: Instead, it's zero. [00:11:36] Speaker 01: So I'm saying that it's zero because if a district court judge is genuinely faithfully adhering to step one and putting itself in the original shoes, [00:11:46] Speaker 01: it's bound to sentence the defendant again, just at step one, to the functional equivalent of the same sentence it gave the first time, which is probation, which would be zero months followed by supervised release. [00:11:58] Speaker 02: So in the case of Mr. Moore, if we followed your process for a very bad crime, he would just get a couple years, right? [00:12:11] Speaker 01: For Mr. Moonseals or Mr. Moore? [00:12:12] Speaker 02: Mr. Moore. [00:12:13] Speaker 01: Mr. Moore? [00:12:16] Speaker 01: your paradigm. [00:12:18] Speaker 01: So what I'm saying is that at step one, Mr. Moore. [00:12:24] Speaker 02: What would Mr. Moore's sentence be range under your paradigm? [00:12:34] Speaker 02: It's a hypothetical, but we do deal in hypotheticals. [00:12:37] Speaker 01: Right. [00:12:37] Speaker 01: So under the two-step process, Moore would still, it would be the original guideline range plus the [00:12:46] Speaker 01: the revocation range, but what I'm saying is that at step one, the sentence that the district court, well, the problem with this hypothetical is that Moore was truly unique and that there had been an announcement of an alternative sentence. [00:13:01] Speaker 01: But I'm saying, absence the announcement of an alternative sentence of imprisonment for purposes of like third prong, whether this error was harmless, what we think that the district court would do on remand here would be [00:13:14] Speaker 01: The most likely sentence is a massive downward variance from the guideline range of 33 to 41 months imprisonment because the first time the district court gave a massive downward variance. [00:13:27] Speaker 02: In substance, in effect, your paradigm is that a perpetrator of a very, very serious crime, if given probation, [00:13:37] Speaker 02: without any prognostication of what the sentence would be, gets off with a few months at step two. [00:13:46] Speaker 01: That's just the guideline range. [00:13:48] Speaker 01: The district court can still impose anywhere within the statutory range. [00:13:51] Speaker 01: And here, that's 0 to 10 months. [00:13:53] Speaker 01: Or sorry, 0 to 10 years. [00:13:54] Speaker 02: It could go all the way up to a minimum mandatory 10 years, if that was what was called for in the original violation. [00:14:04] Speaker 01: Absolutely right. [00:14:05] Speaker 01: The district court, all I'm arguing about is what is the applicable guideline range under the statute and Chapter 7 of the guidelines. [00:14:14] Speaker 01: So the guideline range is 3 to 9, but the district court, if that's not sufficient under the 3553A factors, can vary all the way up to 120 months in prison. [00:14:25] Speaker 03: Where in the statutes in the guideline is that mushing ever mentioned? [00:14:30] Speaker 01: I'm sorry? [00:14:31] Speaker 03: The mushing. [00:14:32] Speaker 03: We're going to do it all together in Chapter 7. [00:14:34] Speaker 03: Chapter 7 of the small island has now swallowed chapter 5 of the continent. [00:14:41] Speaker 03: Where is that ever mentioned in the guidelines of the statute? [00:14:47] Speaker 01: In 71.3, and we agree that chapter 7 is the guidelines that the Sentencing Commission promulgated specifically to address revocations. [00:14:54] Speaker 01: says, in the case of a revocation of probation or supervised release, the applicable range of imprisonment is that set forth in 71.4. [00:15:01] Speaker 01: Frankly, I don't think it could be any more clear that when we're sentencing upon a revocation, you look at the chapter 7 table. [00:15:07] Speaker 01: And you can consider the totality of the circumstances. [00:15:10] Speaker 01: So does Morwan. [00:15:11] Speaker 03: Morwan looks at that and sentences based on the revocation itself. [00:15:21] Speaker 01: More has that's one component of it, but it adds the second component. [00:15:26] Speaker 03: Do you think this is a problem that under the mushing way of doing it under Chapter 7, this court is unable to review either piece because it doesn't know how much was given for the underlying sentence or the underlying crime, how much was given for the replication. [00:15:44] Speaker 03: And we're supposed to be reviewing those for substantive reasonableness. [00:15:48] Speaker 01: So all I'm saying [00:15:49] Speaker 01: is that the guideline range that applies is that found in Chapter 7, because that's what Chapter 7 says. [00:15:55] Speaker 01: The district court then, if it finds that insufficient, can give an explanation based on the other 3553A factors and can vary to anywhere within the statutory range. [00:16:06] Speaker 01: And it can say that I'm doing that because you got a windfall the first time, you got a massive downward variance the first time, or I can say that [00:16:13] Speaker 01: I'm actually varying downward from the guideline range, because this was more of like a technical probation violation that I don't think requires serious punishment. [00:16:20] Speaker 01: Where you already served four and a half years of probation, I don't think that I need to sentence you to a long term of imprisonment. [00:16:27] Speaker 01: OK, questions? [00:16:30] Speaker 02: Can we use more time? [00:16:30] Speaker 02: Yeah, I have some plain air. [00:16:32] Speaker 02: Hold on, plain air. [00:16:34] Speaker 02: Yeah. [00:16:36] Speaker 02: Assume you lose on the one step, and we're back. [00:16:42] Speaker 02: where our president says we should be at more one. [00:16:46] Speaker 02: And you agree that the review is for plain air? [00:16:52] Speaker 02: Yes, Your Honor. [00:16:53] Speaker 02: All right. [00:16:54] Speaker 02: Tell me why you should not lose on plain air at the third step in the, what was it, 36 months sentence? [00:17:09] Speaker 01: Yes, Your Honor. [00:17:12] Speaker 01: At step one, my position is that, so I'm arguing that at- No, no, you're stuck. [00:17:20] Speaker 01: You now have to argue more one. [00:17:23] Speaker 01: Yes. [00:17:23] Speaker 01: OK. [00:17:23] Speaker 01: I understand. [00:17:24] Speaker 01: So what I'm saying, so he got 36 months of imprisonment. [00:17:27] Speaker 01: That was the sentence. [00:17:29] Speaker 01: On remand, there's a reasonable probability that he would get a different sentence, because at step one, the district court has to put itself back in the original shoes of when it imposed probation. [00:17:42] Speaker 01: And what I'm saying is that it would give the functional equivalent of probation. [00:17:46] Speaker 01: It would have to. [00:17:47] Speaker 01: And that would be zero months of imprisonment. [00:17:50] Speaker 01: Or at least under the guidelines, the functional equivalent is that zero to six months of imprisonment range. [00:17:56] Speaker 01: And then at step two, the guideline range is three to nine. [00:18:03] Speaker 01: And I admit that it's likely that the district court would impose an upward variance at step two. [00:18:11] Speaker 01: But to say that we're sure that the district court varied all the way to exactly 36 months, as opposed to something, you know, 35 months, 34, 33, 32, there's a reasonable probability that under this two-step process, he would still end up with less than 36 months. [00:18:29] Speaker 03: All right. [00:18:31] Speaker 03: All right. [00:18:32] Speaker 03: Thank you, counsel. [00:18:33] Speaker 03: And just to advise in advance, I'm going to give you a couple of minutes on rebuttal, so you're going to have extra time if you need it. [00:18:40] Speaker 03: Thank you very much. [00:18:56] Speaker 00: May it please the court, Jess McHugh for the United States. [00:19:01] Speaker 00: Your honors, I want to pick up where we just left off with prong three of plain error, as Judge Murphy was asking about. [00:19:07] Speaker 00: And I believe a faithful application of more one means that prong three cannot be satisfied for two reasons. [00:19:15] Speaker 00: First, what we're looking at is had the district court strictly applied more one, there would have been two sentencing ranges, not one. [00:19:24] Speaker 00: And not the best at math, which is why I went to law school, but two is bigger than one. [00:19:28] Speaker 00: Secondly, the locked in argument, it just doesn't work. [00:19:32] Speaker 00: And I'm going to go one at a time here. [00:19:35] Speaker 00: So first off, the original range, the original offense range, that's what the district court applied correctly, I believe. [00:19:42] Speaker 00: And it was 33 to 41 months. [00:19:45] Speaker 00: Had the district court also done the three to nine months, there's a 36 to 50 months. [00:19:54] Speaker 00: He got 36. [00:19:54] Speaker 00: So I'm not sure how he would have been better off with aggregating two ranges rather than only getting one. [00:20:03] Speaker 00: What do you mean the locked-in doesn't apply? [00:20:06] Speaker 00: So for two, again, two reasons. [00:20:10] Speaker 00: The locked-in doesn't apply because it really collapses Moore's two-step analysis. [00:20:15] Speaker 00: What do you think the locked-in even means? [00:20:17] Speaker 00: I guess we should start with that. [00:20:19] Speaker 00: I think if I had to kind of put my words into it, it's that [00:20:24] Speaker 00: the notion of we can't consider pre-probation or post-probation conduct. [00:20:30] Speaker 00: We go back in time to step one. [00:20:33] Speaker 00: Step one, you only look at pre-probation conduct. [00:20:36] Speaker 00: So if you're only looking at that universe, it's zero. [00:20:40] Speaker 00: Probation is effectively zero months. [00:20:43] Speaker 00: The problem with that is that when we're going back in time, probation is now off the table. [00:20:52] Speaker 00: Moore talks about requiring a re-evaluation. [00:20:56] Speaker 00: And I think that's very clear that there has to be something to re-evaluate. [00:21:01] Speaker 00: Now, if all we're looking at is, did the district court say, I'm going to give you probation, or I'm going to give you X number of months? [00:21:09] Speaker 03: Well, let me tell you what I think locked in is, and then you tell me what you're talking about. [00:21:13] Speaker 03: Morwan, the district court said, you're going to get 51 months today. [00:21:18] Speaker 03: We've been through the PSR. [00:21:19] Speaker 03: I see the total offense level. [00:21:20] Speaker 03: I see the criminal history. [00:21:22] Speaker 03: You're going to get 51 unless you want to do this probation thing. [00:21:26] Speaker 03: But if you screw up, you're going to get 84 months. [00:21:29] Speaker 03: And Morwan said, you locked into 51 because that was the PSR, the criminal history. [00:21:36] Speaker 03: And that was unusual. [00:21:38] Speaker 03: As your fellow counsel says, it was unusual for the court [00:21:41] Speaker 03: to arrive at that number in a probation case. [00:21:44] Speaker 03: But the court did. [00:21:45] Speaker 03: And the locked in meant that you can't say it's 51 months based on that and later come in and say, well, it's a different number. [00:21:55] Speaker 03: Here we don't have anything locked in because the court didn't give a number, right? [00:22:00] Speaker 00: That I agree, Your Honor. [00:22:01] Speaker 00: I think in the unusual circumstance where a court announces an alternative, like 51, yeah, it's locked into that. [00:22:08] Speaker 00: It can't go back. [00:22:09] Speaker 00: effectively change its mind. [00:22:10] Speaker 03: Why are we talking about locked in? [00:22:12] Speaker 00: I think the locked in comes because of the notion that, well, probation was imposed ergo it must always be zero months at step one. [00:22:22] Speaker 00: And I don't think that that is a faithful application. [00:22:24] Speaker 03: Well, what do you think the word re-senancing means in the statute? [00:22:31] Speaker 00: I think it means what more one said it means. [00:22:33] Speaker 00: And I also think we look at some of these other circuits, like Eighth Circuit Michael, [00:22:37] Speaker 00: talked about, we're sentencing anew, and that's 12th, 4th, 858. [00:22:45] Speaker 00: If we're re-sentencing anew, we are going back in time. [00:22:49] Speaker 00: That is, you know, so we're going to look at the original offense range, and then Chapter 7 very clearly says, to your mushing point, that we're only, Chapter 7 says we're only imposing violations or punishment for the violation. [00:23:04] Speaker 00: It says that in the intro to Part B. [00:23:08] Speaker 00: So if there's no punishment then effectively for the original offense, that's kind of an absurd interpretation. [00:23:14] Speaker 00: I don't think statutes should be interpreted to yield absurd results. [00:23:19] Speaker 00: And so that's why I would submit that the locked in approach really doesn't work. [00:23:25] Speaker 00: So if we are talking about a locked in, he landed on 36. [00:23:34] Speaker 00: but he was faced with three to nine. [00:23:37] Speaker 00: So that would effectively mean this two-year string of threatening public officials, pleading guilty to 12 felonies, immediately violating probation, and then he is effectively lowering his offense range from 33 to 41 down to three to nine. [00:23:53] Speaker 03: Doesn't Chapter 7 look at the grade of the offense, the violation? [00:23:57] Speaker 00: It does, Your Honor. [00:23:58] Speaker 03: And C being the lowest? [00:24:01] Speaker 00: Correct, Your Honor. [00:24:02] Speaker 03: All right. [00:24:04] Speaker 03: And so, because it's set up that way, it really doesn't have anything to do with the original crime, right? [00:24:12] Speaker 00: I don't believe that it does. [00:24:13] Speaker 00: Chapter 5 is what really speaks to the original crime. [00:24:16] Speaker 03: And does that suggest that what's being done with Chapter 7 is looking at that violation? [00:24:22] Speaker 03: Correct, Your Honor. [00:24:23] Speaker 03: As opposed to everything under the sun. [00:24:25] Speaker 00: And that's why 3 to 9 months makes perfect sense for a Great Sea Violation. [00:24:31] Speaker 00: if all of a sudden we're revoking probation, which was conditional in the first place, that original 12 count indictment has no sentence. [00:24:40] Speaker 00: And that just doesn't make sense. [00:24:41] Speaker 03: OK, so you're opposing the zero month theory. [00:24:45] Speaker 00: I'm opposing. [00:24:45] Speaker 00: Sorry, you're on? [00:24:46] Speaker 03: The defense's zero month. [00:24:50] Speaker 00: Yeah, I don't believe that we're locked in at zero at step one. [00:24:57] Speaker 00: Now secondly, I would, I guess, throw out the alternative argument [00:25:01] Speaker 00: If we are locked in and somehow step one, had we strictly applied, more one. [00:25:06] Speaker 00: Step one says, okay, should have been probation and thus zero months. [00:25:11] Speaker 00: Then how do we get to 36? [00:25:14] Speaker 00: Under that framework, again, we got the three to nine month under Chapter 7. [00:25:19] Speaker 00: Bless you, Your Honor. [00:25:21] Speaker 00: 7B1.4, Note 4, discusses downward departures and it's also been interpreted to include variances. [00:25:28] Speaker 00: That's really where we now have to consider what was the leniency that was given at the first place. [00:25:34] Speaker 00: We have an immediate violation of probation and we had a downward variance of 33 months. [00:25:40] Speaker 00: 33 to 41 was the original offense range, he got zero. [00:25:44] Speaker 00: So now we take that 33, 33 months of leniency, we tack on to the 3 to 9 under Chapter 7 and there's your 36. [00:25:53] Speaker 00: So there's no [00:25:54] Speaker 00: reasonable probability of a different outcome, frankly, even under the locked-in argument. [00:26:02] Speaker 02: Your Honors, I know we spent... Yes, Your Honor. [00:26:05] Speaker 02: Is your view on that affected in any way by the way the district court in this case proceeded with the resentencing? [00:26:28] Speaker 00: No, that's correct, Your Honor, and that's why we are here on plain error. [00:26:34] Speaker 00: There's no dispute that more one was not applied. [00:26:37] Speaker 02: I understand that, but what you have to be arguing now is that if it was remanded, he'd get exactly the same sentence or more. [00:26:47] Speaker 02: My question is, isn't your argument in that effect affirmatively [00:26:55] Speaker 02: backed up by the error that the district court made. [00:26:59] Speaker 02: And if we send it back to re-sentence under more one properly, that he would get the same or greater sentence. [00:27:10] Speaker 00: I believe that's true. [00:27:11] Speaker 00: I believe we would get the 36 months under a strict application of more one versus what we had here, which was this either or. [00:27:20] Speaker 00: We still end up at the same place. [00:27:26] Speaker 00: Your Honor, unless there's no further questions, I did re-briefed invited error, re-briefed the appellate waiver, but I do believe that this case rises and falls on Prom 3. [00:27:36] Speaker 00: So I think this case rises and falls on Prom 3 of plain error. [00:27:41] Speaker 00: So no further questions. [00:27:44] Speaker 03: Thank you, Counsel. [00:27:45] Speaker 03: Thank you. [00:27:46] Speaker 03: And as promised, two more minutes. [00:27:51] Speaker 02: You should thank your opposing counsel for this, too, because he yielded time to you. [00:27:58] Speaker 01: Do I get his time, too? [00:27:59] Speaker 01: No, you don't. [00:28:04] Speaker 01: So I do want to address third prong, and let me try this one more time. [00:28:08] Speaker 01: So in Moore, we knew what step one was going to be, because the district court had announced what the alternative sentence of imprisonment would have been. [00:28:18] Speaker 01: It would have been 51 months. [00:28:20] Speaker 01: Here, we don't know because the district court didn't announce an alternative sentence. [00:28:25] Speaker 01: So even assuming that you reject the locked in at zero argument, I'm fine with that. [00:28:33] Speaker 01: Now we're just asking, what is the most likely sentence the district court would give at step one? [00:28:40] Speaker 01: And in doing that, we consider the original offense guideline range, which was 33 to 41, but we have to also [00:28:48] Speaker 01: Uh, understand that the district court gave a massive downward variance the first time, uh, giving probation is like giving. [00:28:58] Speaker 03: So, uh, probation is only, it's not a variance unless he gave zero. [00:29:05] Speaker 03: So it is a variance. [00:29:06] Speaker 03: And if he, if he, instead we're saying, if you screw up, the statute says there's going to be a resentencing and we're going to pick up right where we're leaving off today. [00:29:14] Speaker 03: And I'm going to be looking at that chapter five guideline. [00:29:17] Speaker 03: There's no variance because there hasn't been a sentence yet. [00:29:22] Speaker 03: There is a sentence. [00:29:23] Speaker 03: The sentence is probation. [00:29:24] Speaker 03: A conditional sentence, subject to living up to probation. [00:29:28] Speaker 03: The statute says conditional. [00:29:30] Speaker 01: It is conditional in that it can be revoked. [00:29:32] Speaker 01: It is still not like there's a conditional judgment. [00:29:36] Speaker 01: Probation is a sentence of punishment in itself. [00:29:39] Speaker 03: Do you agree that it is a conditional sentence, probation, under our statutes? [00:29:45] Speaker 01: It is conditional only in the sense that it can be revoked, yes. [00:29:49] Speaker 01: And then there's no sentence. [00:29:51] Speaker 02: So you start all over with re-sentencing, correct? [00:29:54] Speaker 01: Right. [00:29:55] Speaker 01: Based on the Chapter 7 guidelines. [00:29:56] Speaker 02: And you consider everything that you could have considered had you sentenced rather than giving probation, correct? [00:30:05] Speaker 02: Yes, Your Honor. [00:30:06] Speaker 02: So you look at that original range. [00:30:09] Speaker 01: Yes, Your Honor. [00:30:10] Speaker 01: The 33 to 41 months. [00:30:12] Speaker 01: Yes, Your Honor. [00:30:13] Speaker 01: I realize I'm out of time if I can try to make one quick point. [00:30:17] Speaker 01: And I can provide some supplemental authority on this point. [00:30:21] Speaker 01: The probation is a downward variance from a sentence of imprisonment. [00:30:27] Speaker 01: Probation is only allowed when the sentencing range is zero to six months. [00:30:32] Speaker 01: And the PSR itself says that probation would be a downward variance here. [00:30:39] Speaker 01: And that's because it's only allowed as a sentence when their guideline range is zero to six months of imprisonment. [00:30:44] Speaker 01: So what I'm saying is that the likely sentence that the district court would give on remand at step one is in that zero to six month ballpark because it would have to give a downward variance again. [00:30:53] Speaker 01: Thank you very much for your time. [00:30:55] Speaker 03: Thank you, counsel. [00:30:56] Speaker 03: The case is submitted and you are excused. [00:30:59] Speaker 03: Appreciate the arguments.