[00:00:02] Speaker 04:
Council would get ready for our next case, 24-6052, United States versus Richardson.

[00:00:14] Speaker 04:
Ms.

[00:00:15] Speaker 04:
Kevil, am I pronouncing your name correctly?

[00:00:19] Speaker 04:
Keval or Kevil?

[00:00:23] Speaker 00:
Depends which relative you ask.

[00:00:25] Speaker 04:
Pardon?

[00:00:25] Speaker 00:
Depends which relative you ask.

[00:00:34] Speaker 04:
There was a judge on the Seventh Circuit who pronounced his last name differently from his wife.

[00:00:41] Speaker 01:
So.

[00:00:42] Speaker 01:
May it please the court, counsel?

[00:00:44] Speaker 01:
My name is Shira Keval, and I am a federal public defender.

[00:00:47] Speaker 01:
I represent Brandon Richardson.

[00:00:49] Speaker 01:
The Oklahoma District Court committed procedural error in this case because it imposed a partially consecutive sentence without first applying the directives in Section 5G1.3D

[00:01:01] Speaker 01:
and application note four as required, and in particular, the core underlying directive to avoid unwarranted sentencing disparities that arise from the fortuity of interrelated conduct being sentenced in separate proceedings.

[00:01:17] Speaker 01:
This court should reverse.

[00:01:20] Speaker 01:
The key to the district court's mistake, I think, is its refusal to acknowledge the existence of any overlap between the Oklahoma conduct and the Missouri sentence.

[00:01:31] Speaker 01:
The Oklahoma firearm was one of many acts that were sanctioned in the Missouri District Court because it was relevant conduct that the Missouri Court knew about and was required to consider in formulating its sentence.

[00:01:43] Speaker 04:
I want to make sure I get your statement.

[00:01:46] Speaker 04:
The key to the error was the court's failure to recognize the overlap.

[00:01:53] Speaker 00:
Correct.

[00:01:53] Speaker 04:
Between the Oklahoma charge and the Kansas sentence.

[00:01:57] Speaker 01:
Correct.

[00:01:58] Speaker 01:
The Missouri.

[00:01:59] Speaker 04:
Missouri sentence.

[00:02:00] Speaker 01:
That's right, Your Honor.

[00:02:01] Speaker 01:
So instead of recognizing this overlap with the Oklahoma court, mistakenly concluded that Mr. Richardson's Oklahoma firearm possession was independent of the proceeding in Missouri, and so it still needed to receive some consequence.

[00:02:16] Speaker 03:
What do you mean by overlap?

[00:02:17] Speaker 03:
Do you mean relevant conduct?

[00:02:20] Speaker 01:
Yes, that it was something that was in the pre-sentence report.

[00:02:26] Speaker 01:
It was as offense conduct in the pre-sentence report.

[00:02:29] Speaker 01:
It is what the district court, even in Oklahoma, said was obviously something that occurred during flight.

[00:02:34] Speaker 01:
Nobody objected to it in the Missouri court.

[00:02:37] Speaker 01:
It is relevant conduct in the Missouri court that the judge there knew about and was required to consider not just by the guidelines, but by the 3553A factors.

[00:02:46] Speaker 03:
Does the firearm found in Oklahoma you say found during flight?

[00:02:50] Speaker 03:
And of course, this isn't someone escaping a bank robbery and shooting out the back window at the cops, which is one thing.

[00:02:57] Speaker 03:
In that instance, the firearm certainly is relevant conduct to the bank robbery.

[00:03:02] Speaker 03:
But here, weeks have passed.

[00:03:04] Speaker 03:
Is that right?

[00:03:05] Speaker 01:
I believe some time has passed, Your Honor, but there's state charges that are pending.

[00:03:10] Speaker 03:
And this is a person who liked to carry a firearm

[00:03:13] Speaker 03:
even before leaving for Oklahoma, right?

[00:03:16] Speaker 03:
Got charged with that in Missouri.

[00:03:17] Speaker 01:
I mean, there is one prior instance known of him carrying a firearm, yes.

[00:03:21] Speaker 03:
And no court ever found that the Oklahoma possession of the firearm, not the fleeing, the possession of the firearm, the act that 1B1.3 references us to, no court ever found that that possession of the firearm was relevant conduct to the Missouri charge.

[00:03:40] Speaker 01:
I disagree with that, Your Honor.

[00:03:41] Speaker 03:
Well, just point me to the place.

[00:03:43] Speaker 01:
So I think that when we have a pre-sentence report that lists it as offense conduct in a very short list of that specifically what is Mr. Richardson's role in the offense and nobody objects to it.

[00:03:56] Speaker 01:
And as the Oklahoma court said, it's obvious that it's something an act committed during flight.

[00:04:01] Speaker 01:
that that is adopted by the district court in Missouri and incorporated into his sentence as one of the acts that are punished there.

[00:04:10] Speaker 03:
So 1B1.3 is no more precise than whatever a probation officer includes in offence conduct, which is not relevant conduct.

[00:04:17] Speaker 03:
It can exceed that.

[00:04:18] Speaker 03:
You agree?

[00:04:20] Speaker 01:
Your Honor, I think that when I was a district court lawyer, I objected if there was something that was not relevant conduct.

[00:04:27] Speaker 01:
I brought it up.

[00:04:27] Speaker 01:
We talked about it.

[00:04:28] Speaker 03:
It wasn't relevant conduct in Missouri as far as a specific offense characteristic and adjustment addition to the base offense level, correct?

[00:04:39] Speaker 03:
There were no two levels added because he had a firearm in Oklahoma.

[00:04:44] Speaker 01:
And I think that's a really important question, Your Honor, because this court has made very clear

[00:04:48] Speaker 01:
that there is a difference between relevant conduct and conduct that gives rise.

[00:04:54] Speaker 01:
Well, relevant conduct is a larger group, and only some of the relevant conduct is something that gives rise to an increased offense level.

[00:05:02] Speaker 01:
So you could imagine a situation, Your Honor, where he was found with two guns inside of, in Missouri, and those two guns were the basis of his 922G conviction and then 924C in Missouri.

[00:05:15] Speaker 01:
The second gun would not raise the offense level in that case, but unquestionably would have been relevant conduct in that case.

[00:05:22] Speaker 03:
I'm not understanding irrelevant conduct analysis.

[00:05:25] Speaker 03:
When I look at 1B1.3A, what it tells me is unless otherwise specified, which is the defendant instead of irrelevant conduct, broader.

[00:05:35] Speaker 03:
The base offense level, where the guideline specifies more than one base offense level, specific offense characteristics, cross references, and adjustments shall be determined on the base of the following.

[00:05:44] Speaker 03:
And then it tells us what acts or omissions.

[00:05:48] Speaker 03:
And so the acts or omissions that count for relevant conduct are the acts or omissions that count for those things that are specified, specific offence characteristics, adjustments, cross-references, so forth.

[00:06:00] Speaker 03:
Other conduct may be conduct, but it's not relevant conduct.

[00:06:05] Speaker 03:
For it to be relevant conduct, it has to be relevant to those things.

[00:06:09] Speaker 01:
And Your Honor, my understanding of relevant conduct is that relevant conduct is something that could give rise to an increased offense level.

[00:06:18] Speaker 01:
But this court said in United States versus Torres that something can be used to calculate the offense level or otherwise be relevant conduct.

[00:06:28] Speaker 03:
And so here- Back to my original question, which I don't think's been answered yet.

[00:06:32] Speaker 03:
Could the Oklahoma firearm possession have led to an increase in specific offense contraband

[00:06:39] Speaker 03:
conduct, adjustments, cross-references in the Missouri case.

[00:06:44] Speaker 03:
And I think the answer is plainly no, but you haven't said yes or no.

[00:06:47] Speaker 01:
So I think that I'm not 100% sure I understand your question, so let me try to clarify.

[00:06:51] Speaker 01:
I think that if there were something that said add three points if you possess a firearm during flight, then yes, this could have been used for that.

[00:07:02] Speaker 03:
That's the definition of relevant conduct.

[00:07:05] Speaker 01:
And Your Honor, I think that the definition for all the conduct is different, which is what United States versus Torres say.

[00:07:11] Speaker 01:
Relevant conduct is conduct that is closely enough related to the crimes of conviction that it could be used to raise an offense level if an appropriate offense level was there.

[00:07:23] Speaker 01:
So again, if you have a 922G case and you have someone with two firearms, both of those firearms are relevant conduct, even though you only get an enhancement if you have three firearms.

[00:07:35] Speaker 01:
If you had a third firearm, that doesn't somehow transform that second firearm into relevant conduct when it wasn't previously.

[00:07:42] Speaker 01:
It is relevant conduct that the court is required to consider when it's formulating its sentence.

[00:07:47] Speaker 03:
It's not relevant conduct.

[00:07:49] Speaker 03:
What it is is conduct the court can consider in a one episode.

[00:07:52] Speaker 03:
This involves two states with two episodes.

[00:07:55] Speaker 03:
If you have one person with two firearms, they're not going to get the three-gun enhancement, I agree.

[00:08:00] Speaker 03:
But a district court in deciding where in the range, or even going outside of the range,

[00:08:05] Speaker 03:
certainly can consider that.

[00:08:06] Speaker 03:
But that's not relevant conduct as defined by this book.

[00:08:10] Speaker 01:
Your Honor, I understand how you're reading it.

[00:08:13] Speaker 01:
I believe that the language is susceptible to both meanings and that this court has definitively decided this in United States versus Torres, which is in our briefs.

[00:08:21] Speaker 01:
And I also want to just briefly discuss the record in Missouri.

[00:08:26] Speaker 01:
And this is in the pre-sentence report in Missouri that the Oklahoma judge possessed.

[00:08:30] Speaker 01:
This was not a single state drug conspiracy.

[00:08:33] Speaker 01:
This was a multi-state drug conspiracy that took place in both Missouri and Oklahoma.

[00:08:38] Speaker 01:
One of the sources of drugs that is listed in the pre-sentence report in Missouri is Oklahoma.

[00:08:44] Speaker 03:
Do we have that?

[00:08:45] Speaker 03:
Do we have the Missouri PSR?

[00:08:47] Speaker 01:
The district court judge had it, mentioned having it.

[00:08:51] Speaker 01:
I've asked this court to recognize it from the sister document.

[00:08:56] Speaker 03:
But we don't have it is the answer, right?

[00:08:58] Speaker 01:
I don't believe there's any other way for me to put it on the record, since it was not included on the record below.

[00:09:03] Speaker 01:
But I do believe that there is nothing wrong with taking judicial notice of it in this situation.

[00:09:07] Speaker 03:
How can we if we haven't seen it?

[00:09:11] Speaker 01:
Your Honor, I referenced it and gave the citation.

[00:09:13] Speaker 01:
There's no other way for me to present it under the rules of this court to the court.

[00:09:17] Speaker 01:
If there's another way you'd like me to present it so that I can do it under seal, it's not properly in appendix, it's not properly part of the record on appeal, I'm very happy to present it.

[00:09:27] Speaker 03:
Have you seen it?

[00:09:28] Speaker 01:
Yes, your honor.

[00:09:29] Speaker 03:
And you couldn't produce it to us under seal?

[00:09:33] Speaker 01:
Your honor, there's no specific way for me to do it.

[00:09:36] Speaker 01:
I'm saying I'm very happy to do it.

[00:09:37] Speaker 01:
The reason that I didn't is because it is on the docket accessible by the court in the misery case.

[00:09:44] Speaker 01:
I cited directly to that docket number and I'm very happy.

[00:09:48] Speaker 01:
to file a motion and ask that to be added somehow to the record in this case.

[00:09:53] Speaker 01:
But it was not part of the docket below, and so it's not on the record on appeal in this case.

[00:09:58] Speaker 04:
All right.

[00:09:58] Speaker 04:
Thank you.

[00:09:59] Speaker 04:
Let me go back to that first statement you made that I want to rely on.

[00:10:06] Speaker 04:
You say that the key to the mistake was the failure to recognize the overlap between the Oklahoma offense and the Missouri sentence.

[00:10:12] Speaker 04:
And how do you know that the district court failed to recognize that overlap?

[00:10:18] Speaker 01:
Well, the district court made two very clear statements.

[00:10:22] Speaker 01:
One of them was is the possession of the weapon down here is independent of the proceeding in Missouri.

[00:10:28] Speaker 01:
And the other is there has to be some consequence to your possession of the weapon here in Oklahoma.

[00:10:35] Speaker 04:
And did the defense counsel at the sentencing proceeding object to any of those statements and say, Your Honor, you're wrong.

[00:10:42] Speaker 04:
It did affect the sentence there.

[00:10:45] Speaker 04:
And these two, and it's not independent.

[00:10:48] Speaker 04:
Was that the error that you think the evidence that the judge wasn't considering it was in two statements?

[00:10:59] Speaker 04:
Did the defense attorney object to either of those statements and say, judge, you're getting this wrong?

[00:11:06] Speaker 01:
Your Honor, the objection that was made that preserved this and that the government acknowledges preserves this argument.

[00:11:11] Speaker 04:
Well, I'm not sure I agree with the government that it was preserved.

[00:11:13] Speaker 01:
So that's why I'm asking.

[00:11:15] Speaker 01:
OK.

[00:11:16] Speaker 01:
The defense attorney said,

[00:11:19] Speaker 01:
Now that we agree that 5G1.3 applies, like give concurrent sentences, because of this overlap, this was flight, this was in the PSR, I gave you the PSR from Missouri.

[00:11:28] Speaker 01:
So he preserves it there by explicitly arguing the overlap to this district judge.

[00:11:34] Speaker 01:
The district judge then says no.

[00:11:35] Speaker 04:
Say that again.

[00:11:36] Speaker 04:
I want to make sure I understand what the defense attorney said.

[00:11:40] Speaker 04:
So the defense attorney said, this is in response to the statement by the judge that shows the judge

[00:11:48] Speaker 04:
misunderstood, did not recognize the overlap.

[00:11:53] Speaker 04:
So the judge says something that suggests the judge did not recognize the overlap.

[00:12:01] Speaker 04:
And then the defense attorney said something in response, saying you got it wrong?

[00:12:05] Speaker 01:
No, Your Honor.

[00:12:06] Speaker 04:
Well, isn't that how you have to object?

[00:12:08] Speaker 01:
Your honor, if you ask the court to make a specific ruling, you give the basis for that, which here the defense attorney did, primarily argued 5G1.3DB, but said in all the alternative that 5G1.3D applies.

[00:12:24] Speaker 01:
So he asked for, what he was asking for was fully concurrent census.

[00:12:29] Speaker 01:
The law he asked the judge to apply in the alternative was 5G 1.3D.

[00:12:34] Speaker 01:
And the reasoning that he gave was the factual overlap between this charge and what had already been sentenced in Missouri.

[00:12:41] Speaker 01:
That was the original argument.

[00:12:42] Speaker 01:
You don't have to preserve again by saying, Judge, no, no, I already argued this.

[00:12:47] Speaker 01:
You already got it wrong.

[00:12:48] Speaker 01:
I'm going to argue it again.

[00:12:49] Speaker 04:
How long was that before the judge

[00:12:52] Speaker 04:
made either of the two statements that you say show the judge did not recognize the overlap.

[00:12:58] Speaker 01:
Yes, that's in his sentencing memo.

[00:13:00] Speaker 04:
It was in the sentencing memo.

[00:13:02] Speaker 01:
The sentencing memo in my remembrance, I can double check when I'm sitting down, is that he argues both in the alternative.

[00:13:08] Speaker 04:
In the sentencing memo, not at the sentencing hearing.

[00:13:11] Speaker 01:
And also at the sentencing hearing.

[00:13:15] Speaker 01:
The whole basis of his request is the overlap.

[00:13:19] Speaker 01:
There's nothing that he could possibly have done to bring more attention to this overlap.

[00:13:24] Speaker 01:
The district court disagreed, but you don't need to preserve the mistake again once you've already made your argument.

[00:13:33] Speaker 04:
Do you think the district court disagreed and thought there was no overlap?

[00:13:38] Speaker 01:
Well, I think that the best way to read this when he says the possession of the weapon down here is independent of the proceeding in Missouri is there is no overlap.

[00:13:48] Speaker 01:
Excuse me.

[00:13:49] Speaker 01:
When he again says there has to be some consequence to your possession.

[00:13:54] Speaker 04:
You're saying the judge couldn't have said that.

[00:13:59] Speaker 04:
If he recognized that the PSR in Missouri mentioned the crime, could the judge have said that just because looking at the sentence and the whole kit and caboodle for Missouri, because he did have the PSR, he did not think that the Oklahoma offense affected the sentence in Missouri?

[00:14:18] Speaker 01:
No, Your Honor, I don't believe that he could have made that finding.

[00:14:21] Speaker 01:
I think if maybe the government could put on more evidence and somehow prove that, but I don't think that that is a finding the district court could have made with what it had in front of it.

[00:14:29] Speaker 01:
What it had in front of it showed a clear connection.

[00:14:32] Speaker 01:
I think the government thinks that we're making a substantive reasonableness argument.

[00:14:36] Speaker 01:
This could never have been consecutive.

[00:14:38] Speaker 01:
We're not making that argument.

[00:14:39] Speaker 01:
I think there are things that the court could have said.

[00:14:42] Speaker 01:
I disagree with the sentence that was handed out in Missouri.

[00:14:45] Speaker 01:
I think more punishment is necessary.

[00:14:47] Speaker 01:
He has discretion.

[00:14:49] Speaker 01:
But what the judge was not allowed to say was this factually inaccurate thing or a misunderstanding for the relevant law, where he says, this possession is just independent of everything that happened in that proceeding.

[00:15:01] Speaker 01:
That's simply not correct and that can't support the sentence given the directives in 5G1.3D.

[00:15:07] Speaker 01:
If I may reserve the remainder of my time.

[00:15:09] Speaker 01:
Thank you.

[00:15:21] Speaker 02:
Mr. West.

[00:15:23] Speaker 02:
Thank you, Your Honors, and may it please the Court, stand west of the United States.

[00:15:27] Speaker 02:
Your Honors,

[00:15:28] Speaker 02:
In this case, this court should affirm the district court.

[00:15:32] Speaker 02:
Your Honor, to begin, the district court, so this, my understanding is that this argument and this, essentially the whole reason why we are here is that there's an argument that the district court did not appropriately consider and apply its discretion under 5G 1.3 and the relevant application note 4A.

[00:15:50] Speaker 02:
Your Honor, respectfully,

[00:15:52] Speaker 02:
I disagree with that.

[00:15:54] Speaker 02:
The district court had everything in front of it that it explicitly stated on the record that it had considered everything in front of it concerning Mr. Richardson's prior sentence in Missouri, the length of that sentence, the amount that he would serve that was undischarged on that sentence, the fact that it was in Missouri, the 3553A factors.

[00:16:17] Speaker 02:
The 5G 1.3's application note 4A was reprinted in Mr. Richardson's sentencing memo to the court, which the court acknowledged it had read.

[00:16:28] Speaker 02:
And the entire sentencing hearing, which I was present for, revolved around the application of whether or not Mr. Richardson was going to receive a consecutive or concurrent sentence.

[00:16:44] Speaker 04:
But the district judge said this was independent.

[00:16:49] Speaker 02:
Correct.

[00:16:51] Speaker 04:
Is that consistent with the fact?

[00:16:53] Speaker 04:
Well, if the Oklahoma offense led the Missouri judge to increase the sentence, then the Oklahoma Act would not be independent of the Missouri sentence.

[00:17:09] Speaker 04:
Is that correct?

[00:17:11] Speaker 02:
Well, Your Honor, it certainly wouldn't be fully independent from the Missouri sentence.

[00:17:15] Speaker 04:
I agree with that.

[00:17:16] Speaker 04:
If it increased the sentence in Missouri, then it's not independent.

[00:17:21] Speaker 04:
So if that were the case, that it increased the sentence in Missouri, then the judge was laboring under a factual misconception.

[00:17:30] Speaker 04:
Now, maybe that can be reconciled if the judge didn't think it actually did increase the sentence in Missouri.

[00:17:39] Speaker 04:
Can we, if the judge exercises discretion based on a misconception of the facts, then don't we have to send it back down to the judge to get the facts right and then make the decision?

[00:17:54] Speaker 02:
So, Your Honor, respectfully, I don't believe so.

[00:17:56] Speaker 02:
So this standard is an abuse of discretion.

[00:17:59] Speaker 02:
The facts are reviewed for clear error.

[00:18:02] Speaker 02:
So I think the facts would have to be absolutely unsupported by the record that the judge relied on in

[00:18:08] Speaker 02:
crafting the sentence.

[00:18:10] Speaker 04:
And that fact by the Oklahoma judge would be the essential finding that the Oklahoma offense did not affect the sentence in Missouri.

[00:18:23] Speaker 04:
And we would have to find that the judge clearly erred in saying it didn't affect the sentence.

[00:18:31] Speaker 04:
Is that your point?

[00:18:32] Speaker 02:
Correct, Your Honor.

[00:18:33] Speaker 02:
That is my point.

[00:18:36] Speaker 02:
And so our point here is that this court absolutely can look at the record before it.

[00:18:42] Speaker 02:
I realize that the PSR from Missouri is not before it, but can look at the record before it and decide for itself, well, maybe we would disagree with the judge.

[00:18:51] Speaker 02:
But that's not an agree with the judge on that point of this Missouri, the Oklahoma firearm was already punished in Missouri.

[00:19:02] Speaker 02:
And I do think that's a critical distinction here.

[00:19:06] Speaker 02:
talk of relevant conduct specifically, and our position is that it was not relevant conduct.

[00:19:11] Speaker 02:
But even if it is, and even if there is some level of interplay between the two sentences, that does not necessarily mean that the judge's statement on the record, saying that it was independent and saying some punishment needed to be meted out for the fireman Oklahoma, is wholly unsupported.

[00:19:30] Speaker 04:
This court can...

[00:19:32] Speaker 04:
The fact that the Oklahoma offense was listed as offense conduct in the PSR in Missouri, you don't think that shows a clear error by the Oklahoma judge in saying that the Oklahoma offense was independent of the Missouri offense and that he had not received any punishment in Missouri for the Oklahoma offense.

[00:19:56] Speaker 04:
You don't think that shows clear error?

[00:19:59] Speaker 02:
Respectfully, no, Your Honor.

[00:20:00] Speaker 02:
And so what I think it shows is, and I think we don't dispute that the record from the Missouri case is, at the very least, up for dispute.

[00:20:12] Speaker 02:
So one can dispute and say, or one can look at it and say, oh, maybe he was punished.

[00:20:17] Speaker 02:
I think we certainly look at the record and say he absolutely was not punished.

[00:20:21] Speaker 03:
Let's pause there and just get the facts straight, which is,

[00:20:24] Speaker 03:
He got a 182-month sentence in Missouri.

[00:20:27] Speaker 03:
180 months were mandatory minimum.

[00:20:29] Speaker 02:
Correct.

[00:20:30] Speaker 03:
And so far as I know, nobody's pointed me to anything that says those extra two months had anything to do with an Oklahoma gun possession.

[00:20:38] Speaker 02:
Correct.

[00:20:38] Speaker 03:
Is that right?

[00:20:39] Speaker 02:
That's correct.

[00:20:40] Speaker 03:
Now, taking you to 5G 1.3, we arrive at D.

[00:20:45] Speaker 03:
Is that right?

[00:20:46] Speaker 02:
That's correct, John.

[00:20:47] Speaker 03:
And D says, if you're not A, B, or C, then it's up to you, district judge, to decide whether or not the offense that's committed within your state is going to receive some independent time.

[00:20:59] Speaker 02:
Correct.

[00:21:00] Speaker 03:
And I think there was a lot of confusion in the district court about subsection B. Subsection B asks this question.

[00:21:09] Speaker 03:
Was the Missouri conduct relevant conduct to the Oklahoma conduct?

[00:21:13] Speaker 03:
Not vice versa, right?

[00:21:15] Speaker 02:
Correct.

[00:21:15] Speaker 03:
And that's not even part of this case.

[00:21:18] Speaker 03:
That's correct, Your Honor.

[00:21:19] Speaker 03:
And so the whole relevant conduct thing would be important under B if it were the other way around.

[00:21:26] Speaker 03:
But because it's not, we go to D. And D has no prescription whatsoever on any of that, but instead says, you, the district court, use your judgment according to the factors that we list in our note.

[00:21:38] Speaker 03:
Is that right?

[00:21:38] Speaker 02:
That's correct, Your Honor.

[00:21:40] Speaker 02:
And I do think that goes to my point that the district court did just that in this case.

[00:21:44] Speaker 02:
Again, the district court had

[00:21:45] Speaker 02:
references to 5G 1.3D in the PSR, in Mr. Richardson's sentencing memorandum, and the sentencing hearing was all about essentially the judge's discretion to enter a concurrent, consecutive, or partially concurrent, partially consecutive sentence in that case.

[00:22:04] Speaker 02:
Obviously, Mr. Richardson asked for a fully concurrent sentence.

[00:22:08] Speaker 02:
We disagreed and asked for a partially consecutive sentence, and that's where, but, and I do think, Your Honor,

[00:22:15] Speaker 02:
The judge's sentence in this case is actually pretty clear evidence that the judge was well aware of its discretion under 5G 1.3D and applied that discretion under 5G 1.3D in an incremental way so as to take into account Mr. Richardson's undischarged sentence in Missouri and only have part of that time, 10 months, consecutive to the sentence that he had already received in Missouri.

[00:22:42] Speaker 02:
And so, Your Honor, I do want to make one more point about specifically how this case lines up with previous statements that this court has made about discretion to district judges when exercising their discretion under 5G 1.3D.

[00:22:58] Speaker 02:
And this court has made various statements about not needing to use magic words, the sentence just needing to be relevant to the sentencing factors,

[00:23:08] Speaker 02:
not needing the site to achieve 5G 1.3D, and I think most importantly, deferring to the district judge's discretion, unless there's any indication in the record that the district court did not, any contrary indication in the record,

[00:23:24] Speaker 02:
that the judge did not know the law or apply the law to the facts at hand.

[00:23:29] Speaker 02:
And again, I think given the record in this case and certainly the information that the judge had at his disposal and the incremental nature of the punishment for Mr. Richardson, I believe the evidence is very clear.

[00:23:44] Speaker 02:
And I think this case where all we're asking this court to do is rule in line with its previous statements about that deference to the district court in situations like this.

[00:23:56] Speaker 02:
If there are no further questions, I will reserve my time.

[00:23:59] Speaker 02:
Thank you.

[00:24:10] Speaker 01:
Section 5G1.3D does not give unfettered discretion to a district court.

[00:24:14] Speaker 01:
It gives fettered discretion.

[00:24:16] Speaker 01:
It requires the application of directives.

[00:24:19] Speaker 01:
Herlick, this court, said you must apply those directives.

[00:24:21] Speaker 01:
The directives here require consideration of avoiding unwarranted disparities

[00:24:26] Speaker 01:
arising from the fortuity of interrelated conduct being sentenced in separate proceedings.

[00:24:31] Speaker 01:
No matter how you characterize this.

[00:24:34] Speaker 03:
What's the comparator group for disparities?

[00:24:38] Speaker 03:
It's people in his position, right?

[00:24:40] Speaker 01:
So, Your Honor, I don't believe this is the same as 3553A6.

[00:24:43] Speaker 01:
This is about the fortuity of interrelated conduct being sentenced in separate proceedings.

[00:24:50] Speaker 01:
It's about what happens if this had been rule 20 up to Missouri?

[00:24:55] Speaker 01:
Would that have given new facts for that judge to consider?

[00:25:00] Speaker 01:
Or would it have been the same sentencing?

[00:25:02] Speaker 01:
Or if he had fled but not fled out of the kind of artificial boundary of the federal court's jurisdiction, would that have been charged in the same indictment?

[00:25:12] Speaker 01:
Would have been grouped together or grouped separately?

[00:25:17] Speaker 01:
It's not a question, and we don't need to find some similarly situated person, but ask, are these differences just because we happen to be in two different courtrooms and two different proceedings?

[00:25:27] Speaker 03:
Okay, thank you.

[00:25:28] Speaker 04:
Thank you.

[00:25:29] Speaker 04:
I've got a question.

[00:25:31] Speaker 04:
Do you think the District Court in Oklahoma clearly erred in saying that the sentence in Missouri was not affected by the Oklahoma offense, was not increased because the Oklahoma offense

[00:25:46] Speaker 01:
I think that the district court clearly aired when it said that the possession of the weapon was independent of that proceeding.

[00:25:52] Speaker 04:
Well, that's irrelevant unless it affects to his sentencing, unless it affected the sentence in Oklahoma and in Missouri.

[00:26:01] Speaker 04:
And the judge, as Judge Phillips pointed out, at most it could have increased the sentence by two months.

[00:26:08] Speaker 01:
Your Honor, I think that the way that we do federal sentencing, you consider a whole bunch of conduct

[00:26:15] Speaker 01:
And you come up with a total sentence that accounts for that conduct.

[00:26:19] Speaker 04:
Was it clear error for the judge in Oklahoma to think that the Oklahoma offense likely had no influence on the sentence in Missouri?

[00:26:31] Speaker 04:
Was that clear error?

[00:26:32] Speaker 01:
Yes, Your Honor, and I can give you one particular reason why.

[00:26:37] Speaker 01:
With the backdrop of what I just explained, that sentences account for all of the relevant conduct, all of that offense conduct, there was no reason for the Missouri court to hold back, because the Missouri court knew all the relevant facts about the Oklahoma firearm possession, but did not know that there was a pending charge in Oklahoma.

[00:26:55] Speaker 01:
It was not in the PSR.

[00:26:57] Speaker 01:
It said that there were no detainers.

[00:26:59] Speaker 01:
It didn't list that as a pending case.

[00:27:01] Speaker 01:
And so because of the way that federal sentencing works, the information in the pre-sentence report

[00:27:07] Speaker 01:
And because there would have been no reason to hold back, yes, it's clear error to say that that was not one of the acts that was sanctioned in this global sentence that was handed out in Missouri.

[00:27:17] Speaker 03:
Do you have anything from the Missouri record?

[00:27:19] Speaker 03:
And if you've seen the PSR, it's pretty open to you.

[00:27:22] Speaker 03:
Do you have anything in the Missouri record where the district court there said, would be 180, but you had a firearm down in Oklahoma, I'm going up to 182?

[00:27:32] Speaker 01:
No, Your Honor, but I think if we look at how we do, he had a 924C.

[00:27:37] Speaker 01:
And if you look at the sentencing transcript in the Missouri case, the 924C on some level brought down the rest of his sentence.

[00:27:46] Speaker 03:
That proves the case, doesn't it?

[00:27:48] Speaker 03:
With a 924C, he can't get that plus two for the firearm.

[00:27:54] Speaker 01:
I mean, I think if we were here and you were asking me the same question about some quantum of drugs that were charged that was really part of that conspiracy, can we really say that the drugs that were charged, the small quantity in Oklahoma, was not part of the greater sentence in Missouri?

[00:28:09] Speaker 01:
Under that reasoning, I wouldn't be able to say that we can be sure that they were connected because the drug sentence was presumably lowered to make space for the 924C.

[00:28:19] Speaker 01:
That's what appears to have happened there.

[00:28:21] Speaker 01:
So I don't believe that's the right question.

[00:28:23] Speaker 04:
Thank you.

[00:28:24] Speaker 04:
Thank you.

[00:28:26] Speaker 04:
Case submitted.

[00:28:27] Speaker 04:
Counselor excused.

[00:28:27] Speaker 04:
We're going to take a brief recess at this point.