[00:00:00] Speaker 02:
Next case we have this morning.

[00:00:23] Speaker 02:
Next case we have this morning is 24-7019, United States versus Rocha.

[00:00:29] Speaker 02:
Counsel for Appellant, if you'll make your appearance and proceed, please.

[00:00:33] Speaker 04:
May it please the court?

[00:00:34] Speaker 04:
Stuart Sutherland with the Federal Public Defender's Office for the Eastern District of Oklahoma, representing Mr. Chase Rocha.

[00:00:44] Speaker 04:
I would like to start off with the court's denial of acceptance of responsibility.

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I understand the rarity.

[00:00:50] Speaker 04:
in granting acceptance of responsibility when a defendant has exercised his right to trial.

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After all, almost everybody who does not accept responsibility enters a plea and doesn't contest guilt.

[00:01:03] Speaker 04:
But Mr. Rocha went to trial and accepted responsibility for the crime that he was convicted of committing.

[00:01:08] Speaker 04:
And it was the government's fault that the case unnecessarily went to trial.

[00:01:12] Speaker 00:
How does, I'm sorry to interrupt you so fast, but how does the government's fault bear on the district judge's responsibility under 3E1.1 to decide whether the defendant had clearly accepted responsibility?

[00:01:29] Speaker 00:
Maybe he didn't have a chance, maybe it was his fault, maybe it was his colleague's fault.

[00:01:33] Speaker 00:
But whoever's fault it was, how does that actually matter on the question presented to the court?

[00:01:43] Speaker 04:
I think when we look at the commentary to the rule, I know I was looking at Gavin, where when they address the defendants,

[00:01:51] Speaker 04:
The defendant was not one who falsely denies or frivolously contests the relative conduct that the court determines to be true.

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I think that's something that the court takes into account.

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And I think if we flip that over onto the government side, if the government takes a case to trial that does not need to go to trial, I think the government can also be responsible for the kind of waste of judicial resources that I believe that this particular provision is designed to prevent.

[00:02:17] Speaker 04:
In other words, a defendant who

[00:02:18] Speaker 04:
is guilty, doesn't have a defense, is going to plead guilty, can do so and get two points for... Did he offer to plead guilty?

[00:02:28] Speaker 02:
United States versus Collins, in that case the defendant did that.

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Did this defendant offer at any point to plead guilty to involuntary manslaughter?

[00:02:37] Speaker 02:
Okay.

[00:02:37] Speaker 02:
The offer was never made.

[00:02:39] Speaker 02:
Okay.

[00:02:39] Speaker 02:
And going beyond that, when I look at the record, as I read it, did Mr. Rocha, he did not stipulate any facts that would support involuntary manslaughter, did he?

[00:02:49] Speaker 02:
No.

[00:02:49] Speaker 02:
Okay.

[00:02:50] Speaker 02:
And Mr. Rocha, below, cross-examined all witnesses except for one, right?

[00:02:57] Speaker 02:
I believe so.

[00:02:58] Speaker 02:
Okay.

[00:02:59] Speaker 02:
Well, in light of that, why isn't Mr. Rocha, just like Mr. McGeehee, who in his case, his counsel also uttered words of concession and closing argument, and we found that to be inadequate.

[00:03:11] Speaker 02:
That was not sufficient to show that he actually accepted responsibility

[00:03:16] Speaker 02:
If we're focused on involuntary manslaughter, and I've got some further conversation about that, but if we're focused on involuntary manslaughter, what basis was there for that, what he did do, which was just have his lawyer make comments about conceiving, why is that enough?

[00:03:35] Speaker 04:
Well, I'm not focusing on really what his lawyer said.

[00:03:37] Speaker 04:
I think if we look at the commentary, when a person goes to trial and accepts responsibility, we don't look at the things that the lawyer said during trial necessarily.

[00:03:45] Speaker 02:
All right, then what are you using to support the fact that he accepted responsibility when in fact

[00:03:51] Speaker 02:
We have cases like Smith that point out that this is the exception to the rule that you get acceptance of responsibility, which means your client has the burden of showing that they should get it.

[00:04:05] Speaker 02:
So what I'm asking you is what is there?

[00:04:09] Speaker 04:
Well, I think we have to go back, if you'll listen to the government exhibits 30, 31, and 32, those are recordings that were made, part of the statements that were actually made by Mr. Rocha the morning, I believe the morning that the offense was occurred, after he surrendered himself.

[00:04:25] Speaker 04:
He admitted to the police, he admitted to shooting his mother, he admitted to being intoxicated when he did so, he knew that the gun that he used was loaded, he remembers pulling the trigger, he knew that his actions caused his mother's death,

[00:04:37] Speaker 04:
Mr. Rocha admitted to being familiar with firearm safety rules and not following those rules.

[00:04:43] Speaker 04:
I would submit to this court that had he given some kind of a factual basis like this, had he had an opportunity to enter a plea to involuntary manslaughter, that this would have been more than sufficient to support the plea.

[00:04:55] Speaker 02:
He didn't offer to enter a plea and the point I was trying to make is when I survey our cases,

[00:05:01] Speaker 02:
defendants have fallen down or lost when they have sought acceptance and responsibility when they've done far more than Mr. Rocha did.

[00:05:10] Speaker 02:
In Collins, the person offered to plead guilty.

[00:05:12] Speaker 02:
Your client didn't do that.

[00:05:14] Speaker 02:
In McGeehee, the court pointed out that there was no stipulation made by the defendant as to facts that would support this offense that they agreed that they committed.

[00:05:23] Speaker 02:
And also, they pointed out that there was, you know, you related to the question of how much they contested the government's case.

[00:05:32] Speaker 02:
Well, if Mr. Rocha is in the business of cross-examining the witnesses, he filed a motion for judgment of acquittal, it's my understanding too, did he not?

[00:05:41] Speaker 02:
Only with regard to first degree murder.

[00:05:42] Speaker 02:
Well, all right, that leads us to this question.

[00:05:45] Speaker 02:
When you look at Collins and when you look at Smith,

[00:05:48] Speaker 02:
They both were lesser included offense cases.

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They did not focus on acceptance of responsibility for the offense they were convicted of.

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They focused on acceptance of responsibility for what the person was charged with.

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When they went to trial, did they contest the intent of what they were charged with?

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In this case, what he was charged with was murder.

[00:06:12] Speaker 02:
And when he went to trial, at least my reading of the record is he full on contested the intent of murder.

[00:06:22] Speaker 04:
And that was my understanding based on Collins where the defendant went to trial and contested the intent to distribute the control substance.

[00:06:30] Speaker 02:
And the same in Smith.

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So my point is that both of those cases suggest that the lens that we should be viewing this through is not

[00:06:41] Speaker 02:
what he was ultimately convicted of, but what he went to trial and faced, and in particular on the question of the mens rea or the intent associated with that.

[00:06:53] Speaker 02:
And if that's true, then it seems to me that we're in a different situation because we've got to talk about whether Mr. Rocha actually contested the intent for his charge, which was murder.

[00:07:11] Speaker 04:
It was my understanding from reading Collins that that was okay for Mr. Collins to go to trial and contest the intent.

[00:07:19] Speaker 04:
And in fact, had he, at the time of his arrest, acted differently, it might have been a different case.

[00:07:24] Speaker 04:
But Mr. Collins, at the time of his arrest, in spite of the fact that there was a tape recording of him admitting that he knew where the drugs were, that they were his drugs, he denied that the drugs were his at the time.

[00:07:35] Speaker 04:
of his arrest.

[00:07:37] Speaker 04:
He blamed the police officers, I think, for planting the drugs at the time of his arrest.

[00:07:42] Speaker 04:
He ran, tried to flee the scene, and had to be apprehended and brought back to the scene.

[00:07:47] Speaker 04:
And it was the court that focused on that as not the acceptance.

[00:07:49] Speaker 01:
He came back voluntarily, didn't he?

[00:07:51] Speaker 04:
I don't think so in Collins.

[00:07:52] Speaker 04:
I think he had to be.

[00:07:54] Speaker 02:
Oh, in Collins.

[00:07:55] Speaker 02:
Yes.

[00:07:55] Speaker 02:
Well, there were variables in Collins that resulted, no doubt, in the denial of the acceptance of responsibility.

[00:08:02] Speaker 02:
My broader point is this.

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When you look at Collins and when you look at Smith, what the court focused on is the broader charge in determining whether you actually resisted or accepted responsibility.

[00:08:16] Speaker 02:
In this instance, that would mean that we're not just focused on the question of whether he admitted involuntary manslaughter, which again, as I point out, we have cases where defendants seem to have done far more than Mr. Rocha did.

[00:08:30] Speaker 02:
But beyond that, we're not just focused on involuntary manslaughter, we're focused on he went to trial.

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He was charged with a murder.

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If you look at Smith in particular, who got the lesser included, we focused on the fact that he challenged intent.

[00:08:47] Speaker 02:
And to that point here, at least, and correct me if I'm wrong, my reading of the record is key facts going to tent, like, did he point the gun at his mother?

[00:08:57] Speaker 02:
He says, no, I didn't point the gun at my mother.

[00:09:00] Speaker 02:
That was the government's narrative.

[00:09:02] Speaker 02:
Did he, did the gun go off accidentally?

[00:09:05] Speaker 02:
That's his position.

[00:09:06] Speaker 02:
That's not the government's position.

[00:09:08] Speaker 02:
And so these were key facts that would go

[00:09:13] Speaker 02:
what he was charged with.

[00:09:15] Speaker 02:
And in fact, they would go to the question of intent as to what he was charged with, and he contested those.

[00:09:24] Speaker 04:
Your Honor, and I don't want to read all of the transcript, but I did, I think, quote a lot of the transcript in my reply brief when I objected to the government's

[00:09:36] Speaker 04:
description of what he was doing when he made some of those statements.

[00:09:41] Speaker 04:
I mean, I do believe that when he was being examined by the government, he did initially perhaps say, I didn't point the gun at my mother like that.

[00:09:50] Speaker 04:
I don't know what the gesture was.

[00:09:51] Speaker 04:
I think he ultimately conceded obviously he was pointing the gun at his mother when the gun went off, because that's what happened.

[00:09:59] Speaker 04:
I believe that he was being careful not to admit that he had intentionally shot his mother, because that's what this case was all about, was that he did not intentionally shoot his mother.

[00:10:07] Speaker 04:
He did not act with malice of forethought.

[00:10:09] Speaker 04:
He certainly did not act with premeditation, and he was defending on that basis.

[00:10:15] Speaker 04:
Now, you mentioned something about him not offering to plead.

[00:10:19] Speaker 04:
I know it's not part of the record, but there was some negotiations with regard to second-degree murder in this case, where he offered to plead to second-degree murder, had the

[00:10:29] Speaker 04:
prosecutor been willing to dismiss the 924C count.

[00:10:32] Speaker 02:
But it isn't part of the record, so we're not in a situation to consider it.

[00:10:36] Speaker 02:
And as you, just as I understood you anyway, I understood you to say that he in fact contested malice of forethought and these other things.

[00:10:45] Speaker 02:
Well, if in fact Smith tells us that what we're looking at is did you contest the intent of the charge?

[00:10:58] Speaker 02:
then the fact that he did try to challenge malice of forethought tells us all we need to know about whether he's entitled, whether the court was right on the denial, which is that it would support that denial.

[00:11:13] Speaker 04:
Judge, I disagree.

[00:11:14] Speaker 02:
All right, then tell me, do you read Smith differently?

[00:11:17] Speaker 04:
If you look at Smith, what was his defense?

[00:11:19] Speaker 04:
His defense was self-defense.

[00:11:21] Speaker 04:
His defense was that he did nothing wrong.

[00:11:26] Speaker 04:
was found to be acting in self-defense, he'd be asking for a not guilty verdict.

[00:11:31] Speaker 04:
And I would submit that based on Mr. Roach's conduct, based on Mr. Roach's statements, that's not the position that he was in.

[00:11:40] Speaker 04:
In fact, if you look at the statements from his attorney, I believe when the attorney went down and offered the defenses to first degree, second degree, voluntary manslaughter, he ended by telling the jury that involuntary manslaughter, that sure looks like what this is.

[00:11:56] Speaker 04:
you know, short of actually stipulating and he did everything possible.

[00:12:01] Speaker 02:
Well, that's what the defendant did in McGeehee and he didn't get, he got denied.

[00:12:07] Speaker 02:
And we took some effort to point out in McGeehee what he could have done and he did not do.

[00:12:13] Speaker 02:
And those same things that he could have done and did not do is exactly what Mitchell Rocha did not do.

[00:12:24] Speaker 04:
Judge, I don't remember exactly.

[00:12:27] Speaker 04:
I went through dozens of these cases.

[00:12:28] Speaker 04:
No, I understand.

[00:12:30] Speaker 04:
And frankly, I found this to be unique, I think, in the way that this case went down, this trial went down.

[00:12:36] Speaker 04:
So I don't think that there's really any precedent.

[00:12:38] Speaker 04:
I mean, I know attorneys like to cite Gavin for presidential authority.

[00:12:41] Speaker 04:
I know it doesn't work that way.

[00:12:44] Speaker 04:
But I won't go down that path.

[00:12:45] Speaker 04:
But I don't think that there's any authority that says that

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You know, for example, that Mr. Rocha would have had to have accepted responsibility for first-degree murder in order to get acceptance of responsibility.

[00:12:59] Speaker 04:
I think we'd then be in a situation where the government would be an entirely, you know, they'd be in the driver's seat.

[00:13:03] Speaker 04:
They'd be in control.

[00:13:05] Speaker 04:
They'd be the ones to determine whether or not acceptance of responsibility was appropriate based on their charging decision.

[00:13:11] Speaker 04:
And that's why I started out with assessing fault with the government, because I do think it makes a difference in this case.

[00:13:20] Speaker 04:
If I could just very briefly talk about, I did want to argue that the upward variance was unreasonable if I could spend just maybe a minute on that before reserving my time.

[00:13:31] Speaker 04:
I think that if you look through the record, you can see that we start out with a judge that didn't like the verdict.

[00:13:38] Speaker 04:
Significantly, I thought it was quite remarkable

[00:13:40] Speaker 04:
the judge's reaction to the jury verdict, the fact that the judge was willing to send the jury back to the deliberations room to further deliberate, in spite of the fact that there was a clear guilty verdict for involuntary manslaughter.

[00:13:52] Speaker 04:
I found that to be remarkable.

[00:13:55] Speaker 04:
I know that the fact that this was found to be a reckless event, I know that the fact that the guidelines also speak to the fact that it's a reckless event.

[00:14:07] Speaker 04:
necessarily prevent the judge from bearing upward.

[00:14:10] Speaker 04:
But I think this particular provision in the guidelines, 2A1.4, is very specific.

[00:14:18] Speaker 04:
It provides 12 if the conduct is criminally negligent, provides for a base offense of 18 if the conduct is reckless, which includes just about all of these offenses, according to the committee, or 22.

[00:14:33] Speaker 04:
could have gone higher if the conduct involved was the reckless operation of a motor vehicle.

[00:14:39] Speaker 04:
Add to that the fact that the commission in 2003 had actually increased the guideline level for this particular one to 18.

[00:14:48] Speaker 04:
So it was already high, which, to my way of thinking, makes the judge's decision very upward, all the more unreasonable.

[00:14:56] Speaker 02:
What do we make of the fact that the judge

[00:15:01] Speaker 02:
did not vary all the way up to the statutory maximum and well under what the statutory maximum is.

[00:15:06] Speaker 02:
If animating your argument to some extent, maybe I misunderstand it, is the view that the judge was, you said, upset by the verdict and was essentially trying to

[00:15:18] Speaker 02:
Well, punish fully the defendant.

[00:15:21] Speaker 02:
Well, he didn't punish fully the defendant, but he didn't go up to the statutory maximum.

[00:15:25] Speaker 04:
No, and it certainly would have been a better case had he done so.

[00:15:27] Speaker 04:
I think he was, well, I tell you what, I have to think.

[00:15:29] Speaker 04:
I have to assume, because he really didn't state how he got to the 60-months titty.

[00:15:33] Speaker 04:
There's nothing in the record to show how he got there.

[00:15:36] Speaker 04:
I don't think I have any time to reserve anymore.

[00:15:42] Speaker 02:
Thank you.

[00:15:42] Speaker 02:
Thank you, Counsel.

[00:15:52] Speaker 03:
May it please the court, Patrick Flanagan, on behalf of the United States.

[00:15:56] Speaker 03:
Your honors, the district court sentenced the defendant to a term of imprisonment that was procedurally and substantially reasonable, and this should be affirmed.

[00:16:05] Speaker 03:
The district court began sentencing as it must by calculating the guideline range.

[00:16:09] Speaker 03:
In doing this, it received the arguments of counsel on whether the defendant was entitled to a reduction under the guideline section 3E1.1A for a two-level reduction

[00:16:21] Speaker 03:
the district court recognized that it could, under 3E1.1A, despite going to trial, give acceptance of responsibility.

[00:16:32] Speaker 03:
It decided not to.

[00:16:34] Speaker 03:
It laid out its reasons.

[00:16:35] Speaker 03:
It had the arguments of counsel.

[00:16:37] Speaker 03:
It had the evidence at trial.

[00:16:39] Speaker 03:
It had everything in front of it it needed and recognized its authority and refused to do so.

[00:16:44] Speaker 03:
This was not clear error.

[00:16:46] Speaker 03:
And that is the standard of review for the district court's denial of acceptance with responsibility.

[00:16:52] Speaker 02:
Well, your position in the brief, if I understood it, was that he never admitted to the conduct that rose to the level required for involuntary manslaughter.

[00:17:01] Speaker 02:
Well, he confessed and testified that he unintentionally shot and killed his mother in what he described as a, quote, horrible accident, unquote.

[00:17:10] Speaker 02:
Why isn't that admitting to the factual elements of involuntary manslaughter?

[00:17:14] Speaker 03:
Your Honor, as the district court noted, admitting something is an accident isn't admitting that it's reckless.

[00:17:19] Speaker 03:
And the mens rea and standard for involuntary manslaughter

[00:17:23] Speaker 03:
is reckless and wanton disregard.

[00:17:25] Speaker 00:
Well, he said in Exhibit 30 that not only was he drinking a lot, but that he was unable to control himself.

[00:17:36] Speaker 00:
And it's true that he didn't use the word reckless, but why isn't it obvious that what he immediately told the officers once he was interviewed was the equivalent.

[00:17:52] Speaker 00:
I was drunk.

[00:17:53] Speaker 00:
I was unable to control myself.

[00:17:55] Speaker 00:
I had to have Johnny and my girlfriend try to control me.

[00:17:58] Speaker 00:
They couldn't do it.

[00:18:00] Speaker 00:
Why was that not enough for a prompt acknowledgement of what a layperson would call reckless?

[00:18:08] Speaker 03:
Well, Your Honor, there was also further conduct of the defendant in the record, including his flight from the scene, his flight from the state.

[00:18:15] Speaker 03:
Those are, under application note, I believe,

[00:18:19] Speaker 03:
one of three E1.1 things to consider.

[00:18:23] Speaker 03:
The judge weighed all of those and noted that he weighed all of those and ultimately coming to his conclusion that an acceptance of responsibility in this case was not applicable to the defendant's guideline range and that was not clear error by the district court and should not be upset by this court.

[00:18:47] Speaker 03:
As I noted, an accident does not equal reckless.

[00:18:50] Speaker 03:
We did have to go to trial.

[00:18:53] Speaker 03:
And regarding the opposing counsel's point about the judge asking about the jury's verdict, it should be noted that the jury verdict form for count one

[00:19:04] Speaker 03:
the primary charge defense, the lesser included offense of second degree murder and voluntary manslaughter were not filled out by the jury before returning a guilty verdict to the lesser included involuntary manslaughter.

[00:19:20] Speaker 01:
Why does that make any difference?

[00:19:21] Speaker 03:
Just noted that they weren't filled out of guilty or not guilty and it could have been a point of inquiry from the judge just making sure that there wasn't more work for the jury to do.

[00:19:32] Speaker 02:
What did we do with Mr. Rocha's, with the standard review list or Mr. Rocha's procedural reasonableness arguments?

[00:19:39] Speaker 02:
It wasn't clear to me that you're claiming lack of preservation as it relates to any of those arguments.

[00:19:45] Speaker 02:
I mean, I didn't see that in your brief.

[00:19:47] Speaker 02:
Am I wrong?

[00:19:48] Speaker 03:
I did not have that in the brief, Your Honor.

[00:19:51] Speaker 03:
My contention was that the procedure was correct.

[00:19:54] Speaker 03:
The district court correctly calculated the guideline range.

[00:19:59] Speaker 03:
then moved on to considerations of the 3553A factors.

[00:20:04] Speaker 03:
As it must, it weighed those factors.

[00:20:07] Speaker 03:
I know in the opposing counsel's brief, one of the things they wanted to bring up was the what does society expect question that the district court judge posed, but that was in response to a statement by defense counsel during his argument of, judge, you have to look at what society expects.

[00:20:28] Speaker 00:
Well, so you're arguing invited error.

[00:20:32] Speaker 00:
I'm not sure that's what the defendant had said.

[00:20:35] Speaker 00:
Well, Your Honor, in the record, you're saying he clearly invited the judge to apply the 3553A factors based on what society would expect him to do for this defendant.

[00:20:58] Speaker 03:
Your Honor, that was part of the argument.

[00:21:01] Speaker 03:
But one of the questions or the question that opposing counsel posed during sentencing was, what does our society value?

[00:21:08] Speaker 03:
My argument, I think, went more to the district court's brief comment in its statement of sentencing about what society valued was in response to that question.

[00:21:19] Speaker 00:
So, yeah, so societal values that are

[00:21:23] Speaker 00:
3553A2A, retribution, punishment, those are values.

[00:21:30] Speaker 00:
How does that invite the judge to then impose what the judge thought society expects him to do?

[00:21:40] Speaker 03:
Well, it went to whether the district court exercised its discretion and weighed the 3553A.

[00:21:47] Speaker 00:
Yeah, and I understand your argument on the merits.

[00:21:50] Speaker 00:
I was just a little skeptical of your invited error argument.

[00:21:57] Speaker 00:
So I wanted to give you a chance to disabuse me and my skepticism.

[00:22:01] Speaker 03:
Your Honor, the district judge exercised his own discretion.

[00:22:05] Speaker 03:
He did make the comment, but from the hearing, it was more apparent that that wasn't the weight for his weighing of the 3553A factors.

[00:22:15] Speaker 03:
It was a statement in direct response to counsel.

[00:22:17] Speaker 00:
What about the separate argument that Mr. Southerland makes about the procedural unreasonableness

[00:22:24] Speaker 00:
of failing to adequately explain why the judge varied upward 27 months.

[00:22:30] Speaker 00:
You know, with departures, with White, Skunk, and Goldberg, we have very specific precedents saying that a judge has to explain, in the context of a departure, which is different, you know, why the circumstances would justify imposing a particular guideline range

[00:22:50] Speaker 00:
through an upward departure.

[00:22:52] Speaker 00:
And granted, we have more flexibility to the judge with variances, but how can we meaningfully evaluate the judge's decision that he fled, that he ditched the gun, that that justified a 27-month upward variance?

[00:23:13] Speaker 00:
If you were the judge, how would you apply the abuse of discretion standard

[00:23:19] Speaker 03:
Your Honor, I believe the district court applied the weighing, and he formed a sentence that wasn't the maximum.

[00:23:27] Speaker 03:
It wasn't eight years.

[00:23:29] Speaker 03:
He didn't give him an illegal sentence.

[00:23:31] Speaker 03:
It was within the range that was available to the court.

[00:23:35] Speaker 00:
Yeah, I'm not questioning substantive reasonableness.

[00:23:37] Speaker 00:
I'm just questioning how we evaluate the reasonableness of the procedures that he employed to get to a particular guideline range.

[00:23:48] Speaker 03:
Well, Your Honor, I would submit he obviously weighed the factors.

[00:23:54] Speaker 03:
He laid out what was important to him in coming to his sentence.

[00:23:59] Speaker 03:
He did indicate before the hearing he was inclined to depart upwards.

[00:24:04] Speaker 03:
Everyone knew that going into the sentencing.

[00:24:06] Speaker 03:
Everyone presented arguments regarding the court's upward intentions to vary and then made their arguments.

[00:24:16] Speaker 03:
And the district court judge, the sentencing judge, laid out what was important to him in the 3553A factors more than the others.

[00:24:24] Speaker 03:
And in his discretion said, I'm giving you 60 months.

[00:24:29] Speaker 03:
You will get out one day.

[00:24:31] Speaker 03:
The moral component will be left to you, but this is outside the, essentially what he was saying is this is outside the ordinary realm of the guideline range and what it says, and this is what it is based on my weighing of the 3553A factors, and these are the specific facts, the evidence of trial, the evidence of flight, the discarding of the firearm, and the drunken flight from the state.

[00:24:56] Speaker 03:
were all important factors to him and are clear in the record as he so stated.

[00:25:01] Speaker 01:
But then he came back and told him where the gun was, right?

[00:25:06] Speaker 01:
Voluntarily came back to his father fairly rapidly.

[00:25:10] Speaker 03:
He did, after fleeing the state, he was convinced to return.

[00:25:14] Speaker 01:
I would note that... He fled the state because he wanted to talk to his father, who happened to be

[00:25:20] Speaker 01:
90 miles away across the border in Texas from where he was in Oklahoma.

[00:25:25] Speaker 03:
That was his claim, yes.

[00:25:27] Speaker 01:
What sentence did the government argue for?

[00:25:31] Speaker 03:
Your Honor, we argued that a sentence of at least the guideline range was appropriate.

[00:25:34] Speaker 03:
We argued against the downward variance.

[00:25:37] Speaker 01:
And the guideline range was?

[00:25:40] Speaker 03:
The guideline range, I'm going something off memory because I don't have it in front of me, 27 to 33.

[00:25:48] Speaker 03:
But we argued that the guideline range should be the floor of the sentence and not the ceiling the district Judge Wayne's discretion agreed.

[00:25:59] Speaker 03:
and very upward.

[00:26:00] Speaker 03:
I would note that in the record, there was also evidence of a phone call between the defendant and his girlfriend where he said that the death was his mother's fault and not his.

[00:26:13] Speaker 03:
That was testified to by the girlfriend.

[00:26:16] Speaker 03:
That was also testified to.

[00:26:17] Speaker 01:
But there was evidence that he was after his stepfather and his mother intervened.

[00:26:24] Speaker 01:
Isn't that what he's talking about?

[00:26:25] Speaker 01:
It's her fault because she got in my way.

[00:26:29] Speaker 03:
He did make a statement.

[00:26:30] Speaker 03:
We didn't inquire too closely of him during cross-examination of what his reason was.

[00:26:38] Speaker 03:
He was, by the record, reluctant to make admissions on that point.

[00:26:43] Speaker 03:
And the memory of the girlfriend when it came time to testify about that was not firm.

[00:26:51] Speaker 03:
And we weren't allowed to admit the recording into evidence, even though it was submitted to the court.

[00:26:58] Speaker 03:
for prior consideration.

[00:27:01] Speaker 03:
The sentence was reasonable.

[00:27:06] Speaker 03:
It was procedurally and substantially reasonable.

[00:27:10] Speaker 03:
We would ask that it would be affirmed.

[00:27:13] Speaker 03:
There were a number of facts warranting an upward variance that the defendant was twice disarmed before picking up a third loaded firearm.

[00:27:26] Speaker 03:
He had to cock.

[00:27:27] Speaker 03:
the single action revolver before it could be fired and shot and killed his mother.

[00:27:32] Speaker 03:
There was testimony pointed at her twice.

[00:27:34] Speaker 01:
Wasn't there evidence that the trigger moved faster than an ordinary trigger does?

[00:27:40] Speaker 03:
There was evidence of a light trigger pull based on the defendant's expert who was allowed to testify.

[00:27:47] Speaker 03:
However, it was also made apparent that in order for that trigger to pull and fire, it had to be cocked first.

[00:27:54] Speaker 03:
And no one testified that it was easy to do.

[00:27:59] Speaker 03:
But it was a separate action that had to occur before the light trigger pull would have any effect.

[00:28:06] Speaker 03:
There was also the evidence that the defendant intended to use the firearm on his stepfather and had to be, again, twice disarmed for sneaking out a third firearm.

[00:28:16] Speaker 03:
the defendant's flight, his intoxication during the flight, and blaming the mother for the shooting, which was at the trial transcript at page 342.

[00:28:27] Speaker 03:
All of these go to the exercise of the sentencing court's discretion and the reasonableness of its sentence.

[00:28:37] Speaker 03:
And we would ask that it would be affirmed.

[00:28:39] Speaker 03:
Unless there are any other questions, I would be able to rest.

[00:28:45] Speaker 01:
that this was a close call?

[00:28:47] Speaker 03:
He did say it was a close call with regards to whether he would give acceptance of responsibility or not.

[00:28:54] Speaker 03:
He ultimately decided not to and he also in varying upwards said if he was wrong about this this was still the sentence he was going to give.

[00:29:01] Speaker 02:
Thank you counsel.

[00:29:05] Speaker 02:
Thank you.

[00:29:07] Speaker 02:
Mr. Sutherland, if you want a minute you can have a minute.

[00:29:12] Speaker 00:
I'm guessing he wants it.

[00:29:15] Speaker 02:
Just wait till they set the clock.

[00:29:28] Speaker 04:
Judge, first of all, how is a 21 year old

[00:29:32] Speaker 04:
man going to accept responsibility or explain what happened other than to call this an accident.

[00:29:38] Speaker 04:
Is he supposed to say when he was initially interviewed by law enforcement that my behavior was reckless and wanton?

[00:29:45] Speaker 04:
I have to look up wanton to see what the definition is when I read it and do jury instructions.

[00:29:53] Speaker 04:
Be that as it may, is he supposed to say that he's grossly negligent?

[00:29:56] Speaker 04:
Was he supposed to use those words?

[00:29:58] Speaker 04:
He described his conduct, and that's the important thing.

[00:30:02] Speaker 04:
The application doesn't really talk about fleeing.

[00:30:06] Speaker 04:
I think it's interesting that the judge in this case did not even do a flight instruction.

[00:30:10] Speaker 04:
The actual statement in the committee notes is that prompt surrender is the key.

[00:30:15] Speaker 04:
And he promptly surrendered.

[00:30:16] Speaker 04:
In fact, before he surrendered, they called ahead to say he was coming.

[00:30:22] Speaker 04:
So I don't believe that flight is an issue in this case.

[00:30:28] Speaker 04:
I'd like to mention just for a second that it's the mother's fault.

[00:30:31] Speaker 04:
If you read what the judge's interpretation of that is, that was not the judge's interpretation that the shooting was the mother's fault.

[00:30:40] Speaker 02:
The case is submitted.

[00:30:41] Speaker 02:
Thank you, counsel, for your arguments.

[00:30:42] Speaker ?:
Thank you.