[00:00:00] Speaker 04:
Our next case is 24-2074, United States versus Vasquez Garcia.

[00:00:06] Speaker 00:
May it please the court, JK Theodosia Johnson, on behalf of Mr. Vasquez Garcia.

[00:00:10] Speaker 00:
This case is about fundamental fairness in sentencing.

[00:00:13] Speaker 00:
Due process requires that any fact used to increase a sentence be proven by a preponderance of the evidence.

[00:00:19] Speaker 00:
Here, the district court decided that Mr. Vasquez Garcia's 2018 conviction for child abuse necessarily included sexual assault of a child.

[00:00:27] Speaker 00:
It did so because the PSR included the allegations underlying Mr. Vasquez Garcia's charges that there is nothing in the PSR to give them any sort of indicia of the liability.

[00:00:39] Speaker 04:
There was no objection, though.

[00:00:41] Speaker 00:
There was no objection.

[00:00:42] Speaker 00:
But McDonald pointed out that any objection has to specify what about the fact is inaccurate or untrue.

[00:00:52] Speaker 00:
In here, the statement about the allegations was accurate.

[00:00:55] Speaker 00:
It was an accurate statement.

[00:00:57] Speaker 00:
of what gave rise to the charges.

[00:01:02] Speaker 00:
But it says nothing about the truth underlying those allegations.

[00:01:05] Speaker 01:
Well, the rule says that if you don't object, the court can accept them as truthful findings of fact.

[00:01:15] Speaker 00:
But it's a truthful finding of fact as to the allegations, not to as what the conduct actually was.

[00:01:20] Speaker 00:
It's a basic tenet of our law that an arrest

[00:01:24] Speaker 00:
doesn't equal guilt.

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And that's what this is here.

[00:01:27] Speaker 00:
She's taking the allegations and arrest and treating it as evidence of guilt.

[00:01:32] Speaker 01:
He pled guilty.

[00:01:34] Speaker 01:
He pled guilty.

[00:01:35] Speaker 01:
And he had an obligation, an affirmative obligation, if he challenged the factual accuracy of any of the statements in the PSR, he had to object.

[00:01:48] Speaker 01:
And he didn't object.

[00:01:52] Speaker 00:
Again, I'm going to rely on the fact that allegations, and he did contest them when Judge Strickland pushed him for it.

[00:01:59] Speaker 00:
He repeatedly said that there was no sexual assault, that there was no sexual abuse, that it was very heavy.

[00:02:06] Speaker 00:
And the fact that she engaged in this conversation about the underlying facts did put it at issue, and did constitute sort of an objection on his part, or on her part.

[00:02:19] Speaker 01:
We have case law that says the representative party's objections during a call with the court cannot overcome a failure to object to the PSR.

[00:02:32] Speaker 00:
But Harrison also said that if the court engages in that conversation, that it does count as an objection, though belatedly.

[00:02:43] Speaker 01:
No, it didn't.

[00:02:44] Speaker 01:
It said that the rule governs and that

[00:02:47] Speaker 01:
that the district court is completely within its authority to take them as findings of facts.

[00:02:55] Speaker 00:
But Harrison also said that if there was a debate about it and they engaged in it, that they could engage with those facts despite the lack of objection.

[00:03:13] Speaker 02:
I have a question, please.

[00:03:17] Speaker 02:
If there were no objections made, aren't we on plain error review up here?

[00:03:26] Speaker 00:
Yes, but it is a due process constitutional requirement.

[00:03:30] Speaker 00:
And if they relied on inaccurate statements, that requires a reversal.

[00:03:40] Speaker 02:
I'm not convinced of that yet, counsel, so you better proceed.

[00:03:48] Speaker 01:
Well, the categorical cases explain the difficult- Categorical cases have absolutely nothing to do with the issue before us.

[00:03:58] Speaker 00:
I disagree, because the categorical cases explain the difficulties of looking back in time.

[00:04:03] Speaker 00:
And any time you rely, you make a conclusion now about something that happened in the past, it's mere speculation.

[00:04:10] Speaker 00:
And that's why the categorical cases

[00:04:13] Speaker 00:
limited to the facts of conviction.

[00:04:15] Speaker 00:
And these concerns exist outside.

[00:04:18] Speaker 01:
Are there any categorical cases that deal with the PSR?

[00:04:22] Speaker 01:
No.

[00:04:22] Speaker 01:
OK.

[00:04:23] Speaker 01:
And every categorical case ever decided has to do with the ACCA, right?

[00:04:31] Speaker 00:
Correct.

[00:04:32] Speaker 00:
But I think the concerns about looking back in time and what the categorical cases teach us about that are relevant here.

[00:04:41] Speaker 01:
Well, what do we do with Federal Rule of Criminal Procedure 32i3b, which says that the district court may accept any undisputed portion of the pre-sentence report as a finding of fact, not an allegation, a finding of fact?

[00:05:00] Speaker 00:
Well, it's a fact of allegation.

[00:05:01] Speaker 00:
It's not a fact of conviction.

[00:05:05] Speaker 00:
And he did contest this when he pled not guilty.

[00:05:08] Speaker 00:
He contested his allegations.

[00:05:11] Speaker 00:
And again, when he kept telling Judge Strickland that he didn't do anything.

[00:05:18] Speaker 04:
What did he plead guilty to?

[00:05:20] Speaker 00:
He pled guilty to child abuse, which has no elements of sexual assault or any sexual element at all.

[00:05:26] Speaker 00:
And that's why you can't presume that any sort of sexual misconduct occurred.

[00:05:32] Speaker 00:
I mean, it's speculation that that's why that conviction ended up.

[00:05:37] Speaker 01:
Well, I mean, he

[00:05:40] Speaker 01:
didn't object to the statement in the PSR, which included him propositioning his stepdaughter and groping her, right?

[00:05:50] Speaker 01:
Grabbing her breast.

[00:05:52] Speaker 01:
Correct.

[00:05:53] Speaker 01:
OK.

[00:05:54] Speaker 01:
So if we don't agree with you that the district court couldn't rely on those because they weren't objected to, then the district court didn't err here.

[00:06:08] Speaker 00:
But it did, because it's just speculation that's what happened.

[00:06:14] Speaker 00:
You can't just include any statement in the PSR in hopes that it converts it to reliable evidence if counsel doesn't object.

[00:06:22] Speaker 00:
And I think that it's a basic tenet.

[00:06:27] Speaker 00:
And I understand the difficulties, right?

[00:06:30] Speaker 00:
But most of the PSR objections deal with the conduct, the relevant conduct and conduct that was at issue in the offense, and not conduct that occurred

[00:06:37] Speaker 00:
six years prior that we don't know the source of.

[00:06:42] Speaker 04:
Well, if he objected to that part of the PSR, then it would have required the government to bring forth witnesses and testimony at sentencing if they wanted to advance that theory for sentencing.

[00:06:57] Speaker 04:
So it's not like you're

[00:07:01] Speaker 04:
client was left floundering without a path to challenge this, because there's a very well-settled way to do it.

[00:07:10] Speaker 04:
And then that forces Judge Strickland to evaluate testimony.

[00:07:14] Speaker 04:
And your client could have gone on the stand and denied these allegations.

[00:07:19] Speaker 04:
It would have been sort of out.

[00:07:21] Speaker 04:
And that's why the rules are the way they are.

[00:07:23] Speaker 04:
And it's just very tough on Plain Air Review

[00:07:30] Speaker 04:
go get around the fact that there was a path to challenge the allegations here.

[00:07:36] Speaker 00:
Yes.

[00:07:37] Speaker 00:
But the sentence is also substantively unreasonable, because the court's explanation contained really scant analysis.

[00:07:45] Speaker 00:
All she ever said about why this variance was necessary was that the facts of the case warranted.

[00:07:51] Speaker 00:
But we don't know exactly what facts she really thought warranted it, though she did keep referring to the sexual assault.

[00:07:58] Speaker 00:
But why those were so important

[00:07:59] Speaker 00:
to take it outside the heartland.

[00:08:02] Speaker 00:
The guidelines have considered offense levels and fender characteristics, including aggravating and mitigating factors.

[00:08:11] Speaker 00:
It's baked into the guidelines.

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And even the government thought that Mr. Vasquez Garcia's conduct didn't warrant even a top of the guidelines sentence.

[00:08:19] Speaker 00:
It asked for 20 months.

[00:08:22] Speaker 00:
And it did so in part because the guidelines took into account his prior conviction by adding,

[00:08:28] Speaker 00:
tend to his level in three criminal history points.

[00:08:33] Speaker 00:
And Crosby was discussing, you have to explain why a sentence doesn't.

[00:08:42] Speaker 04:
Is that a procedural unreasonableness argument?

[00:08:46] Speaker 04:
You're advancing that the explanation was inadequate?

[00:08:49] Speaker 00:
Well, as this court has acknowledged, it's murky, right?

[00:08:52] Speaker 00:
Because it is procedural, but also when

[00:08:56] Speaker 00:
explanation itself is so short and so scant of analysis that you can't reliably review it, that you are left guessing at what facts and why those facts warranted it, that it's a substantively unreasonable sentence.

[00:09:11] Speaker 01:
Here the district court addressed all seven of the 3553A factors, right?

[00:09:19] Speaker 00:
She invoked them, but she didn't actually engage with them.

[00:09:23] Speaker 00:
She didn't have like a credible

[00:09:26] Speaker 00:
in-depth consideration about like, you know, why does... I don't know what that was.

[00:09:38] Speaker 00:
Okay, sorry, it flustered me.

[00:09:41] Speaker 00:
So she just kind of goes through them by rote and she doesn't say, you know, when she's considering the guidelines, she said, you know, it's a 24 to 30 range.

[00:09:51] Speaker 00:
I find that, you know, there's not a presumption

[00:09:55] Speaker 00:
I don't think the presumption of reasonableness applies in direct, but if it does, I think it's warranted by the facts of this case, again with the disparity.

[00:10:03] Speaker 00:
And she had the JSON data in front of her, which shows that the average sentence for Mr. Vasquez Garcia's offense level in criminal history points is 19 months, which is almost exactly what she varied upwards by.

[00:10:16] Speaker 00:
So she knew there was a disparity, and all she said was the facts of the case warranted.

[00:10:20] Speaker 00:
But we don't really know why the facts warranted.

[00:10:24] Speaker 00:
terrible about Mr. Vasquez Garcia's conduct that puts him so far outside the guidelines.

[00:10:29] Speaker 00:
And there's nothing for us to really engage with to review that.

[00:10:33] Speaker 00:
And that's why it's substantively unreasonable.

[00:10:37] Speaker 02:
I have a question, please.

[00:10:39] Speaker 02:
Were you trial counsel in this matter below?

[00:10:41] Speaker ?:
No.

[00:10:44] Speaker 02:
Because what you've just explained to me

[00:10:47] Speaker 02:
As a trial court, it may not be in great detail, but it's not enough to accuse the trial court, I believe, of just being absolutely wrong.

[00:10:59] Speaker 02:
So if the trial, whoever was the lawyer below, on the basis of what you just explained, should have been objective, and yet there's no objection.

[00:11:12] Speaker 00:
Preservation, yes, you're correct about that.

[00:11:16] Speaker 00:
But preservation isn't an end of itself.

[00:11:18] Speaker 00:
It's a means to a fair outcome.

[00:11:20] Speaker 00:
And yes, in a perfect world, she would have objected, and there would have been a more solid record.

[00:11:26] Speaker 00:
But still, what we're left with is the court using allegations and an arrest to say that Mr. Vasquez Garcia is one of the worst of the worst, and he requires this above-guidelines sentence.

[00:11:51] Speaker 02:
that the trial court can consider much wider than just being strictly limited.

[00:12:00] Speaker 02:
Am I not correct there?

[00:12:01] Speaker 00:
No, you are correct.

[00:12:02] Speaker 00:
But these facts have to be proven by preponderance.

[00:12:05] Speaker 00:
They have to have some addition of reliability.

[00:12:07] Speaker 00:
And what this court has said are addition of reliability, defendant's omissions, which we don't have here, independent... Which counsel requires an objection.

[00:12:22] Speaker 02:
Right?

[00:12:22] Speaker 00:
I think that there is an independent due process requirement that the facts be by preponderance.

[00:12:29] Speaker 00:
And I think that as a judge, that she knew that the allegations were just that.

[00:12:36] Speaker 00:
And there needed to be some sort of something more than a preponderance for her to rely on them.

[00:12:42] Speaker 00:
In Watts, was it Watts?

[00:12:44] Speaker 00:
No, it was Williams.

[00:12:45] Speaker 00:
For people versus Williams, the judge there who did use the other burglaries had

[00:12:51] Speaker 00:
had the defendant's admissions that those had happened.

[00:12:54] Speaker 00:
So there was a preponderance there.

[00:12:56] Speaker 01:
Really, I mean.

[00:12:56] Speaker 01:
So are you arguing that federal rule of criminal procedure 32I3A is unconstitutional?

[00:13:06] Speaker 01:
I mean, because that rule says you don't object.

[00:13:09] Speaker 01:
We get to treat it as fact.

[00:13:12] Speaker 00:
It's true.

[00:13:13] Speaker 00:
But then I come back to it's the fact of the allegations.

[00:13:16] Speaker 00:
It's what gave rise.

[00:13:17] Speaker 01:
No, that's not what the rule says.

[00:13:19] Speaker 01:
It's not a fact of an allegation, it's fact.

[00:13:23] Speaker 01:
If you think the PSR is inaccurate in what it says you did, you need to object so that the district court can undertake whatever process is necessary to determine by a preponderance whether or not it is fact.

[00:13:49] Speaker 00:
The guidelines say you can't consider just arrests, right?

[00:13:52] Speaker 00:
There has to be something more, even.

[00:13:54] Speaker 01:
That's not responsive.

[00:13:59] Speaker 00:
You noticed that, did you?

[00:14:02] Speaker 00:
Well, it's just fundamentally unfair.

[00:14:07] Speaker 01:
So you're saying the rule is fundamentally unfair.

[00:14:11] Speaker 00:
Yes.

[00:14:12] Speaker 01:
But the rule would allow process.

[00:14:18] Speaker 01:
if, as I think Judge Timkovich already explained, if you have an objection, there's an obligation on the district court to do whatever it needs to do to meet that preponderance threshold.

[00:14:31] Speaker 01:
But if nobody calls to the attention of the district court that this is false, then the district court has no reason to doubt it, because under the rule, it's deemed bad.

[00:14:46] Speaker 00:
I mean, I know that you disagree with me.

[00:14:48] Speaker 00:
It's the fact of allegations and what gave rise to the charges.

[00:14:51] Speaker 00:
And as a judge, she knows there's a gulf between allegations and what actually happens.

[00:14:58] Speaker 00:
And it's her.

[00:15:00] Speaker 01:
So she has a sui sponte duty, even without an objection, to undertake some type of evidentiary procedure to challenge the statements in the PSR.

[00:15:13] Speaker 00:
I'm out of time, but may I address your question?

[00:15:15] Speaker 00:
I think so, and I think she recognized that when she kept pushing Mr. Vasquez Garcia to admit that there was some sort of sexual misconduct.

[00:15:24] Speaker 00:
She was trying to get some sort of evidentiary something that proved it by ponderance.

[00:15:30] Speaker 00:
Thank you.

[00:15:30] Speaker 04:
Thank you, counsel.

[00:15:32] Speaker 04:
Mr. Braun?

[00:15:35] Speaker 03:
May I please the court?

[00:15:36] Speaker 03:
James Braun on behalf of the United States.

[00:15:40] Speaker 03:
I don't believe that the judge was trying to develop evidence when she was questioning the defendant.

[00:15:45] Speaker 03:
I think she was trying to understand why he engaged in that conduct, because under 3553A, she had to look at the history and characteristics of the defendant to determine the appropriate sentence.

[00:15:57] Speaker 03:
Now, as far as the interplay between rule 32i and the due process clause,

[00:16:07] Speaker 03:
This court said in United States v. Strayer, cited at page 11 of the government's brief, that the due process problem was addressed in the 1983 amendments to Rule 32 that provide for this process when there are allegations of inaccurate information in the PSR.

[00:16:26] Speaker 03:
And as Judge Timkovich and Judge McHugh, you've both noted, there is a process when the defendant objects.

[00:16:32] Speaker 03:
And that process is short-circuited when a defendant fails to object

[00:16:36] Speaker 03:
and then raises challenges to the facts on appeal.

[00:16:40] Speaker 03:
If the defendant had objected, Rule 32 F provides that the probation officer can meet with the parties.

[00:16:49] Speaker 03:
It can engage in further investigation and then revise the PSR if necessary.

[00:16:58] Speaker 03:
By not objecting, there is a consequence to that.

[00:17:01] Speaker 03:
The consequence is, under Rule 32 I, the court can accept

[00:17:05] Speaker 03:
any unobjected to information as a finding of fact.

[00:17:09] Speaker 03:
And here, if you look at the PSR, there are facts stated in the PSR in this regard, at page 6 of the PSR.

[00:17:19] Speaker 03:
Fact, while speaking with the victim, officers noted that she was visibly upset with tears on her cheeks.

[00:17:25] Speaker 03:
That's not just an allegation.

[00:17:27] Speaker 03:
That's a statement of fact.

[00:17:28] Speaker 03:
And by not objecting to it, that becomes a finding of fact by the district court.

[00:17:32] Speaker 03:
And that finding of fact

[00:17:34] Speaker 03:
Now, the one area where there may be some gray area is the statement that the victim stated the defendant grabbed her left breast over her t-shirt.

[00:17:43] Speaker 03:
Now, arguably, you could say, OK, well, by not objecting, I'm agreeing that she said that.

[00:17:47] Speaker 03:
I'm not agreeing.

[00:17:48] Speaker 03:
It's true.

[00:17:49] Speaker 03:
So then you would look at, OK, well, is there corroborating information?

[00:17:52] Speaker 03:
The corroborating information would include the unobjected to facts of the officer's observations.

[00:17:58] Speaker 03:
And the officers, again, observed things that were consistent with

[00:18:02] Speaker 03:
what the stepdaughter reported happening, the fact that she was visibly upset with tears on her cheeks, the fact that the defendant was outside with a beer, which corroborated what the victim had said about the defendant getting a beer.

[00:18:16] Speaker 03:
The fact that the defendant pled guilty corroborates that.

[00:18:19] Speaker 04:
One thing that bothers me about this case, and we have some others with a similar background,

[00:18:30] Speaker 04:
It seems to me that the court is a legal reentry case.

[00:18:40] Speaker 04:
And the court's going back six, eight, 10 years for looking at other conduct.

[00:18:47] Speaker 04:
And I know that's permissible.

[00:18:50] Speaker 04:
But this one almost has a sense.

[00:18:54] Speaker 04:
The defendant pled guilty to child abuse, not to sexual assault, is the suggestion in the PSR.

[00:19:04] Speaker 04:
And I get the sense that the district court is basically enhancing a sentence for illegal reentry because it thought that he didn't get charged and convicted of child sexual abuse.

[00:19:21] Speaker 04:
But there was a deal cut in Florida, wherever that was, and he served his time and paid the price for the conduct that was appropriately charged and convicted in the other jurisdiction.

[00:19:38] Speaker 04:
So it's sort of a long-winded explanation, but is he being sentenced twice for conduct that occurred previously?

[00:19:50] Speaker 03:
Well, the district court made it very clear that that's not what she was doing.

[00:19:54] Speaker 03:
In immigration cases, looking at the history and characteristics of the defendant, that's a very important factor, as this court stated in Malachi, which we've cited as well.

[00:20:05] Speaker 03:
And that determines the severity of the reentry offenses.

[00:20:11] Speaker 03:
What is your prior criminal history?

[00:20:12] Speaker 03:
What acts have you engaged in while you were here in the United States?

[00:20:17] Speaker 03:
And the fact that he returned so quickly after having served his sentence in that case, that was also important to the district court.

[00:20:23] Speaker 04:
Would it be proper for a district court to conclude that the court in the previous crime gave Tulini in a sentence?

[00:20:34] Speaker 04:
And so I'm going to, in my illegal reentry case, I'm going to enhance that sentence because he got an unfair deal down in Florida.

[00:20:43] Speaker 04:
Could a district court do that?

[00:20:45] Speaker 03:
We don't think that would be appropriate.

[00:20:47] Speaker 03:
No, and that's simply not what happened here, though.

[00:20:49] Speaker 03:
And the district court went out of her way to make the point, I'm not resentencing you on that case.

[00:20:54] Speaker 03:
I'm looking at the fact that you were convicted of child abuse.

[00:20:57] Speaker 03:
I'm looking at the underlying facts of what you did and factoring that into the 3553A factors.

[00:21:07] Speaker 03:
Now, with regard to- She did vary greatly.

[00:21:11] Speaker 03:
She varied 18 months from the top end, yes.

[00:21:14] Speaker 01:
Yeah.

[00:21:16] Speaker 01:
And I guess to what extent do we say, well, yeah, that's what she said.

[00:21:21] Speaker 01:
But it sure looks like this got bumped significantly based on the prior crime.

[00:21:28] Speaker 03:
The prior crime and the acts surrounding it certainly played a significant factor in the sentence the court imposed.

[00:21:36] Speaker 03:
But the court went to great lengths, again, to talk about all of the 3553A factors.

[00:21:41] Speaker 03:
You mentioned all seven of them.

[00:21:43] Speaker 03:
And she didn't just give cursory note of them.

[00:21:46] Speaker 03:
She didn't just cite them.

[00:21:48] Speaker 03:
She actually said how they applied here.

[00:21:52] Speaker 03:
The fact that this is a serious offense, the reentry offense, because of his prior background, the need to afford adequate deterrence to criminal conduct, she considered all of those factors with regard to this specific defendant's background and characteristics.

[00:22:11] Speaker 03:
And she was not simply sentencing him for his or re-sentencing him for his prior offense.

[00:22:17] Speaker 03:
Now, to the extent that prior offense was child abuse and the judge focused on the sexual assault dynamics of it, as the defendant cites in his brief at page 9, the elements of child abuse in Florida, the first element is intentional infliction of physical or mental injury upon a child.

[00:22:38] Speaker 03:
And certainly, those facts could have constituted

[00:22:41] Speaker 03:
mental injury to this child.

[00:22:43] Speaker 04:
And so I think that's why the... Doesn't the guideline range already capture some of that?

[00:22:49] Speaker 03:
It captures some of it, but it doesn't capture all of the facts surrounding that prior.

[00:22:55] Speaker 03:
And so it takes into account how long he served and those types of things.

[00:23:01] Speaker 03:
but not the specific facts.

[00:23:02] Speaker 03:
And that's where 3553A comes into account.

[00:23:06] Speaker 03:
And that these unobjected two facts caused the district court to believe that this defendant was deserving of a greater sentence than the guidelines provided for.

[00:23:16] Speaker 01:
How much of a discrepancy of the sentence given by the district court to the general average that's in the PSR should cause us

[00:23:30] Speaker 01:
concern.

[00:23:34] Speaker 03:
The fact that it's a variance from the average, so to speak?

[00:23:38] Speaker 03:
Sure.

[00:23:39] Speaker 01:
It's much higher.

[00:23:40] Speaker 03:
Right, right.

[00:23:41] Speaker 03:
And I think the court specifically said, to the extent there is a variance, it's warranted here.

[00:23:46] Speaker 03:
And I think this court has to take that at face value, that the court actually did consider this may create a variance, but it's warranted here for these reasons.

[00:23:56] Speaker 01:
Well, it's warranted because of the prior

[00:23:59] Speaker 01:
child sexual assault, right?

[00:24:04] Speaker 03:
I don't believe that was the only fact that there was a 2005 conviction for theft, a 2006 conviction for driving under the influence of alcohol.

[00:24:18] Speaker 03:
And the district court specifically referenced that as well.

[00:24:21] Speaker 03:
So it's not like the court was single-mindedly focused on this prior child abuse offense.

[00:24:28] Speaker 03:
it referenced all of the defendant's prior history.

[00:24:32] Speaker 03:
And again, and the fact that he returned so quickly after having been removed, that also factored into the court's decision.

[00:24:40] Speaker 03:
Is it what, a year and a half?

[00:24:44] Speaker 03:
I can't remember the exact date.

[00:24:46] Speaker 03:
The judge said very quickly, and I can't remember the time frame off the top of my head.

[00:24:51] Speaker 03:
I believe it's in the briefs, though.

[00:24:56] Speaker 03:
Now as to substantive reasonableness,

[00:25:03] Speaker 03:
The defendant's argument consists of basically three sentences in the brief.

[00:25:08] Speaker 03:
And the focus is on that the district court gave undue weight to this prior.

[00:25:15] Speaker 03:
As we've noted in our brief, the court didn't unduly focus on this one prior conviction, although that did play a substantial factor.

[00:25:23] Speaker 03:
But again, under Malachi, there's nothing inappropriate about that.

[00:25:28] Speaker 03:
The court can give greater weight to one factor over another.

[00:25:32] Speaker 03:
And in a 28-J letter filed last week, the defendant raises a new argument based on this court's decision from last October in United States v. Crosby and tries to kind of expand on the substantive reasonableness argument.

[00:25:47] Speaker 03:
We would submit that this court generally doesn't consider new arguments in a 28-J letter and that the court should decline to do so here.

[00:25:55] Speaker 03:
But even if the court considered Crosby, it's distinguishable on many fronts.

[00:26:02] Speaker 03:
And once the court has any other questions for me, we would ask that the court affirm.

[00:26:08] Speaker 03:
Thank you, counsel.

[00:26:10] Speaker 03:
Counselor excused, and the case is submitted.

[00:26:12] Speaker 04:
Thank you.