[00:00:00] Speaker 00: The last argument we have for argument today is United States versus Tillman, docket 25-8014. [00:00:08] Speaker 00: Council. [00:00:11] Speaker 02: Good morning. [00:00:11] Speaker 02: May it please the Court, I'm John Grevellius on behalf of Conrad Tillman. [00:00:16] Speaker 02: I will intend to try to carve out rebuttal time this morning and I'll keep track of my time of course. [00:00:23] Speaker 02: I want to start this morning, Your Honors, with the second issue in the briefs concerning the district court's failure to provide a rationale and methodology for calculating the five-level increase. [00:00:34] Speaker 02: I start there because the government has conceded error and then it was obvious. [00:00:39] Speaker 02: So the only question on the second issue is that of prejudice. [00:00:43] Speaker 02: In this error, prejudice is my client. [00:00:45] Speaker 02: The district court raised the top of his guideline range from 17 and a half years to just over 30 years, and this almost doubled his sentencing exposure under the guidelines. [00:00:56] Speaker 02: Now, such a substantial guidelines jump requires a substantial justification and explanation. [00:01:03] Speaker 03: Can I interrupt you and just ask a practical question which will be nagging at me for the whole rest of your time if I don't ask it now? [00:01:10] Speaker 03: So, as I understand it, defendant is released from custody. [00:01:13] Speaker 03: He's on supervised release now. [00:01:14] Speaker 03: Is that correct? [00:01:15] Speaker 02: I don't believe that's correct. [00:01:18] Speaker 03: Okay. [00:01:19] Speaker 03: All right. [00:01:20] Speaker 03: I'll take your word for it. [00:01:21] Speaker 03: That was my mistake then. [00:01:24] Speaker 02: In your honor, I can't speak with any confidence on that, but I do know that my client did receive a 30-year sentence. [00:01:30] Speaker 02: So, I mean, I can double-check. [00:01:33] Speaker 03: All right, thank you. [00:01:34] Speaker 02: Assuming that my client is still serving his time, I will point out that, as I said, that we have to require substantial explanation for such a guidelines jump. [00:01:45] Speaker 02: And as the government admits, we don't have an explanation of the methodology used. [00:01:51] Speaker 02: But according to the government, [00:01:53] Speaker 02: This issue, this error is harmless because it believes that the court imposed a variance or would have imposed a variance to achieve a 30-year sentence. [00:02:04] Speaker 02: But as this court has said time and time again, [00:02:08] Speaker 02: A district court cannot insulate guidelines error by simply saying that it would impose the same sentence under the 3553A factors. [00:02:15] Speaker 00: Can we just take the departure stuff out of the equation and evaluate this case purely under 3553A or do they not separate? [00:02:25] Speaker 02: Well, no, we couldn't, Your Honor, for two reasons. [00:02:28] Speaker 02: One, because the Court didn't impose a 3553A sentence, which I can get to in a moment. [00:02:33] Speaker 02: But also, we have to accept the departure, and we have to face that, because that's what the Court did. [00:02:39] Speaker 02: And we cannot effectively re-sentence my client or sentence him for the first time on appeal. [00:02:45] Speaker 00: So I certainly disagree with the government's... Well, let me just pause you there, because I'm looking [00:02:51] Speaker 00: The record, Judge Rankin's comments, and he says, I will also take into consideration the 3553A factors as a variance for the same reasons as articulated a moment ago. [00:03:01] Speaker 00: So how do you say he didn't address 3553A? [00:03:05] Speaker 02: My contention isn't that he didn't address 3553A. [00:03:08] Speaker 02: My contention is that he cannot insulate a guidelines error by saying that he would impose a sentence under 3553A factors. [00:03:16] Speaker 02: And this remains true even if, for example, [00:03:19] Speaker 02: he does make findings under the 3553A factors and even gives them weight. [00:03:24] Speaker 02: We see that from the Burris case, the Pena Hermosillo case, and the Geissewein cases, all of which I cited in my briefs, which stand for the proposition that a guidelines error cannot be insulated simply because the court says on the record, and even maybe makes findings to the effect that it would impose the same sentence. [00:03:42] Speaker 02: And this court holds firm to that rule for good reason, because as we know, [00:03:46] Speaker 02: the correct guidelines calculation has to serve as the anchor for every sentence. [00:03:50] Speaker 00: Well, I understand that in the context of a court, and we've seen a lot of cases like that over the years, where the court says, you get plus four for leadership or something. [00:03:59] Speaker 00: And even if I'm wrong about that, why, if this comes back, I'm going to impose the exact same sentence. [00:04:04] Speaker 00: And we say, no deal on that. [00:04:05] Speaker 00: It's coming back. [00:04:06] Speaker 00: And you're going to have to find it. [00:04:08] Speaker 00: But this one seems different to me in that the court goes through [00:04:12] Speaker 00: the reasons for its sentence, the reason it thought that this deserved a bigger penalty than the advisory guideline range, and then says there's a separate basis I'm relying on, that's the 3553A factors, and the same amount I would go up for the same reasons. [00:04:31] Speaker 00: In other words, [00:04:32] Speaker 00: We're not left groping for what would the district court do or why would it do it. [00:04:36] Speaker 00: It's told us that. [00:04:37] Speaker 00: Has it not? [00:04:39] Speaker 02: No, Your Honor. [00:04:39] Speaker 02: I would dispute that for one, well, a couple of reasons. [00:04:44] Speaker 02: First of all, the court clearly wanted to impose a sentence under the umbrella of the guidelines, which is precisely why it's focused throughout sentencing [00:04:55] Speaker 02: its order was on Chapter 5 guideline provisions for upward departures. [00:05:01] Speaker 02: That was where most of the focus was below both in the arguments of counsel and the court. [00:05:06] Speaker 02: The court clearly wanted to impose a sentence within the umbrella of the guidelines. [00:05:09] Speaker 02: And it did not vary because the statement of the reason says it only imposed an upward departure. [00:05:15] Speaker 02: And as we know, [00:05:16] Speaker 02: 3553C requires the court to indicate the basis for its what we'll call non-guideline sentence. [00:05:24] Speaker 02: And certainly here, it did not indicate anywhere that it was imposing a variance. [00:05:28] Speaker 02: So it did not impose a variance. [00:05:30] Speaker 02: And I think also, back to my earlier point, Your Honor, this does not get the exception that we see in cases like Gaiswine, Burris, and Pena or Moseo, because again, [00:05:42] Speaker 02: We can have a court say these things, but it still has to correctly calculate the guidelines range. [00:05:48] Speaker 02: The guidelines themselves are part of the 3553A factors. [00:05:51] Speaker 02: So it is an important step, and we can't just have an insulated error based on that statement alone. [00:05:58] Speaker 02: Now, I want to also point out, Your Honors, because I would be remiss if I didn't address this, the government's argument is also that, well, okay, on remand, all we're going to have to do is send it back to have the court simply explain its five-level increase. [00:06:14] Speaker 02: And I do not believe, and I certainly contest, that this idea that there's a five-level increase is foreordained or inevitable. [00:06:22] Speaker 02: I say that for two reasons. [00:06:24] Speaker 02: First of all, based on the rule, the court has to provide a methodology that is tied to the guidelines themselves. [00:06:33] Speaker 02: And that's either by extrapolation or analogy. [00:06:35] Speaker 02: And to do this, they have to effectively predict what the Sentencing Commission would have set forth as the appropriate range for that conduct. [00:06:45] Speaker 02: Now, in the record, we have nothing that suggests that the district court even used a methodology. [00:06:51] Speaker 02: The government provided no methodology that would have allowed the court to use the guidelines to calculate a five-level increase. [00:06:58] Speaker 02: The government never said anything in its briefing below, and on appeal tellingly, it offers nothing in the record that points to any indication that the court used a methodology. [00:07:10] Speaker 02: And certainly probation for its part recommended a one-level upward departure. [00:07:14] Speaker 02: It didn't provide a methodology to hit the five levels. [00:07:18] Speaker 02: And so I want to give a second reason for this, Your Honor, is I don't see anything in the guidelines themselves either by analogy or extrapolation that would automatically lead to a five-level increase in this case. [00:07:32] Speaker 02: Consider a slightly different case where my client is also charged with and convicted of [00:07:38] Speaker 02: threatening M1 with the firearm, directly threatening the firearm such that he is guilty of aggravated assault or assault, either way. [00:07:47] Speaker 02: Now, under the guidelines, the way that would work, it wouldn't be grouped, but it would potentially add units to his offense if we treated that as a separate offense. [00:07:55] Speaker 02: But that in and of itself, if you look, I think it's [00:07:58] Speaker 02: Chapter 3, Section D, if we actually did the math there, you would not get a five-level increase, even if my client had committed a separate offense of threatening M1 directly with the firearm. [00:08:08] Speaker 02: Now, I don't say that to say that there would be no increase. [00:08:11] Speaker 02: All I am saying is that the five-level increase that's supposedly tied to the guidelines is anything but obvious to me. [00:08:18] Speaker 02: And so, Your Honors, I do think that the... Yes? [00:08:25] Speaker 04: I just didn't want you to run out of time before you deal with the first issue. [00:08:30] Speaker 02: OK. [00:08:30] Speaker 02: I was going to pivot to that. [00:08:34] Speaker ?: OK. [00:08:34] Speaker 02: Thank you. [00:08:34] Speaker 02: OK. [00:08:35] Speaker 02: Well, the first issue is a straightforward case of guidelines error. [00:08:37] Speaker 02: 5K 2.6 should just not have applied here. [00:08:42] Speaker 02: In Kelly, this court said that 5K 2.6 does not apply in murder cases because committing a murder necessarily requires use of a dangerous instrumentality, and the Sentencing Commission [00:08:53] Speaker 02: was aware of this fact and took that into account when setting the guidelines range for murder. [00:08:59] Speaker 02: Under Kelly, then, it seems that if there's any case in which you can apply this to a murder case, and it quotes 5K 2.0 at the time it existed, it would have to be that the use of a weapon was to a degree substantially in excess of that which is normally involved in a murder. [00:09:18] Speaker 02: And there were no findings below here that that is what happened. [00:09:22] Speaker 02: There was no finding, for instance, that my client's use of the firearm endangered anyone else, including M1, let alone that it substantially threatened her more than what occurs in other murders where, of course, murder is dangerous. [00:09:36] Speaker 04: Sorry. [00:09:37] Speaker 04: Is it a fair inference from the court's statements about that it was fired in an enclosed automobile when she was present? [00:09:48] Speaker 04: Is it a fair inference that it endangered her? [00:09:51] Speaker 04: substantially? [00:09:53] Speaker 02: No, Your Honor. [00:09:54] Speaker 02: I don't think that that's the fair inference. [00:09:56] Speaker 02: I say that because below it was the government's position that this endangered M1. [00:10:02] Speaker 02: And then that is why 5K 2.6 applied. [00:10:05] Speaker 02: It actually argued that and the alternative theory that the court ultimately adopted, which is trauma to M1. [00:10:11] Speaker 02: It argued both. [00:10:12] Speaker 02: But the court conspicuously only accepted the trauma aspect. [00:10:17] Speaker 02: And it never found specifically that she was endangered. [00:10:20] Speaker 02: And we would certainly need that finding because that's a finding of fact that we cannot make here on appeal. [00:10:26] Speaker 00: Didn't the court recognize or say that perhaps in this sort of a situation, once you put things into this kind of motion, maybe the young girl would try to intercede on behalf of her mother and become injured in that fashion? [00:10:40] Speaker 02: Well, the court never made that finding, Your Honor. [00:10:42] Speaker 02: That was the government's position that perhaps she could have intervened or crossed the line of fire. [00:10:48] Speaker 02: The government did [00:10:49] Speaker 02: couch its language in terms of what could have happened. [00:10:52] Speaker 02: But there was no finding whatsoever that that was the basis. [00:10:55] Speaker 02: It was clear that the court imposed this departure for the reason that A, that the firearm was discharged, it said that twice, and that it was fired in an enclosed vehicle in her presence without justification. [00:11:09] Speaker 02: So none of this is really addressing. [00:11:11] Speaker 04: Is it your position that it's ambiguous whether the court decided it based on trauma [00:11:19] Speaker 04: to the minor or substantial danger to the minor? [00:11:24] Speaker 02: I don't think it's ambiguous in the sense that I think it's clear the court did not adopt the endangerment theory. [00:11:32] Speaker 02: Now whether it was adopting trauma, I think that's a little closer of a question. [00:11:35] Speaker 02: If you read the whole sentencing transcript in context, it kind of refers back to its original discussion about why it was departing under 5K 2.0, which really kind of encompassed trauma to M1. [00:11:48] Speaker 02: But I think [00:11:49] Speaker 02: Yeah, perhaps it is ambiguous what exactly, whether between firing the pistol or trauma to M1 or just the circumstances, but it never found that she was endangered and that that was the basis for applying that departure. [00:12:03] Speaker 02: And Your Honors, just briefly, I want to touch on this. [00:12:10] Speaker 02: As I've argued in the briefs, trauma can't be the basis for 5K2.6 to apply. [00:12:16] Speaker 02: That's covered by other departure provisions and I'm certainly not telling this court that her trauma doesn't count. [00:12:23] Speaker 02: Indeed, I'm just saying that it doesn't count twice because the court did use that under 5K 2.0 and we have not challenged that on appeal. [00:12:33] Speaker 02: And Your Honors, unless there's other questions, I would like to reserve the balance of my time. [00:12:38] Speaker 02: Very well, thank you. [00:12:51] Speaker 01: Good morning, your honors. [00:12:52] Speaker 01: Morning. [00:12:53] Speaker 01: My name is Cameron Cook, and I represent the government in this case. [00:12:56] Speaker 01: I'm here to answer any questions and explain why the district court got this case right. [00:13:01] Speaker 01: The first issue I want to address is credit. [00:13:03] Speaker 04: I want to stay where we were on the trauma versus danger issue. [00:13:11] Speaker 04: If we look at our case in the United States versus Eddington, we may get pretty clear that it's not our role to make factual findings [00:13:20] Speaker 04: necessary to support the imposition of a sentencing enhancement. [00:13:28] Speaker 04: And here, I don't think the court made a specific finding that it was applying 2.6 [00:13:41] Speaker 04: because 5K 2.6 because of substantial danger to the minor. [00:13:49] Speaker 04: And it talks about Trump quite a bit. [00:13:53] Speaker 04: Do we need to send it back to have the courts make a finding and tell us what the basis of this was? [00:14:02] Speaker 01: No, Your Honor. [00:14:03] Speaker 01: The finding was that 5K 2.6 applied. [00:14:07] Speaker 01: So I will agree that the district court didn't go into details on [00:14:12] Speaker 01: because if you read 5K 2.6, it says possession or use of the dangerous weapon, and then it says the extent of the increase may depend upon the dangerousness, manner of use, and the extent to which it endangered others, and then it finally says a discharge, the firearm may warrant a potential increase. [00:14:27] Speaker 01: So the district court didn't [00:14:29] Speaker 01: explicitly say where in there it was basing its reasoning mostly, but it did find that it applied. [00:14:34] Speaker 01: And its reasoning that the firearm was used in a confined space in the presence of M1, I think it's fair to read that reasoning as endangerment, as the manner of using it in front of M1 and all these knock-on effects of the trauma that she would experience later on. [00:14:50] Speaker 01: So I do think there was a sufficient finding under 5K 2.6 here. [00:14:58] Speaker 04: But there's no specific finding that says he endangered, substantially endangered. [00:15:07] Speaker 01: That's correct, Your Honor. [00:15:08] Speaker 01: And that is not in 5K 2.6. [00:15:12] Speaker 01: So I don't think it's necessary. [00:15:14] Speaker 01: But yes, the district court did not make that specific. [00:15:17] Speaker 04: It's not in 5K 2.6. [00:15:20] Speaker 04: I mean, 5K 2.6 says when it's appropriate to impose it, [00:15:27] Speaker 04: And he, as you indicated, has, as one of the factors, endangerment of others, discharge of the gun. [00:15:38] Speaker 04: But the court didn't tell us why it decided to impose 5K 2.6. [00:15:45] Speaker 04: And I guess your position is you can infer it? [00:15:48] Speaker 01: Your Honor, yes. [00:15:49] Speaker 01: Reading it fairly, the district court did say, because it used it, again, the manner, using it in front of M1, [00:15:55] Speaker 01: without justification in the confined space of the pickup. [00:15:58] Speaker 01: This was a very narrow compartment in which it was fired. [00:16:01] Speaker 01: The evidence of the sentencing hearing from the defendant himself was that the victim was on her hands and knees attacking him while he was still driving the vehicle at night on a highway, and that basically she hit his arm and the gun went off. [00:16:13] Speaker 01: And so when you add that context of the record to what the district court did say, I do think that's sufficient under 5K 2.6. [00:16:24] Speaker 04: looking at the evidence and making a finding? [00:16:27] Speaker 01: I disagree, Your Honor. [00:16:27] Speaker 01: I think the district court did make the finding on 5K 2.6. [00:16:30] Speaker 01: I think they could have been a little more explicit, but it addressed the manner of use, and again, confined space, the fact that she was there. [00:16:38] Speaker 01: That's inherent in describing the circumstances of how the shooting occurred. [00:16:46] Speaker 04: It's also inherent in her being traumatized, right? [00:16:48] Speaker 01: Yes, Your Honor. [00:16:49] Speaker 01: That's the easy and obvious knock-on effect of using the firearm in front of her. [00:16:55] Speaker 04: So I mean, I guess the argument is that we won't know whether the court was using those facts to support a finding of trauma or a finding of dangerousness. [00:17:10] Speaker 01: Well, again, Your Honor, I disagree. [00:17:12] Speaker 01: The provision says manner of use and the extent to which it endangered others. [00:17:17] Speaker 01: Again, the district court said used it in confined space in her presence. [00:17:20] Speaker 01: I think that's sufficient for what the departure says. [00:17:25] Speaker 01: Your Honor, we're really drawing the line there. [00:17:27] Speaker 01: I understand the ruling of Kelly, but I just point out the district court in Kelly dealt really with a record that had just the bare use of a dangerous weapon in private. [00:17:37] Speaker 01: Here we're drawing the distinction based on the use of the dangerous weapon in relation to a third party, which is not inherent in murder as charged. [00:17:45] Speaker 01: So there's nothing inherent in there, and for the reasons we put forth in the brief, it does elevate this away from the heartland. [00:17:52] Speaker 01: So we think it was proper here. [00:17:54] Speaker 01: Unless there are any more questions about Kelly, I would like to turn to prejudice. [00:17:59] Speaker 01: Judge Phillips touched on it, but this is the key factor for understanding why there is no prejudice in this case. [00:18:07] Speaker 01: There was no error in the jumping off point for the variance. [00:18:11] Speaker 01: Judge Phillips talked about there are some cases where the district court erroneously applies a two-level, four-level enhancement, reaches an improperly high guideline range, and then varies off that point up above. [00:18:23] Speaker 01: Here, the initial calculation was an offense level of 35. [00:18:26] Speaker 01: That's second degree murder, 38 minus three for acceptance. [00:18:30] Speaker 01: And then the district court departed upward five levels, but also varied upwards five levels to reach the same conclusion. [00:18:37] Speaker 01: So yes, the departure was erroneous, because the district court did not explain why he departed. [00:18:42] Speaker 01: The variance was not affected by that error. [00:18:45] Speaker 01: It was independent and not tainted. [00:18:47] Speaker 01: And as we argue, the district court's variance was thorough, cogent, [00:18:51] Speaker 01: and supported by an exhaustive record. [00:18:55] Speaker 01: The defense in their brief repeatedly calls the district court's variance perfunctory, that is simply not accurate. [00:19:04] Speaker 01: It's worth stating on the record that the district court started his imposition of sentence by acknowledging the defendant's apology, both at sentencing and after the crime had occurred. [00:19:16] Speaker 01: The district court described the circumstances of the offense [00:19:19] Speaker 01: He described evidence of the defendant's past abusive behavior, which was testified about at the hearing. [00:19:25] Speaker 01: It commented, probably the most significant factor other than UT losing her young life at age 36 was the presence of M1 in the back seat. [00:19:35] Speaker 01: The district court questioned what things would look like for her in the future. [00:19:39] Speaker 01: The district court acknowledged and considered the defendant's statements, the defense investigation, and the victim impact statements. [00:19:46] Speaker 01: It addressed the departures. [00:19:48] Speaker 01: And then it made specific references to the Section 3533A factors, including the nature and circumstances of the offense, which I had already discussed, but also commented on bruises to UT's face and lips, preceding the firing of the gun, the physical harm and name calling to M1, the use of a firearm. [00:20:08] Speaker 01: The district court called this crime senseless, unnecessary, and cruel, and that it resulted in tremendous loss to the entire family, but particularly to her children. [00:20:18] Speaker 01: The district court commented on the history and characteristics of the defendant. [00:20:21] Speaker 01: He referenced his power and control and anger that culminated in UT's death. [00:20:27] Speaker 01: Commenting this is seen in his relationship with Bear Comes Out, who testified at the hearing in UT over the years. [00:20:34] Speaker 01: The district court acknowledged the lack of countable criminal history and that he's done good in the community, but here he did more bad than good. [00:20:40] Speaker 01: He commented that he'd already discussed the seriousness of the offense. [00:20:46] Speaker 01: The need to promote respect for law and provide a just punishment would be shown by the ultimate sentence imposed. [00:20:53] Speaker 01: The district court emphasized the murder was completely senseless and driven by some sort of percolating anger that was taking place on the day by the defendant. [00:21:02] Speaker 01: And then the district court commented on the need for deterrence and protection of the public, stating, without addressing these anger, power, and control issues, the defendant is a danger to society. [00:21:13] Speaker 01: He commented that the defendant committed this murder in front of his [00:21:16] Speaker 01: with very little provocation. [00:21:19] Speaker 01: After all that, the district court departed upwards, and then also the language that Judge Phillips referenced earlier took into consideration the 35-53A factors to reach the variance, which was reasonable and appropriate under the facts of the case. [00:21:32] Speaker 01: And, Your Honor, all that was supported by an exhaustive record. [00:21:35] Speaker 01: I'm not going to go over it all, but we had the case agent testify about evidence. [00:21:40] Speaker 01: We had Kishan Baer comes out, testify about the defendant's past abusive behavior, both to him [00:21:45] Speaker 01: and also UT. [00:21:47] Speaker 01: And then there was an expert who testified about the gunshot and had his report entered in evidence, basically that UT was looking away and down when she was shot in the defensive position. [00:21:57] Speaker 01: And then the defense also put on evidence. [00:21:58] Speaker 01: And the defendant himself testified, gave his version of events, which is a little unusual. [00:22:02] Speaker 01: They also had an investigator testify and provide a number of exhibits that they thought was mitigating. [00:22:09] Speaker 01: So this all provides context to the district court's analysis of the factors. [00:22:15] Speaker 01: And it shows that this was a thorough and cogent variance unaffected by the error. [00:22:19] Speaker 03: Can I ask a question about that? [00:22:21] Speaker 03: So you started this part of your argument by saying that there was no error in the jumping off point for the 3553 analysis. [00:22:28] Speaker 03: Yes. [00:22:28] Speaker 03: Which I take it to mean you're saying there was no error in the guideline calculation which prompted that analysis. [00:22:36] Speaker 03: Is that your position? [00:22:38] Speaker 01: Yes, Your Honor. [00:22:39] Speaker 01: The initial calculation of 35. [00:22:40] Speaker 01: 35 was the initial offense level calculated. [00:22:43] Speaker 01: And from there, defense requested [00:22:45] Speaker 01: basically a low end guideline sentence and the government and the district court went with an upward departure and an upward variance. [00:22:51] Speaker 03: But so you're saying that the jumping off point was before the departures were applied. [00:22:58] Speaker 03: There was no error in that. [00:22:59] Speaker 01: Yes, Your Honor. [00:23:00] Speaker 03: Okay, but so that's not inconsistent with your concession that the district court failed to adequately explain its degree of departure. [00:23:11] Speaker 01: Yes, Your Honor, because the departure comes afterwards and we admit that was error, not explaining it, but we have the separate variance, which was thorough and cogent and was unaffected by the departure error, is our argument. [00:23:23] Speaker 01: Did the government go through the 3553A factors in particular? [00:23:28] Speaker 01: It did, Your Honor, both in submitting, definitely in the briefs that were submitted in the sentencing memorandum that was submitted before the sentencing hearing, [00:23:36] Speaker 01: the government addressed those factors, that'll be in the record. [00:23:39] Speaker 01: I don't think, I'm unsure if I specifically address each of those at the sentencing hearings, but there was an argument made. [00:23:45] Speaker 01: And I did reference the sentencing memorandum, which definitely did address those factors. [00:23:53] Speaker 01: Your Honor, lastly, I would just note this case is lacking a lot of the, excuse me, lacking a lot of the other errors we see in other cases. [00:24:02] Speaker 01: There is no factual error committed by the district court. [00:24:05] Speaker 01: such as in the Guevara-Lopez case. [00:24:08] Speaker 01: There's been no showing that this is an unwarranted disparity from murder cases also in Guevara-Lopez. [00:24:14] Speaker 01: You know, as argued, this wasn't a perfunctory statement that, oh, I just would have imposed the same sentence anyway. [00:24:19] Speaker 01: The district court didn't focus exclusively on one factor, like in the Crosby case. [00:24:24] Speaker 01: Here, the district court talked about mitigating and aggravating evidence in multiple 3553A factors. [00:24:30] Speaker 01: And then as argued, that guideline range error [00:24:34] Speaker 01: The starting point wasn't affected by that, that was just a departure. [00:24:37] Speaker 01: So Your Honor, looking at the record in this case, whichever standard review we use, either preserved or plain error, it's clear that the sentence the district court would impose would be the same without the error. [00:24:50] Speaker 01: So unless there are any further questions, I would ask the court to affirm. [00:24:56] Speaker 00: Thank you, Counsel. [00:25:08] Speaker 02: Thank you, Your Honors. [00:25:09] Speaker 02: I'm going to start with prejudice. [00:25:11] Speaker 02: The question here isn't whether the district court made findings that were relevant to the 3553A factors. [00:25:18] Speaker 02: The government's argument that this can be affirmed because the court made what it calls extensive findings on the 3553A factors doesn't get off the ground under this court's decisions in Burris, Piñera-Murcio, and Geissewein. [00:25:34] Speaker 02: In fact, the only case that even supports the idea that this type of, well, I would impose a 3553A sentence regardless, actually came in Geissewein, but that was only because the district court had previously sentenced the defendant to that, to what was the stat max in that time. [00:25:54] Speaker 02: The court had said it intended to pose a statutory maximum and it had said clearly or made clear that it intended to pose a sentence outside the guidelines themselves. [00:26:05] Speaker 02: We do not have that here. [00:26:06] Speaker 02: The court was clearly intent on imposing a guideline sentence, which is why it spent a lot of time, a substantial amount of time [00:26:15] Speaker 02: trying to justify the sentence under Chapter 5 in the guidelines. [00:26:20] Speaker 02: And so I do not see how the government's argument gets off the ground under this Court's precedent. [00:26:24] Speaker 00: Well, the Court addressed the parties' contentions. [00:26:29] Speaker 00: It's not like the Court was just sitting there by itself and came up with these departures. [00:26:35] Speaker 00: It proposed to the Court, so the Court addressed them. [00:26:38] Speaker 02: Well, I mean, that may be true, Your Honor, but we are stuck with what the court said, and the court did impose departures under Chapter 5. [00:26:46] Speaker 03: Did the government offer any methodology for explaining the degree of the departures? [00:26:52] Speaker 02: None whatsoever, Your Honor. [00:26:54] Speaker 02: And I would be remiss if I didn't talk about, just briefly, although it's again my position that this isn't dispositive, but the district court did not make the exhaustive findings on the 3553A factors that the government contends. [00:27:05] Speaker 02: It didn't discuss general deterrence, which in Crosby, this court said, is one of the key components of sentencing. [00:27:12] Speaker 02: And it didn't talk about sentencing disparities whatsoever. [00:27:15] Speaker 02: And it didn't provide any explanation to how it was weighing these and why the weight of these factors justified such a large jump in sentence. [00:27:26] Speaker 02: So, Your Honor, I do not see how that this error can be harmless under this Court's case law or under the facts of this case. [00:27:32] Speaker 02: And I see I'm basically out of time, and I therefore ask that you all reverse. [00:27:36] Speaker 02: Thank you. [00:27:37] Speaker 00: Thank you, Counsel, for your helpful arguments. [00:27:39] Speaker 00: The case is submitted. [00:27:41] Speaker 00: Counsel are excused. [00:27:42] Speaker 00: The Court stands in recess until 8.30 tomorrow morning.