[00:00:03] Speaker 01:
Case number 14-3031, United States of America versus Darlene Mathis Gardner, appellant.

[00:00:09] Speaker 01:
Mr. Cramer for the appellant, Ms.

[00:00:10] Speaker 01:
Levin for the appellate.

[00:00:14] Speaker 04:
Good morning, Your Honors, and may it please the Court.

[00:00:17] Speaker 04:
It seems apparent to me that three circuits – the second, the seventh, and the ninth – would reverse this case, essentially, almost summarily.

[00:00:27] Speaker 04:
The Eighth Circuit, the only circuit that seems to have a different rule, the case in which the Eighth Circuit set that forth seems – it doesn't even seem clear to me that they would follow what they said in that case, given the facts of this case, given that the facts in the Eighth Circuit case of Mosby was so different.

[00:00:44] Speaker 04:
But here we had the probation office saying that Ms.

[00:00:48] Speaker 04:
Mathis Gardner was a suitable candidate for early termination of supervised release.

[00:00:53] Speaker 04:
The government coming in with even more than that and urging the district court to grant the motion for early termination of supervised release and saying that she had clearly gone above and beyond what is required of a defendant as far as serving that term of supervised release.

[00:01:11] Speaker 02:
What do you think that the district court

[00:01:13] Speaker 02:
has an obligation to say in these kinds of cases.

[00:01:17] Speaker 02:
You're not saying that the district court is obligated to have a hearing, right?

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

[00:01:23] Speaker 04:
I think a couple of the other cases, one reason in the Gamarano case that the Second Circuit upheld the district court's decision without much explanation was that there had been a hearing in which the factors had been discussed and explored.

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So I think that the district court could

[00:01:42] Speaker 04:
set forth and say, I've considered the factors that are required under 3553A, the ones that are required for termination decision, or say evaluating them under the factors of 3553A, and then say why, when the government comes in and urges it and the probation office says it.

[00:02:01] Speaker 04:
I don't think, frankly, there's many more suitable candidates for early termination of supervisory lease than Ms.

[00:02:07] Speaker 04:
Mathis Gardner.

[00:02:10] Speaker 02:
You're not saying that it would be an abuse of discretion to have denied the motion.

[00:02:15] Speaker 02:
That we can just look at it and say, oh, it's an abuse of discretion.

[00:02:19] Speaker 02:
I mean, any judge would have to be compelled to grant this motion.

[00:02:24] Speaker 04:
No, I wouldn't go that far.

[00:02:25] Speaker 04:
But I would certainly go that there has to be some, in the circumstances of this case, you would have to know the reasoning behind denying the motion before

[00:02:35] Speaker 04:
Obviously, you could say it was not an abuse of discretion.

[00:02:40] Speaker 04:
On this record, with no reason at all, I think you could say it was an abuse of discretion.

[00:02:45] Speaker 04:
I understand that without knowing the district court's reasoning, that might be hard.

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But it's also impossible to evaluate that on appeal without knowing the reasoning of the district court.

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So under the circumstances,

[00:03:01] Speaker 04:
I haven't argued for a hard and fast rule, and I don't think the other circuits have set forth a hard and fast rule, but under the circumstances of this case, it seems to me that more was required.

[00:03:15] Speaker 04:
What that more was is, I think, a case-by-case, fact-specific circumstance.

[00:03:20] Speaker 00:
You had the... Can I ask you a question about the statutory language, which is that

[00:03:28] Speaker 00:
It seems to say under 3583e that the court may, after considering the factors set forth in 3553a, do several things.

[00:03:40] Speaker 00:
Terminate a term of supervised release, extend a term of supervised release, and may modify, reduce, or enlarge the conditions of supervised release, revoke a term of supervised release on 1, 2, and 3.

[00:03:51] Speaker 00:
But all of those are situations in which the term of supervised release has actually changed in some way.

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So it seems to me one way to potentially read this statute is to say, well, you have to consider, if you can change the term of supervised release after considering the factors set forth in 3553A, but if you're not going to change the terms of supervised release, then you don't have to consider those factors, and you don't need to say anything.

[00:04:16] Speaker 00:
And I guess the reason would be that you're asking to change something that the judge thought about in the initial sentencing.

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And if there's not going to be any change to that, then the default rules would just stay the same.

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You only have to go through the decisional calculus if in fact you're going to do something differently than you did at the outset.

[00:04:34] Speaker 04:
I think not for two reasons.

[00:04:37] Speaker 04:
3583E1 says the court may, after considering the factors set forth, terminate a term of supervised release.

[00:04:46] Speaker 04:
If you're saying that if the court's deciding not to terminate it, they don't have to consider these factors, I think that doesn't make sense in the sense that

[00:04:57] Speaker 04:
it seems to me in the government doesn't argue that i don't think by the way they didn't argue that below or in this court thirty five eighty three one does not apply to the decision either way the district court makes it nor have any of the other i think all the other courts of appeals have said it's clear that the thirty five fifty three eight factors that set forth in thirty five eighty three one uh... applied to the yeah i don't know if the other courts of appeals looked at the text very carefully and and that just

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seem to leap out that it's talking about consideration in situations in which something changes, not in situations in which nothing changes.

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And you just keep the sentence that was imposed at the time of the original sentencing.

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The other thing I think is, even if that were true, which I don't think it is, I understand it would seem strange that you could terminate a term, have to consider these factors only

[00:05:55] Speaker 04:
to decide whether to terminate or term or not.

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But to make that decision, you have to consider those factors to begin with.

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It would be hard to say.

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I decide not, the district court, I decide not to terminate a term of supervisor release, but I haven't considered any of these factors.

[00:06:12] Speaker 00:
Well, I guess what we're talking about is the extent to which the court has to set forth its reasoning.

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And one way to think about it is that the default assumption is that the court just continues to do what the court did before, because they're taking into account a bunch of stuff and deciding what the term of supervisor release was going to be at the outset.

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And then the question is, if something emerged that causes the court to think that something's changed,

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And if not, what does the court have to do to explain that?

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And can I ask one practical question?

[00:06:38] Speaker 00:
Sure.

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Which is, what's the limitation on asking for a change in the conditions of supervised release after the initial period of, I guess you have to wait a year or something?

[00:06:49] Speaker 04:
No, you can ask for a change in the conditions at any time.

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You can only ask for a termination.

[00:06:54] Speaker 00:
You have to serve the year to get it terminated.

[00:06:56] Speaker 00:
So can a person ask just every day, and then if they ask every day, would the judge, under the rule that you're suggesting and that you think the other courts of appeals have, have to explain every day?

[00:07:05] Speaker 00:
Ask every day to terminate it?

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Yeah.

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Or to change it.

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Do something that begets an obligation on the part of the court to explain why the motion's being denied.

[00:07:15] Speaker 04:
I think theoretically, yes.

[00:07:17] Speaker 04:
I think somebody could, if there's no explanation, somebody could come back the next day and say, you didn't give me any explanation, please explain why.

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Or they could do, like in this case, an appeal.

[00:07:26] Speaker 00:
Or no, I guess what I'm asking is, suppose they ask once and it's denied with explanation, and then every day thereafter,

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they continue to ask and say, you know, the last 24 hours, I don't mean to belittle the point at all, because I understand that this is a, that your client paints a sympathetic picture in many respects, but as the government even suggested below, but I'm suggesting a hypothetical in which the person asks is denied with explanation, and then every day thereafter just says, you know, I've been really good for the last 24 hours, I need an explanation as to why I shouldn't get a change now.

[00:08:01] Speaker 04:
I think theoretically there's no,

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I think practically there's lots of barriers to that.

[00:08:08] Speaker 04:
Trying to get a lawyer to do that, first of all, on behalf of somebody.

[00:08:11] Speaker 00:
But theoretically, your argument would be that the court would always have to explain every time why it's denied.

[00:08:16] Speaker 04:
Well, I think it's a case-specific thing.

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And in this particular case, the second answer I was going to give you to 3583 is that this case, the war changed circumstances.

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And even the government said she's gone way above and beyond and urged the court.

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So to come in and just say 24 hours have passed and I've complied, I think technically there's no barrier to that.

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But I think practically, it would be kind of silly

[00:08:47] Speaker 02:
explanation denying it the first time said well for these reasons I'm denying it and then 24 hours later the person files another motion and the judge says denied for the same reasons as I said yesterday.

[00:09:03] Speaker 02:
Would you say that would be sufficient or insufficient?

[00:09:05] Speaker 04:
I think that would be sufficient, unless something monumental happened in that 24-hour period.

[00:09:14] Speaker 00:
And that would suggest that here the judge could say, deny it for the same reasons I said on my original sentencing.

[00:09:22] Speaker 00:
Well, there are no reasons in the original sentencing, though, in this case or generally in any case, except for... Wasn't there a colloquy where the judge explained that what he was worried about is deterrence of other individuals?

[00:09:38] Speaker 04:
And that's why he said, I'm going to give you community service.

[00:09:43] Speaker 04:
But the only way to affect that is to put the person on a term of supervisory list.

[00:09:47] Speaker 04:
Supervised release wasn't even mentioned when the judge was talking about that.

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He said, I want to deter others.

[00:09:53] Speaker 04:
I would have you do the community service first if I could.

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And I think the combination of the time in prison, the community service, and the restitution is sufficient in this case.

[00:10:05] Speaker 04:
Again, without mentioning that.

[00:10:07] Speaker 04:
the supervised release that's just the mechanism the only way the only way a district court a district court could say to somebody do supervised release but couldn't enforce that in any way I mean do community service but couldn't enforce that in any way otherwise so the community service

[00:10:23] Speaker 04:
The district court didn't even mention it until, I'm sorry, the supervisor released, the district court didn't even mention it until the end and said, it's going to be three years so you can do this community service.

[00:10:36] Speaker 04:
And finally, the 3553A factors in this case, the ones that at least exist, several of them don't exist even.

[00:10:45] Speaker 04:
There are no policy statements by the Sentencing Commission.

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But all the others point towards,

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that Ms.

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Mathis Gardner's terms should have been terminated.

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She fulfills almost every one of the ones in the judicial conference terms that have been set forth.

[00:11:02] Speaker 04:
She fulfilled all nine of those as well.

[00:11:06] Speaker 04:
So I think, Judge Wilkins, the answer is in this, whatever it might be the

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I don't think there is a fact-specific, it seems to me even the other circuits have employed a fact-specific evaluation of these cases to decide what explanation is enough.

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And I think when you have, a couple of them, the government opposed the termination of supervisory lease and even then the court said it wasn't enough.

[00:11:31] Speaker 04:
But here when you have the government urging it, you have no question that she's gone way above and beyond what was required of her that a lot more is needed than.

[00:11:45] Speaker 02:
We were inclined to, if we have to give guidance to district courts so that they know when an explanation is required and when an explanation isn't required, what is it that you would propose that we say is the rule?

[00:12:02] Speaker 04:
that there has to be an indication that the district court considered the factors in 3553A when it evaluated the 3583 motion.

[00:12:13] Speaker 04:
I mean, even the Gamorano court, the judge had issued an order in advance of the hearing saying, here's the factors I know I need to consider.

[00:12:22] Speaker 04:
So an indication that the court has considered the factors and an indication of why the

[00:12:30] Speaker 04:
conduct of the defendant in the interest of justice in the case, either way against the termination, or if you're asking how a court could deny the motion, why those factors point.

[00:12:42] Speaker 04:
And it doesn't need to be a long explanation, but to allow this court to evaluate it on an abusive discretion standard, as well as to allow in the other

[00:12:56] Speaker 04:
factors these courts have set forth is that the public perception of sentencing and the openness has to be some reason given.

[00:13:03] Speaker 04:
So especially in a case like this, I think, where the factors are so strong on behalf of the defendant and where the government has urged the district court to take the action, there has to be more.

[00:13:14] Speaker 04:
So I think an explanation, brief as it may be, of why... And a district court could say nothing's changed since the original sentencing.

[00:13:23] Speaker 04:
which I think was what was going on in one or two of the cases, and therefore there's no reason to reevaluate it, but a lot changed in this case.

[00:13:35] Speaker 04:
We don't have any idea why the district court denied this motion.

[00:13:39] Speaker 01:
I noticed one peculiarity in the motions that were filed here, and that is they're citing to 3564C, but everyone is talking about 3583.

[00:13:52] Speaker 01:
And I just wonder if you think that made any difference.

[00:13:56] Speaker 01:
That relates to early termination of probation.

[00:14:03] Speaker 04:
may be just a mistake, frankly.

[00:14:06] Speaker 04:
I honestly don't know.

[00:14:09] Speaker 04:
I think it may be just a mistake.

[00:14:10] Speaker 04:
I mean, 3583 specifically applies to a supervised relief term.

[00:14:15] Speaker 01:
And it's clear that the cases that are being cited here are talking about 3583, but the motion cites a different statute.

[00:14:23] Speaker 04:
You know, I had not noticed that, and I apologize, and I don't know the answer.

[00:14:28] Speaker 00:
Can I just ask one last question, which is,

[00:14:32] Speaker 00:
What exactly, just in quick summary form, changed from the time of original sentencing to now?

[00:14:38] Speaker 00:
Because if you take as a given that someone's expected to comply with the original sentence, and that's not a change.

[00:14:47] Speaker 00:
The fact that somebody, I think it's commendable that somebody does everything that's expected of them.

[00:14:53] Speaker 00:
What changed above and beyond compliance with the expectations set out in the original sentence?

[00:15:00] Speaker 04:
I'll give you two perspectives of that.

[00:15:03] Speaker 04:
The defendant's perspective and the government's.

[00:15:04] Speaker 04:
The government's perspective in their motion in response was that the defendant has gone above and beyond the court ordered requirements.

[00:15:14] Speaker 04:
In addition to keeping up her treatment, she's fully faithfully participated in peer support through the probation office, which is not required.

[00:15:23] Speaker 04:
Volunteered her time so that others may benefit from her different health lessons learned, not required.

[00:15:29] Speaker 04:
Her frank acceptance has not wavered and thoroughly committed to a different way of life.

[00:15:34] Speaker 04:
Maintain family and community support that will help her continue.

[00:15:39] Speaker 04:
Little or no risk of recidivism or harm to the community.

[00:15:43] Speaker 04:
That's all the government, actually.

[00:15:45] Speaker 04:
And then in the defense, page 21 of the appendix, the defendant's appendix, it talks about

[00:15:55] Speaker 04:
She's active in her church.

[00:15:57] Speaker 04:
She has worked to get businesses in the community to hire ex-offenders.

[00:16:00] Speaker 04:
That was totally on her own.

[00:16:02] Speaker 04:
Has arranged for other members of the community to make donations of books and magazines to Alderson where she had served her sentence.

[00:16:09] Speaker 04:
She's also worked with the probation office to develop a white collar female ex-offender pilot program.

[00:16:15] Speaker 04:
Again, none of that, that's all.

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apart from her community service.

[00:16:18] Speaker 04:
Then one of the letters submitted in support of the motion to terminate talked about how she had sponsored a young man for placement in one of the work programs.

[00:16:29] Speaker 04:
And the employer was writing what a great job Ms.

[00:16:32] Speaker 04:
Matthews Gardner had done and how well that had worked out for that young man.

[00:16:36] Speaker 04:
So I think all of those are the answer to your question.

[00:16:40] Speaker 04:
Thank you.

[00:16:41] Speaker 04:
Thank you very much.

[00:16:53] Speaker 03:
May it please the Court, the statutory language of 3583E, especially when seen with the contrast from 3553C, which is for original sentencing, it does not set forth the duty on district courts to explain why a motion for early termination of supervised release is denied.

[00:17:14] Speaker 03:
In 3553C and Federal Rule of Criminal Procedure 32, there are hearing and explanatory requirements, and this is sentencing, so that every sentencing a court has to hold a hearing and explain its reasoning.

[00:17:27] Speaker 03:
They were explicitly not incorporated into 3583E.

[00:17:31] Speaker 01:
But how can we review it if the district court doesn't tell us why?

[00:17:37] Speaker 03:
So I think in some cases, it will be apparent from the record.

[00:17:41] Speaker 03:
And in this case, it is apparent from the record.

[00:17:43] Speaker 03:
And in particular, what the court said and did at sentencing.

[00:17:47] Speaker 03:
So what it said is its paramount concern was deterring others from defrauding the government.

[00:17:53] Speaker 03:
And that, in its view, required some jail time plus community service.

[00:17:58] Speaker 03:
But this is very important for how it imposed that community service.

[00:18:01] Speaker 03:
It said it imposed the community service through the supervised release the three years with a special condition requiring that 120 hours be performed for each of the three years.

[00:18:14] Speaker 03:
So it wasn't 360, it didn't just order 360 hours, it said 120 hours in year one, 120 hours in year two, 120 hours in year three.

[00:18:25] Speaker 03:
So by the time the defendant filed her motion, this condition could not have been completed, and thus denying it was not an abuse of discretion.

[00:18:33] Speaker 00:
But it sounds like, from the answer to the question that we posed at the end, that the government itself had indicated in the district court that she did do things above and beyond what was expected in the original sentence.

[00:18:47] Speaker 03:
Her rehabilitative acts and a lot of what she did here is very commendable and we believe and we recommended below that early termination be granted but this is an area that district courts have broad discretion and it disagreed and the standard of review is very deferential.

[00:19:04] Speaker 03:
So we don't think when you consider the differential standard of review there's enough here to go back to the district court to say that they're there.

[00:19:11] Speaker 00:
But it would be one thing I think if

[00:19:14] Speaker 00:
If what was put forward was essentially what was expected as of the original sentence, then you might be able to assume that even if the district court doesn't explain its reasons, that the reason it's denying is the reasons that it set out in putting forward the original sentence to the extent we can glean them from the record.

[00:19:33] Speaker 00:
But if the motion puts forward additional considerations that go above and beyond even by the government's own estimation,

[00:19:39] Speaker 00:
then how can we just assume that the reason that the motion was denied is grounded in the original sentence?

[00:19:47] Speaker 00:
If somebody brings forward something and says, look, something's radically changed.

[00:19:50] Speaker 03:
Well, I understand the court's concern that there's some speculation here, and we think it's clear, like, just from the way the 120 hours are spread out, but if this court disagrees, what we would recommend in this case is just a limited remand in which it asks the district court, why did you deny this motion, and with a very quick timeframe,

[00:20:12] Speaker 03:
like say 21 days at which time the mandate would be recalled to this court because she has less than 10 months left on her supervised release.

[00:20:19] Speaker 03:
And I think that maybe after we got that explanation that they would dismiss their appeal, but otherwise the court could resolve it quickly.

[00:20:27] Speaker 03:
What we're concerned about, the government's concerned about is not as much the circumstances of this particular case.

[00:20:32] Speaker 03:
There's a lot unusual going on here, to say the least.

[00:20:36] Speaker 03:
But what we're concerned about, what the court says, is the duty of district courts to explain that.

[00:20:41] Speaker 03:
And we do not want the court to set forth a hard and fast legal rule saying you must explain your reasoning in every case, even where all the arguments are frivolous, even where there's nothing new, even where they're bringing these up all the time.

[00:20:54] Speaker 03:
We think such a duty would be needlessly burdened district courts.

[00:20:59] Speaker 01:
Do you think that just having the court say, I considered the factors, is too much of a burden

[00:21:07] Speaker 03:
I don't think that's especially burdensome.

[00:21:09] Speaker 03:
I don't know if that really aids appellate review too much, but it's not especially burdensome.

[00:21:13] Speaker 00:
Do you think it's actually required that the court consider the factors even in circumstances in which it denies modification rather than grants it?

[00:21:25] Speaker 03:
I mean, I think the factors that are set forth are inherent in considering the interests of justice.

[00:21:31] Speaker 03:
And it's hard to see sort of what else it would be considering when it would be considering this motion.

[00:21:36] Speaker 03:
But I think to the extent it's sort of repeating in its mind what it said it's sentencing, did it's sentencing, where it considered those factors, they often are one in the same.

[00:21:46] Speaker 03:
But I don't think, I mean, again, to go back to the statutory language, in 3583E,

[00:21:51] Speaker 03:
It only says if you're going to terminate it, you have to consider.

[00:21:55] Speaker 03:
In 3553C, it also says you have to explain your reasoning.

[00:21:59] Speaker 03:
So we find that statutory difference to be very important.

[00:22:03] Speaker 02:
There's a case that wasn't cited by either party in your briefs.

[00:22:07] Speaker 02:
It's called USV Lafayette.

[00:22:09] Speaker 02:
It was decided by this court in 2007, and it involved a review of a motion for modification of a sentence under 3582C, I think it is, but it's 3582.

[00:22:26] Speaker 02:
For all intents and purposes, that provision is worded the same as this provision at 3583E.

[00:22:33] Speaker 02:
In that case,

[00:22:35] Speaker 02:
We said in commenting about whether there wasn't an abuse of discretion we said that basically that the court had done had given enough of an explanation for us to

[00:22:51] Speaker 02:
and find our words, that the district court's decision was more than adequate to demonstrate that it considered the party's arguments and had a reasoned basis for exercising its own legal decision-making authority.

[00:23:07] Speaker 02:
That's how we described what the district court had done there in affirming the district court's denial of the motion.

[00:23:17] Speaker 02:
Why shouldn't that be the standard that we use in this case?

[00:23:22] Speaker 03:
I'm not familiar with Lafayette, but in terms of the question, I think that to the extent the court is requiring an explanation, that sounds like a not especially onerous one, which would make sense when there is one.

[00:23:42] Speaker 03:
Just in particular, in contrast to what the other options are, that you have to set forth findings of facts, which it doesn't require sentencing, and it shouldn't require here.

[00:23:50] Speaker 03:
But if it's going to conduct appellate review, something to show why it considered the parties' arguments and rejected them makes sense to the government.

[00:23:59] Speaker 02:
What in the judgment and commitment order or the sentencing shows that the court wanted to have 120 hours at least done every year for three years as opposed to 360 hours at a rate of 120 per year to just basically designate kind of a floor for what the defendant should do.

[00:24:29] Speaker 03:
It's most clearly set forth at page 257 of the supplemental appendix, and I'll read the court.

[00:24:34] Speaker 03:
This is the special condition on the supervised release where it says, you will perform 360 hours of community service during the three years of your supervised release at a rate of 120 hours a year in a program that will be supervised and approved by U.S.

[00:24:50] Speaker 03:
probation.

[00:24:52] Speaker 03:
In our view, that's pretty clear that it wanted 120 hours a year, and apparently on the view that making her visible in the community for longer would have a greater deterrent effect.

[00:25:03] Speaker 02:
That's reading a lot into it, but I understand your argument.

[00:25:13] Speaker 03:
So if the government has any further questions, but otherwise, I mean, if the court has any further questions, otherwise I urge you to affirm.

[00:25:26] Speaker 01:
Mr. Kramer, we used up all of your time, but we'll give you two minutes.

[00:25:29] Speaker 04:
Thank you.

[00:25:29] Speaker 04:
I just want to talk about the 360-hour thing and say a couple of things.

[00:25:35] Speaker 04:
She had completed the 360 hours, as probation said, and she was continuing to do community service.

[00:25:42] Speaker 04:
The government never argued in the district court when they urged it to grant this motion that that meant, when the district court said 360 hours,

[00:25:51] Speaker 04:
Everybody, I think, interpreted that to mean at least 120 hours per year.

[00:25:57] Speaker 04:
But I'm not going to make you do all 360 hours the first year.

[00:26:01] Speaker 04:
You can do it 120 hours, a minimum of 120 hours per year if you, I'm sorry, if you need to spread it out over three years, 120 hours per year.

[00:26:12] Speaker 04:
probation didn't interpret it to mean you had to do 120 hours each year because they said she was eligible for termination.

[00:26:19] Speaker 04:
The government didn't interpret it as having to do 120 hours a year because they urged the district court to grant the motion.

[00:26:27] Speaker 04:
And in their appellate brief, they barely allude to this issue in one

[00:26:30] Speaker 04:
sentence.

[00:26:31] Speaker 04:
And I've never seen it interpreted that way in any district court.

[00:26:37] Speaker 04:
It's always been to allow the defendant to have, when a court imposes a substantial amount of community service, as 360 hours is, to say you don't have to do it all in the first year, you can spread it out over the term of supervised release, if that's best.

[00:26:54] Speaker 04:
So that's an argument that was never made below

[00:26:56] Speaker 04:
Probation didn't think that applied below, and they barely alluded to it in their appellate brief, and now they're arguing that as their main point, it seems.

[00:27:05] Speaker 04:
So that's my answer to that.

[00:27:07] Speaker 04:
Thank you very much for the extra time.

[00:27:09] Speaker 01:
Thank you.