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Case number 14-3055, United States of America versus Dwayne E. Head, Appellant.

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Mr. Becker for the Appellant, Mr. Smith for the Appellate.

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Judge Pillard, members of the panel, good morning.

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Good morning, Mr. Smith.

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For the record, I'm Robert Becker on behalf of this.

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Good morning, Mr. Becker.

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Sorry.

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When Mr. Hib puted guilty in 2009 to drug possession, the judge in the district court had only one choice, to terminate his supervised release and impose a sentence.

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There were only two areas in which he had discretion.

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One was the length of the sentence, the other was whether to make it consecutive or concurrent.

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His discretion in sentencing was to make it between 20 and 60 months, because the original period of supervised release had been 60 months.

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As for the second, it was his determination.

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He did not have to use the sentencing guidelines.

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In fact, the statute did not say anything about using the sentencing guidelines at that point to calculate the sentence on termination of supervised release.

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In 2009, even if he had run the sentence consecutively, the result would have been trivial because the underlying drug sentence in Superior Court was only 60 months, 60 days.

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But by 2012, the sentence was 48 months.

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So run the consent.

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Your complaint is that he didn't terminate him immediately?

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He left him additional chances to screw up more and stop me before I fail again or something?

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Judge Santel, I don't know that that's, I don't think that's a significant issue in this case.

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I know the government... Well, he is.

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I read your brief and later decided to get back and read it again and I'm not sure what it is exactly that is significant that you're complaining about.

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What we're complaining about?

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You say that he could have done the same thing that he did now.

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He could have done three years earlier or whatever.

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What I'm saying is, yes, the sentence could have been the same, but this court... So what is the significant error that is supposed to warrant relief at this point?

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The significant error here is that by using the later version of the statute and by using the 2012 guidelines,

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The sentence violated the ex post facto clause.

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But you said in your brief, if I read it correctly, he could have done the same thing in the old case as he did in the new case, so has an ex post facto violation.

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If he can do the same thing under either law, ex post facto has to make it harder.

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Well, that is true, but the fact that the sentence ultimately could have been the same is either under Pew or under this court's decision since Pew is not just positive of the issue.

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But isn't, Mr. Barker, the clearer issue whether

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The district judge applied 7b1.3f and therefore applied the revocation consecutively with the superior court sentence as opposed to concurrently.

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And that's a pretty cut and dried question.

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And as I take it, the district judge said on the record that he believed himself to be required to do consecutive sentencing, which under the correct

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guideline in effect at the time was not the case.

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That is true.

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He felt compelled.

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He unfortunately put the length of the sentence in the middle of his sentence.

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Okay, he started off by saying, because of your record, I don't see a reason to depart from the dictates if I'm going to impose a guideline sentence.

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I don't see a reason to depart.

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How does that tell us that he thought he was compelled to go consecutive?

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Well, he said it was required of him.

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He said the guidelines do require that it be consecutive.

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And clearly under the guidelines at the time and under the statute, that was not the case.

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So in effect, because of the changes in both the statute and the guidelines, there was a significant likelihood or a significant risk or a sufficient risk that the sentence that could be imposed was more strict than the sentence that was actually imposed.

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The key being the guideline rather than the statute, isn't it?

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I'm sorry?

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The key being this guideline rather than the statute.

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Well, the guideline, yes, but the statute as well, because the statute after 1994 fed into the guideline.

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And the statute before 1994 did not feed into the guideline.

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So your prayer for relief here would be that we should send it back to the judge could decide whether to make it consecutive rather than think he was compelled to make that's correct.

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We believe that this should be remanded.

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The judge should make a new

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sentencing decision based on the original statute and the guidelines as they were in place at the time.

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And yes, he might come back and say, I'm going to impose the same sentence.

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But that is not the touchstone here.

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The touchstone here is whether under the old statute

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or under the new statute, the new guidelines, there is the chance that it would be a more strict sentence than the one that was imposed.

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And we're talking about unpreserved errors here.

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We are.

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But I believe the government, there are two reasons that is, I don't think, going to help the government.

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One is, I believe there's a case called USB Clark in 2014 in which the government conceded

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after pew that a sentence that was imposed improperly under improper guideline is plain error.

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And then you have sero and in resealed case, which deal with both the third and the fourth prongs of plain error, say that improperly imposed sentence is

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It affects substantial rights, and that a sentence imposed improperly affects the fairness of the judicial system.

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So I think the plain error problem is solved in this case because of what happened here.

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And so we believe that because the sentence could have been more onerous, and in fact can be, and in this case there is substantial evidence that because it had to be consecutive that the sentence here

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felt falls into this category we believe that this is a violation of the the uh... expost back down to the court was dealing with the calculation of the of the guideline range here we're talking about a policy guidance is that make a difference in your view well you know i i

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I wondered about that in this case because even though the seven chapter guidelines are policy statements, the judge said, I'm required by 7B1.3 to make this consecutive.

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So in effect, he was treating it, I think, as a guideline rather than as a policy statement.

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Well, or under Dillon, maybe the policy statement is even more binding than the calculation.

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And in that case, it feeds back into E3.

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And clearly, under the preexisting law and the guidelines, it would not have fed back into E3.

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So that's basically the argument we're making.

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If there are no further questions, I will reserve my time.

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Thank you, Mr. Becker.

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Morning, Mr. Smith.

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Good morning.

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May it please the court, Peter Smith, on behalf of the United States.

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The court did not plainly err in applying or in making appellant's sentence consecutive and not concurrent.

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If the, say hypothetically, if the district judge had specifically said, I would make this sentence

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not consecutive.

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But I'm absolutely obliged by the guidelines to make it consecutive.

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Would that be error?

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It could be.

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Would it be error if we look through the recent guidelines?

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If it was- Would that be ex post facto?

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It might be if it was a book or error, if the court felt that it didn't have any discretion.

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Well, that's what I just said.

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Right.

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Then it would be, but- So the answer to my hypothetical is yes, that would be ex post facto, it would be a plain error, right?

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If it was a book or error, if the court didn't, I'm sorry, if the district court didn't understand that it had discretion.

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But I stated the hypothetical, didn't I?

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I stated that I was absolutely bound as a district judge to do this.

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That would be an ex post facto.

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It would be plain error, right?

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It could be.

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Why do you keep saying it could be?

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Why wouldn't it be?

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I mean, under your hypothetical, if it was Booker error, it would be an error.

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But Appellant is not claiming Booker error.

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He's not saying that the court didn't understand it to have discretion.

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He's saying that the court felt that the court was somehow bound by the guidelines, the problem being the guidelines

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Uh, only the modern, the newer guidelines would bind him and that therefore.

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So the only question in your mind is whether it's exposed factor is whether the district judge statement is interpret could be interpreted the way I put it.

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I guess in the hypothetical, I guess that would be right.

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But there is an important distinction between the hypothetical in this case, which is

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hear that the argument is really, it's not about a guideline range.

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It's not about the imposition of a guideline range.

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It's whether it could be concurrent or consecutive.

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Right.

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And the district judge said, I would have done this concurrent out of the goodness of my heart, but I'm obliged to do it consecutive because of the guidelines.

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That would be an ex post facto violation, would it not?

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I guess it could, I mean, my response would be, it could be, it would depend on this.

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So it's only a question of interpreting what the district judge said.

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I mean, on that flat statement on the hypothetical.

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So it's only a question of interpreting what the district judge said, right?

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Right, it depends.

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And if we interpret it as at least being susceptible to my hypothetical, then we should remain.

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I wouldn't say if it's susceptible because here the district judge made clear, Judge Lamberth made clear that he understood he had discretion and appellant is not raising... How did he do that?

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He said there's no basis for a departure after he said that he thought he was required, that the guidelines required a consecutive sentence, but he also gave other reasons for that sentence.

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So, Appellant had a very poor record on supervised release.

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He had been arrested six times.

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He had been convicted of felony threats.

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The probation office had reported... What, in specific terms, would let us know for sure that he knew that he had disgrace?

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Well, he said that he could depart, and there is nothing in the record... There's always...

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a discussion of, well, always the possibility of a discussion of a departure in the application of a guideline sentence, even during the time when they were deemed mandatory, wasn't it?

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That's correct.

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That's correct.

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So how does that statement of the judge tell us that he knew he had discretion here?

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Sure.

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That statement in connection with the fact that Judge Lamberth is

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is an experienced judge.

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The court is presumed... I have no doubt that he knew what he could do.

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But we have to go by the record.

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No, I understand.

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And the court is presumed to know the law.

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And most importantly, the appellant is not claiming Booker error.

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I mean, the error that... If he had cited Booker...

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Does anyone have a better gauge?

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How is this different than book or error?

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Book or error is that he thinks he's bound by.

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Here the alleged error is that he's bound by.

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Right.

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Well, the difference would be, in Booker era, which the appellant has disclaimed in his opening brief, would be the court literally doesn't understand that it has discretion.

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And that is not what appellant is claiming.

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And here the court understood it had... That might be what I'm still trying to figure out.

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I thought that was what he was claiming, was that the court didn't know it had discretion.

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Well, he's he asked him when he was speaking, what is it you're saying is worse than it was under the old regime?

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And he seemed to be saying that the court should have had the discretion to run it concurrently as opposed to consecutively, but didn't know we had that.

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Right.

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I think that was his argument this morning.

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The argument in his opening brief, he specifically says he's not claiming that the court didn't understand it had discretion.

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His argument is a little more nuanced in his brief.

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It's that it's similar to the error in Pugh and Terrell, that the court was somehow cabined by the guidelines and that that somehow influenced its decision.

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And that is the argument that the government is rebutting in its brief, and that I'm trying to rebut now, that the court's discretion was somehow cabined by the guidelines.

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And the important difference between this case and those other cases like Pugh and Terrell, this court's decision in Terrell, is that here, it wasn't the situation like in Terrell where there was a guideline range that simply shifted upwards.

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Here you had nothing in the guidelines that said one way or the other whether the court was supposed to impose concurrent or consecutive time.

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And then you had a later imposed guideline that said the court should impose consecutive time.

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And so Judge Lamberth looked at that and he said,

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You know, I'm supposed to impose it consecutively, and that's what I'm going to do, because I don't see any basis in the record for doing otherwise.

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Under Pew, the court was allowed to consider that.

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Pew says specifically, and it's cited in the government's brief, that the district court is allowed to look at later promulgated guidelines and to consider them.

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And the only question is, is that an ex post facto violation?

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If he thinks he's required by the later guidelines, then it is ex post facto.

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But although he's using the word required, and he's talking about a departure, he's not saying that it's not bookerary.

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He's not saying he's bound by the guidelines and he can't depart.

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He's not saying he can't do it.

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He's saying this is the requirement of the guidelines.

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But I can depart.

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Right.

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That's what I'm trying to say.

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You're saying it better than I am.

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But he understood that he could.

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Maybe I'm worried about it more than you.

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Yeah.

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He said that basically what he's saying is that I understand that I'm authorized to give a concurrent sentence, but I'm not.

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And as I argued before, there are a bunch of reasons why the court would want to give a consecutive sentence in this case.

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Were you the trial attorney in this case?

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I was not.

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I realize defense counsel did not raise an objection, but I don't know why the US attorney, assistant US attorney, wouldn't have

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said to the judge, could you make it clear, Your Honor, that you're not relying on the subsequent guideline?

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Because this is really a tempest in a teapot, isn't it?

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It would have been helpful if the... You know, who hoped the Assistant U.S.

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Attorney would have said something?

[00:16:51] Speaker 03:
Yeah, it would have been helpful, but that's not the record that we have, unfortunately.

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I know, that's what's troubling.

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But the idea is that they used to make us go to the circuit and defend our own records when I was in the USA.

[00:17:03] Speaker 03:
Yeah, I've done that before, too.

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It's the same mistake, getting me a different mistake next time.

[00:17:08] Speaker 03:
I have done that, but not in this case.

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The one thing I wanted to point out was that I think it is important that here the guideline range didn't

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shift.

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And Judge Pollard was asking about that earlier.

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And this is not the usual case.

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And I understand the concern the court is expressing.

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But that really applies to the situation where, like in Pew, you have a guideline range that's around 30.

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And suddenly, in Pew, it more than doubles.

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And it goes up to 70.

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And you have two totally different guideline ranges.

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Here you have guidelines that are silent.

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And then you have a later promulgated guideline that tells the court to do something.

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Pugh says expressly that the court can consider the later promulgated guideline.

[00:17:50] Speaker 00:
That's right.

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But the thing that's troublingly missing in the record is any narrative that matches your reconstruction, which is, well, I see the guidelines have changed.

[00:18:01] Speaker 00:
Under the applicable guidelines here, it's my choice.

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But given the way the policy from the commission is going, I believe that in my exercise of discretion, I'm going to make this sentence

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consecutive.

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Instead, he says, I'm required.

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And given that this is an experienced judge who's doing a lot of sentencing, and this kind of situation is relatively rare where you have someone so long afterwards coming up for revocation, the obvious inference is that he's doing what he does on every other day, which is using the current consecutivity guideline.

[00:18:39] Speaker 03:
Right.

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And that's actually what the guidelines tell the district court to do.

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And it's only the exception where you go back to the time of defense because there could be an ex post facto problem.

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And I think that actually supports the government's position because this issue comes up on plain error view.

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And nobody told the district court anything about this.

[00:19:00] Speaker 03:
That makes appellant's prejudice showing very important.

[00:19:08] Speaker 03:
I mean, it shifts the burden onto him to show prejudice.

[00:19:10] Speaker 03:
He's got to show that he was made worse off by the court's decision at a minimum.

[00:19:16] Speaker 00:
Well, it's clearly prejudice.

[00:19:17] Speaker 00:
I mean, are you sort of saying that, oh, we know that the district judge would have done this anyway?

[00:19:22] Speaker 03:
Well, the district court gave reasons.

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I mean, the appellant's history of conduct when he was on supervised release involved six different arrests.

[00:19:30] Speaker 00:
We know.

[00:19:30] Speaker 00:
We know.

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It's not a pretty picture, and he's having his release revoked.

[00:19:36] Speaker 00:
And so that's clearly warranted on this record, but we don't have any discussion linking that to his decision about concurrent versus consecutive.

[00:19:48] Speaker 03:
And I hear that, and the problem

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was created by defense counsel's failure to object.

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I mean, the paucity of the record, to the extent the court finds that, is really, that's on appellant.

[00:20:01] Speaker 03:
And I'm suggesting that the court does.

[00:20:04] Speaker 06:
Recognizing that the different counsel than the label counsel.

[00:20:07] Speaker 03:
Yes.

[00:20:07] Speaker 03:
Yeah, appellant and not appellant's counsel, yes.

[00:20:09] Speaker 03:
That's on the defense side, because they didn't create the record they need.

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And on plain error review, the burden is on them to show prejudice.

[00:20:19] Speaker 03:
The burden is on them to show error.

[00:20:21] Speaker 03:
And what I'm suggesting is that the district court did do enough, and he did give enough reasons that appellant can't prevail under the plain error standard.

[00:20:31] Speaker 06:
I realize this can't make any difference, but I'm curious.

[00:20:35] Speaker 06:
How much longer does he have to serve now if we do nothing?

[00:20:40] Speaker 03:
I don't know the answer to that question.

[00:20:42] Speaker 03:
Perhaps the Paulins' counsel knows.

[00:20:44] Speaker 03:
But we'll find out from him if he knows.

[00:20:45] Speaker 03:
I would think that he's very near that.

[00:20:47] Speaker 06:
What I was thinking, that we're not talking about very much here.

[00:20:51] Speaker 03:
He got 48 months for the assaultive offense, and that was consecutive to the 30 months.

[00:20:59] Speaker 03:
And he would potentially get good time credits and whatnot.

[00:21:07] Speaker 06:
If there are no further questions, we urge the court to affirm the judgment of the district court.

[00:21:18] Speaker 03:
Thank you very much.

[00:21:25] Speaker 02:
To the extent that there was Booker error in this case, it was in looking to the guidelines at all.

[00:21:31] Speaker 02:
The guidelines did not apply to this case under the pre-1994 statute.

[00:21:38] Speaker 02:
So the reason there is no real Booker error here is a Booker error involves erroneous application of the guidelines.

[00:21:49] Speaker 02:
And that's why this is not a Booker question.

[00:21:54] Speaker 02:
And to the extent that the judge... But it's analogous.

[00:21:59] Speaker 02:
It's analogous, but we are so accustomed now to relying on the guidelines for everything, and certainly since... I guess the guidelines... No, no, I just want to make... Yeah.

[00:22:11] Speaker 02:
To a large extent, the problem here was the judge was advised wrongly by everyone involved, starting with the probation office.

[00:22:20] Speaker 02:
which used the wrong set of guidelines at the beginning.

[00:22:24] Speaker 02:
It never went back and looked at what the record should be.

[00:22:31] Speaker 06:
As to the issue of... Actually, if he had committed these crimes just a few months earlier, the guidelines wouldn't have applied at all.

[00:22:37] Speaker 06:
That's correct.

[00:22:38] Speaker 02:
The trial went down in 88 and the guidelines went in in 87.

[00:22:41] Speaker 02:
That's correct, but the guidelines under 3583G, the statute said this is what the sentence will be.

[00:22:50] Speaker 02:
It will be one-third

[00:22:51] Speaker 02:
of the period of supervised release to the full period of supervised release without reference to the guidelines.

[00:22:59] Speaker 02:
So there cannot be booker error here.

[00:23:02] Speaker 02:
Really?

[00:23:03] Speaker 00:
Mr. Becker, what is the remaining?

[00:23:05] Speaker 00:
Is it the 30 months?

[00:23:08] Speaker 02:
My recollection is that his early release date would be sometime in 2017 to early 2018.

[00:23:15] Speaker 02:
So he does have time left.

[00:23:17] Speaker 06:
Oh, I know that it's important to him.

[00:23:21] Speaker 06:
I understand that.

[00:23:22] Speaker 06:
I had clients that were worried if they reported on a date that would let them get out on a Friday instead of waiting until Monday or something.

[00:23:29] Speaker 02:
OK.

[00:23:29] Speaker 02:
And as for the...

[00:23:32] Speaker 02:
The issue of, if we look at this case at the beginning of April 2010, the probation office was calculating his guideline sentence at seven to 13 months.

[00:23:44] Speaker 02:
Push come to shove, the government would have come in and said, no, you have to give him at least 20 months, because that's what the original statute said.

[00:23:53] Speaker 02:
They could not have imposed, Judge Lambert could not have imposed a seven to 13 month sentence.

[00:23:58] Speaker 02:
So this is an issue that is the reason we have an argued substantive unreasonableness is the sentence is within the range permitted by the statute, but it has nothing to do with the guidelines.

[00:24:12] Speaker 02:
So I think that there really is an ex post pacto violation here because the judge now could have imposed, under the current regime, could impose a far more onerous sentence than would have been permitted in the context of the statute and the guidelines to the extent they applied at the time of the sentence.

[00:24:36] Speaker 02:
So I would urge you to.

[00:24:38] Speaker 02:
reverse and remand this case for re-sentencing pursuant to the original statute.

[00:24:43] Speaker 02:
Thank you.

[00:24:44] Speaker 00:
Mr. Becker, the case is submitted.

[00:24:46] Speaker 00:
Mr. Becker, I recognize you were appointed by the court.

[00:24:54] Speaker 00:
Is that correct?

[00:24:55] Speaker 00:
We thank you very much for your service today.