[00:00:02] Speaker 01: Case number 12-3022, United States of America versus John Bigley Appellant. [00:00:07] Speaker 01: Mr. Jeffress for the appellant, Mr. Nello for the appellee. [00:00:10] Speaker 04: Good morning, Your Honor. [00:00:17] Speaker 04: John Jeffress on behalf of Appellant John Bigley. [00:00:20] Speaker 04: I'd like to reserve two minutes for a bottle. [00:00:24] Speaker 04: Evaluated under any standard of review, Mr. Bigley's sentence was procedurally unreasonable, and the case should be remanded for a new sentence. [00:00:32] Speaker 04: The failure of the district court to address Mr. Bigley's sentencing manipulation argument does not satisfy the procedural reasonableness requirements that are set forth in Rita. [00:00:42] Speaker 04: Affirming Mr. Bigley's sentence on this inadequate record would not only be inconsistent with Rita and Gall and a very large body of post-Booker case law, but it would do significant damage to the federal sentencing process by providing district courts with exactly the wrong incentives in terms of addressing, mitigating arguments from the defense, [00:01:02] Speaker 04: and explaining their reasons to the parties, to the public, and perhaps most importantly for the benefit of this court for the purpose of meaningful appellate review. [00:01:11] Speaker 04: The government's entire position here depends on this court characterizing Mr. Bigley's main sentencing argument as frivolous and therefore beneath the reader's requirements. [00:01:22] Speaker 04: But not only was this argument non-frivolous, it was a very strong argument for a lower sentence in this case. [00:01:28] Speaker 04: The camera issue here was the driver of Mr. Bigley's guidelines range, and in turn his 84-month sentence. [00:01:36] Speaker 04: The camera issue resulted in a three-fold increase in Mr. Bigley's guidelines range, even though 95 percent of this case is basically a mind-run travel with intent case under 18 USC 2423B. [00:01:47] Speaker 04: Those cases generally carry a guidelines range of [00:01:52] Speaker 04: either 46 to 57 months or actually a lower range if there's no two-point enhancement of 37 to 46 months. [00:01:59] Speaker 04: But here it was much, much higher than that. [00:02:02] Speaker 04: In fact, it was the guidelines for the production of child pornography because of this camera issue. [00:02:08] Speaker 04: So the fact that this was Detective Palachek's idea and that Palachek pushed this idea, those are good arguments for a lower sentence in this case. [00:02:16] Speaker 04: And they were very well developed in defense counsel's written submissions and at the sentencing hearing. [00:02:22] Speaker 03: What's the precedent on the question of Senate's entrapment, Senate's manipulated enhancement? [00:02:28] Speaker 04: Well, I mean, we have two different sentencing regimes. [00:02:31] Speaker 04: Obviously, we have the pre-Booker sentencing regime, and then we have the post-Booker sentencing regime. [00:02:35] Speaker 03: Forget for a moment that Booker ever even happened. [00:02:37] Speaker 03: Tell me what the president is. [00:02:38] Speaker 03: Well, that's going to be hard to do. [00:02:41] Speaker 04: It was sort of a revolution. [00:02:44] Speaker 04: Well, in that case, I'm not even sure if even under that set of circumstances, the government would be correct with balls. [00:02:49] Speaker 04: Balls was a case where basically they were asking the judge to acquit the defendant of the crack offense and convict and just use the lesser included, I think, is what I'm saying, the cocaine powder. [00:03:04] Speaker 04: That's a world different from what we're talking about here, where this is really just an argument in mitigation. [00:03:09] Speaker 04: It's an argument for a lower sentence. [00:03:11] Speaker 04: So I'm not even sure if we were in the pre-Booker regime that walls would have prohibited this argument in the way the government thinks it does. [00:03:19] Speaker 04: But certainly here, I think putting walls in this context and where we are now is sentencing after everything the Supreme Court said in Rita, Gall, Booker, Kimbrough, Spears. [00:03:32] Speaker 03: What is the most relevant to this out of those that you have just outlined? [00:03:36] Speaker 03: Give me the Supreme Court language that's most relevant to your argument here. [00:03:40] Speaker 04: Well, I would say the case we rely on most is Pepper, just because it's so closely analogous to this case. [00:03:47] Speaker 04: In that case, basically the same thing happened that's playing out here, which is the government said, hey, you can't consider this post-sentencing rehabilitation argument because of the pre-booker case law preventing that as a basis for a departure. [00:03:57] Speaker 04: And then in Pepper, I think the Supreme Court has gotten fairly, almost frustrated with the government coming back with these arguments about what judges can't consider. [00:04:06] Speaker 04: I don't think one time, they've gone to the Supreme Court and the Supreme Court said, you're correct, you know, Judge Kemp. [00:04:11] Speaker 03: Do you have a case that says that the district court and the sentencing court has to consider sentencing manipulation, sentence entrapment, whichever styling? [00:04:24] Speaker 03: Do you have a case that says that? [00:04:27] Speaker 03: Is an appropriate consideration for sentence? [00:04:30] Speaker 04: Well, the 10th Circuit said that very clearly. [00:04:32] Speaker 03: Do you have a controlling case? [00:04:34] Speaker 04: From this circuit, no. [00:04:35] Speaker 04: I don't think this is a case. [00:04:35] Speaker 03: This circuit and the Supreme Court are both silent on that. [00:04:38] Speaker 03: Is that what your position is? [00:04:39] Speaker 04: On the exact issue of sentencing and treatment, I don't think we've got cases going either way in this circuit or the Supreme Court. [00:04:46] Speaker 04: But I think, given where we are in terms of the case law, I mean, I think it spears that the court was like, you know, we've said this several times. [00:04:54] Speaker 04: Now, the district would consider a very broad array of information in imposing sentences. [00:05:01] Speaker 03: None of those concerned anything parallel to Senate's entrapment, Senate's manipulation, did they? [00:05:09] Speaker 03: I'm not sure I see the relevance of those cases. [00:05:13] Speaker 04: Well, I think they just said, look, you can consider basically everything. [00:05:16] Speaker 04: And so certainly sensing it. [00:05:17] Speaker 03: No, they didn't. [00:05:18] Speaker 03: There's certainly things you can't consider. [00:05:20] Speaker 03: I'm sorry? [00:05:20] Speaker 03: There's a world of things that you can't consider. [00:05:22] Speaker 04: Well, it's certainly constitutionally prohibited. [00:05:24] Speaker 03: Many things are considered prohibited. [00:05:26] Speaker 03: Many other things are real relevant. [00:05:28] Speaker 04: It would be very hard for me to see how a sensing entrapment, especially as it played out here, would be irrelevant to an evaluation of the nature and circumstances of the offense. [00:05:37] Speaker 04: Certainly the fact that this was not Mr. Bigley's idea. [00:05:40] Speaker 04: In fact, certainly, especially, you know, you look at what they search. [00:05:43] Speaker 03: He wasn't exactly pulled into it, speaking and screaming, was he? [00:05:48] Speaker 03: No. [00:05:48] Speaker 03: He wasn't found a camera. [00:05:51] Speaker 04: Yeah, after the detective suggested it, yes. [00:05:54] Speaker 04: And it's pretty clear to me that the detective suggested it for the exact reasons why we have here. [00:05:59] Speaker 04: And again, the issue is not whether this ultimately would have prevailed in this court. [00:06:04] Speaker 04: The issue is whether he had a right to a ruling, basically, or just even an addressing of this argument so that he could bring it to this court's attention. [00:06:14] Speaker 04: I mean, that's the prejudice here. [00:06:16] Speaker 04: You know, I mean, if the district court had this in mind, I mean, just to ask rhetorically, you know, why did the district court reject this argument? [00:06:23] Speaker 04: We don't know. [00:06:24] Speaker 04: It could be many things. [00:06:25] Speaker 03: It could be because... But if we were to hold, or if we have held, or if the law is that you cannot depart based on the Senate's entrapment theory, then it becomes that worst harmless theory, doesn't it? [00:06:40] Speaker 04: If that were true, and the district court could not, it's not to part, but I think it's very. [00:06:47] Speaker 03: Very, correct. [00:06:48] Speaker 04: Right. [00:06:48] Speaker 04: And I think if the court were to hold it cannot vary based on this argument categorically, it's a blanket prohibition for district court to consider this, then perhaps, yeah, it would be hard to see the prejudice. [00:07:01] Speaker 04: But we don't know. [00:07:02] Speaker 04: The whole problem here is we're just shooting in the dark. [00:07:05] Speaker 04: We don't know why the district court rejected this argument. [00:07:07] Speaker 04: It could be. [00:07:08] Speaker 03: But if it cannot be considered, then it doesn't matter what. [00:07:12] Speaker 04: If there's a blanket prohibition, I think that's fine. [00:07:15] Speaker 04: But just to go back, the prejudice here, of course, is we don't know. [00:07:19] Speaker 04: We don't know if that was it, and if that was it, I think. [00:07:24] Speaker 04: If the court were to reach that, I don't think we haven't really squarely addressed that argument as briefs. [00:07:29] Speaker 04: And we'd certainly want the opportunity to say that that is something the court can consider under the Supreme Court's post-Brooker sentencing precedents, the manipulation. [00:07:39] Speaker 04: But that could be one reason why the district court did this. [00:07:42] Speaker 04: Another reason could be the argument that the government's made both in the district court and here about the plea agreement, barring Mr. Bigley from bringing this issue to the court's attention, which I also think is wrong. [00:07:53] Speaker 04: It could be because the district court relied on misrepresentations of who said what in the chats between Mr. Bigley and the detective. [00:08:06] Speaker 04: It could be because the district court thought there was a mandatory minimum in this case. [00:08:10] Speaker 04: The district court said, both in the few things that he said about this case and in the written statement of reasons, that there was a mandatory minimum in this case, which, of course, does not involve any mandatory [00:08:23] Speaker 04: So was that what the district court had in mind? [00:08:25] Speaker 04: Actually, his comments indicate it might have been. [00:08:27] Speaker 04: But we don't know. [00:08:28] Speaker 04: And that's the prejudice here. [00:08:30] Speaker 04: And in Reed Seale's case and a big B, they say the prejudice in cases of failure to consider is depriving this court, or depriving the defendant of his right to bring an appeal, which he has a right to, and depriving this court of the ability to perform meaningful appellate review, because there's just not an adequate record. [00:08:53] Speaker 04: So I think, under Rita, that's just clearly not permissible. [00:08:59] Speaker 04: This was an argument that was certainly worthy of a ruling. [00:09:03] Speaker 04: And no matter what that ruling was, Mr. Bigley was entitled to take an appeal and to know what the district court had said. [00:09:13] Speaker 04: So, and then just finally, on the statement of reasons, you know, in the Ingrid Seale case we basically said where there's no statement of reasons and the sentence is, quote, imposed in violation of law. [00:09:25] Speaker 04: Here the statement of reasons had this, you know, the judge indicated that there was a mandatory minimum in the case. [00:09:32] Speaker 04: The judge indicated that he was [00:09:34] Speaker 04: granting a departure rather than doing a variance and filled out the paperwork for one instead of the other. [00:09:40] Speaker 04: So in some respects, really, this is worse than no statement of reasons. [00:09:43] Speaker 04: Because at least when there's no statement of reasons, as there was in the Rissell case, we have the possibility that the judge still got it right. [00:09:50] Speaker 04: But here we have a statement of reasons that's filled with errors. [00:09:53] Speaker 04: So when we take that in combination with the judge's failure to address this sentence in any meaningful way at sentencing, but especially the principal argument of mitigation, [00:10:04] Speaker 04: We've got a situation where we just cannot have any confidence that this entity was done properly. [00:10:14] Speaker 02: Thank you. [00:10:16] Speaker 02: Here from the government. [00:10:25] Speaker 00: Elizabeth Dinello for the United States. [00:10:27] Speaker 00: Good morning. [00:10:29] Speaker 00: I'd like to start with the standard of review, which should inform the court's consideration of appellant's claims here. [00:10:40] Speaker 00: This court consistently has held that where a defendant claims that the district court did not adequately explain the sentence, yet where the defendant has failed to raise that objection at sentencing, then the review is for plain error. [00:10:54] Speaker 02: What about the suggestion that there has to be a [00:10:59] Speaker 02: opportunity to object, isn't it? [00:11:01] Speaker 00: This court has never conditioned application of a plain error standard on some inquiry by the district court at the conclusion of sentencing. [00:11:10] Speaker 02: But an opportunity, an opportunity. [00:11:11] Speaker 02: Any other words? [00:11:19] Speaker 02: The question is the opportunity. [00:11:20] Speaker 02: In this case, the judge gave the sentence and said goodbye, good luck. [00:11:26] Speaker 00: Well, number one, there was nothing preventing appellant at that point from saying, excuse me, Your Honor, could you please explain to me, what did you think of the sentencing manipulation claim? [00:11:36] Speaker 02: So what do you think the words an opportunity in Locke mean? [00:11:40] Speaker 00: Well, Locke did not say that that was necessary. [00:11:43] Speaker 00: And I note that in other cases, in ransom, in sealed case, in activity, there was no mention of the district court giving the opportunity that the court did give in Locke. [00:11:56] Speaker 00: to the extent appellant is suggesting a new rule that a court must provide that opportunity, that claim is raised for the first time in the reply brief and should be rejected on that reason alone. [00:12:07] Speaker 00: But also, as the Third Circuit noted in Flores Mejia, parties traditionally bear the burden of noting their objections. [00:12:15] Speaker 00: And it's not a particularly onerous burden to impose on counsel the requirement of [00:12:21] Speaker 03: interrupting and asking for clarification of the district court's reasoning. [00:12:31] Speaker 00: After the judge finishes talking with the parties and thanks counsel, before the judge has left the bench for counsel to say, wait a minute, excuse me, there was nothing stopping appellant from doing that, and under this court's precedent, he therefore has to satisfy the plaintiff's standard. [00:12:49] Speaker 03: You know, it's fairly simple to identify the point at which you should object to something the judge did. [00:12:54] Speaker 03: It's a little more difficult to figure out when you appropriately insert your objection to something the judge didn't do. [00:13:00] Speaker 00: But if the claim is that the judge erred in not adequately explaining the sentence, that was the time to do it. [00:13:08] Speaker 00: Certainly, there wouldn't have been a basis before the judge ruled. [00:13:11] Speaker 00: But at that time, if there was some flaw in the judge's reasoning or some deficiency in the judge's reasoning, then that was the time to speak up. [00:13:19] Speaker 00: Or, as this Court has held in numerous cases, suffer the consequences of the Plain Air standard. [00:13:24] Speaker 03: What's the most near parallel case to this one where we have bled? [00:13:31] Speaker 00: Well, I know in cases that I have mentioned, a sealed case at Higbee, Ransom, Wilson, which was cited in Flores Mejia. [00:13:40] Speaker 00: In none of those cases was there any mention of the judge offering the opportunity to object. [00:13:46] Speaker 00: The court simply assumed that because there was no objection, the Plain Air Standard applied. [00:13:51] Speaker 02: So your suggestion is, if I'm looking at the transcript, [00:13:56] Speaker 02: the district court speaks and at the end of his speaking says, good luck to you, Mr. Bigley. [00:14:02] Speaker 02: Is at that point, somebody should have jumped up? [00:14:05] Speaker 00: Sure. [00:14:05] Speaker 00: If, if he wanted to preserve his objection at that time, he should have jumped up. [00:14:11] Speaker 02: And you don't, you don't think it's, um, that many lawyers on both sides of government and otherwise would hesitate to jump up and interrupt the judge at that point on his way out of the room? [00:14:23] Speaker 00: I would think a judge would welcome the opportunity that if there were error to correct it then and there. [00:14:29] Speaker 02: Well, some judges might. [00:14:33] Speaker 02: Some judges like to be interrupted, some don't. [00:14:35] Speaker 00: But if the judge makes clear that the judge is not going to entertain the objection, then the defendant has the basis to say that the objection was foreclosed. [00:14:43] Speaker 00: Until the defendant asks, until the defendant steps forward, there can be no assumption. [00:14:49] Speaker 02: Can I ask why it matters, whether this is plain error or harmless error? [00:14:53] Speaker 02: If they have objected, if they... [00:14:56] Speaker 02: had objected and it was harmless error, what's the difference? [00:15:02] Speaker 02: That is, if the error here is a fa... Assume for the moment you lose on the merits and that there was an error and the error was the failure to respond to a non-frivolous objection. [00:15:15] Speaker 02: Haven't we said that because that deprives the Court of Appeals of any possibility of review, that's prejudicial? [00:15:22] Speaker 02: And so that whether it's harmless error or plain error doesn't really matter. [00:15:27] Speaker 00: Where the court has assumed prejudice, even in the plain-error context, it's been the extreme situation where the court hasn't said anything to explain its sentence. [00:15:37] Speaker 00: The court has never suggested that a judge's failure to address a specific claim, one specific claim, also triggers that, essentially, presumption of prejudice at the court-bound and sealed case and Akigbe. [00:15:52] Speaker 00: Traditionally, the court has required that where a defendant fails to object to a judge's explanation of the sentence, that the defendant is still required to shoulder the burden under the plain error standard of showing a difference to the outcome. [00:16:08] Speaker 02: And so, therefore, an answer here... You don't have to respond to everyone, but what about... doesn't Locke say you have to respond to a non-frivolous [00:16:14] Speaker 00: But that goes to the question whether there's error in the first place. [00:16:17] Speaker 00: And under your head, that's what you're assuming. [00:16:18] Speaker 02: I'm asking them to assume there was. [00:16:19] Speaker 02: Assume that there was error. [00:16:21] Speaker 02: What's the difference between whether it's plain error or non-harmless error? [00:16:26] Speaker 00: Well, under the Plain Air standard, the burden is on the defendant to show that had the judge addressed the issue, that the judge would have reached a different decision. [00:16:34] Speaker 02: No, that's not what we've been saying. [00:16:36] Speaker 02: I appreciate there is an argument for that. [00:16:38] Speaker 02: That's what we said in CERO. [00:16:39] Speaker 02: But in the cases where the problem was a failure to explain rather than a sentencing error, [00:16:49] Speaker 02: We've said, essentially, in sealed cases, basically per se. [00:16:54] Speaker 02: That is, the error is an error, it's prejudicial because we can't tell. [00:16:58] Speaker 02: Isn't that right? [00:16:58] Speaker 00: But in sealed case, the error was failure to give any explanation at all. [00:17:03] Speaker 00: And here we have the judge who, on the record, gives concrete reasons for imposing that 84-month sentence. [00:17:09] Speaker 00: Unlike in sealed case where the district court departed upward and it was impossible for the reviewing court to determine what was in the court's mind, here the judge explains what was in his mind. [00:17:19] Speaker 00: And so there is a basis for substantive review of the sentence, whether the sentence was substantively reasonable, unlike in sealed case, unlike in a case where it was just a black box as to what was in the district court's head. [00:17:34] Speaker 00: Now if I may address then your hypothetical [00:17:39] Speaker 00: And in particular, as you phrased it, whether, assuming that the district court did err. [00:17:44] Speaker 00: And I'd like to get into the issue that the district court did not err. [00:17:49] Speaker 00: Because essentially, our argument boils down to four words in the online discussion between appellant and Detective Palchak. [00:18:02] Speaker 02: I hope it's- Can I just back up for one second before you get to that? [00:18:04] Speaker 02: As you can see, judges like to interrupt, too. [00:18:06] Speaker 00: That's right. [00:18:08] Speaker 02: What about Akibe? [00:18:10] Speaker 02: The district court's failure to explain adequately the sentence it imposed is prejudicial in itself. [00:18:17] Speaker 00: Unlike in Akibe, in Akibe, the judge gave only a generalized explanation of the sentence that referred to the generalized harm from the healthcare fraud or referred to [00:18:30] Speaker 00: referred to factors that weren't relevant, here the district judge gave specific factors that were particular to this defendant, his age, his lack of criminal history, and referred to the particular seriousness of this offense. [00:18:45] Speaker 00: So unlike in a kibbeh, which the court has held was simply too generalized an explanation, here the court gave a specific explanation and the court can therefore [00:18:54] Speaker 00: perform its responsibility of review for us. [00:18:58] Speaker 02: So you agree that we're not limiting ourselves as we did in a sealed case without providing any explanation at all? [00:19:05] Speaker 00: But a CAFE isn't far off. [00:19:07] Speaker 00: Where the judge gives only this generalized explanation, there's still no explanation at all as to why the judge departed upward against the party's advice for this particular defendant. [00:19:19] Speaker 00: Here the judge departed downward and we know why the judge did so for this particular defendant. [00:19:25] Speaker 02: Okay I interrupted you, go ahead and see if you can figure out where you were. [00:19:30] Speaker 00: This court has made clear that where as here [00:19:35] Speaker 00: the record shows that the defendant is predisposed to commit the offense in the way that a government agent suggests, then that argument of sentencing treatment, sentencing factor manipulation, simply is not a basis for a lesser sentence. [00:19:49] Speaker 02: And do you think that that's the ground on which the judge was ruling? [00:19:52] Speaker 02: I mean, that seems absolutely clear to you, I take it. [00:19:54] Speaker 02: So therefore, it's absolutely clear to the judge. [00:19:56] Speaker 02: Is that right? [00:19:57] Speaker 00: Well, a couple answers. [00:19:59] Speaker 00: It's fair. [00:20:01] Speaker 00: That's what the judge probably was thinking, because the [00:20:03] Speaker 00: the prosecutor argued predisposition and the record here is so clear on predisposition. [00:20:10] Speaker 02: Before you get to your point, if that's true and you're completely wrong and the judge was completely wrong, then we do have a prejudice problem here because then the judge was probably, in your own words, acting on a misconception of the law. [00:20:26] Speaker 00: If the judge misapplied the law, then yes, that's procedural error. [00:20:29] Speaker 02: I'm asking you to assume for the moment you're wrong and that [00:20:34] Speaker 02: post-booker, a judge can, very downward, in this circumstance. [00:20:41] Speaker 02: Not that the judge must, but the judge can. [00:20:45] Speaker 02: Just assume for the moment, because that's going to be another set of questions. [00:20:49] Speaker 02: Then, your view is probably the judge legally erred. [00:20:54] Speaker 00: Yes. [00:20:55] Speaker 02: So in that circumstance, we do have prejudice, right? [00:20:57] Speaker 00: I would agree with that. [00:20:58] Speaker 02: Okay. [00:20:59] Speaker 02: So then the entire case really does come down to the question. [00:21:03] Speaker 02: Both sides' entire case comes down purely to the question whether a judge can consider sentencing entrapment post-Booker, right? [00:21:13] Speaker 00: Yes. [00:21:13] Speaker 00: And our response is that Booker did not change [00:21:17] Speaker 00: the case law beginning with Walls. [00:21:20] Speaker 00: Walls, to start, was not tied to the guidelines. [00:21:23] Speaker 00: There was no discussion of the guidelines when the court ruled. [00:21:26] Speaker 00: Moreover, Sheppard was not a guidelines case at all. [00:21:30] Speaker 00: There, the district court went below the mandatory minimum based on a filing, sentencing, entrapment, sentencing, factor manipulation. [00:21:37] Speaker 00: And this court held that that was an error as a matter of law. [00:21:41] Speaker 00: I would draw the court's attention to Guest. [00:21:45] Speaker 00: Beltran is not the only. [00:21:47] Speaker 00: case that addresses this issue post-Booker. [00:21:50] Speaker 00: Guest was decided the same year as Beltran. [00:21:52] Speaker 00: In fact, it's cited in Beltran. [00:21:54] Speaker 00: And in that case, the Sixth Circuit reaffirmed its pre-Booker rule that sentencing entrapment, sentencing fact manipulation [00:22:03] Speaker 00: are not defenses or not basis for mitigation at sentencing. [00:22:08] Speaker 00: And the court specifically said that the post-booker cases of Gall and Kimbrough, it's on no reason why those cases should affect that rule. [00:22:17] Speaker 00: How do you reconcile Pepper [00:22:21] Speaker 00: In Pepper, the Supreme Court held, as the government had argued, the United States argued in Pepper, that a defendant's post-sentencing rehabilitation was a factor that a district court could consider at re-sentencing, because it went to a number of the 3553A factors. [00:22:42] Speaker 00: Now, again, assuming the plein air standard applies, [00:22:47] Speaker 00: Pepper did not address sensing manipulation, sensing factor manipulation, and it's not obvious that a government agent's suggestion of how an offense could be committed is relevant to any of the 3553A factors where the actual conduct of the offense affects the defendant's clear predisposition. [00:23:12] Speaker 01: I'm just, I wonder if the 3553 factors that go to things like nature and history of the offense, circumstances of the offense, that sort of thing, would that fall within the broad language that Pepper uses where it says character, conduct of the defendant, and so forth? [00:23:32] Speaker 00: Certainly, the nature and circumstance of the offense are enumerated factors that a district court must consider under 3553A. [00:23:43] Speaker 00: But Pepper does not suggest that a court of appeals may rule, as this court has done, that certain factors simply are not relevant to the history and circumstances of the offense. [00:23:56] Speaker 02: But on what basis? [00:23:58] Speaker 02: I must say it's clear to me, first of all, if we were going your way, it would just be one more case that the Supreme Court would say, as they said in Spears, that the Court's appeals just don't get it. [00:24:09] Speaker 02: That Apprendi, Booker, Rita, Gall, Kimbrough have changed the rules, and that you can't smuggle in this dish and fight a rearguard action against the consequences of Booker. [00:24:22] Speaker 02: And if it's the case that [00:24:25] Speaker 02: Notwithstanding the guidelines, judges are free purely for policy reasons to decide that crack is the same as powder if it's the case. [00:24:38] Speaker 02: As we've said, that notwithstanding the guidelines, judges are free to take into consideration the cooperation of the defendant [00:24:46] Speaker 02: even if the government doesn't think the defendant cooperated, if it's the case that they can now take into consideration rehabilitation, I just don't see a basis for, in a post-booker world, saying that anything is off limits. [00:25:04] Speaker 02: And it strikes me as, at this point, in light of the Supreme Court's opinion, it would be plain error on our part to take what the government is asking here. [00:25:13] Speaker 02: And I must say the government is asking to get slapped yet again by the Supreme Court by asking us to do this. [00:25:21] Speaker 02: I'd be amazed if the Solicitor General takes the same position the government is taking now in this case. [00:25:26] Speaker 03: That doesn't mean everybody on the Court would do it. [00:25:28] Speaker 03: No, no, that's why I said I'm. [00:25:31] Speaker 02: That's why I'm saying I'm. [00:25:33] Speaker 02: But I mean, it just seems we're past this at this point. [00:25:38] Speaker 00: If I may address this perhaps in a different way, I'm not sure I'm going to satisfy your concern, Judge Garland. [00:25:46] Speaker 00: In the Walls line of cases, this court, in following what it believed to be the Supreme Court's command in Russell, [00:25:55] Speaker 00: said that we don't think that where a defendant is predisposed, that has any bearing on sentencing. [00:26:03] Speaker 00: And the court didn't suggest this was a guidelines-dependent rule. [00:26:08] Speaker 00: It's simply that where a defendant shows no hesitation in committing an offense a certain way, then the defendant's culpability should be judged in the way that he did commit the offense. [00:26:23] Speaker 00: And Booker [00:26:25] Speaker 00: doesn't change that rule. [00:26:28] Speaker 02: And I appreciate your concern, but our position is that unlike rehabilitation... But where we are, the reason that there is more higher sentence here is not the statute. [00:26:45] Speaker 02: The reason that there's a higher sentence here is the guidelines that are associated, right? [00:26:50] Speaker 02: Not the statute. [00:26:51] Speaker 02: I mean, I think it would be right to say that we can't [00:26:55] Speaker 02: You know, you can't give this man a sentence under a misdemeanor statute because you think it was predisposed. [00:27:04] Speaker 02: But the bump here is not caused by the statute. [00:27:06] Speaker 02: It's caused by the guidelines, isn't it? [00:27:08] Speaker 00: Right. [00:27:09] Speaker 00: But under this court's case law, whether it's a departure from the guidelines, whether it's a post-Fooker variance from the guidelines, this court's case law indicates that the defendants predisposed [00:27:24] Speaker 00: conduct in committing the offense, even if it's suggested by a government agent, simply is not a relevant factor under 3550A. [00:27:32] Speaker 02: Well, that's not what we said in Hines. [00:27:33] Speaker 02: In Hines, actually, the council eventually decided to put that argument in the context of guidelines. [00:27:40] Speaker 02: And we said that we can't do that because the guidelines bind. [00:27:43] Speaker 02: So Walls was eventually transmuted into a guidelines-based case by the time we got to Hines. [00:27:51] Speaker 00: Right, but as I've mentioned, Shepard was clearly not a guidelines case. [00:27:55] Speaker 00: That was a mandatory minimum case. [00:27:58] Speaker 00: And I believe Glover was a case where the claim was that the judge shouldn't have imposed separate concurrent sentences for the schoolyard statute violations. [00:28:10] Speaker 00: Again, that wasn't specifically a guidelines consideration. [00:28:13] Speaker 02: Those were all on the question of whether a departure was possible, right? [00:28:17] Speaker 02: All those cases, every one of them, necessarily because they're before Booker, were about departures, right? [00:28:26] Speaker 00: But again, what the court was saying in those cases is that [00:28:30] Speaker 00: sentencing entrapment, sentencing manipulation, simply is not a relevant factor, is where the defendant is predisposed. [00:28:39] Speaker 00: And there's really no meaningful dispute on this record. [00:28:41] Speaker 00: That appellant was predisposed. [00:28:43] Speaker 02: Well, that seems to be an argument to be made to the district court. [00:28:46] Speaker 02: And was made to the district court. [00:28:49] Speaker 02: And the district court was perfectly free to say, [00:28:51] Speaker 02: Well, I'm persuaded that he was predisposed, and therefore it makes no difference to me. [00:28:57] Speaker 00: Let me just address that point. [00:28:59] Speaker 00: This court, in many of its cases, has found predisposition based on the record. [00:29:05] Speaker 00: And here we have a record where it was the appellant who brought the camera. [00:29:09] Speaker 03: The appellant... [00:29:11] Speaker 03: we have at times found predisposition on the record doesn't mean we would on this record. [00:29:17] Speaker 03: As far as what he came into the conversation with Palachek, he got the camera after the conversation. [00:29:24] Speaker 00: Right, but he showed no hesitation. [00:29:26] Speaker 03: How is that relevant to pre-disposition? [00:29:28] Speaker 00: Well, as this Court has held, the fact that a defendant shows no hesitation, that alone destroys a sentencing entrapment claim. [00:29:36] Speaker 00: Here, he not only failed to show any hesitation, he showed he wanted this plan to succeed. [00:29:41] Speaker 00: He goes looking for the camera. [00:29:43] Speaker 00: He finds the camera. [00:29:44] Speaker 00: He brings the camera. [00:29:45] Speaker 00: He admits he wants to use the camera. [00:29:47] Speaker 03: That's consistent with the entrapment working. [00:29:49] Speaker 03: that isn't necessarily establishing predisposition. [00:29:53] Speaker 00: When he says, I hope it works, he's indicating what he wants. [00:30:00] Speaker 00: Right. [00:30:01] Speaker 03: After the point at which the defense contends that the government is occurring. [00:30:05] Speaker 00: But a trap that is not established as a matter of law where a defendant is predisposed. [00:30:19] Speaker 03: already committed by the time he did what he did about the county, right? [00:30:24] Speaker 00: If I can just answer that question, in the cases where the court has rejected sentencing treatment, sentencing manipulation, similarly, it was the government agent who suggested that the offense be committed in a certain way and in fact insisted that the offense be committed in a certain way. [00:30:39] Speaker 03: Right, right. [00:30:40] Speaker 03: We'll pass that. [00:30:41] Speaker 03: We're not talking about [00:30:51] Speaker 03: established on the record as a matter of law and did not need any further consideration. [00:30:56] Speaker 00: It's our position that predisposition was clearly established on the record. [00:31:00] Speaker 03: I understand that's your position. [00:31:01] Speaker 03: I'm trying to find out why. [00:31:03] Speaker 03: What is it that shows predisposition as opposed to simply that he was, in fact, induced to commit the aggravating factor? [00:31:15] Speaker 00: Perhaps the word predisposition is a bit of a misnomer. [00:31:20] Speaker 00: The standard that the court has used is not only predisposition, but lack of hesitation. [00:31:28] Speaker 00: And there was certainly no hesitation on this record. [00:31:31] Speaker 02: Well, you're saying no reasonable jury could have found hesitation here? [00:31:35] Speaker 02: Is that your position? [00:31:36] Speaker 00: That is our position. [00:31:38] Speaker 02: It's remarkable, I think. [00:31:40] Speaker 02: What about the fact that the district court erred in the statement of reasons that he actually filled out? [00:31:47] Speaker 00: Well, again, that seems to be a [00:31:50] Speaker 00: New point raised in the reply brief, an appellant has never suggested that's an independent basis for reversing the district court's ruling. [00:31:58] Speaker 00: The errors also that are cited, none of them are of substantive importance. [00:32:04] Speaker 00: The district court checked the box for mandatory minimum and never suggested there was a particular mandatory minimum. [00:32:10] Speaker 00: There isn't a mandatory minimum. [00:32:12] Speaker 00: And although the district court mixed up departure and deviation, it nonetheless explained why it was sentencing below the guidelines [00:32:20] Speaker 00: And its explanation is consistent with its oral sense, which always controls over the written reasons anyway. [00:32:26] Speaker 02: Well, he may have suggested that the court thought that the rules regarding departure controlled rather than the rules regarding variance. [00:32:34] Speaker 00: Again, if, as we have argued, the district court was not permitted to [00:32:42] Speaker 00: entertain or permitted to sentence, give a lesser sentence, because of sentencing manipulation. [00:32:47] Speaker 00: It really doesn't matter what it's called. [00:32:49] Speaker 02: So it all depends on your being victorious in that argument. [00:32:53] Speaker 00: Right, and also taking into account all the elements of the Plain Air Standard. [00:32:58] Speaker 00: Well, okay. [00:33:03] Speaker 02: We would be taking into consideration all elements of the Plain Air Standard if [00:33:07] Speaker 02: we took your position that the judge probably reached this decision based on an erroneous view of the law, right? [00:33:15] Speaker 02: That is, assuming that you lost, I'm not saying you will, but if you did, then, in other words, if the district court announced, if the district court had announced, I just can't take into consideration this argument at all, because the court's precedent say I can't. [00:33:32] Speaker 02: Wouldn't that be enough for plein air? [00:33:35] Speaker 00: Well, our position is that would be a correct statement. [00:33:38] Speaker 00: I'm saying if it's wrong. [00:33:39] Speaker 00: If the district court is wrong, that would be obvious error. [00:33:43] Speaker 00: And yes, and as I've conceded, that would satisfy Ponds 3 and probably 4. [00:33:48] Speaker 02: OK. [00:33:48] Speaker 00: Further questions? [00:33:51] Speaker 02: Thank you. [00:33:51] Speaker 02: I know Mr. Jeffress has no more time. [00:33:53] Speaker 02: Well, actually has 45 seconds. [00:33:55] Speaker 04: I think everything that I would say was covered during your address with the government, so unless there are additional questions. [00:34:02] Speaker ?: OK, thank you. [00:34:03] Speaker ?: Thank you.