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Case number 14-3046 at L, United States of America versus Stephen C. Hunter Appellant.

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Ms.

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Davis for the appellant.

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Mr. Dieterman for the appellee.

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Ms.

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Davis, good morning.

[00:00:15] Speaker 04:
Good morning.

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May it please the court?

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With the court's permission, I'd like to reserve two minutes for a rebuttal.

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The primary issues presented in this case focus on the district court's resentencing of the appellant following a remand by this court.

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In particular, the remand was based on the government's failure to prove

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that the appellants were managers or supervisors pursuant to a sentencing guideline 3D1.1B, which resulted in a three-level upward adjustment.

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Appellants submit that the district court was obligated on remand to consider only two issues.

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And that is how the change in the offense level affected the overall sentence.

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And secondly, whether there is any post-sentencing rehabilitation.

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And this is pursuant to the Supreme Court's opinion in Pepper.

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Can I ask you, Ms.

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Davis, if the judge had said managerial enhancement has been

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lopped off, I find it has no independent weight, similar to Blackson.

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Would that do it?

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No, because, I mean, once you take away the managerial roles, that means the appellants were less culpable.

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And the initial sentence was based on the managerial role.

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That was taken into consideration.

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Once that's lopped off, they're in a different position.

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They're less culpable.

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How about the fact that he went way below the guidelines to begin with?

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That, we think, was based primarily on the fact that the paperwork that ran up the loss amount was basically blank certificates.

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And there's no loss to the government.

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It was just basically funny money, so to speak.

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And so therefore, to sentence these gentlemen based on the guidelines would have been totally unreasonable.

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And I think the judge recognized that at the time of sentencing.

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So your position is that the district court had no option other than to reduce the sentence?

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I think at the very least, the court should have addressed the issue.

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The court did not even address it.

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Why wasn't it moved?

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Why what?

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Well, the government abandoned any interest in pursuing that enhancement.

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Right, exactly.

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But still, I think the case law in this circuit makes clear that when there is a remand, you have to consider the reason for the remand.

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And the judge never even addressed it.

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And again, going back to my other point, I mean, once you took away the managerial role, these appellants were in a different position.

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That's why I asked you my initial question.

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Is your position that the district court had no discretion other than to reduce the sentence?

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Exactly.

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I think there was no discretion.

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What's your best case on that?

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I think probably, probably Blackson, which basically held that when someone, I believe that was, when a count is vacated,

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the cases sent back, the court has to consider how the change affected the overall sentence.

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And I think in this situation, because those three levels were vacated, that had to be taken into consideration in the overall sentence, even though there was a huge downward variance.

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Well, that's why I asked you if, in Blackson,

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The district judge, which we have held, said the vacated count had no independent weight.

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If Judge Lamberth has said the loss of the managerial enhancement had no independent weight, and you say Blackson is the closest case, why wouldn't that suffice?

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Well, for one thing, Judge Lamberth never said that.

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Oh, I know.

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I'm asking if he had, would you be satisfied?

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I think... Why isn't this argument waived?

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Hunter's counsel said... Are you Hunter's counsel?

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I was Mr. Chu's counsel.

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Hunter's counsel says in here, he says, quote, realistically, from a guidelines point of view, nothing changes that much in terms of the ultimate sentence.

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Well, I think from the... I don't know why the council said that.

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Well, the government argued it, too.

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Right.

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I mean, from the guide... Yeah, right.

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The guidelines, because... See, then he went right on... From that point, he went right on the judge.

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They talked about rehabilitation at that point.

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And so what it looks like is that the council was saying, yeah, I agree.

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This doesn't really affect the sentence.

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What I really want to talk about here is rehabilitation.

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I think there was significant argument, and I believe it was Mr. Hunter's counsel who argued the mathematical changes, the percentage change that should have been imposed as a result of the change in the guidelines, that it should have been

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a percentage decrease because of that.

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And so I don't think that that argument was that there's no change in a sentence.

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I think the argument was just the opposite, that there was a very strong argument.

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And in fact, the pleadings, especially the pleadings by Mr. Hunter, argued that strenuously.

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Now, they were facing life.

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Isn't that right?

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And they got 10 years.

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Right.

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they were uh... but again the reason i think it's very obvious that the reason they weren't sentenced to anything close to that is because there was no there was no loss it was just all it was all paper that didn't mean anything and i believe that the government expert testified that had he

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Had he seen these, he would have just thrown them away.

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It was laughable.

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Well, people paid fees, correct?

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Excuse me?

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Yes.

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People paid fees.

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Yes.

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All right.

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So they were out of money.

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The IRS had to do a lot of meaningless work as a result of all these complaints.

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And the district court on remand thought it was significant.

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that there had been additional convictions which caused him to reevaluate his view of the seriousness of the offense.

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And I know you object to that, but I mean, that was the district court's explanation.

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Well, as some background, the additional people that were convicted since then were

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I guess, already on the IRS list.

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I mean, they were not even, they didn't show any connection to these particular appellants.

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Moreover, any losses- No, you are arguing the nature of the offense.

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You say nobody was harmed.

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But basically, nobody was harmed to the extent that the way the loss calculation was calculated.

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These other items that you're mentioning, Judge Rogers, such as the fees that people paid, the amount of time the IRS had to put into it, that did not determine the guidelines.

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That was not part of it.

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So let me ask you, your brief says that in response to the government's argument about what our standard of review is, that the defendants had no opportunity to object.

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Correct.

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And what did you mean by that?

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Well, I think the Bigley case addressed this, and so did the

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lethal law case, both address that if there's an opportunity to object and you don't, well then you're subject to the plain error review.

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And so you say in your brief, there was no opportunity.

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Exactly.

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And why not?

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Because after the arguments of counsel, Judge Lamberth called the appellants up

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and immediately imposed sentence.

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After the sentence was imposed, that's when he asked the questions.

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And so why didn't that provide you with an opportunity, counsel, an opportunity to object?

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Because sentence had already been imposed.

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And I point out before you, sir.

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So what do you think counsel should have said before?

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In other words, are you reading all these cases to say that

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On re-sentencing, defense counsel says, I make the following three points.

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And the judge enters into a discussion saying, well, I'm not too convinced about that because of some other factors.

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The judge says, I'm imposing this sentence.

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So when do you think the opportunity to object has to exist?

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I think that, as in the Locke case, the judge said, went through his reasoning and said, this is the sentence I'm going to impose.

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Are there any questions or anything you wanted to mention?

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So here where the district court says anything further, could not counsel have said, Your Honor, you didn't mention the fact that

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There no longer is an enhancement.

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No, because sentence has already been imposed.

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And I think that's the distinguishing factor between.

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So suppose you had made that objection and the district court said, no, I took that into account given that the government was not pressing that point anymore.

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I think it would have been a moot issue because sentence had been imposed.

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So you see those cases as requiring the district court to give a preview of his sentence?

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Say, here's what I'm thinking of imposing?

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Or at least having a discussion concerning it.

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There was no discussion.

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Well, he was talking with defense counsel.

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But not about this particular issue, not about the... So the judge has to say, I've heard counsel.

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Here's what I think I'm going to do.

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Any comments?

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which is what happened in the lock case.

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But that's what you think is required?

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I think that is required in order.

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Yes, I do.

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Otherwise, once sentence is imposed, once the judge imposes a sentence, it's there.

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It's in the record.

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I understand, but I just wonder why you view the post-sentence opportunity as insufficient.

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I mean, I understand the reality that the judge is imposed sentence and he's unlikely to change his mind, but to the extent you're coming to the appellate court and saying the judge failed adequately to explain his sentence and he didn't mention that there was no enhancement, the judge at that point could have said, given his response,

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But then the language in Locke, opportunity to object, plus the rules talking about opportunity to object, would be meaningless.

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Well, that's what I'm trying to understand about what we mean by plain error.

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And I gather from your brief, when you say you had no opportunity to object,

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What you mean is, well, the district court may have asked us anything further, but we never had a chance to have a preliminary understanding of what the judge was going to do on resentencing.

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Exactly.

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I believe all defense counsel were

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were surprised that the same sentence was automatically imposed without any consideration of the arguments such as the change.

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Now when the judge started talking about, gee, I think maybe I underestimated the seriousness of the offense, couldn't defense counsel have said,

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Your Honor, that's an inappropriate consideration.

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That was part of the sentencing.

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The judge had already called up the defendants and was imposing sentences at that point in time.

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Now you're an experienced trial attorney, is that correct?

[00:12:54] Speaker 04:
No, I'm not, Your Honor.

[00:12:54] Speaker 05:
You're not a trial attorney?

[00:12:55] Speaker 04:
No, I'm not.

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All right, sorry.

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I'll ask the government.

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Okay.

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And if there's no further questions.

[00:13:02] Speaker 06:
Well, I've got a question along the lines of Judge Rogers.

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What happened in Locke?

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And this was the exact language.

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After explaining his reasoning, and one of your objections is he didn't adequately explain his reason.

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He asked the parties if they, quote, know of any reason other than reasons already stated and argued why the sentence should not be imposed as I have just indicated.

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Nothing else, Your Honor.

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OK.

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Part of your argument is he never sufficiently explained his reasons, and you say, I'm exaggerating, but out of the blue he imposed a sentence and we had no opportunity to object.

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I mean, at that point,

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You have to say, at least for the record, at least for purposes of appeal, may I put on the record that you have not sufficiently explained it.

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You have not said that you've considered rehabilitation.

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You have incorrectly considered the seriousness of the crime or revisited the original sentence.

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Locke doesn't say, if those facts aren't in the case, that is, if the judge hasn't explained his reasoning, that Locke applies.

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I mean, Locke applies because he explained his reasoning.

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He said, now, before I give the sentence, which I've just told you I'm going to give, is there anything else?

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what because again it goes back to the the the question of what what is opportunity to object to me it it it if you can make objections following the imposition of sentence and that counts then that opportunity to object means nothing you there's been no system review because

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If you at least object, then Judge Lamberth might have said, all right, I'll be a little more specific.

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Or he would have said, or he could have said, fine, your objection's noted, the sentence stands, and then you're up before us.

[00:14:59] Speaker 04:
Well, right, but I think that the...

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The problem here is that Judge Lamberth, number one, never addressed the issue on remand.

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He never addressed it.

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And so I think it was clear that Judge Lamberth from the get-go was inclined to impose the same sentence, whether there is an objection or not.

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But in this point, since, again, I keep going back to the same thing, since sentence had already been imposed,

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then to object afterwards in order just to change the standard of review seems not just that is to give him an opportunity to if he thinks okay I need to be more specific.

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he would have been maybe more specific in giving his reasons for imposing the sentence he did.

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However, the reasons that he gave, even if he expanded upon them, the reasons he gave were beyond the remand and were inappropriate.

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They were not proper reasons to begin with.

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And so I think we go back to the main argument that the purpose of the remand was to consider the enhancement and how it affected the sentence.

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And that was never addressed.

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And although it was addressed as far as post-sentencing rehabilitation, that was tied into the seriousness of the offense.

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And seriousness of the offense was not something that the judge could properly consider.

[00:16:28] Speaker 06:
We'll give you a couple minutes of your time.

[00:16:29] Speaker 06:
Thank you.

[00:16:30] Speaker 06:
Mr. Dieterman.

[00:16:35] Speaker 00:
Good morning, may it please the court, Mark Detterman for the United States.

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Yes, I believe that this case, as far as objection goes, is quite like Locke.

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You have to make an objection after, yeah, in order to preserve your objection, you have to make that objection after the district court announces its sentence.

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That's the way it works during trial courts.

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Once a judge makes a ruling, you make an objection in order to preserve your objection.

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And that did not happen here.

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And therefore, their claims of procedural error should be viewed as plain error.

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plus in this court.

[00:17:13] Speaker 05:
Well, let me ask you this.

[00:17:14] Speaker 05:
A couple of circuits take the position that if defense counsel has already argued to the sentencing judge A, B, and C, and the judge says, I've heard your arguments, I understand them, I've asked some questions, you've given me answers, I'm sentencing you to 10 years, that the idea that there has to be an exception is not only contrary to Rule 51, but really makes no practical sense.

[00:17:38] Speaker 05:
But in this case... In other words, the district court had every opportunity to consider the objections.

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The district court is presumed to know what the law is.

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So when counsel comes up on appeal and says, related to A, B, and C, the district court failed adequately to explain

[00:18:04] Speaker 05:
It's not quite the same, is it, as bringing up a totally new claim, as was the case, for example, in Racile's case.

[00:18:15] Speaker 00:
I think their arguments here, though, were things that were not brought up at sentencing.

[00:18:20] Speaker 00:
First, they argue that the three-level wasn't removed, and they never brought that up to the judge.

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They never said, you're failing to remove the three-level.

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Second, they're arguing that the statement that the judge made, that I'm not sure I sufficiently valued the seriousness of the crime,

[00:18:37] Speaker 00:
They're arguing that that was error, but they never argued during the sentencing that the judge had to... Well, they couldn't.

[00:18:42] Speaker 03:
He didn't say it.

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He couldn't.

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He didn't say it until the end.

[00:18:46] Speaker 03:
That's true, but... How could they argue it until he said it?

[00:18:48] Speaker 00:
Yes, but I'm addressing the point on whether they brought this up beforehand in that... Well, they couldn't possibly have.

[00:18:57] Speaker 03:
about the seriousness of it because he hadn't made it.

[00:19:00] Speaker 00:
But they could have made an argument that under the remand, he was not allowed to sentence them to the same sentence that the judge had to sentence them lower.

[00:19:08] Speaker 03:
Does the government's case here depend on us reviewing for point of order?

[00:19:13] Speaker 03:
Suppose we don't.

[00:19:14] Speaker 00:
No, I don't think so.

[00:19:15] Speaker 03:
Why don't you make your argument assuming we're not using it?

[00:19:19] Speaker 03:
How would you make that argument?

[00:19:21] Speaker 00:
Just the point that the district court did not do de novo resentencing, that it was allowed to, it was not required to further reduce their sentence based on this remand.

[00:19:35] Speaker 00:
That even the panel's opinion stated that the error, the three-level reduction, that the three-level adjustment could have been harmless.

[00:19:44] Speaker 00:
The panel's opinion said that in the last paragraph.

[00:19:47] Speaker 00:
Um, and that the judge found that it didn't make a difference that he had already gave them such a large downward variance.

[00:19:54] Speaker 03:
And what about his sentence?

[00:19:56] Speaker 03:
Uh, as I look back on the case four years later, I'm not sure I valued sufficient serious nature.

[00:20:05] Speaker 00:
I think the statement that I'm not sure isn't de novo or sentencing.

[00:20:10] Speaker 00:
He's not saying I did not value it sufficiently and therefore I'm valuing the seriousness more right now.

[00:20:17] Speaker 00:
He's just making a general statement of why he doesn't think they deserve a lower sentence.

[00:20:22] Speaker 06:
Well, he also goes on in the next sentence and says the consequence to the tax system and all the people that relied on the information that you all are providing.

[00:20:32] Speaker 06:
And that's in response to the government's new facts argument about the 13 people who were convicted after the sentencing.

[00:20:41] Speaker 00:
Yes, that's correct.

[00:20:41] Speaker 00:
And it does appear that that was in response to the 13 additional clients that were convicted of tax crimes, but both blacks and

[00:20:49] Speaker 00:
And Pepper say that a district court, even on a limited remand, can take into consideration post-sentencing new facts and new developments.

[00:20:58] Speaker 06:
And that's what the government argued, and that's... Yes.

[00:21:02] Speaker 06:
But I mean, it's asking... That at least could be read that way, that that's what the judge was responding to when he said,

[00:21:08] Speaker 06:
You know, looking at the seriousness of this, I didn't know about all these convictions coming down the road after this.

[00:21:15] Speaker 00:
Yes, I think that's true.

[00:21:17] Speaker 00:
Although I think overall the reason for the 10-year sentence was that Eddie Ray Kahn, who was found to be the leader and organizer,

[00:21:25] Speaker 00:
of the scheme was sentenced to 20 years, and that he viewed these defendants as about half as culpable as Eddie Raycon, who this court, you know, upheld the leader-organizer adjustment for Eddie Raycon, and he received 20 years.

[00:21:43] Speaker 06:
Was he facing life, too?

[00:21:45] Speaker 00:
What?

[00:21:45] Speaker 06:
Was he facing life, too?

[00:21:47] Speaker 06:
I thought he wasn't.

[00:21:48] Speaker 00:
No, he wasn't.

[00:21:49] Speaker 00:
He was facing life.

[00:21:49] Speaker 06:
How did that happen, that he was the ringleader,

[00:21:52] Speaker 06:
Do you know?

[00:21:53] Speaker 00:
Just a slight difference in the guidelines calculations.

[00:21:56] Speaker 00:
I don't remember why right now.

[00:21:59] Speaker 00:
I think it was a conviction difference.

[00:22:00] Speaker 00:
I think there is one conviction difference.

[00:22:04] Speaker 05:
I thought these defendants had no priorities.

[00:22:07] Speaker 05:
I'm sorry?

[00:22:10] Speaker 05:
I want to go back and just understand what the government's interpretation of blacks and

[00:22:17] Speaker 05:
is on its third factor, where it talks about new facts.

[00:22:21] Speaker 05:
In other words, at the original sentencing, the district court judge here said, this is a very serious offense.

[00:22:28] Speaker 05:
And it knew that there were 4,000 people who had paid these fees.

[00:22:35] Speaker 05:
This was a big organization.

[00:22:37] Speaker 05:
It had been going on for years.

[00:22:41] Speaker 05:
So then at resensing, he says, oh, now I understand some more people have been convicted.

[00:22:49] Speaker 05:
What I'm wondering is, is that the nature of what Blackson had in mind?

[00:22:55] Speaker 05:
And by analogy would be the drug conspiracy, where it's a serious offense.

[00:23:01] Speaker 05:
The judge knows it.

[00:23:03] Speaker 05:
He imposes sentence.

[00:23:04] Speaker 05:
It's sent back for resensing.

[00:23:07] Speaker 05:
And the judge says, well, gee, now I realize, you know, all these other people have been convicted.

[00:23:14] Speaker 05:
Is that what New Facts was getting at?

[00:23:16] Speaker 05:
In other words, you know, whether they're going to be additional convictions a matter of prosecutorial discretion, I thought the New Facts had more to do with the actual defendant and how it affected the defendant or something like that, not the fact that the crime

[00:23:37] Speaker 05:
because the prosecutor decided to prosecute more people and the jury convicted was in the nature of new facts.

[00:23:45] Speaker 00:
Well, I think this is a nature of how much the harm was, and that more individuals were affected by their scheme.

[00:23:53] Speaker 05:
The judge acknowledged that in the beginning, is what I'm getting at.

[00:23:57] Speaker 00:
And again, he's just saying, I'm not sure.

[00:23:59] Speaker 00:
Maybe this is a little bit worse than I thought.

[00:24:03] Speaker 00:
But I think there is a harm difference.

[00:24:06] Speaker 00:
I think if something changed in the amount of harm between the original sentencing and the resensing, the judge can take that.

[00:24:13] Speaker 05:
4,000 people are out these fees.

[00:24:15] Speaker 05:
The judge knew that.

[00:24:17] Speaker 05:
The defendants had made a lot of money off of these fees.

[00:24:21] Speaker 05:
The IRS was bombarded with a lot of letters and wasting its time.

[00:24:26] Speaker 05:
The judge knew all that.

[00:24:28] Speaker 06:
Yes.

[00:24:29] Speaker 06:
But what the judge didn't know, and what the government argued at this re-sentencing, was that these 13 convictions, eight of which necessitated jury trials, as the government put it, were the legacy of the seeds that the defendants planted.

[00:24:45] Speaker 06:
Judge Lamberth knew these people had to pay all the fees, but they also were not filing taxes and submitting these bills of exchange.

[00:24:55] Speaker 00:
Yeah, it was more individuals that were induced to commit crimes, which is a harm to society.

[00:25:02] Speaker 00:
And I think that's what the judge was considering.

[00:25:05] Speaker 05:
So as a practical matter, while this court tried to confine a resentencing in Blackson, in reality, there's very little confining.

[00:25:25] Speaker 00:
I think it's still fairly confined.

[00:25:27] Speaker 00:
I don't think we could have gone back and re-argued the same points.

[00:25:31] Speaker 00:
We only brought up a small change in the facts.

[00:25:35] Speaker 00:
And it was in response to their post-censing rehabilitation argument that

[00:25:40] Speaker 00:
Well, we've been, you know, we've been good people, but we were saying, but we were countering that by saying, well, your scheme is still affecting others.

[00:25:49] Speaker 05:
So suppose the judge says, gee, I didn't really understand the seriousness of this offense.

[00:25:54] Speaker 05:
20 years.

[00:25:59] Speaker 00:
Yes, I think that would be difficult.

[00:26:00] Speaker 00:
I think that would violate.

[00:26:01] Speaker 05:
Difficult?

[00:26:03] Speaker 05:
Why?

[00:26:04] Speaker 05:
That's what I'm trying to understand.

[00:26:05] Speaker 00:
Because I think that's a de novo re-sentencing.

[00:26:07] Speaker 00:
That's re-looking at the whole picture and not just looking at one small set of new facts.

[00:26:13] Speaker 05:
So your view is that even if the judge had new facts, he could not increase the sentence above 10 years?

[00:26:23] Speaker 00:
No, it's possible if we had shown significant new facts he could have increased the sentence, but I don't think that we showed facts that would justify increasing the sentence.

[00:26:31] Speaker 05:
No, but I just want to understand Blackson, all right?

[00:26:33] Speaker 05:
And then the other point is rehabilitation.

[00:26:38] Speaker 05:
That becomes meaningless under the judge's analysis.

[00:26:42] Speaker 05:
He says, that's what I expected.

[00:26:45] Speaker 00:
He just didn't find that their rehabilitation was exceptional or unusual.

[00:26:51] Speaker 00:
It was just fairly a usual amount of rehabilitation.

[00:26:56] Speaker 00:
And he had already taken into consideration their family situation and the fact that they said they were sorry for it.

[00:27:04] Speaker 00:
So I think he felt he had fully taken into consideration that amount of rehabilitation.

[00:27:11] Speaker 00:
I see I'm out of time, unless the court has more questions for you.

[00:27:14] Speaker 06:
All right.

[00:27:14] Speaker 06:
Thank you.

[00:27:15] Speaker 00:
Thank you.

[00:27:19] Speaker 04:
the state is why should take a minute uh... additional points i'd like to make as the government uh... basically agreed on during his argument is that the thirteen people that were mentioned during the resentencing

[00:27:37] Speaker 04:
was not a substantial change in facts.

[00:27:39] Speaker 04:
The judge was already aware of thousands of people that were affected by this scheme, and therefore to add 13 more really isn't a significant fact on which to, assuming the, we're not saying that the judge should even consider it, but it's not substantial enough to keep the sentence as it was without considering the

[00:28:03] Speaker 04:
how the change in the offense level was affected, which should affect the sentence.

[00:28:09] Speaker 06:
Now, these thousands of people he was aware of, at the original sentence, were they convicted of anything at that time?

[00:28:16] Speaker 06:
I don't know, Your Honor.

[00:28:19] Speaker 06:
I don't know.

[00:28:19] Speaker 06:
I thought that was the big difference, is they were

[00:28:23] Speaker 06:
They were victims at that point.

[00:28:26] Speaker 04:
Now they're- And the other- Well, the other point is that these 13 people, there was nothing to show these appellants' connection to any of those 13 people.

[00:28:38] Speaker 04:
And I think that in order for this to be considered a new fact, it has to be something that links the defendants to these facts.

[00:28:46] Speaker 04:
And I don't think anything was presented at the resendencing.

[00:28:49] Speaker 06:
Another employee of this American Litigators?

[00:28:52] Speaker 06:
I mean, who else did have any relationship with these people except whatever this outfit was called?

[00:29:02] Speaker 04:
But there were, I believe there were other, again, I was in trial counsel, I believe that there were other people involved in this scheme, and there was, again, there were no facts linking the 13 to these particular defendants.

[00:29:17] Speaker 06:
where you had Kahn already convicted the ringleader, and then the whole purpose for the remand was that the underlings below these three men were not culpable.

[00:29:29] Speaker 06:
So who else was there in the record a part of this American rights litigators?

[00:29:35] Speaker 04:
I, Your Honor, again, I wasn't trial counsel.

[00:29:38] Speaker 04:
I believe that there may have been other people involved.

[00:29:41] Speaker 04:
In regard to the post-sentencing rehabilitation and the government's argument that had already been taken into effect, we submit that the judge can't sentence prospectively for post-sentencing rehabilitation because, number one, there's nothing in the guidelines, nor in 3553, that allows us to happen.

[00:30:03] Speaker 04:
And if the judge is allowed to say, well, I expect you to be good in prison, then you were.

[00:30:08] Speaker 04:
But what if the judge says, you know, I expect you to be bad in prison, so therefore I'm going to increase your sentence?

[00:30:13] Speaker 04:
I mean, the judge has to focus on the facts at the time of sentencing.

[00:30:26] Speaker 03:
when he sentenced them, and that's what they've done.

[00:30:30] Speaker 03:
He accepted their argument about rehab.

[00:30:32] Speaker 03:
It didn't affect his view about the sentence, because that's what he expected when he sentenced them.

[00:30:38] Speaker 03:
He said, I recognize how much you all strive to do the right thing during the period of incarceration, and that's what I expect.

[00:30:48] Speaker 04:
But the follow-up is what we think kind of

[00:30:53] Speaker 04:
messes up his reasoning is because he said, then I have to be looking at the seriousness of the offense.

[00:30:59] Speaker 03:
And how can you evaluate the effectiveness of rehabilitation without looking at the seriousness of the offense?

[00:31:05] Speaker 03:
Aren't they related to each other in other words?

[00:31:12] Speaker 03:
rehabilitation you would expect.

[00:31:14] Speaker 04:
No, and I think we addressed this in our reply brief that the seriousness of the offense is something that the judge considers at the time of sentencing.

[00:31:22] Speaker 04:
It's something that basically happened before the time of sentencing.

[00:31:27] Speaker 04:
Post-sentencing rehabilitation takes place obviously after sentencing.

[00:31:32] Speaker 04:
And there's no connection between the two.

[00:31:35] Speaker 03:
But how can that be?

[00:31:39] Speaker 03:
Let's assume you have two different cases.

[00:31:46] Speaker 03:
Isn't the judge's evaluation of rehab in each of those cases affected by the fact that one crime was serious and one wasn't?

[00:31:56] Speaker 03:
What else does rehabilitation mean?

[00:31:57] Speaker 03:
It means rehabilitation.

[00:32:00] Speaker 03:
It means the person is rehabilitated from what?

[00:32:03] Speaker 03:
You have to ask that question.

[00:32:05] Speaker 04:
Exactly.

[00:32:06] Speaker 04:
I don't think the seriousness of the offense links directly to post-sentencing rehabilitation.

[00:32:17] Speaker 06:
All right.

[00:32:19] Speaker 06:
Ms.

[00:32:19] Speaker 06:
Davis, you were appointed to represent Mr. Hunter, and you have done so with your usual expertise in the court.

[00:32:26] Speaker 06:
Thank you.

[00:32:27] Speaker 04:
OK.

[00:32:27] Speaker 04:
Thank you very much.