[00:00:02] Speaker 00: Case number 14-5204, James Morris, appellate versus United States Sentencing Commission at L. Mr. Warren for the amicus cari, Mr. Posner for the athletes. [00:00:13] Speaker 05: Good morning. [00:00:14] Speaker 05: Good morning. [00:00:21] Speaker 05: We're ready. [00:00:21] Speaker 01: May it please the court. [00:00:23] Speaker 01: This case presents a number of challenging issues, but the principal point I'd like to focus on [00:00:29] Speaker 01: in his individual and in his official capacity. [00:00:33] Speaker 01: The court agrees with me on that point. [00:00:35] Speaker 01: There is no sovereign immunity bar, and the case must be remanded to be heard on the merits for the first time. [00:00:41] Speaker 01: Time permits, I would also like to address the district court's ruling on the Sentencing Commission. [00:00:45] Speaker 04: Why is Holder relevant to the case, even for whoever, Lynch, whoever is named in his or her official capacity? [00:00:54] Speaker 04: Why is the attorney general relevant to the case? [00:00:58] Speaker 01: Well, I don't believe there is any relevance to the Attorney General as an individual, but his suit is against the United States government and the United States Department of Justice. [00:01:07] Speaker 04: But the Justice Department's not the party responsible for the misapplication of the sentencing guidelines or for the allegedly discriminatory promulgation of the amendment to the guidelines. [00:01:21] Speaker 01: Well, Your Honor, I disagree. [00:01:22] Speaker 01: I believe that the Justice Department opposed Mr. Morris's 3582C2 modification on grounds that were plainly erroneous, an advance in unconstitutional application of the guidance. [00:01:32] Speaker 04: To argue that the lawyers, I mean, they're not ultimately responsible. [00:01:35] Speaker 04: They were just advocates. [00:01:36] Speaker 04: I mean, it seems like your theory would be that the sentencing commissioners perhaps should be named in their official capacity. [00:01:44] Speaker 04: But I don't think that helps you, because they're within the sentencing commission, and that's [00:01:49] Speaker 04: That's a problem, as you know, under our precedent and under the language of the Administrative Procedure Act, which I understand why you're going the way you're going, and I agree with you that the complaint probably should be read to name the Attorney General in his or her official capacity, but the problem is they're not particularly relevant to the case. [00:02:09] Speaker 01: Well, part of the issue is if he gets a declaratory judgment that binds the United States Department of Justice, when he then returns to the 3582C2 court in Mississippi or brings it as a second in success of Habe's petition, the Department of Justice would be bound by the district court's ruling and would not be in a position to oppose that modification request. [00:02:33] Speaker 02: That's what it's really about is that it's tantamount to an injunction against the Attorney General telling the Department of Justice which arguments to make in a subsequent 3582C proceeding. [00:02:43] Speaker 01: It's not an injunction. [00:02:45] Speaker 01: It's not a claim for mandamus. [00:02:46] Speaker 01: It's just a declaration from the court below as to what was the constitutional obligation. [00:02:49] Speaker 02: The expectation is that the Department of Justice... The reason that the Attorney General is relevant has everything to do with the arguments that they would make in a subsequent proceeding. [00:02:57] Speaker 01: It does. [00:02:57] Speaker 01: Yes, it does. [00:02:59] Speaker 01: with the fact that a court would have already said that there is no constitutional way for him to have been sentenced as a career offender. [00:03:08] Speaker 05: Let's go back to the sentencing hearing. [00:03:10] Speaker 05: Let's imagine we're at the sentencing hearing. [00:03:12] Speaker 05: What should have happened if everything had gone correctly? [00:03:16] Speaker 01: What should have happened at the sentencing hearing? [00:03:19] Speaker 01: The court should have read the guidelines at 4B1.1, which say that the career offender guidelines only apply if they are greater than the otherwise applicable guidelines. [00:03:28] Speaker 01: The percentage report and the government made clear that they weren't greater than, they were the same. [00:03:33] Speaker 05: But even that was a mistake. [00:03:36] Speaker 05: I mean, the offense guidelines should have been lower. [00:03:40] Speaker 05: I thought there was a – wasn't there a problem with the weighing of the drug? [00:03:45] Speaker 05: And if that had been done properly, the guideline for the offense would have been lower. [00:03:51] Speaker 01: I mean, had everything conceivable gone in perfect way, perhaps that's true, but that's not what happened. [00:03:57] Speaker 01: The government advanced an argument that there was 55.7 grams of crack cocaine seized. [00:04:02] Speaker 01: That's what they put forward. [00:04:02] Speaker 01: That's what they tried to sentence him on. [00:04:04] Speaker 01: That was wrong, though. [00:04:06] Speaker 05: That was wrong, though, right? [00:04:07] Speaker 05: If we were going back to my hypothetical, going back to the right way, he would have been sentenced to career offender guidelines. [00:04:14] Speaker 01: That was greater than... Years later, that was held to be incorrect, yes. [00:04:19] Speaker 05: So that's a bit odd, isn't it, that you're asking us to overlook that? [00:04:24] Speaker 05: That had this been done correctly, legally, your client would have been sentenced under the career offender guidelines. [00:04:31] Speaker 01: It's anomalous, but the question is what actually happened. [00:04:33] Speaker 01: And what happened is that he was sentenced under the career offender guidelines when he shouldn't have been and couldn't have been under a very plain language reading of what the guidelines were. [00:04:41] Speaker 05: No, he should have been. [00:04:43] Speaker 05: sentenced under the career offender guidelines because there was a mistake that was made in the weighing of the drugs. [00:04:51] Speaker 01: That's true. [00:04:53] Speaker 04: Going back to the original [00:04:56] Speaker 04: claim that was filed, which is at JA 11, it really does talk about the Sentencing Commission used their seats to discriminate against blacks and career offenders, then two, the enactment of the operation of another guideline policy statement, and then third, the operation of another guideline authorizes a de facto re-sentencing. [00:05:20] Speaker 04: Those do seem to be speaking to, first, the Commission, and second, the [00:05:26] Speaker 04: that gets district judge. [00:05:29] Speaker 01: There's no question that he is suing the commission, uh, alleging that there is both facial and as applied constant. [00:05:36] Speaker 04: But as the attorney general, I'm just going, I guess I'm repeating my point. [00:05:39] Speaker 04: But looking, I was going back to double check here on the exactly was in the original [00:05:44] Speaker 01: statement of claim and it does seem... Well, there's a penitent to that emotion for declaratory judgment that I believe uses language suggesting that Eric Holder used to see if he could have memo'd his staff to stand down on an application of the guidelines. [00:05:57] Speaker 01: You know, I won't pretend that the complaint is easy to decipher. [00:06:00] Speaker 04: No, that's okay, and we are generous in reading those, so you make a good point on that in your brief. [00:06:08] Speaker 02: Do you know of another situation in which the ground for including the attorney general as a defendant concerns the arguments that the Department of Justice would make in a proceeding? [00:06:21] Speaker 01: I don't have another case on point to cite for that. [00:06:24] Speaker 01: But by the same token, the Attorney General does get sued in his official capacity routinely, and I think it's considered to be a stand-in for either the Department of Justice or in some cases have held the United States government as a whole. [00:06:36] Speaker 02: But it doesn't sound like your theory has to do with the United States government as a whole. [00:06:40] Speaker 02: It sounds like your theory has to do with carrying out the functions of the Department of Justice vis-a-vis arguments that would be made in court. [00:06:46] Speaker 01: I think that is what Mr. Morris's complaint alleges, fairly construed. [00:06:50] Speaker 01: Yes, it's that the goal is to ensure that when he next comes up on a habeas petition or 3582 C2 sentence modification request that [00:07:02] Speaker 01: that that motion is unopposed or at least that the Department of Justice is not opposing it on grounds that a court of law has held to be unconstitutional and that that will hopefully make it more likely that he gets the relief that he ultimately seeks, which would be release from prison. [00:07:18] Speaker 02: Yeah, and I suppose you'd have an argument about whether the way in which the attorney general is being brought in the case goes to jurisdiction or goes to the merits. [00:07:26] Speaker 02: Correct. [00:07:27] Speaker 01: Correct. [00:07:28] Speaker 01: Right. [00:07:28] Speaker 01: And I think a lot of the questions raised here do go to the merits. [00:07:32] Speaker 01: And that was just simply unaddressed by the district court. [00:07:34] Speaker 01: And the focus in the district court's ruling, the exclusive focus, and the focus of the briefing was on subject matter jurisdiction issue. [00:07:42] Speaker 01: And it focused on sovereign immunity, whether the government had waived its consent to sue, and issues like that. [00:07:48] Speaker 01: I think those issues are legally erroneous. [00:07:51] Speaker 01: And on that ground, the case should be remanded to sort out whether there is a viable claim on the merits. [00:07:56] Speaker 01: in a 12b6 posture where the allegations, factual allegations should be taken as true, whether there is a viable claim for relief. [00:08:04] Speaker 01: But that's not an issue that the district court touched. [00:08:09] Speaker 01: In our precedent here, Pollock v. Hogan, it's a similar case where the district court had dismissed for want of jurisdiction and held that there was a sovereign immunity problem. [00:08:20] Speaker 01: this court reversed, and it noted that, you know, there had been a toss-off half-sentence suggesting a 12-6 dismissal on the merits, but this court held that that wasn't enough, that wasn't sufficient to dismiss the case, and it sent it back down for a full consideration on the merits. [00:08:37] Speaker 01: And I would also suggest that the same thing roughly happened in Davis versus Sentencing Commission. [00:08:42] Speaker 04: Sentencing Commission angle of the case, just asking a couple questions about that part of your brief, if I could. [00:08:49] Speaker 04: Couldn't the constitutional arguments about what the Sentencing Commission did be raised in the 3582 proceeding? [00:08:58] Speaker 01: So that's a question of issue preclusion, as far as the actual proceeding. [00:09:02] Speaker 04: Well, I'm not really focused on this case, but just as a general proposition, one of the concerns I understood your brief to have is if we say the commission is immune, then that's going to mean that some constitutional claims perhaps get unremedied. [00:09:18] Speaker 04: But I don't think that's right, because 3582 would always be available to raise the kinds of constitutional challenges you might have about [00:09:28] Speaker 01: Well, there are examples that are outside of the citizen context altogether. [00:09:32] Speaker 01: Imagine a full-time staff member of the Commission, and it does have full-time paid staff. [00:09:38] Speaker 01: Lots of them. [00:09:39] Speaker 01: Lots of them. [00:09:40] Speaker 01: And is fired by the Commission because the Commission doesn't like his political views. [00:09:44] Speaker 01: Would he be barred from raising a First Amendment claim? [00:09:46] Speaker 01: Under the government's argument, that would naturally follow it. [00:09:50] Speaker 01: He doesn't have a 3582 motion to bring. [00:09:52] Speaker 01: He's not a prisoner. [00:09:53] Speaker 01: It's a large argument that they've put before this Court to suggest that there is a full immunity from judicial oversight when it comes to violating the Constitution. [00:10:02] Speaker 01: And I think, you know, even if there is a limited class of prisoners who may be able to present constitutional claims in the appeal of a 3582 motion, [00:10:11] Speaker 01: And in this context, the violation is alleged to have happened at the 3582 stage, so it would really be the appeal to the Fifth Circuit that would present that opportunity. [00:10:19] Speaker 04: But putting aside your hypothetical for a prisoner who's alleging something unconstitutional with respect to the guidelines or an amendment to the guidelines or what have you, [00:10:29] Speaker 04: The 3582 will allow the prisoner to raise any such claim, I believe. [00:10:35] Speaker 01: I think the case law on that is mixed. [00:10:37] Speaker 01: There's cases holding, like United States v. Lafayette, that constitutional issues, if they relate back to the sentencing in one way or another, are beyond the scope of what is supposed to be a very limited proceeding. [00:10:49] Speaker 01: Dillon and other cases suggest a 3582 modification proceeding is supposed to be very limited in nature. [00:10:54] Speaker 01: It I think really depends on the facts of a prisoner's case, whether a constitutional issue that hooked back or related back to the sentencing in any way. [00:11:04] Speaker 01: would be brought within the scope. [00:11:06] Speaker 01: So perhaps there are some prisoners who would have that opportunity, but I would not agree that every prisoner would necessarily. [00:11:16] Speaker 01: And certainly there are other classes of cases that don't have anything to do with that. [00:11:19] Speaker 02: What's your best case for the proposition that in a situation like this where the constitutional claim is related to the application of the guidelines, related to the application of the guidelines in this particular case against this particular person, [00:11:32] Speaker 02: the 3582 still wouldn't be in the vehicle for bringing that? [00:11:35] Speaker 01: There's no direct case on point. [00:11:37] Speaker 01: This is a fairly anomalous factual situation, in part because of Mr. Morris's access to evidence that he would have needed to really raise the constitutional issue successfully. [00:11:47] Speaker 01: He didn't have the transcript at the time he brought his pro se 3582 motion. [00:11:51] Speaker 01: On account of that, that wasn't part of the record that was certified on appeal. [00:11:54] Speaker 01: So even if he had wanted to raise the transcript in the Fifth Circuit, he wouldn't really have been able to do that. [00:11:59] Speaker 01: And again, he was proceeding pro se. [00:12:01] Speaker 01: while incarcerated without really access to the transcript that was, frankly, his best, perhaps only evidence that there had really been a constitutional violation. [00:12:10] Speaker 02: And then can I ask you about the theory for the Sentencing Commission? [00:12:15] Speaker 02: If I'm understanding the way that you would suggest that we would do it, we already have cases, the WLF cases, that stand for the proposition that the Sentencing Commission isn't part of the waiver of sovereign immunity under the APA. [00:12:28] Speaker 02: But then, and that's construction of the term agency, the definition of the term agency, so agency under the APA. [00:12:36] Speaker 02: But your suggestion would be to construe that same language, the term agency, to mean something different when you're talking about a constitutional claim against the Sentencing Commission of the variety. [00:12:47] Speaker 01: Well, I think the idea is what was that waiver really intended to do? [00:12:51] Speaker 01: It's intended to be a broad waiver of sovereign immunity for the government at large. [00:12:55] Speaker 01: And every case the government has cited limits the application of that waiver to statutory claims or non-constitutional claims, FOIA, FACA, Privacy Act, things like that. [00:13:05] Speaker 01: There just is no case saying that you [00:13:09] Speaker 01: against the commission and I understand textually you're looking at the same words and trying to you know do it two ways and that is novel but certainly not unprecedented that you know this court will take that reach when it needs to to avoid a situation where is that true so what what is if it's not unprecedented what is a case where we where we are the Supreme Court have taken the same word and construed it differently depending on whether there's a constitutional claim raise or any other [00:13:34] Speaker 01: I can't present a case on that, but I can say that this Court has essentially already held that you can raise a declaratory judgment claim against the Sentencing Commission, alleging a constitutional wrong. [00:13:44] Speaker 01: We've done it twice. [00:13:45] Speaker 01: Davis First, the Sentencing Commission itself, the Court considered [00:13:50] Speaker 01: declaratory judgment claimed that the district court had dismissed and said, we're going to send it back because that claim can be brought. [00:13:57] Speaker 01: It was dismissed in error. [00:13:58] Speaker 01: So that's a clear holding that's read on point. [00:14:00] Speaker 01: In the United States versus Lopez, another case that the government said... It wasn't raised there, right? [00:14:05] Speaker 01: I'm sorry? [00:14:06] Speaker 04: It wasn't raised there. [00:14:07] Speaker 04: What wasn't raised? [00:14:09] Speaker 04: The sovereign immunity issue. [00:14:10] Speaker 01: Sovereignty, that's true, but sovereignty means jurisdictional. [00:14:13] Speaker 01: FDIC versus Meyer, the Supreme Court held it's jurisdictional. [00:14:16] Speaker 01: The court should have considered it suespante and would have had that actually been a barrier, but it didn't. [00:14:24] Speaker 01: Likewise, the United States versus Lopez, which is really the foundational precedent for this idea that the commission is not an agency, [00:14:30] Speaker 01: In the same breath, the paragraph before that analysis, the court reaches the merits of Mr. Lopez's constitutional claim holds that it doesn't have merit, but it doesn't include that analysis in the long discussion about sovereign immunity. [00:14:44] Speaker 01: It reaches it, and that's a tacit, implied, and inescapable acknowledgement that you can bring a constitutional claim against this body. [00:14:57] Speaker 01: If the court doesn't have further questions for now, I'd like to reserve your name and my time for rebuttal. [00:15:02] Speaker 01: Thank you very much. [00:15:12] Speaker 03: Good morning. [00:15:12] Speaker 03: May it please the court. [00:15:14] Speaker 03: My name is Mike Posner on behalf of the Sentencing Commission and the other appellees. [00:15:18] Speaker 03: I'd like to start by focusing on the claim against Eric Holder. [00:15:22] Speaker 03: I think the court below comfortably dismissed it as a personal capacity suit. [00:15:27] Speaker 03: But even if the complaint is read as an official capacity suit, this court should affirm on the grounds that [00:15:35] Speaker 03: One way to say it as a practical matter is that DOJ is not relevant. [00:15:38] Speaker 03: As a threshold jurisdictional matter, I think there's no traceability to Morris's alleged injury, the denial of his sentence modification to the attorneys for simply making there. [00:15:50] Speaker 03: argument, and I think Amicus recognizes that there's no precedent on that point. [00:15:56] Speaker 03: There's also no redressability. [00:15:58] Speaker 03: The discretion and the authority to modify Morris's sentence rests solely with the sentence in court. [00:16:05] Speaker 03: And the sentencing court has looked at this through two 3582C motions, through two habeas motions, has looked at the same issue, and has decided over and over again that Morris was sentenced correctly under the guidelines as a career offender because his offense level for the drug quantity was lower than his offense level as a career offender. [00:16:29] Speaker 03: And so a declaratory judgment by this court against the Department of Justice [00:16:35] Speaker 02: I thought the offense levels were the same. [00:16:37] Speaker 03: I thought that's why we're... In the pre-sentence report, the offense levels were listed as the same. [00:16:43] Speaker 03: And there's some, I think, mixed... Amicus pulls one thing from the transcript from the sentencing hearing to show that the sentence may have been based on drug quantity. [00:16:54] Speaker 03: There are other indications in that transcript that it was based on career offender status. [00:16:59] Speaker 03: And so in the very first habeas motion, the district court said, I want to look specifically at this issue as to whether Morris was sentenced based on drug quantity, and if so, what amount. [00:17:12] Speaker 03: And the court requested briefing from the parties. [00:17:14] Speaker 03: The Department of Justice submitted a brief, and Morris submitted a filing. [00:17:17] Speaker 03: And the Department of Justice explained that the actual weight [00:17:21] Speaker 03: for the drug quantity was lower than the weight in the pre-sentencing report. [00:17:24] Speaker 02: So this gets back to the weight question of whether the quantity was accurately conceived of by the sentencing court. [00:17:31] Speaker 03: That's right. [00:17:32] Speaker 03: And the Northern District of Mississippi and then affirmed by the Fifth Circuit and then decided again and again has said that he was sentenced based on career offender status and not drug quantity weight. [00:17:42] Speaker 03: And the way this goes to the standing question with respect to an official capacity suit is that there's simply no, not only is there no traceability because it's really a suit taking issue with an argument made, and it's the court that decided the question and imposed the alleged injury, but there's no redressability because the [00:18:00] Speaker 03: the judges in the Fifth Circuit, it's been the subject of, by mind count, eight separate decisions on this very issue of what he was sentenced on. [00:18:07] Speaker 03: And so a declaratory judgment by the district of DC against the Department of Justice will have no effect on that. [00:18:15] Speaker 03: And I'll just add, if Morris believes that the transcript changes everything, that this is some sort of smoke and gone, and we don't [00:18:28] Speaker 03: I think that's the case for a number of reasons. [00:18:31] Speaker 03: He can still, he still has available the 3582 motion as a procedural vehicle to challenge whether a sentence reduction is available and he in fact has right now a pending 3582 C motion [00:18:46] Speaker 03: with the Northern District of Mississippi, as well as appending successive habeas motion. [00:18:50] Speaker 03: Now, it's not on this point. [00:18:52] Speaker 03: It's on he's now challenging a different component of the sentence, the definition of career offender. [00:18:58] Speaker 03: But he can. [00:18:59] Speaker 02: So if you were to bring another 3582C, is it called a motion? [00:19:03] Speaker 02: I don't even know what it is. [00:19:04] Speaker 02: Yes, motion. [00:19:05] Speaker 02: It's called a motion. [00:19:06] Speaker 02: And then he makes the same argument that he's making now. [00:19:10] Speaker 02: Yes. [00:19:11] Speaker 02: And he captures it in constitutional terms and says all the same things that the amicus has laid out in the briefing. [00:19:16] Speaker 02: Look, there was something that went awry the first time around. [00:19:21] Speaker 02: If you look at this, there actually wasn't greater. [00:19:23] Speaker 02: It shouldn't have happened. [00:19:24] Speaker 02: And that results in a constitutional problem. [00:19:27] Speaker 02: Your view is that he's able to do that through another 3582C motion? [00:19:31] Speaker 03: It depends on precisely what he's challenging. [00:19:34] Speaker 03: My view is that constitutional review is available of all of the sentencing guidelines. [00:19:40] Speaker 03: It's available either through direct appeal of sentencing. [00:19:44] Speaker 03: And the Supreme Court hears these challenges all the time. [00:19:47] Speaker 03: Mistretta is one example. [00:19:48] Speaker 03: Pugh is one example. [00:19:49] Speaker 02: Right. [00:19:49] Speaker 02: But if it's not direct appeal of sentencing, in a situation like the 35-HTC only comes up where a subsequently promulgated guidelines amendment could inerter the benefit of the person who brings the motion. [00:19:58] Speaker 02: So in that context, the question is, if they have a constitutional claim attached to that, is 3582C a vehicle for bringing that, as would be the case under the hypothetical that I laid out where he files a subsequent 3582C motion raising exactly the same constitutional claim that's asserted to be raised here? [00:20:15] Speaker 03: Yes, it absolutely is available. [00:20:17] Speaker 03: For the limited scope that 3582 is available, which is when there's a change to the guideline on which somebody was sentenced, [00:20:25] Speaker 03: courts can and have entertained constitutional challenges. [00:20:29] Speaker 03: An example from this circuit is United States v. Taylor in 2014. [00:20:33] Speaker 03: An example from the Fifth Circuit is United States v. Evan from 2011, the circuit in which his criminal proceedings are. [00:20:41] Speaker 03: And the cases that Amicus cites for the proposition that 3582 is not proper for constitutional challenges, all those cases say is that there are really two situations where the court has refused to entertain a constitutional challenge under 3582. [00:20:58] Speaker 03: One is when it's an attack not on a modification of the guidelines, but an attack on the original sentence. [00:21:06] Speaker 03: So for example, if Morris just wanted to attack the career offender guidelines as unconstitutional, that would likely not be proper in 3582 because he could have brought that challenge on direct appeal. [00:21:17] Speaker 03: He chose not to. [00:21:18] Speaker 03: He also could have brought that challenge in his first habeas action. [00:21:22] Speaker 03: He chose not to. [00:21:23] Speaker 03: Instead, he challenged only ineffective assistance to counsel. [00:21:27] Speaker 03: So that's the first situation. [00:21:28] Speaker 03: Courts say, no, no, you should have brought that on direct appeal. [00:21:31] Speaker 03: The second situation is if the constitutional challenge [00:21:35] Speaker 03: meets the habeas channel and requirement, courts will say, no, 3582 is not proper because you have to go through habeas. [00:21:43] Speaker 03: So all those cases are saying is you have really three different mechanisms to bring constitutional challenges. [00:21:49] Speaker 02: And you're no longer taking the position that habeas should have been pursued here. [00:21:52] Speaker 03: That's correct. [00:21:52] Speaker 03: Under Davis. [00:21:53] Speaker 02: So that's not a problem. [00:21:54] Speaker 02: The first one's not a problem either. [00:21:55] Speaker 02: That's right. [00:21:56] Speaker 02: Because we're not talking about an attack on the original by hypothesis. [00:21:58] Speaker 02: We're talking about an attack on the amendment to the guidelines. [00:22:04] Speaker 02: That's right. [00:22:06] Speaker 05: Can I go back to the weight question that I asked of your opponent? [00:22:12] Speaker 05: As I recall, his response was, what we're looking at was the initial determination made by the district court, and the district court initially didn't catch the weight issue, so we shouldn't be thinking about that now. [00:22:26] Speaker 05: What's your response to that? [00:22:28] Speaker 03: Well, I don't think that it's fair for us to conclude that the initial court didn't catch it immediately. [00:22:35] Speaker 03: I think there's some ambiguity in the sentencing transcript, which is exactly why the Northern District of Mississippi, which is in the best position to hear these issues, in the first habeas petition, requested further briefing. [00:22:48] Speaker 03: And its conclusion was, [00:22:50] Speaker 03: The simple and undisputable fact is that he was sentenced as a career offender, and that drug quantity had nothing to do with it. [00:22:56] Speaker 05: So their conclusion was that that was based on this discrepancy in the wage. [00:23:00] Speaker 03: That's correct. [00:23:01] Speaker 03: That was in the briefing of the government on the first 2255 habeas motion. [00:23:06] Speaker 03: The court concluded that he was sentenced as a career offender correctly under the guidelines. [00:23:11] Speaker 02: Just to be clear, I don't know that that was in the arguments I'm taking work for, but the decision itself doesn't say [00:23:18] Speaker 02: that is premised on the notion that there was a discrepancy as to quantity. [00:23:21] Speaker 02: The decision itself just says that the career offender guideline was applied. [00:23:25] Speaker 02: That's right. [00:23:25] Speaker 02: It could be that the career offender guideline was applied because of this erroneous textual analysis about the word greater. [00:23:32] Speaker 02: It's at least possible that could have been. [00:23:34] Speaker 03: Yes, it's absolutely possible. [00:23:36] Speaker 03: And if that is the case, then Morris's vehicle to challenge that determination is an appeal to the Fifth Circuit to say that. [00:23:43] Speaker 03: And it denied there an appeal to the Supreme Court. [00:23:46] Speaker 03: What that purported error, and again, I don't think here we're in the best position to analyze that, what that does, it does not affect [00:23:55] Speaker 03: sovereign immunity has a bar. [00:23:57] Speaker 03: It does not affect that he has no redressability against any of the parties because the discretion is given to the sentencing court. [00:24:06] Speaker 03: And so a judgment against the Sentencing Commission, a judgment against Eric Holder, a judgment against the Department of Justice does nothing to do that. [00:24:12] Speaker 03: And it doesn't change the fact that whether or not [00:24:18] Speaker 03: We think there's an error that it's been decided in the subject of eight decisions, and so it's issue precluded here. [00:24:23] Speaker 04: Is sovereign immunity jurisdictional in your view? [00:24:30] Speaker 03: Yes. [00:24:33] Speaker 04: So what do you do with Davis then? [00:24:36] Speaker 03: Davis, I believe, addressed [00:24:39] Speaker 03: The narrow issue that was in front of it, that was decided by the district court, which was whether habeas channeling applied. [00:24:47] Speaker 03: The court, of course, could have raised the jurisdictional issues to its font. [00:24:56] Speaker 03: We went back and looked at the briefs. [00:24:57] Speaker 03: The government did not make that argument. [00:24:59] Speaker 03: We absolutely should have. [00:25:01] Speaker 03: We don't catch them all. [00:25:03] Speaker 03: And I think the court understandably focused only on the narrative. [00:25:06] Speaker 04: But even if you affirmatively waive sovereign immunity in the brief, the court has to... That's your view of the current state of... I mean, jurisdiction's a moving target right now, but... [00:25:18] Speaker 03: I think that the court certainly could have raised it to a sponte, but I think it happens that when a court is not presented with an issue, it doesn't necessarily reach it. [00:25:29] Speaker 04: Second question is, suppose a suit against the individual sentencing commissioners in their official capacity for forward-looking injunctive relief, that barred also? [00:25:41] Speaker 03: Yes, that is barred for two reasons. [00:25:46] Speaker 03: Two theories. [00:25:47] Speaker 03: One is that the suit would be a complaint about their actions taken in the course of rulemaking, and so they would enjoy legislative immunity from that suit. [00:25:59] Speaker 03: And that's a point that Amicus concedes, at least with respect to monetary damages, I don't believe there's any basis in law or otherwise to distinguish between monetary damages and other types of claims for legislative immunity. [00:26:11] Speaker 03: It's a bar from suit for actions taken in the course of quasi-legislative activity. [00:26:16] Speaker 03: And a case on point for that is J.C. [00:26:19] Speaker 03: Byrd in this [00:26:21] Speaker 04: That's a creative theory, but what's the, you got a second one? [00:26:26] Speaker 03: The second one is, well, and I'll just point out that he of course has not named any individual commissioner. [00:26:34] Speaker 04: I got you on that, that's why, yes, you're right, but I just was curious and thinking about all the permutations of this case. [00:26:39] Speaker 03: Yes. [00:26:40] Speaker 04: Both what it is and what it could have been. [00:26:41] Speaker 03: And that's right. [00:26:42] Speaker 03: And so without any allegation of what an individual commissioner did, these career vendor guidelines have been around for a long time. [00:26:50] Speaker 03: So I'm not sure exactly what his allegation is of unconstitutional activity by which commissioner. [00:26:56] Speaker 03: So that's. [00:26:56] Speaker 04: So suppose there's an allegation that the commissioners collectively acted in violation of equal protection by enacting a racially discriminatory amendment to the guidelines. [00:27:07] Speaker 03: Yes, I think he has two problems. [00:27:09] Speaker 03: The first is legislative immunity, which is a bar. [00:27:12] Speaker 03: The second is, I think that that pursuit would be the Larsen Dugan exception to sovereign immunity, and I think it doesn't apply here because [00:27:25] Speaker 03: It applies when a plaintiff seeks specific relief from individual officials. [00:27:33] Speaker 04: For a mandatory duty? [00:27:35] Speaker 03: That's right, for a mandatory duty. [00:27:36] Speaker 03: Yeah. [00:27:37] Speaker 03: And it's not available here. [00:27:38] Speaker 03: And I think, actually, Mikas concedes that point in their brief that mandamus relief is not available from the individual commissioners. [00:27:45] Speaker 03: And there's a lot of case law on that point that's absolutely discretionary whether or not [00:27:49] Speaker 03: promulgate sensing guidelines. [00:27:51] Speaker 02: On the question of whether sovereignty, to the extent to which sovereignty is jurisdictional, isn't it the case that the government can waive sovereignty in a particular case? [00:28:00] Speaker 02: Or is that not? [00:28:01] Speaker 03: I don't believe so, Your Honor. [00:28:02] Speaker 04: That's what I thought, but you know. [00:28:04] Speaker 03: I thought it could have. [00:28:05] Speaker 03: I thought if the government removes a case from state to federal court. [00:28:09] Speaker 03: Well, you know, I think [00:28:11] Speaker 03: Unfortunately, I can't answer that question, but I don't think it has any bearing here, because whether or not the government waived sovereign immunity in Davis has no bearing on whether it certainly wasn't waived here. [00:28:20] Speaker 02: No, it would be an answer to you on Davis. [00:28:24] Speaker 02: I mean, I think it ultimately would be a point in favor of... I see. [00:28:26] Speaker 02: It's a helpful question. [00:28:28] Speaker 02: Thank you, Your Honor. [00:28:29] Speaker 02: I'll try to figure out where we got to this point. [00:28:31] Speaker 02: I will adopt that point as my own. [00:28:32] Speaker 02: I don't know if forfeiture counts. [00:28:36] Speaker 02: It may be true that the government, by hypothesis, can waive sovereignty in a particular case by taking some action. [00:28:42] Speaker 02: I don't know the view on that. [00:28:44] Speaker 03: And I think at the end of the day, Your Honor, the silence by the court in Davis does not overcome the very explicit holding in Washington Legal Foundation that the Sentencing Commission simply is not an agency as defined by the APA. [00:29:01] Speaker 03: And if they're not an agency as defined by the APA, then Congress has not waived sovereign immunity. [00:29:05] Speaker 03: And sovereign immunity does not distinguish between constitutional claims [00:29:09] Speaker 03: and other types of claims. [00:29:10] Speaker 03: And there's nothing in the text of the APA, and there's no authority to support that proposition. [00:29:15] Speaker 03: And actually, just as one example, in the Anderson case in this circuit, this court found that a due process constitutional claim against military officials acting in the time of war was barred by sovereign immunity because military officials acting in the time of war are an exception to the definition of agency in the APA. [00:29:40] Speaker 02: As I recall, there was a dissent in Anderson. [00:29:42] Speaker 03: There was a well-crafted dissent, which really went to the Larson Dugan exception, which, as I've explained, is not applicable here. [00:29:57] Speaker 03: If there are no further questions, I will yield the podium. [00:30:00] Speaker 05: Thank you. [00:30:03] Speaker 05: Mr. Warren, we'll give you back two minutes. [00:30:08] Speaker 01: unfortunately, just have a few brief points. [00:30:10] Speaker 01: So it may certainly be the case that on remand, Mr. Morris loses for want of having a strong case on the merits. [00:30:18] Speaker 01: However, with that said, the government has conceded that the evidence about whether there was a constitutional violation is at best best. [00:30:24] Speaker 05: Back up. [00:30:24] Speaker 05: What did you mean by that on remanding and not have strong case? [00:30:27] Speaker 05: What were you referring to? [00:30:28] Speaker 01: Well, I think there are barriers as to how to read the sentencing here in transcripts. [00:30:32] Speaker 01: But I think the government has acknowledged that the evidence there is at best mixed for the government and suggests that there very well could have been a constitutional violation based on the fact that the court, in fact, did not sentence him as a queer offender. [00:30:48] Speaker 01: So at a minimum, given that this is reaching this court in a 12b6 posture where the allegation should be taken as true, [00:30:55] Speaker 01: I think a remand to consider that on the merits would be appropriate. [00:30:59] Speaker 01: Second, there's been a lot of attention focused on whether he had a fair shot in his appeal of the 3582 motion to raise these constitutional issues. [00:31:08] Speaker 01: I think this is an unusual case in that as a evidentiary and procedural and substantive matter, he didn't have a fair shot of the Fifth Circuit because he didn't have that transcript. [00:31:17] Speaker 01: So I think in the run of the mill case, even if it were so that a prisoner could present a constitutional claim, [00:31:24] Speaker 01: appealing the denial of the 3582 motion, and then were that prisoner to come try and take another bite of the apple here, he would be precluded because there wouldn't be any reason not to preclude him. [00:31:37] Speaker 01: Here there is a reason, and the fact of the matter is that the government simply did not present issue of preclusion below. [00:31:43] Speaker 01: They didn't give Mr. Morse the chance to raise the issue of the Sentencing Hearing Transcript. [00:31:48] Speaker 01: And under Blondetong Laboratories, that's a waivable defense. [00:31:52] Speaker 01: It's an affirmative defense. [00:31:53] Speaker 01: The government didn't present it, and it should be sent back down so that that can be sorted out, rather than upholding what is a clear error in the law that the district court made based on subject matter jurisdiction and sovereign immunity. [00:32:07] Speaker 01: I take issue with the government's reading of Anderson. [00:32:09] Speaker 01: I think that the holding of that case is more limited. [00:32:12] Speaker 01: It suggests that the military authority in that case is not an agency for purposes of bringing monetary claims. [00:32:19] Speaker 01: But I think that the door is open, and the door is open based on Judge Srinivasan's dissent, that constitutional claims could have been brought pursuant to the Larsen Dugan exception. [00:32:30] Speaker 01: I also take issue with the thought that a suit against the commissioners would have been fully barred here. [00:32:40] Speaker 01: Congress and Anderson v. Carter that suggests that that door could have been open. [00:32:45] Speaker 01: So one path for the district court could simply have been to dismiss without prejudice, to refile naming the commissioners in their official capacity, or a minimum. [00:32:56] Speaker 05: Thank you very much. [00:32:57] Speaker 05: We have your argument, if there are no further questions. [00:33:00] Speaker 05: Thank you. [00:33:00] Speaker 05: Mr. Warren, you were appointed by the court to represent the appellant in this case, and we thank you for your assistance. [00:33:06] Speaker 01: Thank you, Your Honor. [00:33:07] Speaker 05: The case is submitted.