[00:00:01] Speaker 03:
Case number 15-3053, United States of America versus Jeffrey Norman Jackson Appellant.

[00:00:07] Speaker 03:
Ms.

[00:00:07] Speaker 03:
Rowland for the appellant, Ms.

[00:00:08] Speaker 03:
Hartmann for the appellate.

[00:00:13] Speaker 00:
Good morning.

[00:00:14] Speaker 02:
Sandra Rowland on behalf of Mr. Jackson.

[00:00:17] Speaker 02:
The procedural issues in this case are governed by the requirements of Section 3553 and by this Court's decisions in Brown, Akigbee, and Mayseel Case, Ransom, and Nicely.

[00:00:32] Speaker 01:
Henry Steelcase dealt with a statute that's since been repealed requiring a written explanation of reasons on a judgment, and that's no longer in effect.

[00:00:46] Speaker 01:
So I don't know what Henry Steelcase has to do with this.

[00:00:52] Speaker 02:
I think a sealed case stands for the proposition that the district court has to state the specific reasons orally and in writing.

[00:01:02] Speaker 01:
But the writing part has been repealed.

[00:01:07] Speaker 02:
I am so sorry to say that I was not aware of that.

[00:01:10] Speaker 00:
It's in a form, right?

[00:01:12] Speaker 00:
That's what it currently says.

[00:01:15] Speaker 02:
Well, it is on the form.

[00:01:18] Speaker 01:
But the form is not the judgment, and the form is sent to the Sentencing Commission for statistical gathering.

[00:01:26] Speaker 01:
So I don't know what that's got to do with anything.

[00:01:31] Speaker 01:
And it's enforced by the chief judge of the district court.

[00:01:35] Speaker 02:
It's required by the statute, and it's required in the statement of reasons.

[00:01:41] Speaker 01:
It's required for the Sentencing Commission.

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It goes to the Sentencing Commission, and the Sentencing Commission files annual reports with Congress taking those forms and putting them together for statistical purposes.

[00:01:58] Speaker 02:
3553 does not state that it's for the purposes of the Sentencing Commission.

[00:02:05] Speaker 01:
It states that the court... 28 U.S.C.

[00:02:08] Speaker 01:
994 sub W-1 subspace.

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That's the form.

[00:02:14] Speaker 02:
3553 C-2 says if the sentence is outside the range, the specific...

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Reason for the imposition of the sentence different than that described must be stated on in the statement of reasons form issued under W 1 but see which is the statement which says what?

[00:02:38] Speaker 01:
What is the?

[00:02:39] Speaker 02:
The statement of reason, say?

[00:02:40] Speaker 01:
No, it says it's a form that has to be filed within 30 days after sentencing and sent to the Sentencing Commission, and each chief judge shall enforce it.

[00:02:55] Speaker 01:
And not only that, but what's the time for noting an appeal from a sentence?

[00:03:03] Speaker 02:
14 days.

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14 days.

[00:03:06] Speaker 01:
That form doesn't have to be sent to the Sentencing Commission within 14 days.

[00:03:13] Speaker 01:
It can be sent within 30 days, it says, within 30 days.

[00:03:17] Speaker 01:
So somebody can note an appeal and the form wouldn't have even been sent to the Sentencing Commission.

[00:03:25] Speaker 01:
So how can that possibly be effective

[00:03:28] Speaker 02:
Well, I do think that the point you're raising goes to the plain air issue.

[00:03:32] Speaker 02:
It's quite difficult for a defendant to object to the fact that the judge has not stated in the statement of reasons.

[00:03:41] Speaker 01:
But this court has.

[00:03:42] Speaker 01:
Yeah, but I don't even know.

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standing to object to that.

[00:03:47] Speaker 01:
But let me ask you, how is it that the defendant in this case even got the form?

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Where's the requirement that it even be served on a defendant?

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I haven't found it.

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Because it goes to the Sentencing Commission.

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It's filed in the case.

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It's filed under seal.

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And when I get appointed to represent a person, I'm able to access everything that's under seal.

[00:04:15] Speaker 00:
This goes to the larger point that the oral statement of reasons is really the key.

[00:04:21] Speaker 00:
I haven't found a case where the oral statement of reasons was sufficient and a court found error because the written form somehow was deficient.

[00:04:32] Speaker 02:
They are generally in conjunction with each other, and if I could move on to... Generally, I think universally, I believe.

[00:04:40] Speaker 00:
I don't think there's a case that I've found, certainly not in our court, where the oral statement of reasons was sufficient and the forum had some alleged error.

[00:04:51] Speaker 04:
Ms.

[00:04:51] Speaker 04:
Rowland, you're challenging the oral statement of reasons as well.

[00:04:54] Speaker 02:
Yes, I am.

[00:04:54] Speaker 00:
But just, can you answer my question first?

[00:04:57] Speaker 02:
In the cases that I cited, Brown, Akigbee, Invesil, Case Ransom, and Nicely, none of those cases were just about the form.

[00:05:04] Speaker 02:
Right.

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They were about, some of them were not about form at all, but some of them were about the oral statement and the form.

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and the court has repeatedly held that a judge's failure to give a specific reason in open court explaining why the defendant's conduct.

[00:05:22] Speaker 00:
So on the world statement, why isn't the judge referenced the fact that this crime was committed while on probation for the Judge Urbina offense?

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And certainly that sounds like a

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That's something specific to this case.

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That's a reason to take it outside the guidelines.

[00:05:43] Speaker 02:
The only thing that the judge said that was specific to Mr. Jackson was that it was especially sad when you see a situation where a person has the potential to have a successful rehabilitation and ends up basically creating a nightmare for themselves and a lot of other people.

[00:06:03] Speaker 02:
And that's in the transcript at page 22.

[00:06:06] Speaker 00:
But at 23, the judge says,

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especially after having been given the break, you were given by Judge Urbina on the bankruptcy fraud.

[00:06:17] Speaker 02:
Well, the judge is not offering that as a reason why he's going to get a sentence more harsh than the guidelines call for.

[00:06:26] Speaker 00:
Well, he says to deter two paragraphs later, this is a case where it is critical in order to promote respect for the law to deter you, who are obviously not deterred by Judge Urbina's sentence, which was probation, and others who may be inclined.

[00:06:42] Speaker 02:
If I could address where he says, especially after you've been given a break by Judge Urbina, he's addressing why he's not going to get a probationary sentence.

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And he's not.

[00:06:53] Speaker 02:
True.

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I think that's right.

[00:06:55] Speaker 00:
But then identifying that as a factor in the case, and then two paragraphs later, at least on the transcript, goes into the need to promote respect for the law and specific deterrence and general deterrence

[00:07:10] Speaker 00:
specific deterrence for someone who was not deterred by Judge Urbina's sentence.

[00:07:15] Speaker 00:
And I think you read this in kind of common sense of the whole situation is the sentencing judge here is unhappy that this crime was committed while on probation for another crime where Judge Urbina had given the defendant a nice break in the other crime with the hope that that would promote rehabilitation.

[00:07:36] Speaker 02:
well the way that i read it is that this requirement of stating the specificity it's not only required by statute in case like it's actually important which is why it's required by the case on the statute it's important for the defendant and the public to hear the content in your case was worse than in the typical case because

[00:08:03] Speaker 02:
whatever.

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And for that reason, you're going to get a higher sentence.

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And it's so darn easy.

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This court doesn't want to script sentencing for the district court.

[00:08:15] Speaker 02:
But how easy is it to say your conduct was worse than the typical case for these reasons.

[00:08:24] Speaker 02:
Therefore, you will get a higher sentence.

[00:08:26] Speaker 04:
And isn't your position that the district judge would have had to say worse than the typical case

[00:08:32] Speaker 04:
of a recidivist, because the guidelines already take recidivism into account?

[00:08:36] Speaker 02:
Well, that's another point, that the recidivism was taken into account with, in his criminal history score and the fact that he was on probation when he committed this offense.

[00:08:46] Speaker 02:
Both of those are already taken into account.

[00:08:49] Speaker 04:
So what is it that you, I mean, just in a general sense, what would be enough in a case like this?

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Just give me a kind of a concrete example.

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What would the district judge say

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How much particularity about the distinction between?

[00:09:06] Speaker 02:
I think the judge could say, well, in this case, I think that is the only factor, the fact that he committed the same sort of offense again.

[00:09:17] Speaker 02:
So if that's enough, and we argue that it isn't, but if that was enough, he would say, Mr. Jackson, I find that your case, your conduct, was more egregious than the typical

[00:09:33] Speaker 02:
conduct we see with these offenses.

[00:09:35] Speaker 04:
Not because we see, because again, we have a case about that.

[00:09:39] Speaker 04:
The typical conduct under this provision.

[00:09:41] Speaker 02:
Yes.

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Because you did the same thing twice and while you were still on probation.

[00:09:51] Speaker 04:
And you're saying that would not be enough.

[00:09:53] Speaker 02:
I think that's not enough.

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And those were factors in this court's decision in ransom and nicely.

[00:10:00] Speaker 02:
that the defendant had committed the same offense.

[00:10:03] Speaker 00:
That would be, keep going, sorry.

[00:10:05] Speaker 02:
But they weren't the only factors.

[00:10:08] Speaker 02:
There were other factors, such as failing to comply with pre-trial services and probation, not taking the charge seriously, things like that.

[00:10:20] Speaker 02:
So we don't have any cases where the only factor is

[00:10:26] Speaker 02:
that you committed a similar offense.

[00:10:29] Speaker 00:
But that would be enough, I guess this is where procedural and substantive reasonableness merge, that would be enough of an explanation, but you're saying the explanation wouldn't suffice.

[00:10:37] Speaker 02:
Exactly, but that would be enough of an explanation.

[00:10:39] Speaker 00:
And on the substantive reasonableness

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You know our case law on this.

[00:10:45] Speaker 00:
I mean, the book, our remedial opinion leaves district judges with wide discretion to vary up or down, and we will rarely... Which is especially why, to get back to the procedural issues, the procedures are important because they do have wide discretion.

[00:11:01] Speaker 02:
They're constrained by a few procedural elements.

[00:11:07] Speaker 00:
But on the recidivism angle, it's not just, it seems to me from reading the pages of the transcript, recidivism, but recidivism where you had gotten a break before.

[00:11:19] Speaker 00:
That's what this district judge identified.

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You got a break at sentencing before.

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In other words, Judge Obrina

[00:11:27] Speaker 00:
Yes.

[00:11:28] Speaker 00:
In the hope, given the defendant's compelling story up to that point and starting a business and what have you, cut the defendant a break, and this district judge seemed... So arguably, there are two elements.

[00:11:40] Speaker 00:
It's more than recidivism.

[00:11:40] Speaker 02:
You did it before, you got a break before.

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And, you know,

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We can all sit here and say, well, that could be a legitimate reason.

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But he really needs to say so.

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And it's just not hard to do.

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And the court has told the district courts at least five times, do this.

[00:12:04] Speaker 02:
Mister on behalf of Mister Jackson, I asked the court to reverse and remand to the district court to follow the procedures set out in 3553 and this court's case law and I'll if there are no other questions, I'll reserve.

[00:12:19] Speaker 00:
We'll give you two minutes for a bottle or several minutes.

[00:12:22] Speaker 00:
Thank you.

[00:12:31] Speaker 03:
May it please the court, Alyssa Hart-Mahan for the United States.

[00:12:35] Speaker 03:
I'd like to note at that outset that none of the arguments that the defendant is raising on appeal were raised before the district court.

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He did not object to the adequacy of the explanation, the district court's explanation.

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And accordingly, this court can only reverse on a finding of an obvious error that affected the defendant's substantial rights

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and affects the integrity of judicial proceedings.

[00:12:57] Speaker 04:
And do you agree that the writing is not a writing that's supposed to go to the defendant and that we don't have to worry about how and when he could tentatively object to an appeal from that because that's not about memorializing the court's judgment and reasoning

[00:13:16] Speaker 03:
This court precedents make clear that the oral pronouncement is the judgment.

[00:13:20] Speaker 03:
And the First Circuit case that we cite in our brief, United States versus Vasquez Martinez, I think has a helpful discussion of the purpose of the Statement of Reasons Forum and that it really is more for the Sentencing Commission's record keeping rather than an important independent procedural part of the sentencing process.

[00:13:38] Speaker 01:
That's been in effect since 2010.

[00:13:44] Speaker 03:
I'm not aware of the statute being repealed.

[00:13:46] Speaker 03:
Are you referring to the statute requiring the form?

[00:13:49] Speaker 01:
The form.

[00:13:50] Speaker 03:
Yeah, I apologize.

[00:13:51] Speaker 01:
It's only been in effect since 2010.

[00:13:53] Speaker 01:
What Congress did is, as I understand it, that originally when, for example, the Ray Seale case was decided, that if the judge departed from the sentencing guidelines, which

[00:14:06] Speaker 01:
were mandatory for part of this period, that the judge had to state on the judgment the specific reasons for departing.

[00:14:16] Speaker 01:
And that was done away with and replaced with the requirement that the judge fill out this form that goes to the Sentencing Commission.

[00:14:25] Speaker 01:
And as I said to Ms.

[00:14:27] Speaker 01:
Rowland, the statute says that it's to be enforced by the chief judge of the district court.

[00:14:36] Speaker 03:
We would agree that it doesn't, it essentially doesn't matter for sentencing purposes.

[00:14:43] Speaker 01:
The First Circuit suggested that.

[00:14:45] Speaker 03:
Yeah, exactly.

[00:14:47] Speaker 00:
Some of our cases seem to treat it as an independent requirement.

[00:14:51] Speaker 00:
How do you propose that we deal with that?

[00:14:54] Speaker 03:
All of those cases, well, the fact that the statute has apparently been refilled may be not.

[00:14:59] Speaker 00:
Well, but some of them are more recent.

[00:15:01] Speaker 00:
Right.

[00:15:02] Speaker 00:
I think the original written requirement might have been 2003, and then it's changed in 2010 to be just the form.

[00:15:09] Speaker 04:
But Brown is post-form and talks about the form and the checking of the boxes, and all of those is if those are a stand-in for what used to be done through the judgment.

[00:15:19] Speaker 03:
And all of those cases also involved, this court held that there was an inadequate explanation during the sentencing hearing.

[00:15:27] Speaker 00:
But Brown said, and this is what we're going to have to confront, I think.

[00:15:34] Speaker 00:
But Brown said that both are clearly insufficient, the both being the oral and the written, and independently amount to plain error.

[00:15:46] Speaker 03:
Perhaps I would point the court to the decision in United States versus Knight, which pointed out that if a court's statements during sentencing are ambiguous, the written form may be able to clarify those.

[00:16:01] Speaker 03:
To the extent there's a conflict, the oral statement will govern.

[00:16:04] Speaker 03:
And so perhaps that might explain the comment in Brown about the written form.

[00:16:09] Speaker 01:
But in all of those cases... I think the clear explanation is that the court didn't realize that the statute had been changed.

[00:16:16] Speaker 01:
I just went from an in-race seal case right straight to a written statement of reasons without noticing that the whole system had been altered.

[00:16:26] Speaker 03:
That's certainly possible.

[00:16:29] Speaker 03:
In any event, we are under plain error review here, and the defendant has not demonstrated that any error in the form affected the sentence.

[00:16:36] Speaker 03:
The form is entered on the docket well after the judgment is imposed.

[00:16:41] Speaker 03:
And as the First Circuit held in Vasquez and Martinez, it's hard to imagine how that could have affected the sentence when the sentence was already imposed.

[00:16:50] Speaker 03:
Turning to the court's statements at sentencing, the record here demonstrates that this was not a typical case, that the defendant pled guilty to bankruptcy fraud for diverting employment taxes for his own personal use.

[00:17:05] Speaker 03:
Not only was he on probation during the bulk of the incident offense, but the incident offense actually began before he was sentenced in the bankruptcy fraud case.

[00:17:14] Speaker 03:
The incident offense began the end of 2005.

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He was sentenced in the fall of 2006.

[00:17:20] Speaker 03:
So he did not pause for breath before beginning to again divert.

[00:17:24] Speaker 04:
I know this puts you in an awkward position because this is a gift you did not seek, but the government's own position at sentencing was that here was someone who was not deterred by Judge Urbina's generous and lenient sentence and therefore

[00:17:38] Speaker 04:
he should have a prison sentence under the guidelines.

[00:17:42] Speaker 04:
And now you're having, obviously, to defend an above-guidelines sentence.

[00:17:47] Speaker 04:
But really, does any of the reasoning that Judge Leon gave in the district court distinguish between the deterrent and respect for the law and other effects of a within-guidelines sentence and an above-guidelines sentence?

[00:18:03] Speaker 04:
Can you point at anything that actually

[00:18:05] Speaker 04:
gives reasoning that makes the critical distinction that 3553 demands.

[00:18:11] Speaker 03:
The district court, the specific facts that the district court pointed to, revolved around the repeat offender.

[00:18:18] Speaker 03:
The fact that this was a repeat offense, that the defendant had received a lenient below guideline sentence previously, was not deterred by that.

[00:18:25] Speaker 03:
And then the court linked those facts to the need to promote respect for the law, the need to provide just punishment, and the need to deter both the defendant and others.

[00:18:35] Speaker 01:
And he didn't say that this is a not typical case.

[00:18:39] Speaker 01:
He said it was an unusual case.

[00:18:42] Speaker 03:
He did.

[00:18:42] Speaker 01:
Same thing.

[00:18:43] Speaker 03:
He did.

[00:18:43] Speaker 03:
And reviewing the record as a whole, the facts here are largely undisputed.

[00:18:49] Speaker 03:
I think defendant concedes that he did commit the same offense twice after receiving a lenient

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sentence in the bankruptcy fraud case.

[00:18:57] Speaker 03:
And that is sufficient to distinguish this case, looking to this court's decision in ransom, where the defendant was on probation for a fraud offense and then committed a very similar fraud offense, this court held that that was sufficient to justify an above-guidelines sentence.

[00:19:13] Speaker 01:
I want to say that I mentioned the annual report that the Sentencing Commission has to provide to Congress.

[00:19:20] Speaker 01:
And one of the appendices that they attached, I looked at, lists the reasons for upward departures from the guidelines.

[00:19:30] Speaker 01:
And something like 45% to 50% of the cases are cases that it's because of the prior criminal history of the defendant that the district judges around the country are departing upward.

[00:19:45] Speaker 03:
And I would point out, too, that the facts of this case make clear that the defendant's conduct was not fully recognized by the criminal history adjustment here.

[00:19:56] Speaker 04:
Why not?

[00:19:57] Speaker 03:
Because the crime was the same.

[00:19:59] Speaker 03:
And the government made this argument below.

[00:20:00] Speaker 03:
It was stealing employment taxes.

[00:20:02] Speaker 03:
It wasn't bankruptcy fraud versus tax fraud.

[00:20:05] Speaker 03:
It was diverting employment taxes for his own personal use.

[00:20:08] Speaker 03:
In the bankruptcy fraud case, it was $373,000.

[00:20:10] Speaker 03:
In this case, it was almost $600,000.

[00:20:14] Speaker 03:
There it was.

[00:20:15] Speaker 04:
How is it not taken into account by the, I mean isn't that precisely what the recidivism, I mean that's the classic case of recidivism is you go and you do it again.

[00:20:27] Speaker 04:
Maybe somebody who goes and does a different kind of crime the next time is more of a harm to society because it's a wider swath of destruction and harm.

[00:20:38] Speaker 04:
So I'm not sure that I follow your argument.

[00:20:40] Speaker 03:
I think it's because the previous crime specifically put the defendant on notice that he had this obligation to pay over these payroll taxes that were withheld from his wages.

[00:20:50] Speaker 04:
In order to be held guilty of either, he has to be knowingly.

[00:20:55] Speaker 03:
Yes, yes.

[00:20:57] Speaker 03:
But as we argued below, after pleading guilty and being sentenced, he can't argue that he was ignorant of the law here.

[00:21:04] Speaker 03:
I would also point out that this court recognized in ransom that committing the same type of offense is an aggravating factor that is not fully encompassed in the guidelines criminal history.

[00:21:13] Speaker 03:
And that is something relevant.

[00:21:16] Speaker 03:
And I think that, again, reviewing the record as a whole, that seems to be what was driving the district court here was the defendant did not learn from his experience.

[00:21:25] Speaker 03:
In fact, he came in and sought a probationary sentence a second time after receiving probation in the first case.

[00:21:30] Speaker 03:
And that was an appropriate factor for the judge to consider and makes this an unusual, a sufficiently unusual case to justify the above-guidelines sentence that was imposed here.

[00:21:42] Speaker 03:
We would argue that the sentence was both procedurally and substantively reasonable and would ask the court to affirm.

[00:21:50] Speaker 00:
Thank you.

[00:22:01] Speaker 02:
Judge Randolph, in response to your comment about the judge's use of the word unusual,

[00:22:09] Speaker 02:
I don't think that that can be read here as code for more egregious.

[00:22:16] Speaker 02:
And he explained one way in which he thought it was more that it was unusual, which is that it was sad that he had the potential for success and yet failed.

[00:22:31] Speaker 02:
And then he said the case is unusual from a variety of perspectives.

[00:22:37] Speaker 02:
not least the one I just mentioned, which was the fact that it was sad.

[00:22:41] Speaker 02:
It's exactly those variety of perspectives that the defendant and the public need to hear.

[00:22:48] Speaker 02:
If there were other factors that were concerning the judge or driving his sentence, he should have said so.

[00:22:58] Speaker 02:
this his pronouncement of sentence was actually very brief it's one and a half pages of the transcript on the government certainly hammered the fact that mr jackson had committed a similar fence and had been

[00:23:12] Speaker 02:
given a break by Judge Urbina.

[00:23:14] Speaker 02:
But this judge's commentary was so slim and really just so opaque.

[00:23:23] Speaker 02:
This is an unusual case from a variety of perspectives that I'm not going to tell you about.

[00:23:29] Speaker 00:
Well, I think he's talking about the background of the defendant having come from Anacostia, graduated from high school, gotten in trouble, and then made himself into a business success.

[00:23:38] Speaker 00:
That made it unusual in one respect.

[00:23:40] Speaker 00:
It's unusual in another respect in that he got a break from Judge Urbina the first time around, but unfortunately committed the same kind of offense again.

[00:23:51] Speaker 00:
So that's how I read the two things, because it follows the discussion of

[00:23:55] Speaker 00:
his by council, his childhood, growing up, making, he obviously has abilities.

[00:24:03] Speaker 02:
What you just said the judge could have said if that's what he meant.

[00:24:06] Speaker 02:
I mean, you read that.

[00:24:08] Speaker 00:
Why, I didn't make it up.

[00:24:09] Speaker 00:
I got it from reading what the judge said, so that's... Well, the judge said a variety of perspectives.

[00:24:15] Speaker 02:
He could have said what you just said, his... Yeah.

[00:24:20] Speaker 02:
upbringing his success in business, his failure to pay taxes, you know, he could have given all those reasons and didn't.

[00:24:31] Speaker 02:
If there are no further questions, we'd rest, ask the court to reverse and remand for resentencing.

[00:24:38] Speaker 00:
Okay.

[00:24:38] Speaker 00:
Thank you both.

[00:24:39] Speaker 00:
The case is submitted.