[00:00:01] Speaker 02:
Case number 12-3086, United States of America versus Brian D. Marsh Appellant.

[00:00:07] Speaker 02:
Ms.

[00:00:07] Speaker 02:
Davis for the appellant, Mr. Apperson for the appellee.

[00:00:11] Speaker 02:
Good morning, Your Honors.

[00:00:12] Speaker 02:
Marion Davis on behalf of Mr. Marsh.

[00:00:14] Speaker 02:
The issue I would like to discuss this morning with the court's permission is the second issue that was raised in the brief, and that is whether Mr. Marsh is entitled to re-sentencing because the district court judge... Are you conceding due attention?

[00:00:28] Speaker 06:
It might seem to conceding that the district court had jurisdiction.

[00:00:31] Speaker 02:
I know I am not.

[00:00:32] Speaker 02:
I just thought that this was probably the stronger argument of the two.

[00:00:35] Speaker 02:
I am not conceding.

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And of course, if the court has any questions, I certainly would be willing to answer them.

[00:00:41] Speaker 06:
It's your time.

[00:00:42] Speaker 02:
OK.

[00:00:43] Speaker 02:
So anyways, our argument.

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The issue is whether Mr. Marsh is entitled to re-sentencing because the district court clearly had a policy to always impose the highest sentence possible when there's a violation of supervised release.

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In this case, Mr. Marsh's guideline range was 12 to 18 months, and there was a statutory maximum of 36 months.

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Mr. Marsh was given a 36-month sentence, which is double the high end of the guideline range.

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Notably, in this case, the government asked for a sentence at the top of the guideline range and said they did not have permission to ask for more.

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But even if it did, the government would not have asked for more time because they felt that Mr. Marsh's early plea to the new charges and his acceptance of responsibility made the case not as egregious as it otherwise might have been.

[00:01:33] Speaker 02:
The judge told Mr. Marsh, from this onset, that he reminded him that he tells every single defendant... Can I just interrupt?

[00:01:41] Speaker 06:
You said he had a policy of sentencing at the maximum.

[00:01:47] Speaker 06:
And it certainly reads like that.

[00:01:49] Speaker 06:
But then he says... He talks about, he says, absolute extraordinary circumstances, which this case doesn't have in your favor.

[00:02:02] Speaker 06:
This case has extraordinary circumstances not in your favor.

[00:02:06] Speaker 06:
So he does talk about his policy, but then he does suggest that extraordinary circumstances might provide an exception.

[00:02:17] Speaker 06:
He does say that.

[00:02:19] Speaker 06:
Doesn't that suggest maybe he doesn't?

[00:02:21] Speaker 06:
And then he goes on to explain why he thinks the extraordinary circumstances are not in his favor.

[00:02:28] Speaker 02:
Exactly.

[00:02:30] Speaker 02:
We submit that the factors cited by the judge are not extraordinary.

[00:02:36] Speaker 06:
The first factor- Yeah, I get your point about that, but if the judge says, in one sense, I have a policy about sentencing at the maximum, and then he says, and there are no extraordinary circumstances here that would cause me to deviate from that, doesn't that suggest he doesn't have a policy?

[00:02:54] Speaker 02:
no I don't think it does because I think it's very clear in this case as well as other cases that the judge always says he's been saying for 10 years I'm going to give the maximum sentence and I call the court's attention to I believe it was the Brown case where almost the exact same language was used and this court

[00:03:14] Speaker 02:
vacated the sentence and remanded it.

[00:03:16] Speaker 00:
But if the judge has a default assumption and then says, I have a default assumption, but then I look in each particular case to determine whether my assumption is going to hold true, then doesn't that suggest that it's an assumption, but then it's getting case-specific consideration?

[00:03:33] Speaker 02:
No, not when the judge does the same thing in every case, which I believe the judge did in the Brown case.

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And I believe

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And when the judge gives factors, the factors that are given by, the reasons given by the judge are not legitimate.

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factors, then it's meaningless what the judge says.

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Because in this case, the judge cited three factors, but none of them really explain the reason for imposing the sentence that was imposed.

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I mean, he said that Mr. Marsh lied at the time of the initial sentencing, that he lied to the court.

[00:04:14] Speaker 02:
Well, that's not a factor that, first, there's no proof of it.

[00:04:19] Speaker 02:
There's no evidence that Mr. Marsh lied.

[00:04:21] Speaker 02:
Mr. Marsh's statements to the court at the violation hearing, he said, you know, I really meant to do right.

[00:04:28] Speaker 02:
I really did.

[00:04:29] Speaker 02:
And I would point out that Mr. Marsh, although it wasn't a real long time, but for over two years after his release in this case, was not involved in any criminal conduct.

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So while the guidelines allow a court to take into consideration breaches made while on supervised release, that was not the reason given.

[00:04:54] Speaker 02:
The reason given was that Mr. Marsh lied at the initial sentencing.

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And there's just no proof of that.

[00:05:00] Speaker 02:
I mean, I believe probably every defendant coming in before sentencing said, I'm going to do better.

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I'm not going to do this again.

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And repeatedly, of course there's always people who come back before judges because they've gotten in trouble.

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And I don't think this is a valid reason for giving him the maximum sentence.

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Also, the judge talked about his employment as a mentor, as a cover.

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There's no evidence that it was a cover of anything.

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It was just evidence that Mr. Marsh was employed.

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His employees were very satisfied with what he was doing.

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There is no evidence that he was using this as a cover to be involved in the drug conspiracy.

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So again, this is not a valid factor.

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And finally, the judge said he was involved in a large-scale conspiracy, and there was a weapon involved.

[00:05:46] Speaker 02:
Well, Mr.

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Mr. Marsh pled guilty, I believe, to 15 kilograms of cocaine in the new case.

[00:05:54] Speaker 02:
I don't believe that.

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I mean, granted, that's a lot of drugs, but it certainly is by far not the largest case seen in this court.

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I mean, there are cases involving much, much more drug amounts.

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And the problem here is that the judge, citing these reasons, doesn't say why

[00:06:14] Speaker 02:
that warrants the highest sentence possible as opposed to some other sentence, which the judge is required to do.

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And on top of that, to make it worse, the judge never filed any any statement, any written statement of the reasons so that this court could actually see where the judge was coming from, other than these statements that were made during the sentencing.

[00:06:38] Speaker 00:
Can I take you back to the jurisdictional argument first?

[00:06:40] Speaker 00:
Sure, you can.

[00:06:41] Speaker 00:
I know that you proceeded ahead, but I'm curious about one aspect of it, which is that

[00:06:47] Speaker 00:
As I understand the majority rule, the rule that the government's defending, whether pretrial detention time counts depends on what happens later.

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So you won't know at the time that a defendant wouldn't know at the time that he or she's in pretrial detention whether that period is tolling the running of the period of supervised release.

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And one may or may not think that that's sort of an odd way to construct a regime whereby you don't know until later whether it counts.

[00:07:17] Speaker 00:
But I guess what I'm asking you is,

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just as an experienced practitioner in the area, is there a practical problem with that from the perspective of a defendant or, I guess not a defendant, but a person who's been convicted?

[00:07:30] Speaker 00:
Is there, there may be a legal reason why that doesn't make sense, and we'll hear from the government on that, but in terms of practical considerations, does that pose a practical problem in a way that you could inform us about?

[00:07:45] Speaker 02:
I'll be honest with you, I don't do a lot of district court work.

[00:07:47] Speaker 02:
I do mostly appellate work.

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But what I've seen of cases, I mean, it's very likely, I mean, it's possible for a judge to, of course, sentence someone on a violation prior to the actual conviction in the other case.

[00:08:02] Speaker 02:
I can't say personally what practice is in the district court to do this.

[00:08:09] Speaker 02:
But one problem with the statute, other than it doesn't say that you count a pretrial time in detention, the other problem is one of the reasons given by, I believe, at least one or two of the courts, is that they don't want to shorten the period of supervised release because it reduces the amount of time the prisoner is monitored.

[00:08:32] Speaker 02:
And that undermines the rehabilitative goals of supervised release.

[00:08:36] Speaker 02:
But that argument really doesn't hold water because a person can be held pretrial for two years having no supervised release.

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And if they are acquitted or don't on the charges, then there's been no there's been no.

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no supervision of that person, and the supervised release would be allowed to expire at the time it should have expired.

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And so there's this problem of not knowing who it's going to apply to until the very end.

[00:09:08] Speaker 02:
And that, I think, is a problem with the way the government is reading the statute.

[00:09:13] Speaker 04:
Well, I think their position is just we should presume that supervised release time and time served in connection with the conviction is consecutive.

[00:09:23] Speaker 04:
And if a conviction is entered after the person's been in pre-trial detention, then that time is in connection with the conviction.

[00:09:32] Speaker 04:
And we shouldn't treat the supervised release time as having run concurrently and therefore expired during that time, but as consecutive.

[00:09:40] Speaker 04:
I think that's the logic of their position.

[00:09:42] Speaker 04:
And I guess in terms of practical implications, one question for you is what about the person who, one argument one might make in support of your client is that someone could be detained and then could bail themselves out and could be pending plea or a trial and not know during that period.

[00:10:06] Speaker 04:
whether they're under supervised release or not.

[00:10:08] Speaker 04:
And in fact, whether they're under supervised release during that period could depend on something that has yet to happen.

[00:10:14] Speaker 04:
And that seems like a tough position to put an arrestee in.

[00:10:19] Speaker 02:
Well, exactly.

[00:10:20] Speaker 02:
In fact, Your Honor, I hadn't thought of that possible scenario where someone actually is out on bail or PR supervised release.

[00:10:28] Speaker 02:
I would think

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I would think supervised release would continue and therefore would be allowed to expire.

[00:10:37] Speaker 02:
But then if someone, again, right, it really isn't fair to the RSD because you don't really know, it applies, the law applies according to the government's reading.

[00:10:46] Speaker 02:
It applies in some situations in some ways, in other situations another way.

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And if you follow the Ninth Circuit Court reading of the statute,

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It will apply equally to everyone.

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And because you don't count that time, period.

[00:11:01] Speaker 02:
And then you know exactly, exactly whether the supervised release was extended or not.

[00:11:07] Speaker 00:
What's the argument for if you're on release on bail?

[00:11:12] Speaker 00:
What's the argument for why your supervised release time would not have expired?

[00:11:18] Speaker 02:
Because you're still on supervised release.

[00:11:21] Speaker 02:
Well, I mean, it doesn't have to expire.

[00:11:23] Speaker 02:
The judge can always sign a warrant.

[00:11:25] Speaker 00:
Right.

[00:11:26] Speaker 00:
Which wasn't done.

[00:11:27] Speaker 00:
We're assuming a situation in which if a warrant is signed, then it doesn't expire.

[00:11:31] Speaker 01:
It does expire, right.

[00:11:33] Speaker 01:
No, I think it does not expire.

[00:11:35] Speaker 01:
It does not expire.

[00:11:36] Speaker 00:
Yeah, right.

[00:11:36] Speaker 00:
Isn't that the way it works?

[00:11:37] Speaker 00:
So we're necessarily assuming a situation in which, as in this case,

[00:11:42] Speaker 00:
no warrant was signed.

[00:11:44] Speaker 01:
Exactly.

[00:11:44] Speaker 00:
So the only way the supervisor at least is told is if pretrial detention counts as imprisonment in connection with a conviction.

[00:11:53] Speaker 02:
Exactly.

[00:11:54] Speaker 02:
If the person is actually held in pretrial detention.

[00:11:56] Speaker 00:
Right.

[00:11:56] Speaker 00:
And so if they bail themselves out,

[00:11:59] Speaker 00:
then what's the argument for saying in that situation the supervised release would not have expired?

[00:12:05] Speaker 00:
It seems like it definitely would have expired.

[00:12:07] Speaker 02:
I think it would expire.

[00:12:09] Speaker 02:
It would.

[00:12:10] Speaker 02:
And so if you have a situation where the person is out on bail, supervised release expires on whatever date, say June 1st.

[00:12:19] Speaker 02:
But then there's a conviction in the second case on June 30th.

[00:12:23] Speaker 02:
And then the person goes for resentencing on the violation.

[00:12:27] Speaker 02:
Well, then it's already expired.

[00:12:28] Speaker 00:
And then it seems like the result of that is that whether supervised release expires or not turns on whether the person made bail.

[00:12:38] Speaker 02:
Whether the person made bail and also whether the person was actually convicted.

[00:12:45] Speaker 02:
I think a person can be held, if you read the statute according to the government's view, a person can be held, the supervised release would not terminate,

[00:12:58] Speaker 02:
as long as a person is being held.

[00:13:00] Speaker 00:
Right, but I guess maybe I'm getting my terminology wrong.

[00:13:04] Speaker 00:
I'm assuming that somebody's not held in pretrial detention because they've been able to post a bond or whatever you do and in that situation they're not in prison.

[00:13:14] Speaker 00:
So they can't be, under the statute, they can't be in prison in connection with a conviction because they're not in prison at all.

[00:13:22] Speaker 00:
But then it seems like the consequence of that is that whether your supervised release time has expired or not turns on whether you were able to post and remove yourself from pretrial detention.

[00:13:35] Speaker 02:
Exactly, exactly.

[00:13:36] Speaker 02:
And yeah, I guess something else that just comes to mind is whether someone is placed, say, in a halfway house, whether that is considered some sort of pretrial detention.

[00:13:47] Speaker 02:
And I think there's all sorts of scenarios that could possibly affect how the statute applies.

[00:13:56] Speaker 02:
But if you go with a straightforward reading of not counting any pretrial time, then it applies equally to everyone.

[00:14:04] Speaker 04:
since you are just to clarify the scope of the issue before us you're no longer pursuing the effective assistance claim given that the field is not forward that is correct we are not any further questions thank you

[00:14:24] Speaker 03:
Good morning, Your Honors.

[00:14:25] Speaker 03:
May it please the Court, Jay Apperson, to the United States.

[00:14:28] Speaker 03:
If I may address the issues in the order the Council has addressed them.

[00:14:32] Speaker 06:
I think we should start with jurisdiction.

[00:14:33] Speaker 03:
Yes, sir.

[00:14:34] Speaker 03:
The District Court did not like jurisdiction for the reasons cited by the four of the five circuit courts of appeals to have addressed this issue.

[00:14:41] Speaker 03:
Only the Ninth Circuit is the outlier.

[00:14:44] Speaker 03:
It went first.

[00:14:44] Speaker 06:
Well, maybe it's right.

[00:14:46] Speaker 03:
It may be right, but I think the reasons set forth by all of the other circuits are very persuasive with respect to why it's not right.

[00:14:53] Speaker 00:
So it's true that under the majority rule, you can't know whether a period of pretrial detention counts unless and until you get to the point of the conviction?

[00:15:03] Speaker 03:
That's certainly correct, and it depends on the timing of the respective who's going first.

[00:15:10] Speaker 03:
There may be cases in which

[00:15:12] Speaker 03:
the petition for revocation is not filed until after there's a conviction.

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Here, there was an arrest that furnished the basis for the probation revocation.

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And in a normal case, a warrant would be issued.

[00:15:26] Speaker 03:
That's the standard procedure.

[00:15:27] Speaker 03:
And then we don't even get to this part.

[00:15:28] Speaker 00:
You get to this issue.

[00:15:29] Speaker 00:
Correct.

[00:15:29] Speaker 00:
So this issue only arises in a situation in which the normal process doesn't work for some reason.

[00:15:33] Speaker 00:
That's correct.

[00:15:34] Speaker 00:
That's correct.

[00:15:34] Speaker 03:
And then further, if I may, you're on further in the case in which

[00:15:39] Speaker 03:
there's not been a conviction before the revocation petition is filed.

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So it's a factual matter.

[00:15:45] Speaker 00:
So there will certainly be some cases.

[00:15:46] Speaker 00:
Because if the conviction already happened, then everybody agrees that post-conviction detention causes the period not to expire.

[00:15:52] Speaker 00:
I think that's right.

[00:15:53] Speaker 00:
So we're only dealing with a situation in which the normal process with the arrest warrant doesn't work, and all you have is pre-trial detention as the possibility of tolling the expiration of the period of supervised release.

[00:16:03] Speaker 00:
That's correct.

[00:16:03] Speaker 00:
So in that situation,

[00:16:04] Speaker 00:
The period of pretrial detention, nobody in the system will know whether that counts unless and until the adjudication of guilt happens.

[00:16:15] Speaker 03:
Right, that's actually correct.

[00:16:16] Speaker 03:
It appears in the other circuit to recognize that.

[00:16:19] Speaker 00:
That seems like an awfully strange way to run the system that the statute speaks in terms of whether the period of supervisor release is running.

[00:16:26] Speaker 00:
and yet nobody knows whether it's right.

[00:16:28] Speaker 03:
Again, it will depend on the facts of how the cases shake out, so it's going to be a small, I submit, a... I'm talking about the category of cases in which this issue matters.

[00:16:38] Speaker 00:
Yes, there will be some cases in which that's the case, and in those cases... In every case in which this issue matters, just to be clear, in every case in which this issue matters, nobody will know whether pretrial detention counts until later.

[00:16:50] Speaker 00:
That's correct.

[00:16:52] Speaker 00:
That seems like a strange way to have a system.

[00:16:55] Speaker 06:
Isn't it especially strange since this is a jurisdictional question?

[00:17:05] Speaker 06:
Courts can't act without jurisdiction.

[00:17:08] Speaker 06:
So the question Judge Srinivas is asking is, we won't know until later whether the court had jurisdiction early.

[00:17:17] Speaker 06:
You're asking us to make a jurisdictional decision retroactive.

[00:17:22] Speaker 06:
Have you ever heard of a statute that does that?

[00:17:25] Speaker 03:
No, I haven't.

[00:17:26] Speaker 03:
And the court is quite correct.

[00:17:26] Speaker 06:
Doesn't that sound extremely, I mean, we use the word odd, but I mean,

[00:17:36] Speaker 06:
Jurisdiction, whether a court has jurisdiction and can therefore act is about as fundamental to our judicial system as anything I can think of.

[00:17:45] Speaker 06:
And yet, your argument is that we can make that decision retroactively.

[00:17:51] Speaker 06:
I've just never heard of anything like that.

[00:17:53] Speaker 03:
Well, it doesn't need to be retroactive because a court that has faced with a situation in which there has not been a determination on whether a conviction is happening can continue the revocation matter.

[00:18:04] Speaker 04:
But that's not the case.

[00:18:06] Speaker 04:
So, too, could the government issue a warrant?

[00:18:10] Speaker 04:
I mean, that's just a question.

[00:18:11] Speaker 03:
Normally, the government wouldn't do that.

[00:18:12] Speaker 04:
So this is a tiny category of cases.

[00:18:14] Speaker 03:
I think that's correct.

[00:18:15] Speaker 03:
Very tiny.

[00:18:16] Speaker 03:
I think that's correct.

[00:18:17] Speaker 04:
And given the unclarity of the law and given the problems for someone who's been in for a period of time that might or might not have told,

[00:18:26] Speaker 04:
the surprise release and then is out and the notice problems to that person, whether they can travel out of state or would be in violation of supervised release or not.

[00:18:33] Speaker 04:
Don't we have an obligation to read this situation under whether it's rule of lenity or due process notice in a way that favors the

[00:18:43] Speaker 03:
I fundamentally disagree for the reasons that the Fourth Circuit's to address it did.

[00:18:49] Speaker 03:
The Ninth Circuit reading is not the plain reading.

[00:18:52] Speaker 04:
I don't think they consider quite the issues that we're talking about here.

[00:18:56] Speaker 04:
I don't think either the Fourth Circuit

[00:19:00] Speaker 04:
support your position.

[00:19:02] Speaker 03:
I believe it was the Fifth Circuit exactly said the courts could continue the matter, that there would be a very narrow window of cases which this might affect where there would be a time period of uncertainty.

[00:19:13] Speaker 03:
And in those cases the court could simply continue the matter until there was or was not a conviction.

[00:19:18] Speaker 03:
If there was not a conviction then of course the court would lack jurisdiction.

[00:19:21] Speaker 03:
That would be the end of the matter.

[00:19:23] Speaker 03:
But in the case where there is a conviction, as it was here,

[00:19:26] Speaker 03:
The jurisdiction is very clear.

[00:19:28] Speaker 00:
Later on, you find that out later on.

[00:19:30] Speaker 00:
But can I ask about the way that a bond works in this context?

[00:19:35] Speaker 03:
Well, there's no bond here because he was detained.

[00:19:37] Speaker 03:
This is a serious drug trafficking.

[00:19:39] Speaker 00:
But in a state or local system, I take it this could happen.

[00:19:42] Speaker 00:
you're subject to a charge and then this applies to state and local proceedings too, right?

[00:19:48] Speaker 00:
And then a decision is made whether the person should be held in pretrial detention.

[00:19:53] Speaker 00:
One of the ways they can get themselves out of pretrial detention is to post a bond.

[00:19:57] Speaker 00:
Is that right?

[00:19:58] Speaker 00:
That can happen.

[00:19:58] Speaker 00:
I think that's correct, yes.

[00:19:59] Speaker 00:
And so as I understand the way this would work out,

[00:20:03] Speaker 00:
whether the period of pretrial, whether there is a period of pretrial detention that potentially tolls the expiration of the period of supervised release depends on whether a bond is posted.

[00:20:14] Speaker 03:
Well, it depends on whether or not he's incarcerated, imprisoned.

[00:20:18] Speaker 00:
Which depends on whether a bond is posted.

[00:20:20] Speaker 00:
Well, yes.

[00:20:21] Speaker 00:
And doesn't that seem odd that

[00:20:24] Speaker 00:
whether the individual is able to post a bond that keeps him out of prison determines whether the period of pre-trial release, period of supervised release, has expired.

[00:20:33] Speaker 03:
Well, I don't think that's the question of whether or not he's in prison.

[00:20:35] Speaker 03:
I mean, that's what Congress would be doing.

[00:20:36] Speaker 00:
Yeah, but whether he's in prison, I, unless, maybe I'm missing something fundamental, but as I understand it, you keep saying whether or not he's in prison, and my point is, whether or not he's in prison depends on whether he posted the bond.

[00:20:48] Speaker 00:
Well, that's correct, but Congress wrote with respect, I think, a clear statute that said any, as the Fourth Circuit pointed out, any period... We're trying to figure out what the language means, and I guess the question is, would Congress have intended a system whereby whether the period of supervisor release has expired turns on whether the defendant was able to post a bond?

[00:21:11] Speaker 03:
Well, Congress's role here is that it depended on whether or not he was in prison.

[00:21:16] Speaker 00:
I take your point that that... Well, we keep going around in circles because... Well, we are.

[00:21:20] Speaker 00:
Because whether he's in... Am I wrong about this?

[00:21:23] Speaker 00:
Whether he's in prison turns on whether he posts a bond.

[00:21:26] Speaker 00:
In a particular case, that could be, yes.

[00:21:28] Speaker 00:
Okay, so let's assume... In this case, it doesn't because there was no bond.

[00:21:30] Speaker 00:
Let's assume those particular cases... We're talking about the application of a statute across the board, not in this particular case, right?

[00:21:35] Speaker 00:
Yes.

[00:21:35] Speaker 00:
Let's assume those particular cases in which those are the same thing.

[00:21:38] Speaker 00:
Right?

[00:21:39] Speaker 00:
Yes.

[00:21:39] Speaker 00:
Then it seems like what the government's reading suggests is that what Congress intended is that whether the period of supervised release expires depends on whether the person posted a bond.

[00:21:51] Speaker 00:
And that could turn on other things, like do they have the resources to post a bond.

[00:21:55] Speaker 00:
And that just seems like quite a strange system to impute to Congress that what they intend to do was to say, well, whether your period of supervised release has expired, it's on the happenstance of whether you're able to post a bond.

[00:22:09] Speaker 04:
And the, go ahead.

[00:22:11] Speaker 00:
I'm sorry.

[00:22:12] Speaker 04:
No, go ahead.

[00:22:12] Speaker 03:
Answer the question.

[00:22:14] Speaker 03:
Well, Congress was clear with respect to saying that any period of imprisonment as a certain court, that would be superfluous.

[00:22:21] Speaker 06:
You're not answering Judge Sreenivasan's question.

[00:22:24] Speaker 06:
You keep going back to your view of the language.

[00:22:27] Speaker 06:
He's asking you a question about whether your interpretation of the language really makes any sense.

[00:22:32] Speaker 04:
And I guess just to maybe clarify, another way of reading the statute, which

[00:22:38] Speaker 04:
Mr. Marsh proposes is that detention is not imprisonment.

[00:22:44] Speaker 04:
And so one way of making sense of the statute is when it says imprisoned in connection with a conviction, it means you've been convicted and you're in prison pursuant to that as distinct from this kind of retroactive, recharacterizing a period of detention as a period of imprisonment.

[00:22:59] Speaker 04:
And so I think Judge Scherner-Basin's point goes to, well, isn't it more reasonable to read that as detention is distinct from imprisonment?

[00:23:07] Speaker 04:
Indeed, detention is accomplished either by keeping someone locked up

[00:23:13] Speaker 04:
or by putting a financial lien in effect on their freedom.

[00:23:18] Speaker 04:
And neither of those are something that we treat as imprisonment for purposes of the toll.

[00:23:22] Speaker 03:
Well, that's exactly what the Ninth Circuit interpreted and is what the other circuits expressly rejected, including the Ninth Circuit said that Congress has never used the term imprisonment with respect to pretrial detention.

[00:23:35] Speaker 03:
But the general arrest statute does exactly that, as the other circuits pointed out, both the Fourth and the Fifth Circuit.

[00:23:41] Speaker 03:
So the Ninth Circuit was just completely wrong with respect to that.

[00:23:44] Speaker 03:
Congress has referred to imprisonment for pre-trial detention.

[00:23:48] Speaker 03:
And in this statute, they have said any period of imprisonment that is in connection with a conviction.

[00:23:57] Speaker 03:
And as the majority circuits have said, that language would be completely superfluous if the Ninth Circuit reading of the statutory language was correct.

[00:24:07] Speaker 03:
So it simply cannot be correct.

[00:24:09] Speaker 00:
It doesn't seem to me that it would be completely superfluous, but I guess I keep coming back to the question of whether it makes sense.

[00:24:16] Speaker 00:
So even if you assume that imprisonment – the term imprisonment can encompass pretrial detention, the question is whether this statute should be read that way.

[00:24:26] Speaker 00:
And I guess I keep coming back to the question of whether Congress would have intended a system in which

[00:24:31] Speaker 00:
whether your supervisor at least has run, turns on whether you happen to be able to post a bond.

[00:24:37] Speaker 03:
Well, I think it does make sense, at least in those cases, as the four circuit have said.

[00:24:42] Speaker 00:
Why does it make sense?

[00:24:45] Speaker 03:
In those cases such as here, where the court gave credit in the ultimate sentence,

[00:24:52] Speaker 03:
So if it didn't apply to any other case, as the force are held, which limited it to cases such as here, where the defendant is given credit for time served because of pretrial detention, that's coming out of the period of imprisonment after the sentence.

[00:25:09] Speaker 04:
But what about my case, where someone is in detention for a period of time during which the supervisor release

[00:25:19] Speaker 04:
lapses and then manages to post bond and is out for a period of time and travels out of state in a way that would violate supervisor release if he were under it, wouldn't if he's not, he thinks he's not because it's finished and then is convicted and gets credit for the pre bail period of detention

[00:25:41] Speaker 04:
So you're saying, oh, well, in that case, you can read the language differently?

[00:25:45] Speaker 04:
I mean, we have to answer that case as well as this case, and that's the problem.

[00:25:50] Speaker 03:
I think that's simply a matter of looking at the time periods in which the person was detained, imprisoned, and you back out that, or you stop the clock from running.

[00:26:00] Speaker 03:
If he's not imprisoned, i.e.

[00:26:02] Speaker 03:
by bail, or

[00:26:04] Speaker 03:
maybe even escape, I don't know.

[00:26:06] Speaker 03:
He would not be in prison under the statute and therefore that time period would not stop the clock from running.

[00:26:13] Speaker 03:
If he were bailed out, I think that he goes back on the supervised term and the clock starts running.

[00:26:20] Speaker 03:
If it expires, it expires at that point.

[00:26:23] Speaker 06:
Let's go back, if we could, to the language of the statute.

[00:26:26] Speaker 06:
You say the statute's clear, but what about the use, Congress used the word is.

[00:26:33] Speaker 06:
Which suggests to me that the Ninth Circuit's a view.

[00:26:36] Speaker 03:
I didn't hear you.

[00:26:37] Speaker 06:
Congress uses the word is.

[00:26:38] Speaker 06:
Is in prison.

[00:26:41] Speaker 06:
Is in prison, OK?

[00:26:44] Speaker 06:
So while a person is in pretrial detention, as in this case, you can't say that he, quote, is in prison in connection with a conviction.

[00:26:57] Speaker 03:
Well, I think you can.

[00:26:59] Speaker 03:
At that time?

[00:27:00] Speaker 06:
Not at that time, you can't.

[00:27:02] Speaker 03:
You don't know.

[00:27:03] Speaker 06:
He is in prison in terms of a conviction.

[00:27:05] Speaker 03:
You don't know about that.

[00:27:06] Speaker 03:
There's no question that this is, in a particular case, uncertain at the time.

[00:27:11] Speaker 06:
Could you just focus on my question?

[00:27:13] Speaker 06:
I'm sorry, Ron.

[00:27:14] Speaker 06:
And the use of the word is.

[00:27:16] Speaker 06:
Is is defined by statute.

[00:27:20] Speaker 06:
When Congress has said in the Dictionary Act, and the Supreme Court has said this, when a word is in the present, is, it can mean present or future, not past.

[00:27:31] Speaker 06:
So at the time this defendant was in pre-trial detention, you could not say,

[00:27:42] Speaker 06:
that he, quote, is in prison in connection with a conviction.

[00:27:49] Speaker 06:
So just tell me what respond to that question.

[00:27:54] Speaker 03:
I think you're correct taking that in isolation.

[00:27:57] Speaker 06:
Isolation, I just read you most of the statute, is in connection with.

[00:28:01] Speaker 03:
Well, but.

[00:28:02] Speaker 06:
Is in connection with a conviction.

[00:28:05] Speaker 06:
What language am I not dealing with?

[00:28:07] Speaker 03:
Well, because the conviction happens after the fact.

[00:28:10] Speaker 06:
That's my whole point about this.

[00:28:11] Speaker 03:
Well, I understand.

[00:28:12] Speaker 03:
Yes.

[00:28:13] Speaker 06:
So did you not have an answer to that?

[00:28:15] Speaker 06:
Is that your point?

[00:28:16] Speaker 03:
I have the same answer that the other circuits have addressed.

[00:28:18] Speaker 03:
Which is what?

[00:28:19] Speaker 06:
The other circuits did not address this word.

[00:28:21] Speaker 06:
It's not mentioned in any of the other circuit decisions.

[00:28:25] Speaker 03:
The question of the uncertainty with respect to related to?

[00:28:28] Speaker 03:
No, the question of what the word is names.

[00:28:33] Speaker 03:
No circuit has focused on what the meaning of is.

[00:28:38] Speaker 06:
Are you, do you think one of the other circuits, one of the non-Night Circuits decisions did?

[00:28:44] Speaker 03:
No, no, I'm considering that.

[00:28:46] Speaker 03:
So can you help me with this?

[00:28:49] Speaker 06:
I'm suggesting that to me this suggests that the Night Circuits view, although they didn't deal with it, is probably right.

[00:28:58] Speaker 06:
And I'm asking you whether you have an explanation of

[00:29:03] Speaker 06:
how Congress's use of the word is might nevertheless allow us to rule in your favor.

[00:29:08] Speaker 06:
That's my question.

[00:29:09] Speaker 03:
Because of the other words, and that is the other words of any period.

[00:29:13] Speaker 03:
of imprisonment in connection with a conviction.

[00:29:17] Speaker 03:
And that would, as the other circuits have said, would be superfluous.

[00:29:22] Speaker 03:
If any period of imprisonment didn't mean all periods of imprisonment, both pre-conviction and post-conviction, then that would be superfluous.

[00:29:36] Speaker 03:
Why is it so powerful?

[00:29:37] Speaker 04:
It's referring to any period of conviction on a federal, state, or local.

[00:29:42] Speaker 04:
It's like, we don't care.

[00:29:43] Speaker 04:
It's not just federal.

[00:29:44] Speaker 04:
We're talking about federal, state, or local.

[00:29:45] Speaker 04:
Any of those.

[00:29:47] Speaker 04:
It seems to me that that phrase is about, look, yeah, this is the federal law.

[00:29:50] Speaker 04:
This is the federal system.

[00:29:51] Speaker 04:
How are we, this is a federal supervised release, going to treat intervening periods of imprisonment for other offenses?

[00:30:02] Speaker 04:
We're telling you how.

[00:30:03] Speaker 03:
Well, I think, I believe in being context, it refers, I think the more reasonable, I take the court's point, but I think that the more reasonable interpretation is that any period of incarceration connection with a conviction is referring to any of the particular convictions, and it's limited to that.

[00:30:20] Speaker 03:
So if that is the case, then any period of imprisonment connection with that conviction

[00:30:25] Speaker 03:
even though it happens later, necessarily includes all periods.

[00:30:30] Speaker 00:
I'm still not understanding that point.

[00:30:32] Speaker 00:
Any period, what's the difference between any period and, are you saying any is superfluous?

[00:30:36] Speaker 00:
Well, yes.

[00:30:38] Speaker 00:
As opposed to any?

[00:30:39] Speaker 03:
Both any and in connection with.

[00:30:41] Speaker 03:
It's in the same sentence.

[00:30:42] Speaker 03:
Any period of incarceration in connection with a

[00:30:45] Speaker 03:
imprisonment in connection with a conviction.

[00:30:49] Speaker 00:
Well, it has to say period.

[00:30:50] Speaker 00:
The statute has to say period in connection with the conviction.

[00:30:53] Speaker 00:
Otherwise, the sentence is nonsensical.

[00:30:55] Speaker 00:
So you have to use the word period.

[00:30:57] Speaker 00:
And then the question is, are you saying that to be non-superfluous, Congress needed to use a period instead of any period?

[00:31:03] Speaker 00:
But then what's the superfluity?

[00:31:05] Speaker 03:
Well, in other words, if the Ninth Circuit is correct, that only post-conviction imprisonment

[00:31:13] Speaker 03:
is what the statute meant.

[00:31:14] Speaker 03:
It would not have to say any period of imprisonment.

[00:31:17] Speaker 03:
What would it have said?

[00:31:17] Speaker 03:
It would say the period of imprisonment in connection.

[00:31:21] Speaker 00:
So it's the use of any instead of they.

[00:31:23] Speaker 03:
Well, the Fourth Circuit focused very heavily on that in its statutory interpretation, and I think that's correct.

[00:31:28] Speaker 00:
I understand that the Fourth Circuit did that, but I guess it just seems to me that it's entirely natural to say any period as opposed to the period as opposed to a period.

[00:31:36] Speaker 00:
It's just talking about whatever period we're dealing with that's

[00:31:40] Speaker 00:
post connection.

[00:31:40] Speaker 04:
In a particular sense, there could be more than one, and there often is more than one.

[00:31:44] Speaker 04:
So it's a state or local.

[00:31:46] Speaker 04:
It's all or they both.

[00:31:48] Speaker 03:
I take the court's point.

[00:31:50] Speaker 03:
I think the more reasonable one is that which the Fourth Circuit interpreted it.

[00:31:54] Speaker 03:
Do you have a question?

[00:31:55] Speaker 03:
And the courts have recognized that there may be cases in which the, whether or not there's conviction later, and it's no question.

[00:32:00] Speaker 03:
It's an oddity, because we normally want to get here

[00:32:03] Speaker 03:
not faced with this because we'll file a warrant.

[00:32:05] Speaker 03:
That didn't happen here.

[00:32:07] Speaker 03:
But I think the reasoning of the four circuits that address this are the correct.

[00:32:11] Speaker 03:
None have followed the Ninth Circuit, expressly declining to do so for various reasons, including many that we've talked about.

[00:32:17] Speaker 00:
Yeah, it is an oddity.

[00:32:19] Speaker 00:
On the other hand, there's five reported Courts of Appeals opinions, so it's not that it never comes up.

[00:32:22] Speaker 00:
It does come up on some occasions.

[00:32:26] Speaker 00:
Shall I address the second point?

[00:32:28] Speaker 06:
Yeah, I actually have a question for you.

[00:32:33] Speaker 06:
So you argue that the sentencing judge here did not have a policy, right?

[00:32:41] Speaker 06:
Isn't there another pretty serious problem here?

[00:32:45] Speaker 06:
He said, the sentencing judge said, he said this, quote,

[00:32:50] Speaker 06:
If the statute permits 36, I can see no reason not to depart upward to the top.

[00:32:58] Speaker 06:
None.

[00:32:59] Speaker 06:
So isn't that the wrong inquiry for a sentencing judge?

[00:33:04] Speaker 06:
Doesn't the sentencing?

[00:33:05] Speaker 06:
He started at the top and asked whether he should go down, whereas our case law is extremely clear.

[00:33:13] Speaker 06:
that you have to start, the district judge has to start with the guideline range and then consider whether there are any reasons to go upward, right?

[00:33:26] Speaker 06:
Isn't this just a complete departure from this circuit?

[00:33:29] Speaker 03:
It's very clear.

[00:33:30] Speaker 03:
If that's all the court said, and out of context, I would agree with you 100%, Your Honor.

[00:33:34] Speaker 03:
But on the first day of the hearing, the court made it very clear.

[00:33:37] Speaker 03:
It's the court's choice whether to give a sentence that is within the range

[00:33:41] Speaker 03:
above the range or below the range.

[00:33:44] Speaker 03:
And the court obviously has to take into consideration his conduct, not just his two trips of previous violations, but engaging in conspiracy involving the distribution of cocaine during the very period in which he was on supervised release by this court.

[00:34:00] Speaker 03:
So the court made very clear that it understood that it had the option and was going to consider.

[00:34:06] Speaker 03:
And then on the second day of continued the hearing,

[00:34:09] Speaker 03:
to permit the 20 letters to be served upon the court.

[00:34:12] Speaker 03:
The court had all of the records from the other criminal trial before Judge Cotelli, before him, received the letters, considered those all, listened to counsel's argument.

[00:34:27] Speaker 03:
and made factual and credibility determination.

[00:34:30] Speaker 03:
Listen to the defendant.

[00:34:31] Speaker 03:
The defendant got up and said, Your Honor, I didn't begin my criminal activity.

[00:34:35] Speaker 03:
I don't want this court to be under the impression that I got right out of jail and went right into this.

[00:34:40] Speaker 03:
The court rejected that.

[00:34:42] Speaker 03:
The court made a factual and credibility determination that you went right back out after you were released in 2008.

[00:34:49] Speaker 03:
The notion that he, for two years, was on the up and up is simply belied by the record as the district court found.

[00:34:57] Speaker 03:
So this court made him.

[00:34:59] Speaker 04:
But he also said, I mean, how can you say he didn't have a policy of starting at the high end when he said, anybody who's practiced before me

[00:35:07] Speaker 04:
You just have to ask one question.

[00:35:12] Speaker 04:
What is the most the judge can give me under the law?

[00:35:15] Speaker 03:
Well, of course, that that was reminding the defendant that that was the speech that he gave to him at his original seven more.

[00:35:25] Speaker 04:
support for the notion that this district judge has a policy.

[00:35:29] Speaker 03:
With respect, Your Honor, I think what it was in context is reminding the defendant that the district court at the original sentencing attempted to put the fear of God in this defendant and to impress upon him the seriousness of if you mess up.

[00:35:43] Speaker 03:
I think that in context it is not a recitation of a policy and to the extent the court... He expressly said that he tells every defendant... Well, I think he... And that every lawyer who appears before him knows that.

[00:35:55] Speaker 03:
I understand that, Your Honor.

[00:35:58] Speaker 06:
And then the prosecutor, he hasn't been here that much, so he doesn't know about my policy.

[00:36:05] Speaker 06:
Why are you laughing?

[00:36:06] Speaker 06:
Doesn't that suggest that he had a policy?

[00:36:09] Speaker 03:
I was sniffing, Your Honor.

[00:36:10] Speaker 03:
I'm sorry.

[00:36:14] Speaker 03:
for the reasons that I recited, I don't think that to the extent that he had a policy, in this case, he made it clear that he understood that he had the choices with respect to where to impose the sentence, what factors he was to consider, and then he went on to make specific credibility and factual findings with respect to this individual defendant and his conduct of his going right back

[00:36:39] Speaker 03:
in violation and having looked the court in the eye on the previous indication at the previous sentencing and said, I intend to get my life straight.

[00:36:47] Speaker 03:
This will be the last you'll see of me.

[00:36:50] Speaker 03:
That's a factual determination and said, rejecting.

[00:36:53] Speaker 06:
All right.

[00:36:54] Speaker 06:
Thank you.

[00:36:54] Speaker 06:
Well, over time.

[00:36:55] Speaker 06:
Thank you.

[00:36:56] Speaker 03:
Thank you, Your Honor.

[00:36:56] Speaker 06:
I appreciate it.

[00:37:06] Speaker 02:
briefly in regard to the jurisdictional issue.

[00:37:09] Speaker 02:
I would like to point out that a district court is not required to continue hearing on the violation of supervised release.

[00:37:18] Speaker 02:
The judge can violate someone just because of being probable cause to arrest the person and to charge the person.

[00:37:26] Speaker 02:
So therefore, if the judge goes ahead and

[00:37:31] Speaker 02:
sentences the person on the violation prior to a conviction, then there would be no tolling.

[00:37:38] Speaker 02:
And I think the government's reading of the statute, there's just too many possible scenarios on how the statute would apply or not apply.

[00:37:45] Speaker 02:
And I submit that it has to apply the same way in every case, unless the court has additional questions.

[00:37:55] Speaker 06:
Ms.

[00:37:55] Speaker 06:
Davis, you were appointed to represent Mr. Marsh by accord, and we are grateful for your assistance.