[00:00:33] Speaker 02:
Stand, please.

[00:00:43] Speaker ?:
OEA, OEA, OEA.

[00:00:45] Speaker ?:
I'll first stand in business before the Honorable, the United States Attorney General for the District of Columbia, Sir.

[00:00:52] Speaker ?:
Fireman, John Lee.

[00:00:54] Speaker ?:
Anti-therapist for Florida, New York City.

[00:00:56] Speaker ?:
That day in the United States, 10 months before.

[00:00:59] Speaker ?:
Please be seated.

[00:01:01] Speaker 02:
Case number 15-3062, United States of America versus Daniel Frye Appellant.

[00:01:07] Speaker 02:
Mr. Olshansky for the appellant.

[00:01:09] Speaker 02:
Mr. Sable for the appellee.

[00:01:12] Speaker 04:
Good morning.

[00:01:13] Speaker 01:
Good morning.

[00:01:13] Speaker 01:
May I please record Michael Olshansky on behalf of the appellant.

[00:01:17] Speaker 01:
My apologies for not anticipating that it would take about an hour to get through the line today.

[00:01:24] Speaker 04:
That's fine.

[00:01:25] Speaker 01:
It seems like Mondays are always a bad day for court lines.

[00:01:30] Speaker 01:
I am here to argue on behalf of the appellant with respect to the entry of his plea of guilty and subsequent sentencing before the US District Court.

[00:01:43] Speaker 01:
I think the first issue probably the court would want me to address is the issue of whether or not the appellant in his waiver of trial and waiver of a right to appeal has forestalled any further argument on the

[00:02:00] Speaker 01:
the effectiveness or the substantial validity of the sentence that was imposed by the trial court.

[00:02:10] Speaker 01:
We didn't argue that to begin with in our initial brief, the government raised it, and in our reply brief, we responded to the government's allegation that because of the waiver of the right of appeal, the appellants were stalled from arguing

[00:02:28] Speaker 01:
with respect to the sentencing.

[00:02:32] Speaker 01:
We do admit that the appellant in the written waiver did waive his right to appeal, but we suggest that in looking at the totality of the circumstances, especially the comments of the trial judge in sentencing,

[00:02:52] Speaker 01:
that we believe that the entire proceeding must be considered with respect to whether or not the waiver is effective or not.

[00:03:01] Speaker 01:
And we point out that the trial court in sentencing, after it imposed its sentence, specifically referred to the fact that the sentence that it had imposed was within the sentencing guideline range, did not exceed that range,

[00:03:18] Speaker 01:
And as he commented, it doesn't do that and it doesn't exceed the guideline range, which is in compliance with the written agreement with respect to the waiver of the right to appeal.

[00:03:32] Speaker 01:
And so we would suggest that the trial court was predetermined

[00:03:38] Speaker 01:
throughout the proceedings to impose a sentence without really any true consideration of the factors that would necessarily be involved in imposing a sentence which would substantially... Does your client's plea agreement specifically agree that a sentence within the range would be reasonable and consistent with 3553?

[00:04:03] Speaker 01:
It did.

[00:04:03] Speaker 05:
Okay, so why isn't that good enough?

[00:04:08] Speaker 01:
Well, our suggestion is that because of the, again, if the court looks at the totality of the circumstances, including the waiver and the sentencing proceeding, we would- Your sentencing argument has nothing to do with the waiver of the appellate right.

[00:04:25] Speaker 05:
Your argument about whether the district court considered your arguments challenging the sentence and the guidelines for using the use of 2G

[00:04:37] Speaker 05:
No, it doesn't.

[00:04:39] Speaker 05:
So then I'm not sure what totality I'm supposed to look at.

[00:04:41] Speaker 05:
Your client specifically agreed that a sentence within the guidelines range, which this was, would be reasonable and consistent with the 3550-degree factors.

[00:04:53] Speaker 05:
But what argument do you have now on that?

[00:04:56] Speaker 01:
Well, our argument is that we don't believe that the waiver was effective in the sense that

[00:05:06] Speaker 01:
Under the circumstances, the trial court had already predetermined what his sentencing had been.

[00:05:15] Speaker 04:
I thought your argument was that during the colloquy, there was some confusion created by what the trial court said.

[00:05:22] Speaker 04:
Am I wrong about that?

[00:05:24] Speaker 01:
No.

[00:05:24] Speaker 01:
I think there was some confusion.

[00:05:26] Speaker 01:
And I think that the appellate.

[00:05:28] Speaker 04:
And what do you maintain was the confusing language?

[00:05:34] Speaker 05:
Well, our suggestion is that... I'm sorry, can I just clarify, are we talking about the appeal waiver or the sentence?

[00:05:42] Speaker 05:
The sentence within the guidelines range, just to be clear.

[00:05:46] Speaker 05:
Were you asking about the appeal waiver?

[00:05:48] Speaker 04:
Yes.

[00:05:48] Speaker 04:
Okay.

[00:05:48] Speaker 04:
I'm sorry.

[00:05:50] Speaker 05:
No, no, I'm sorry.

[00:05:52] Speaker 05:
There's not confusion on the other end.

[00:05:57] Speaker 04:
If you can point me to the language that you found confusing.

[00:06:02] Speaker 04:
Coerced intelligence.

[00:06:08] Speaker 00:
If we're talking about the appeal waiver, so we're shifting to the appeal waiver.

[00:06:13] Speaker 00:
Then on the appeal waiver, I thought the language that you were focused on is in the supplemental appendix at page 10.

[00:06:19] Speaker 01:
Yes.

[00:06:21] Speaker 00:
Supplemental appendix at page 10 is where there's an exchange between the judge and your client about the waiver of appeal rights.

[00:06:32] Speaker 00:
And we start at the top of the page.

[00:06:35] Speaker 00:
And the judge says under some limited circumstances, you may also have a right to appeal the sentence of the court on grounds of reasonableness.

[00:06:41] Speaker 00:
Do you understand that?

[00:06:42] Speaker 00:
Yes.

[00:06:43] Speaker 00:
And the defendant says no, sir.

[00:06:44] Speaker 00:
And then there's a clarification.

[00:06:46] Speaker 00:
Can I just ask the following question?

[00:06:48] Speaker 00:
If the answer to that question

[00:06:50] Speaker 00:
Do you understand that would have been yes, sir?

[00:06:53] Speaker 00:
Then I take it there's no issue.

[00:06:54] Speaker 00:
There's been a waiver.

[00:06:56] Speaker 01:
I think that's correct.

[00:06:57] Speaker 00:
So it has to turn on what comes after no, sir.

[00:06:59] Speaker 01:
Yes.

[00:07:00] Speaker 00:
And what comes after no, sir, is well, if the court departs upwards, you can bring an appeal challenging the reasonableness of the court's decision.

[00:07:08] Speaker 00:
If the court sentences you to a level higher than the federal sentencing guidelines, do you understand that?

[00:07:12] Speaker 00:
Yes, I do, sir.

[00:07:13] Speaker 01:
Yes, that's our allegation that there was some confusion on the part of the... I don't understand your first answer.

[00:07:23] Speaker 04:
Doesn't the yes, I do, sir, eliminate your case right there?

[00:07:27] Speaker 04:
He understood.

[00:07:28] Speaker 01:
Yes.

[00:07:30] Speaker 01:
Does that make my case?

[00:07:33] Speaker 04:
No, he said eliminate your case.

[00:07:35] Speaker 04:
He understood.

[00:07:35] Speaker 04:
He was confused.

[00:07:38] Speaker 04:
The trial court did precisely what the trial court's supposed to do and clarified.

[00:07:43] Speaker 01:
That's correct.

[00:07:45] Speaker 01:
Well, I think it's still a question as to whether or not he did in fact understand what the court had explained to him.

[00:07:55] Speaker 00:
What didn't he understand?

[00:07:56] Speaker 01:
I think what confused him was when the court said he wasn't familiar with the

[00:08:05] Speaker 01:
sentencing guideline procedures with respect to a sentence within the guideline range and when the court said

[00:08:15] Speaker 01:
under certain circumstances if I depart upward.

[00:08:18] Speaker 01:
I think that's what confused the appellant at the trial level, that he wasn't sure what the court had met.

[00:08:25] Speaker 01:
And even though he did express the understanding, yes, that he did understand that, I think we still suggest that it was unclear to the appellant that he was waiving his appellate right.

[00:08:41] Speaker 00:
If he says, he says, yes, I do, sir, and I guess your argument is when he said, yes, I do, sir, he didn't, he shouldn't have said, yes, I do, sir, he should have said, no, I'm still confused.

[00:08:51] Speaker 01:
Yes.

[00:08:52] Speaker 00:
But if we take at face value, yes, I do, sir, means yes, I do understand, then do you still have an argument?

[00:09:01] Speaker 01:
Not much of one at that point.

[00:09:03] Speaker 00:
Okay.

[00:09:04] Speaker 05:
He says, do you understand that?

[00:09:05] Speaker 05:
Which means, do you understand what the district court just said?

[00:09:08] Speaker 01:
Yes.

[00:09:08] Speaker 05:
That has to be read in light of the two sentences together.

[00:09:10] Speaker 05:
I couldn't understand your first answer to Judge Srinivasan when he said, when the district court said, under some limits to circumstances, you may have the right to appeal the sentence of the court on the grounds of its reasonableness.

[00:09:22] Speaker 05:
Do you understand that?

[00:09:24] Speaker 05:
And you had said, if you had said yes, sir, then the appellate waiver would be effective.

[00:09:27] Speaker 05:
And that seems to be exactly the wrong answer, because the district court said, you can appeal on grounds of

[00:09:33] Speaker 05:
uh... unreasonable yes and i i think that's and so then we read the fact that i think that's a lot of that person reading that together at no point to the district or tell him he was waiting for him

[00:09:50] Speaker 05:
I don't understand why that's not your argument.

[00:09:52] Speaker 01:
I think that's more our argument than what we suggested.

[00:09:55] Speaker 05:
Why is that a weak argument?

[00:09:57] Speaker 05:
At no point in the transcript did the district court say he was giving up any appeal rights whatsoever, and the district court says you can appeal on the grounds of its reasonableness.

[00:10:07] Speaker 05:
I said, I don't understand that, and he said, well, here's the thing.

[00:10:10] Speaker 05:
Did you get that one I just said?

[00:10:11] Speaker 05:
And he said, yeah, I got that.

[00:10:12] Speaker 05:
But I don't know how we know what the that was that he got.

[00:10:15] Speaker 05:
And they said, yes, I do.

[00:10:17] Speaker 01:
Well, I think that's where the confusion lies.

[00:10:19] Speaker 01:
And that's why I don't think the appellate waiver was effective.

[00:10:24] Speaker 01:
And then that would leave us with the argument with respect to the reasonableness of the sentence, which I think is really the crux of the matter that brings us here today.

[00:10:39] Speaker 01:
I suggest that there are a couple of things that the trial court clearly expressed in its sentence that would, I think, be troublesome to the Court of Appeals.

[00:10:51] Speaker 01:
I don't think that the trial court in any way considered the

[00:10:59] Speaker 01:
appellants' arguments with respect to a sentence below the guideline range based upon the factors that are expressed in the sentencing guidelines.

[00:11:13] Speaker 04:
Mr. Schuster, your time is up, but unless my colleagues have questions for you now, we'll give you some time back.

[00:11:19] Speaker 04:
That's fine.

[00:11:20] Speaker 04:
Is that okay?

[00:11:21] Speaker 04:
Okay, great.

[00:11:21] Speaker 04:
We'll hear from the government now.

[00:11:28] Speaker 03:
Good morning.

[00:11:29] Speaker 04:
Good morning.

[00:11:29] Speaker 04:
Could you address Judge Millett's question about... Absolutely.

[00:11:33] Speaker 03:
May it please the Court, David Stable, on behalf of the United States.

[00:11:37] Speaker 03:
Your Honor, we're asking the Court to enforce the appeal waiver of the appellant's claim that the

[00:11:45] Speaker 03:
sentence was not reasonable, on the ground that on page 10, the court did comply with rule 11, specifically the requirement that he make sure personally that the defendant understood the waiver.

[00:12:00] Speaker 03:
And remember, this is a college-educated defendant.

[00:12:03] Speaker 05:
I'm sorry, where does he tell him that he's in any way given up an appeal right?

[00:12:09] Speaker 03:
Your Honor, I understand the court's question.

[00:12:12] Speaker 03:
I'm sorry.

[00:12:13] Speaker 03:
I understand the court's question.

[00:12:14] Speaker 03:
I would suggest in context, in context, so this is a context where in writing he's agreed, he stipulated that a guideline range sentence is reasonable.

[00:12:24] Speaker 03:
In writing, he said, I'm waiving my appeal rights unless one of several specific conditions applies, none of which applies here, of course, as the court's well aware.

[00:12:33] Speaker 03:
And then the court says to him in open court, under some limited circumstances, limited circumstances, you may have the right to appeal.

[00:12:42] Speaker 03:
Do you understand that?

[00:12:43] Speaker 03:
And he says no.

[00:12:43] Speaker 05:
On the grounds, let's be clear.

[00:12:45] Speaker 05:
You may have the right to appeal on the grounds of reasonableness.

[00:12:49] Speaker 03:
Right, and so we know that what that means is that you have, he has the right to appeal on grounds of reasonableness if the sentence exceeds the guideline range, it exceeds the statutory maximum, relies on a constitutionally impermissible factor, presents a colorable claim.

[00:13:06] Speaker 05:
know that if I just pick this up and I read this I don't know that it's all those things or what's in there and what's not in there I would think my argument of the argument he's advancing now that it's an unreasonable sentence given how all the things were computed and weighed and what was ignored would be exactly what would be committed well your honor I think that argument would have a little more merit if

[00:13:26] Speaker 03:
if any of those other things apply, except that his only claim here is that my sentence, which is in the guideline range, is unreasonable, and that's the one thing... But you can appeal on reasonableness, and you just said his argument is that it's unreasonable.

[00:13:41] Speaker 05:
Now, it may be one that doesn't have merit.

[00:13:44] Speaker 03:
No, I'm not.

[00:13:45] Speaker 05:
And he also doesn't challenge this plea as to that aspect of it.

[00:13:49] Speaker 05:
But I don't understand how that's not an argument about reasonableness that the district court told him he could make without ever telling him he was giving up plea.

[00:13:58] Speaker 03:
I understand what the court is saying is you can only appeal reasonableness if I go above the guideline range.

[00:14:06] Speaker 03:
That's what he's saying.

[00:14:07] Speaker 03:
That's what that means.

[00:14:09] Speaker 03:
You can appeal the reasonableness.

[00:14:12] Speaker 05:
He says limited circumstances, plural, reasonableness, and then I don't understand, then he gives an example.

[00:14:19] Speaker 05:
And yeah, he got the example.

[00:14:21] Speaker 03:
I understand what the court is saying, but the only example that applies here would be

[00:14:26] Speaker 03:
going above the guideline.

[00:14:28] Speaker 00:
Well, I take it that you wouldn't disagree that if the follow-up clarification were for example, you can bring an appeal challenging the reasonableness of the court's decision.

[00:14:37] Speaker 00:
If the judge would have said for example, then you don't have an argument.

[00:14:41] Speaker 00:
Correct?

[00:14:42] Speaker 00:
Because that's like the cases in which if you give one example and it makes it seem like an example, which leaves the defendant with the impression that that's only an example and there's lots of other things that could be done, too.

[00:14:53] Speaker 00:
Well, then the defendant gets the benefit of the exchange with the trial judge who left the defendant with the impression that this was just one example, but there are other situations, too.

[00:15:02] Speaker 00:
So it seems to me your argument has to be that the clarification is not an example, that the clarification is the totality.

[00:15:09] Speaker 00:
And then the question becomes, well, unless I'm missing something.

[00:15:13] Speaker 00:
Is that your argument?

[00:15:15] Speaker 03:
Two points, Your Honor.

[00:15:17] Speaker 03:
First of all, in the other cases, in the three cases where the court mischaracterized the waiver, the court said things that were false.

[00:15:27] Speaker 03:
You can appeal any illegal sentence.

[00:15:30] Speaker 03:
But this was a problem that the court would say, well, there are some circumstances.

[00:15:34] Speaker 03:
And then the court failed to enumerate what there were.

[00:15:36] Speaker 03:
And then perhaps the defendant was confused.

[00:15:38] Speaker 03:
The reason that that argument doesn't work in this case is because the only circumstance where he could have been confused is the one circumstance that the court made clear to clarify, which is that you can appeal the reason.

[00:15:55] Speaker 05:
That only works if you're told, as in all of those other cases,

[00:15:59] Speaker 05:
up front that you are giving up some appeal right.

[00:16:04] Speaker 05:
You're waving an appeal right.

[00:16:06] Speaker 05:
All those other cases have language to that effect.

[00:16:08] Speaker 05:
This doesn't tell him anywhere that he's giving up or waving

[00:16:12] Speaker 05:
anything just going through in fact all that way for stuff is back earlier and then he's just talking about you have the right to appeal in limited circumstances where I like the other cases and then gives one.

[00:16:25] Speaker 03:
I was trying to answer the question which is why I think our circumstances not the circumstances he's

[00:16:32] Speaker 03:
saying, which is because I thought the court did clarify this one point.

[00:16:37] Speaker 03:
I think you're asking me a different question, which is where is the court saying this is a waiver at all?

[00:16:43] Speaker 05:
Well, how can it be in a clarification?

[00:16:46] Speaker 05:
How can the clarification tell him he's given up all other rights when it doesn't tell him he gets up anything?

[00:16:54] Speaker 03:
It says under some limited circumstances, and in the context

[00:16:58] Speaker 03:
Right.

[00:16:58] Speaker 03:
And so what could he be confused about?

[00:17:01] Speaker 03:
Not that he has actually said he is confused.

[00:17:03] Speaker 03:
There's been no proffer of actual confusion, but... No, sir.

[00:17:06] Speaker 05:
No, sir.

[00:17:08] Speaker 05:
That sounds like confusion.

[00:17:10] Speaker 03:
Well, then the judge clarified.

[00:17:12] Speaker 03:
He clarified.

[00:17:13] Speaker 05:
He listed one thing after saying, where are all the grounds of reasonableness?

[00:17:18] Speaker 05:
He lists an instance of a reasonableness appeal, but I think it turns on two things.

[00:17:26] Speaker 05:
One, that's not even an accurate comprehensive description of the grounds on which he could appeal.

[00:17:30] Speaker 05:
There were others that he could have appealed on.

[00:17:32] Speaker 05:
And secondly, it requires the defendant to now know that I've gone from having full appeal rights, at least on the grounds of reasonableness, or maybe he didn't even know he'd waived it all, down to just one.

[00:17:47] Speaker 03:
So my response to that, Your Honor, and I may not be convincing of this, but my response to that is that

[00:17:55] Speaker 03:
The judge didn't mention all the circumstances under which the appellant could appeal.

[00:18:01] Speaker 03:
And he should.

[00:18:01] Speaker 03:
I mean, this court has said many times, you should say this.

[00:18:04] Speaker 03:
I don't know why every judge in the courthouse doesn't do it.

[00:18:06] Speaker 03:
He didn't do it, OK?

[00:18:07] Speaker 03:
I got that.

[00:18:08] Speaker 03:
But he did say.

[00:18:10] Speaker 03:
you can appeal the reasonableness of your sentence if I go over the guideline range.

[00:18:18] Speaker 03:
And because he then did not go over the guideline range, the defendant could not be confused.

[00:18:25] Speaker 05:
How does this analysis actually work?

[00:18:30] Speaker 05:
What you're saying, if we just start with the court giving the one example, and he says, yes, I do, sir, I get that.

[00:18:38] Speaker 05:
If you look at the whole thing, so the two sentences together, and then the absence of any language about giving up or waiving, then it seems to me to have at least an ambiguous import.

[00:18:54] Speaker 05:
I would disagree with Your Honor, because we have a college-educated defendant with two provisions... If he were college-educated, if he had flunked out of high school, what would the government's position be?

[00:19:06] Speaker 03:
Well, that would be a different case, Your Honor.

[00:19:08] Speaker 05:
I'm aware that it would be a different case.

[00:19:09] Speaker 05:
What would your position be then?

[00:19:11] Speaker 05:
You've mentioned this factor a couple times.

[00:19:14] Speaker 03:
I think it's important.

[00:19:15] Speaker 03:
I think it's very important.

[00:19:16] Speaker 05:
So it might be a different answer if you weren't college educated.

[00:19:18] Speaker 03:
It's conceivable, but given the fact that this court went over the answers with... That seems to acknowledge then that there is ambiguity here.

[00:19:25] Speaker 05:
We're just counting on his college education sorting it out.

[00:19:29] Speaker 03:
No, with respect, Your Honor, I don't.

[00:19:30] Speaker 03:
Because I think the court said under limited circumstances, you can appeal and then enumerates the one limited circumstance here.

[00:19:39] Speaker 03:
He could not have been confused on this.

[00:19:42] Speaker 03:
If we had been talking about reliance on a constitutionally impermissible factor, I think your court could say, you know what?

[00:19:48] Speaker 03:
He didn't go over that factor orally.

[00:19:50] Speaker 03:
If we could talk about ineffective assistance to counsel, he didn't go over that factor.

[00:19:54] Speaker 03:
He went over this particular factor, this particular claim.

[00:19:58] Speaker 03:
And so I, for that reason, although I wish he had gone over all of them, he went over the one that was relevant.

[00:20:03] Speaker 00:
I'm still a little bit confused about your argument because there's two potential problems with your position.

[00:20:08] Speaker 00:
One is, that have been identified this morning, one is that at the outset there wasn't a specification that there's been a waiver of appeal rights.

[00:20:15] Speaker 00:
So it just didn't put the thing in the right context.

[00:20:18] Speaker 00:
the judge just says under some limited circumstances, you may have a right to appeal.

[00:20:23] Speaker 00:
And I think you would agree that it would have been more complete if it would have started off with the point that you have waived appellate rights.

[00:20:30] Speaker 00:
There are some limited circumstances notwithstanding your waiver in which you may appeal.

[00:20:34] Speaker 00:
That's right.

[00:20:35] Speaker 00:
Let's put things in the right context.

[00:20:36] Speaker 00:
Let's just put that to one side for a second, because I think your point is under some limited circumstances just presupposes an understanding of the fact that the limited circumstances are an exception to a waiver.

[00:20:46] Speaker 00:
That may or may not be right, but let's just put that to one side.

[00:20:48] Speaker 03:
In context, that's our argument.

[00:20:49] Speaker 00:
Yes.

[00:20:49] Speaker 00:
That's your argument.

[00:20:50] Speaker 00:
I get that.

[00:20:50] Speaker 00:
Nothing more to say.

[00:20:52] Speaker 00:
But if we put that to one side, there's still a second issue, which is that

[00:20:56] Speaker 00:
The judge says, you may also have a right to appeal the sentence on the grounds of reasonableness.

[00:21:01] Speaker 00:
Those are the limited circumstances.

[00:21:03] Speaker 00:
Do you understand that?

[00:21:04] Speaker 00:
And then the defendant says, no, sir.

[00:21:06] Speaker 00:
Well, at that point, we know that there's confusion.

[00:21:08] Speaker 00:
So there's got to be some clarification because there's confusion.

[00:21:11] Speaker 00:
Then as to that, the clarification, it seems like the issue largely boils down to whether the clarification is an example

[00:21:19] Speaker 00:
or if the judge would have prefaced it by saying, there's only one situation in which I'm talking about.

[00:21:25] Speaker 00:
And that one situation is when you bring an appeal challenging the reasonableness.

[00:21:29] Speaker 00:
If the court sentences to a level higher than the federal sentencing guidelines, you can bring an appeal.

[00:21:34] Speaker 00:
So the question is, is that clarification correctly thought of as an example?

[00:21:41] Speaker 00:
meaning that there are other situations, too, or is it thought of appropriately as the sum and substance of all the circumstances that were encompassed by the judge's initial comment, which led to confusion on the part of the defendant?

[00:21:52] Speaker 00:
That seems to me to be the question, whether this clarification is an example, because if it's an example, that's a problem for you, I think.

[00:22:00] Speaker 00:
If it's not just an example, but if it's

[00:22:03] Speaker 00:
the totality, then you're in better shape.

[00:22:06] Speaker 03:
Well, we know it's not the totality.

[00:22:08] Speaker 03:
We know that there are four exceptions to the appeal waiver.

[00:22:13] Speaker 00:
No, but that's okay for you because he could have just been only outline one

[00:22:19] Speaker 00:
mistakenly said, this is the only one, and then the defendant says, yes, I understand that's the only one, even if everybody's wrong, that's only an error that endures to your benefit, because the defendant would have had a mistakenly narrow understanding of the scope of the appeal rights, but he still would have said that's okay.

[00:22:36] Speaker 00:
But I still think you have a problem, because if this is conceived of as an example

[00:22:42] Speaker 00:
an example among the ones that he's already outlined when he says under some limited circumstances, well then the defendant says, yeah, I understand that's one example, and presumably I also understand there's a bunch of other situations in which I can appeal on grounds of reasonableness.

[00:22:55] Speaker 00:
So the defendant thinks, all right, well my appeal, the one that he's presenting now, is fine, because it's an appeal on grounds of reasonableness.

[00:23:00] Speaker 00:
You've given me one example, it doesn't fit within that example, but it's another type of reasonableness appeal.

[00:23:05] Speaker 03:
I don't follow the court when you get to the point of I would be confused if this is a list of examples if the claim that he then chooses to bring is

[00:23:15] Speaker 03:
my sentence was unreasonable because where the sentence was in the middle of the guideline range.

[00:23:22] Speaker 03:
How is he confused?

[00:23:23] Speaker 03:
How could he possibly be confused by that?

[00:23:25] Speaker 03:
Because that's what the court made.

[00:23:27] Speaker 03:
Whether this is a list or the sole substance of the waiver, he couldn't be confused on that one point, Your Honor.

[00:23:34] Speaker 00:
Sure he could.

[00:23:34] Speaker 00:
Because if the judge says initially, you may have a right to appeal the sentence on the grounds of reasonableness.

[00:23:40] Speaker 00:
Do you understand that?

[00:23:42] Speaker 00:
The defendant says, no, I don't.

[00:23:43] Speaker 00:
And then suppose that what the judge says, well, for example,

[00:23:47] Speaker 00:
If the court departs upwards, you can bring an appeal challenging the reasonableness of the court's decision.

[00:23:52] Speaker 00:
It's just one example.

[00:23:53] Speaker 00:
Do you understand that?

[00:23:54] Speaker 00:
He says, yes, I understand that example.

[00:23:56] Speaker 00:
And then you move on.

[00:23:57] Speaker 00:
Well, then it seems like the exchange still leaves open the possibility that the defendant believes he can definitely appeal on grounds of reasonableness.

[00:24:04] Speaker 00:
The judge has given me one example.

[00:24:06] Speaker 00:
I understand that example.

[00:24:07] Speaker 00:
But I generally have an entitlement to appeal on grounds of reasonableness.

[00:24:10] Speaker 00:
That's what I'm going to do.

[00:24:12] Speaker 00:
I understand what the court is saying.

[00:24:13] Speaker 00:
OK.

[00:24:14] Speaker 03:
I don't want to just repeat myself.

[00:24:16] Speaker 03:
I think it's not clear what the court is saying.

[00:24:20] Speaker 03:
Those of us who have litigated these cases, we know what the court probably is intending.

[00:24:26] Speaker 03:
But what the appellant understood, he didn't understand the first exchange.

[00:24:29] Speaker 03:
He may have understood the second exchange as being the sudden substance of the waiver.

[00:24:33] Speaker 03:
He may have.

[00:24:35] Speaker 03:
If he had the presence of mind to understand that, hey, the judge is only talking about one example, and I know this because I just read my plea agreement,

[00:24:43] Speaker 03:
Then again, we don't have a problem because guess what?

[00:24:46] Speaker 03:
He knows what his plea agreement says.

[00:24:48] Speaker 03:
It seems to me it's hard to make out how he would be confused under either reading.

[00:24:54] Speaker 05:
Do we even have to sort that out, given that he doesn't challenge his understanding of the plea term about the reasonableness of the sentence?

[00:25:06] Speaker 05:
As long as within the guidelines range, it was going to be reasonable and a reasonable consideration of 3553 factors?

[00:25:14] Speaker 03:
I'm not sure I quite understand the question.

[00:25:16] Speaker 05:
We've got the waiver issue, but there's a separate part of the plea agreement where he acknowledges that a sentence within the range would be reasonable and consistent with the 3553 factors.

[00:25:29] Speaker 05:
Does that agreement necessarily fall if the appeal waiver falls?

[00:25:36] Speaker 03:
I read the cases, and I read rule 11 as saying the judge has to go over the understanding in open court.

[00:25:42] Speaker 03:
And typically, that's the way it goes down.

[00:25:45] Speaker 03:
So I think the two generally would be read together.

[00:25:49] Speaker 03:
That would be my understanding.

[00:25:49] Speaker 05:
But what about the merits of his argument, then, on reasonableness?

[00:25:53] Speaker 05:
Do you have arguments on that?

[00:25:55] Speaker 03:
Yes, Your Honor.

[00:25:56] Speaker 03:
The sentence was reasonable to the extent that, court's indulgence.

[00:26:08] Speaker 05:
They have this argument about the 2G2 factor of pushing everybody towards the high end, or pushing everyone's guidelines range up close to the statutory maximum.

[00:26:26] Speaker 03:
So Appellant advanced a policy argument that had been suggested by the Sentencing Commission and rejected by the United States Congress.

[00:26:35] Speaker 03:
And the court indicated quite clearly that it felt that under these circumstances, it was deferring to the congressional judgment

[00:26:43] Speaker 03:
that the 2K2.2 was the appropriate guideline and it did not conclude, did not believe that absence any individualized arguments, which were not made in this case and are not pressed in the brief, that this policy argument warranted a downward variance.

[00:26:59] Speaker 03:
In any event, the court looked at the facts, the court weighed the factors under 3553, and made factual findings, and specifically, most saliently, besides the court found that the crime was heinous, that the victims were real, that the victimization lasted a lifetime, the court found that this particular appellant

[00:27:21] Speaker 03:
had bartered his child pornography for the creation of a new child sex victim, had bartered his pornography for the creation of new child pornography, and that this factor weighed very heavily in why he should not vary downward.

[00:27:38] Speaker 03:
So the whole notion that he is similarly situated to other first-time offenders who might just have some images on their computer was rejected by the court in a finding that appellant hasn't even argued was clearly erroneous.

[00:27:51] Speaker 03:
On that ground alone, the argument lacks merit.

[00:27:56] Speaker 03:
It also lacks merit because the court was within its rights to agree with Congress.

[00:28:01] Speaker 03:
or at least to defer to Congress's judgment on this ground.

[00:28:05] Speaker 03:
And so for both those reasons, the sentence was reasonable.

[00:28:09] Speaker 03:
I don't understand any other argument to be pressed here other than that the court plainly erred or abused its discretion in

[00:28:19] Speaker 03:
I don't see any individualized arguments made to this particular appellant as to why the court should vary downward.

[00:28:30] Speaker 03:
And I want to remind the court that Judge Leon said at the outset

[00:28:36] Speaker 03:
Look, I want you to know I don't buy that policy argument.

[00:28:39] Speaker 03:
I want you to know that's not the law of the land.

[00:28:42] Speaker 03:
I want you to know that Congress has said this is a serious offense.

[00:28:45] Speaker 03:
Give me your best argument.

[00:28:47] Speaker 03:
And so what the court is saying is, please, give me an individualized argument relative to your client that would merit my varying downward.

[00:28:55] Speaker 03:
It didn't happen, and the court made its findings.

[00:28:58] Speaker 03:
This was a reasonable sentence.

[00:29:00] Speaker 03:
And the court did say, look, based on this crime, I think this is a guideline range sentence.

[00:29:06] Speaker 03:
It should be at the high end.

[00:29:08] Speaker 03:
But because of the mitigating factors that you're advocating, I will sentence you in the middle of the guideline range.

[00:29:14] Speaker 03:
And that's what he did.

[00:29:15] Speaker 03:
Do we need to wrestle with the waiver issue, given the argument that you just made?

[00:29:20] Speaker 03:
No.

[00:29:21] Speaker 03:
No.

[00:29:22] Speaker 03:
We believe that you do not.

[00:29:23] Speaker 03:
Obviously, the court could say that the sentence was reasonable in any event.

[00:29:30] Speaker 03:
And that's what we did in Shemarani, right, just last year.

[00:29:35] Speaker 03:
Exactly.

[00:29:35] Speaker 03:
So in Shemrani, a very similar case, a policy argument was made about a variance.

[00:29:41] Speaker 03:
The court had heard it many times.

[00:29:43] Speaker 03:
And this court recognized, look, the district judge hears this kind of argument all the time.

[00:29:48] Speaker 03:
In all these child pornography cases, this Sentencing Commission report gets trotted out.

[00:29:53] Speaker 03:
And the judge understandably can say, look, I've heard it.

[00:29:56] Speaker 03:
I don't need to do this again.

[00:29:58] Speaker 03:
If you've got something new to say, I'm all ears.

[00:30:00] Speaker 03:
But I'm just not convinced.

[00:30:02] Speaker 03:
I'm letting you know.

[00:30:04] Speaker 03:
And that should be appreciated when the court does something like that, because it lets the parties know.

[00:30:10] Speaker 03:
Don't waste your time on an argument that will not convince the court.

[00:30:14] Speaker 03:
There's nothing further the government will submit.

[00:30:16] Speaker 04:
Thank you.

[00:30:16] Speaker 04:
Thank you much.

[00:30:19] Speaker 04:
We'll give you back a minute for rebuttal.

[00:30:21] Speaker 01:
It shouldn't take much more than that.

[00:30:24] Speaker 01:
Clearly, if we have five attorneys who've been admitted to the bar,

[00:30:31] Speaker 01:
and three of whom are judges, are having a problem with understanding whether this waiver was understood by the appellant.

[00:30:39] Speaker 01:
The fact that he has some college education shouldn't necessarily mean that he's any wiser than the five of us with respect to understanding what he was waiving at the time.

[00:30:52] Speaker 01:
So I think it's clear the waiver is something that the court

[00:30:56] Speaker 01:
need not consider in reaching the merits of the case.

[00:31:01] Speaker 01:
I would suggest that the defendant or the appellant at the trial level tried to particularize with respect to his client a number of factors that the court ignored with respect to

[00:31:15] Speaker 01:
the individual sentence that he was requesting.

[00:31:18] Speaker 01:
One was that his involvement with pornography was short-lived.

[00:31:23] Speaker 05:
On what basis do you think they were ignorers?

[00:31:25] Speaker 05:
Maybe that's why he went to the middle of the guidelines rather than the top of the guidelines.

[00:31:29] Speaker 05:
That's how I read the transcript.

[00:31:30] Speaker 01:
Well, counsel of the government had argued that the

[00:31:34] Speaker 01:
argument had not been individualized with respect to the defendant, with respect to the appellant.

[00:31:41] Speaker 05:
Your argument was that the district court ignored something, but I take your point now that individual points were made.

[00:31:46] Speaker 01:
Yeah, these individual points were made and the court rejected them.

[00:31:50] Speaker 01:
I would suggest that

[00:31:53] Speaker 01:
This is a first time offender.

[00:31:54] Speaker 01:
The issue with respect to one of the issues that the trial court seemed to have a problem with was this suggestion that the appellant was bartering the production of more child pornography in return for more images.

[00:32:17] Speaker 01:
And I would point out to the court that it's clear that the

[00:32:21] Speaker 01:
officer who was at the other end of this colloquy between the appellant and the person who was supposed to be producing this pornography, he is the one that suggested, or at least brought up the subject, that he was sexually active with his own child.

[00:32:39] Speaker 01:
And subsequent to that, there was a discussion about production of a... Your client was going to pay him in pornography for him to rape a child.

[00:32:46] Speaker 01:
Yes.

[00:32:48] Speaker 01:
Yes, he made that offer.

[00:32:49] Speaker 05:
Could you quickly take that into consideration?

[00:32:52] Speaker 01:
You know, I think you have to take into consideration that the parties at both ends of this transaction were lying about what they were going to do.

[00:33:03] Speaker 01:
And I think that the fact that this happens

[00:33:07] Speaker 01:
on a number of occasions, happened in this case, is not something that the trial court should have emphasized so much.

[00:33:15] Speaker 01:
So under the circumstances, we believe that the trial court did not impose a substantially reasonable sentence.

[00:33:24] Speaker 04:
Thank you very much.

[00:33:24] Speaker 04:
We have your argument.

[00:33:25] Speaker 04:
Mr. Oshinsky, you were appointed by the court to represent the appellant in this case, and the court thanks you for your assistance.

[00:33:31] Speaker 04:
Thank you.

[00:33:32] Speaker 04:
The case is submitted.